Tag: legal profession

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Human Rights

Trials are important but go to the High Courts for speedy human rights remedies

What is human rights lawyering? According to Sarim Naved, a Delhi-based advocate who has represented people accused in anti-terror cases, every criminal lawyer is in a sense a civil liberties lawyer: one could just as easily be framed and detained in a theft caseManish_goodhumanrightslawyering as in an anti-terror one. More specifically, though, he defines the contours of a human rights or civil liberties lawyer as one who is involved with particular kinds of political cases where individuals are targeted through the criminal law because of who they are – Adivasi, Muslim, or “Naxal” – as opposed to what they have done. The State’s power in such cases renders the entire system susceptible to bias, and this is where the role of the human rights advocate comes in, to ensure that there is a fair trial and the State does not monopolise the proceeding. He clarifies that despite a very common misconception that civil liberties lawyers hate the police, most do not, and do recognise that it is a very difficult and thankless job. He said that the truth is usually somewhere in the middle of both versions, and that the trial court is the best place to determine this.

Custodial torture presents one of the rare situations where the otherwise well laid out criminal procedure presents the victim with a choice of fora. Mr. Naved however, would always advise his clients to approach the High Court, rather than the trial courts. While a person who has been beaten or tortured by the police should ideally be able to file an FIR or approach the Magistrate and seek an inquiry, that is never done. The only option in such cases is to approach the High Court or an organisation like the National Human Rights Commission (“NHRC”).

SexualHarassmentAtTheWorkplaceMOOC2When I met him at his Hauz Khas Enclave office to speak about human rights lawyering in the trial courts, Mr. Naved said that his few interactions with the NHRC had all been fruitful. In one such incident, he was informed that the police had picked up a group of Rohingya refugees, who were protesting outside the office of the United Nations High Commissioner for Refugees (“UNHCR”). As he was in court and unable to visit the location, he called the NHRC, who then sent the police station a notice directing them to explain their action at a hearing which would be held for the purpose. On another occasion, a fax sufficed – he did not have to meet the Chairperson or even make a visit in person.

A preference for human rights remedies at the High Courts

The speed at which a remedy can be obtained from the High Court is an important reason why Mr. Naved prefers writ remedies. Any Division Bench in a high court can take interest in a case and direct the State to provide quick responses. The same level of urgency is not possible in trial courts, because they are governed by the Code of Criminal Procedure. The trial courts also have a very heavy workload. Mr. Naved suggested that there is an impression among lawyers that one will not get bail from the trial courts for the more serious offences. Most lawyers therefore, expect that the bail application at the trial court will be dismissed and therefore treat it as a formality before approaching the High Court. He admitted however, that he has no empirical evidence that the trial courts are actually ineffective and that his faith in the constitutional courts could just be part of a self-fulfilling prophecy with lawyers refusing to approach trial courts simply because they believe that they will not be able to obtain an effective remedy.

Being a relatively untested location for human rights issues, however, also means that fighting for these remedies at the trial courts requires imagination and courage of a certain kind. Says Mr. Naved, “When someone approaches you with a complaint of their rights being taken away or them being subject to various kinds of discrimination at the hands of the state, it requires a lot of courage to take a path that is not so well trodden.” Indeed, the likes of Dr. Kannabiran have shown that with persistence and conviction, it is possible to raise these questions at the trial courts, and obtain relief.

Skills on trial

Sarim Naved, human rights lawyer.
Sarim Naved, human rights lawyer.

That said, the importance of trial proceedings cannot be understated. “There’s only one place in this entire system where you can factually establish your case or disprove the prosecution case – and that is the trial court,” Mr. Naved said, adding that even for a completely innocent man, if the right questions are not asked at the trial court, the best of lawyers would have a hard time getting an acquittal from the higher courts, where it is only a matter of competing affidavits and the evidence is not really tested. Cases have been lost at the Supreme Court because the trial court lawyer was not very efficient. At the same time, there are notable success stories too: the acquittals of young men who were framed in terror cases described in a report by the Jamia Teachers Solidarity Association were all achieved at the trial courts.

The trial courts also require a particular set of skills—exactness, precision, the ability to think on one’s feet, and sheer determination to plough through the prosecution record, particularly in major cases such as those involving anti-terror laws, where, according to Mr. Naved, the prosecution relies on volume rather than quality of evidence. The attention to detail required while dealing with a very large amount of information, can be acquired only from a senior who has done it and will teach one to sift out relevant material from the huge volume of information, and then explain how to use it within the law. He credits his mentor, veteran advocate Nitya Ramakrishnan, for helping him develop these skills during his early days in the profession.

While defending an accused at trial, an advocate has to create a record that is favourable to the client by being present every day, making the correct decisions, and asking all the correct questions in the correct order. In contrast to an appellate setting, where the record is before the court and one knows what to say, the trial is a dialogue between the advocates, the judge, and the witnesses, and one does not know what answers to expect. The intimacy of the trial court setting also means that there is a simple level of humanity that exists there, unlike the structure of the higher courts which keeps a distance between the bench, the bar, and the client. Ultimately, Mr. Naved says of the trial courts, “It’s important to fight out battles there, because that’s the only place where everyone is face to face.”

(Manish is a legal researcher based in Delhi.)

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Human Rights

Good human rights lawyering at the trial courts

Manish_goodhumanrightslawyeringEven though India’s constitutional courts have played and continue to play a significant role in the development of the country’s human rights jurisprudence, they are only a small fraction of the judicial machinery. The trial courts, from the district and sessions courts to the courts of magistrates and civil judges, are the cogs that keep the system running. Often, claims are adjudicated locally to enforce statutory remedies and courts have to hear matters relating to bail, forest rights, labour rights, land, extra-judicial executions, caste atrocities, sexual violence, and many more subjects. Mostly, the violations are not egregious enough to necessitate the intervention of a constitutional court. Rather, they are the “everyday harms” that Galanter refers to (below). Moreover, the orders of the constitutional courts have little value till they are implemented at the grassroots level, for which trial courts play a critical role.

MarcGalanter_SupremeCourt

Advocates play a key role in ensuring litigants — particularly those is vulnerable positions — are able to access this system. To understand how human rights are enforced and adjudicated in India, it is important to understanding the crucial space of trial litigation, and for that, this column will survey the courts as well as the advocates who practice in this space — who they are, what they do, and what they can do better.

The fora

Section 30 of the Protection of Human Rights Act, 1993 empowers every state government to notify designated sessions courts as “Human Rights Courts” for providing speedy trial in cases of offences involving violations of human rights. As of 2011, however, these courts had only been operational in West Bengal. Elsewhere, human rights continue to be litigated before regular courts. Specific human rights claims may also be raised before the National Human Rights Commission, the State Human Rights Commissions, and quasi-judicial fora comprising officials of the executive such as sub-divisional magistrates and forest officers.

The advocates

KGKannabiran_competentlawyersforthepoor.jpg

The advocate’s role is critical in the effective enforcement of rights. While civil society activists and organisations play an important role in organising human rights movements, advocates are better placed to articulate causes in the language of the law and obtain judicial remedies. Intimately connected to the client and the cause, human rights advocates can also bring out the political in the law, using it both as a means of obtaining remedies as well as a rallying point for a cause. As Kannabiran points out, this often involves creating awareness around an issue and sensitising the courts about the problems that they may not be aware of. Human rights lawyering in this sense, is as much about creating and sustaining movements as about ensuring justice in individual cases. Both these aspects are anchored very strongly in values of justice and fraternity that flow from the Constitution and international human rights treaties such as the Universal Declaration of Human Rights. In this way, the process of human rights lawyering offers a way of reclaiming the law for us, the people. It uses a moral and ethical framework located within the Constitution of India that is also supported by international instruments.

Crystal Eastman, an American lawyer, was among the co-founders of the American Civil Liberties Union in 1920.
Crystal Eastman, an American lawyer, was among the co-founders of the American Civil Liberties Union in 1920.

Some of the most prominent examples of human rights lawyering internationally come from the American Civil Liberties Union (“ACLU”) in the United States. Through over eight decades of its existence, the ACLU has used a combination of strategic litigation and public mobilisation to fight for the protection of human rights guaranteed under the Constitution of the United States of America. A number of organisations have been involved in human rights lawyering in India, including the People’s Union for Civil Liberties, the Human Rights Law Network, the Andhra Pradesh Civil Liberties Committee, the Centre for Social Justice, the Chhattisgarh Mukti Morcha, the Extra Judicial Execution Victim Families Association and many more, both at the constitutional courts as well as at the grassroots level. Further, several independent advocates and human rights activists have been tirelessly — and often in the face of stiff opposition and even threats to their lives — advancing the cause of human rights lawyering at the trial courts across the country.

Better human rights lawyering at the trial courts

A number of issues are particular to human rights lawyering at the trial courts. The remedies available through trial courts are different from those available at the constitutional courts. Trial courts, for instance, do not have the power to issue writs but have important statutory powers under the Code of Criminal Procedure, 1973 and other statutes. The techniques and strategies of advocates at these courts and the challenges they face reflect these differences.
SexualHarassmentAtTheWorkplaceMOOC2As with lawyering anywhere, mentorship at the bar and the ability to network with other lawyers doing similar work, are invaluable to improving the standard of human rights lawyering at the trial courts. Institutional help in the form of NGOs and similar organisations, also make a difference to the extent and effectiveness of interventions made by human rights advocates. Documenting these practices through interviews with advocates involved in human rights lawyering at trial courts across the country, is expected to initiate useful conversations and expand the collective body of knowledge on this area.

While there is a fair amount of literature on human rights lawyering in terms of writ remedies and public interest litigation at the constitutional courts, the trial court space has not been fully mapped. The results of a pioneering study across India by the Alternative Law Forum as part of their Human Rights Lawyering Project are eagerly awaited. Given that the several human rights movements in India do not always engage with each other and that a “community” of human rights advocates does not fully exist, efforts to network them and document learning experiences are critical to the advancement of human rights lawyering. It is hoped that this column will bridge some of these gaps and contribute to the growth of human rights lawyering at the trial courts.
(Manish is a legal researcher based in Delhi.)

References

– B.N. Kirpal et al (eds.), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press, 2004).

– Jayanth Krishnan, Lawyering for a Cause and Experiences from Abroad, 94(2) California Law Review 575 (2006).

– Justice P. Sathasivam, Role of Courts in Protection of Human Rights, speech at the Tamil Nadu Judicial Academy (2012).

– K.G. Kannabiran, A One in a Century Rights Activist, 44(46) Economic and Political Weekly 8 (2009).

– Marc Galanter, The Study of the Indian Legal Profession, 3 Law and Society Review 201 (1968).

– Ruth Cowan, Women’s Rights through Litigation: An Examination of the American Civil Liberties Union Women’s Rights Project, 8 Columbia Human Rights Law Review 373 (1976-1977).

– Usha Ramanathan, Human Rights in India: A Mapping, (2001).

Categories
Human Rights Supreme Court of India

Supreme Court’s sexual harassment regulations should not be limited to the Court’s precincts

NoticeAndStayAdityaVerma_SupremeCourtcolumn“No woman shall be subjected to sexual harassment at the Supreme Court of India precincts”, proclaims Regulation 3 of the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (“the Regulations”). The Supreme Court of India notified the Regulations in exercise of its administrative jurisdiction. They are now in force and apply independent of other laws that may apply, such as the yet-to-be-notified Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

SexualHarassmentAtTheWorkplaceMOOC2The Regulations apply to everyone, not just lawyers (although the definition of aggrieved woman does not include “any female who is already governed by the Supreme Court service regulations”). They are significant because they acknowledge that the sexual harassment of women in the professional environment of litigation is a real problem, especially because litigation has traditionally been a heavily male-dominated profession. But do the Regulations go far enough?

The GSICC

A ten-member Gender Sensitisation and Internal Complaints Committee (“the GSICC”), headed by Justice Ranjana Prakash Desai, has been constituted under the Regulations. The GSICC (through an Internal Sub-Committee of three members constituted in relation to any particular complaint) inquires into complaints of sexual harassment. Such inquiries must be completed within ninety days.

JusticeAKGanguly_sexualharassmentallegations.jpgUpon completion of the inquiry, if the complaint is found to be genuine, the GSICC has the power to admonish and also publish such admonition. It can also take other necessary steps to prevent or prohibit future harassment by placing appropriate restrictions on contact between the complainant and the respondent.

Crucially, for deterrence, the GSICC can recommend to the Chief Justice of India, that other orders be passed against the respondent, including orders to debar the respondent’s entry into the Supreme Court precincts up to a maximum of one year. It can also recommend the filing of a criminal complaint and a complaint to a disciplinary authority (such as a bar council). A person aggrieved by an order passed (or not passed) by the GSICC can make a representation to the Chief Justice of India to have it set aside or modified.

Simple and flexible procedure

SupremeCourt_SexualHarassment_Regulations_SupremeCourtofIndiaprecincts.jpgThe standard of proof required for the inquiry procedure is not expressly specified. The inquiry however, has the trappings of civil proceedings with purely civil consequences, which indicates that the normal standard of proof in civil cases would be applicable, that is, the preponderance of probabilities.

The Regulations provide for a relatively simple and flexible procedure for the GSICC and the Internal Sub-Committee. It is appropriate that the GSICC will always be headed by a judge of the Supreme Court as that can ensure consistent adherence to the principles of natural justice and fair play. There may often be an imbalance of power between the complainant and the respondent, which makes it doubly important that the procedure is kept uncomplicated.

While a forensic examination of the Regulations will have to be more detailed, a couple of aspects that may scupper the efficacy of the Regulations in the long term are highlighted below.

Applicability of the Regulations is restricted to the ‘Supreme Court of India precincts’

This is narrower than the concept of ‘workplace’ contemplated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (and also under the guidelines laid down in Vishaka v. State of Rajasthan. “Workplace” need not be restricted by a brick-and-mortar interpretation, given that sexual harassment has more to do with the relationship and power dynamic between people than the physical space they occupy.

A more considered approach may have to be taken to identify those categories of persons whose relationship with each other has a relevant nexus with the Supreme Court as a workplace, in order that it is appropriate for the administrative jurisdiction of the Supreme Court to extend to their conduct beyond its precincts. An allegation by an intern against a judge of sexual harassment in a hotel room, as a case in point, may well fall outside the purview of the Regulations altogether (See for reference, the amicus petition submitted by Lawyers’ Collective).

Definition of sexual harassment and the scope of the inquiry

In what may be an inadvertent oversight, if a literal interpretation is given to Regulations 2(k)(x) – 2(k)(xiii), the following acts may amount to sexual harassment under the Regulations even if they are noJusticeRanjanaDesai_SupremeCourt_SexualHarrassmentComplaintsCommitteet sexually motivated in any manner:

– ‘implied or explicit promise of preferential treatment in her legal career’

– ‘implied or explicit threat of detrimental treatment in her legal career’

– ‘implied or explicit threat about her present or future legal career’

– ‘interference [sic] with her work or creating an intimidating or offensive or hostile work environment for her’

Of course, such acts, if sexually motivated, should fall within the definition of sexual harassment. However, the definition as it currently stands does not require them to be so motivated.

Further, the interpretation of the Regulations vis-à-vis the definition of sexual harassment and the scope of enquiry by the GSICC may also pose problems. For example, sexual harassment can occur via text and electronic messages (Regulation 2(k)(v)). It is difficult to reconcile this with an inquiry whose scope is restricted to sexual harassment ‘at the Supreme Court of India precincts’. It would be impractical to seek proof that such text or electronic messages were either sent from or seen within a particular physical space. Regulation 2(k)(vi) includes ‘stalking or consistently following aggrieved woman in the Supreme Court precincts and outside’, which appears to be incongruous with the geographical limitation otherwise placed on the scope of the complaint or inquiry.

Finally, there may be a day when laws and regulations against sexual harassment will be gender-neutral in all respects.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Categories
Human Rights

For the “persons” who are women

NainaKapur_equalitylawIn 1915, having completed all the necessary qualifications in law, Regina Guha applied to be a pleader at the Calcutta Bar. Her application found its way to the High Court of Calcutta where a four-judge bench had to determine whether “persons” admitted as “pleaders” included women. With unhesitating certainty, the bench declared they had “no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners.” There was nothing in the legislation which prohibited women as pleaders. Moreover, degrees in law could be conferred on both men and women in Calcutta University. But the bench was adamant.

“There may obviously be weighty reasons why in the University Act words importing the masculine gender may be taken to include females… in the Pleaders Act no such intention can reasonably be attributed to the Legislature.”

In hindsight, the overt gender bias within such reasoning is glaringly obvious. Today however, the heart of such inequality lies in the subtlety of a subtext and its impact on women.

Much has been made of the fact that three out of four lawyers appointed as Senior Advocates by the Supreme Court last week were women. When it comes to equality however, context is relevant. According to a 2013 list of Senior Advocates designated by the Supreme Court of India since 1955, only five out of 309 have been women. As of this week, that number increased to eight. Even that has taken close to fifty years. Of the 200-plus lawyers appointed as Senior Advocates in Delhi and Mumbai over a period of twenty years (up to 2011), only three were women.

Is it a trend? For now, that might be premature. While headlines on such appointments make visible the obvious contribution women are making within the legal profession, the trickle of numbers betrays an underlying subtext of systemic bias within which decision-making about such appointments (be it the Bench or the Bar) continues to take place. That is why the message of leadership matters. To his credit, the transitional ease with which the current Chief Justice of India, through such appointments, has signaled a readiness to abandon the gendered myopia which plagues the profession is certainly welcome. Equality can be a place from which stereotypes and prejudices are challenged or from where they are perpetuated. From that perspective, I would urge more such champions, within law firms, legal academia, social media, civil society law groups, and other law related workplaces to follow the Chief Justices’ cue- assault the system with women and level the playing field.

In that vein, as one amongst a growing population of women who now embody the profession of law, I applaud my professional peers — Vibha Dutta Makhija, Kiran Suri, and dear friend Meenakshi Arora for the recognition they have all earned and justly received.

Regina would be beaming — for the “persons” who are now apparently women — as are all of us.

(Naina Kapur is a preventive law and equality advocate.)

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Uncategorized

The professional benefits of using plain English

PlainEnglishwithTDLast week’s post focused on how lawyers can enhance relationships with their clients using plain English communication. I raised the point that our clients often have a certain expectation about the kind of language lawyers should use, and how there needs to be explanation and education about the benefits of plain language. Those same expectations undoubtedly exist across the profession—amongst our colleagues and in the judiciary—so, to encourage the use of plain English, we also need to tackle those perceptions.

As we all know, one of the essential prerequisites of good communication is to know your audience. This is true across all forms of writing and speaking and is especially important when you are trying to persuade your reader or listener. As lawyers, when we are communicating with colleagues and judges, we are very often trying to persuade them to come around to our point of view.

So, what does this have to do with plain English? Well, the current belief amongst many lawyers is that the use of legalese is the only way to draft legal documents and to address the bench in court. But if we really think about the questions “who is my audience?” and, moreover, “what will appeal to them?”, we can see that the use of plain English is actually very helpful.

First of all, keep in mind that when I am advocating the use of plain English, it is not a suggestion that language should be simplistic or colourless. One of the first aspects of knowing your audience is knowing their level of education and understanding, how they might usually speak and write, and therefore how sophisticated your language can be. In the case of communicating with judges and fellow advocates you can, therefore, afford to use sophisticated language. But in doing so, you can also still stick to the tenets of clear, direct, and concise communication—plain English is not just about your vocabulary (although the words that you use are an important consideration), it is also about things like sentence construction and structure.

Make a positive impression with judges and colleagues

Once we’ve thought about the kind of language that we can employ with our audience, the second thing we need to think about is how to best engage or persuade them. As with any audience, in considering communication with other members of the profession, put yourself in their shoes. That should be relatively easy if you are already a lawyer yourself. Think about, for example, what characterises the professional life of a judge or an advocate in India? What difficulties do they face and what would, therefore, be most helpful to this audience and most likely to make a positive impression?

Obviously, the answers to those questions have to address the fact that Indian courts are massively over-burdened and judges must bear an almost impossible caseload. Advocates and lawyers, too, work very long hours and have many clients and cases to attend to. In such a scenario, I would suggest that the number one benefit of plain English is efficiency and ease of understanding.

PlainEnglish_efficiency_easeofunderstanding_4

Imagine the relief of a tired and busy lawyer or judge when they reach for the next motion, brief, or letter and find that it’s written clearly and well, and that they only have to read it once to appreciate the argument or message contained in it. In court, when there is certainly no time to waste, those who speak plainly, clearly, and well will impress the bench with the fact that they are able to get to the point and explain their matter succinctly. A lawyer can build a good reputation with such skills, and is considerably better placed to persuade effectively.

Finally, in case you think that I am merely relying on my own suppositions in making this argument, there has been research done in this area. A study was conducted through the School of Law at the University of Texas in the U.S. into whether judges prefer plain English, legalese, or informal writing. The results clearly demonstrated that judges overwhelmingly favoured the use of plain Legal-Writing-and-Professional-CommunicationsEnglish in legal writing, finding it to be clearer, more understandable, and ultimately, more persuasive— by a margin of two-thirds (See, Sean Flammer, “Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English”, The Journal of the Legal Writing Institute 16 (2010) at 183.). Given that these are all qualities that most lawyers aim for, this study demonstrates what is apparent to the finest lawyers in active practice—that good use of plain English is essential to effective communication and advocacy.

(Tennille Duffy is part of the faculty at myLaw.net.)