Human Rights

Four women lawyers help Bastar’s imprisoned adivasis access justice in a broken system

Manish_goodhumanrightslawyeringConflict zones, as this column has pointed out earlier, are particularly difficult places for human rights lawyers to work. In the Bastar region in southern Chhattisgarh, years of the Maoist insurgency and the counter-operation by the Indian state have created a battle zone where even normal life is subject to the oversight of security forces. In Jagdalpur, I was advised not to step out after sunset as I could be picked up by the CRPF.

Paradoxically, for the wide publicity it gets, there is little in-depth information or reportage about Bastar. The legal issues that affect the region have not been understood or documented in detail.

It is in this situation that a group of committed human rights lawyers has been quietly working towards documenting the plight of undertrials in Bastar and providing them with legal aid at the trial courts. The Jagdalpur Legal Aid Group (or “JagLAG” as they call themselves), is an all-women team of lawyers based out of Jagdalpur, the headquarters of Bastar district, where they are fighting state apathy, disempowerment, and patriarchy while helping the predominantly adivasi population secure access to justice.

Earlier this year, I interacted with the group at their office in Jagdalpur and visited the courts and the jail there. JagLAG is unique in that its members are all graduates from major law universities and have chosen to litigate at the trial courts in Bastar over other, more lucrative, options. Shalini Gera, 44, is the oldest member of the group and a graduate from Delhi University, and had previously been working with senior advocate Sudha Bharadwaj in Bilaspur. The others, Guneet Kaur, Isha Khandelwal, and Parijatha Bhardwaj, are recent graduates from Indian and foreign universities. For all of them, JagLAG was the first experience at practising law at the trial courts. In an unfamiliar location, theirs has been a trial by fire of sorts.

Early days of gathering data

Chattisgarh's Bastar district

Chattisgarh’s Bastar district

JagLAG had its genesis in conversations that took place in Mumbai and Delhi among lawyers and activists around the possibility of a systematic legal intervention in Bastar. Major human rights abuses, such as the Soni Sori case, had come to light from the region. The intervention aimed at documenting human rights issues from the ground and providing legal aid to undertrials and adivasis who had been framed as “Naxals”. As a result of these conversations, a few advocates committed themselves to providing funding and mentorship for the group, with the aim of supporting an effort at ensuring access to justice in this region.

The Bastar region, where the group works, is comprised of five districts – Bastar, Dantewara, Kanker, Sukma, and Bijapur. JagLAG, being the first such intervention in the area, has had to learn the ropes from scratch. They spoke to local lawyers to get a sense of the courts and the cases being handled, and used empirical data obtained through the Right to Information Act to substantiate the anecdotes.

The RTI applications about court and prison statistics revealed a complete breakdown of the criminal justice system in Bastar. The jails were severely overcrowded. While  the average occupancy in jails across the country is 112%, the corresponding figures ranged from 255% at the Jagdalpur Central Jail to an astounding 428% at the Kanker District Jail. Most of the prisoners were illiterate adivasi men between the ages of 18 and 30 and an overwhelming majority were undertrials.

Overcrowding-in-Bastar-jails-(2012) (1)

An analysis of the case disposal statistics between 2005 and 2012 revealed that two-thirds of undertrials in Jagdalpur had to spend between two and five years in prison before receiving bail, while on an average, across the country, 75 per cent of undertrials spend less than a year in prison before receiving bail. An astounding 96 per cent of the cases between 2005 and 2012 ended in acquittal, indicating that in most cases, the police had mostly framed innocent adivasis and there was no evidence to indicate any actual links with the Maoists.


Trademark Naxalite cases

Following up, JagLAG began to track the cases of those who had been incarcerated the longest, to identify the blocks in the system. As they interacted with more prisoners and went through their files, patterns began to emerge. Most of them had been incarcerated in what Shalini described as “trademark Naxalite cases” – allegations of being involved in Maoist activities or conspiracy – including charges under Sections 302 or 307 and 149 of the Indian Penal Code, along with Sections 25 and 26 of the Arms Act, 1959 and Sections 3 and 4 of the Explosives Act, 1884. In addition, provisions of the Unlawful Activities Prevention Act, 1967 and the Chhattisgarh Special Public Security Act, 2005 are also invoked. Many of the prisoners who had been in jail for a long time had not even applied for bail, due to a combination of circumstances.

Bringing in families to file for bail

Local lawyers are reluctant to file for bail, given that the sections involved are non-bailable and the charges are grave, making it rather difficult to obtain bail from a trial court. In addition, the prisoners are usually residents of remote villages and given the long distances and poor transportation facilities in the region, it is difficult for their families to visit the jail or the lawyers. As families was unable to take an active role in the case, the local lawyers lose interest and the cases – and the undertrials involved –  would languish for years.

The Jagdalpur Legal Aid Group - (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The Jagdalpur Legal Aid Group – (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The group began their legal aid work by filing bail applications on behalf of these undertrials. This intervention, including working with the lawyers currently representing the undertrial prisoners and persuading them to file for bail and bringing the families back on board, was a learning experience. They visited the families in their villages rather than rely on them – mostly poor, illiterate adivasis – to make the long and expensive commute all the way to Jagdalpur. However, local security concerns and the looming threat of police action have forced them to restrict field visits in favour of courtwork. They also provide support to fact-finding investigations into grave human rights violations, such as the PUDR investigation into the Sarkeguda extra-judicial killings of 2012, and represent victims of custodial torture, violence, and death at enquiries before the sub-judicial magistrate. Incidentally, on the day of my visit, Guneet and Shalini had just arrived after a day’s trip to Dantewara, to record the affidavits of villagers in a case of extra-judicial execution.

Problems with data and procedure

From the beginning, JagLAG faced several challenges in their work. The initial set of RTI applications revealed that data was recorded in different ways in different places. For instance, while the jail records were referenced by crime numbers, the court records used case numbers, and matching the two took some effort. Many of the long-pending cases that they took up already had lawyers, and much time was spent in tracking down people and their cases, as well as persuading the current set of lawyers to file applications or hand over the cases.

Local procedural requirements also made simple processes, like the filing of a bail application, extremely onerous. The criminal court rules of practice in Chhattisgarh require that while applying for bail, an affidavit had to be filed by a person other than the accused, who was conversant with the facts of the case. Usually, this was a close relative who resides far away from the court and the lawyer. The bail application cannot be filed until such a person has been located and the affidavit filed. JagLAG therefore had to re-calibrate its strategy and adopt more realistic goals about the number of cases they planned to take up. At present, they have taken two cases to the High Court and have handled several more at the various trial courts.

The group’s successes have also exposed the rot within the system. One of their early achievements was securing bail for two undertrials who had been incarcerated for six years, without their names even appearing on the chargesheet. Shockingly, the bail was only granted on a surety of Rs. 10,000 which resulted in the individuals concerned remaining in jail for another ten months while they contacted relatives and raised the money. An application filed under Section 440 of the Code of Criminal Procedure, to reduce the bond amount, remains pending before the court. In another case, they managed to get bail for three arrested persons at the remand stage itself – something that, despite being permitted under law, was almost impossible to do in Bastar.

Threats to their safety

The Sukma court, deserted on a weekday.

The Sukma court, deserted on a weekday.

The rigidly binary nature of public discourse in conflict areas means that anyone who does not espouse the State’s views is seen as siding with the opposition. In Bastar, this has meant that the members of JagLAG have been branded as “Naxalite supporters” or “sympathisers” by the administration and the police, for trying to higlight human rights abuses by the State. Consequently, they work under a constant cloud of threats to their safety, and hostility from the courts. Working as ‘outsiders’ in Bastar has not been easy: they have also faced hostility from fellow lawyers, who view them suspiciously because of their model of human rights lawyering, where they blend activism with court work, and also see JagLAG as competition because do not charge for their services. Isha says, “People keep attributing ulterior motives to us all the time. It’s difficult to explain the concept to them.” In addition, they began work with no contacts or local networks, and have had to build these up from scratch. However, being outsiders with no familial or other investments in the area has also enabled them to take more aggresive stances against the State which local lawyers would have been reluctant to do. As a group, JagLAG is always conscious about the danger of their advocacy work appropriating the agency of the adivasi communities they are representing as lawyers. Says Guneet, “It’s something that goes on all the time in my head – in our role as civil society here, we shouldn’t make decisions [on behalf of the adivasis] that aren’t ours to make.”

The challenges of patriarchy

Being women in a partiarchal, all-male structure – there are almost no women among court staff and at the Bar in Jagdalpur – means that they are at the receiving end of condecension and a patronising attitude from lawyers and judges alike. Parijatha says, “We have inexperience going against us, but this gets compounded by the fact that we’re women.” Over the last couple of years, they have managed to negotiate an uneasy space for themselves, while in the process breaking stereotypes about how women are expected to work and behave in public spaces. Guneet, Isha, and Parijatha have recently featured in Forbes India‘s “30 under 30” list for their efforts.


JagLAG is supported, financially and professionally, by a number of lawyers around the country, and they are grateful for the mentorship that has helped them work in a very difficult location with very little experience. All four of them have found the work to be an enriching process. Says Guneet, “There were times we would call [the senior lawyers] up at night with minute legal queries and they were always very encouraging and helpful.”

The group has not fully considered its future, given that their experiences have been different from what they had originally planned. However, they are optimistic that they will be able to sustain themselves and include more local lawyers in the process. Shalini concludes, “The key to replicating and making this sort of initiative sustainable in other places is to involve local people as a core part of the work. That is something that we look forward to doing in the future.”

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)


Be true to the cause, use litigation to support movements and advance the law

Manish_goodhumanrightslawyeringIt’s that every now and again – not often, but occasionally – you get to be a part of justice being done. That really is quite a thrill when that happens.

– Tom Hanks (as Andrew Beckett in Philadelphia)

Across generations, human rights lawyering is fundamentally driven by the passion of seeing justice done. For veteran advocates like the Punjab-based Rajvinder Singh Bains, passion may arise out of witnessing injustice and atrocities. Younger advocates, on the other hand, may be inspired by the work of path-breaking people before them, while also bringing newer perspectives and ideas to the practice. In either case, the passion for the cause is an essential element of being a human rights lawyer.

Beyond passion


Mihir Desai has three decades of experience with human rights lawyering.

However, while being passionate is important, being effective in court is even more important. “To be a good human rights lawyer, you have to be a good lawyer first,” says Mihir Desai, a veteran advocate and activist from Bombay. Mr. Desai, who has been practising for three decades now, is also the co-founder of the Indian People’s Tribunal on Environment and Human Rights (“IPT”), which describes itself as an “alternative People’s Court that gives voice to the struggles of grass-roots organizations and affected communities” and conducts investigations on human rights and environmental issues. He has worked extensively on human rights issues at the trial court level, and has been instrumental in bringing them into mainstream jurisprudence, through his litigation before courts, movements such as the IPT, and publications like Combat Law. Given the marginalisation of human rights issues at the trial court level, it is all the more important for a lawyer working in this field to have an excellent grasp of procedural as well as substantive law, which is why Mr. Desai encourages all young lawyers in the field to hone their skills in the courtroom.

Among these young lawyers is Rajat Kumar, 28, a graduate from the Gujarat National Law University, who has been practising at the courts in Delhi for just under five years. Headed down the standard National Law University path – with corporate internship after corporate internship, an internship with the Alternative Law Forum, Bangalore introduced him to the world of human rights lawyering and he was immediately attracted to it. A subsequent internship provided him an opportunity to work on the Narmada Bachao Andolan case, as part of which he made a visit to the site of the Sardar Sarovar Dam and interacted with displaced people. The realisation, like the one had by the protagonist in Philadelphia, that one was part of an actual process that was bringing justice to people, was a powerful experience that Mr. Kumar describes as life-changing, and he has never looked back since. After graduating, he joined the offices of Jawahar Raja in Delhi, and now works primarily on criminal and labour law matters.

Mr. Kumar argues most of his labour cases (where he represents workers’ unions) before the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985. Contract labour and regularisation of employment is also a major issue, and Mr. Kumar has argued the cases of workers who have been denied benefits due to them, and are trapped in sham contracts. He perceives that the scene for labour rights is not as positive as it used to be. With the increased focus on economic development, he said that there is a corresponding perception that courts are increasingly hostile and reluctant to grant relief to labour, citing the instance of the 2013 Punjab and Haryana High Court order denying bail to the Maruti workers who were arrested during the unrest at Manesar, which mentioned as a ground, the risk to foreign investment due to “fear of labour unrest”. However, as a human rights advocate, it is important to keep the faith and continue the fight for the cause.

Staying the course, true to the cause

Mr. Desai says that a good human rights lawyer works for a cause throughout. There cannot be any inconsistency in the stand that one takes on an issue. The human rights lawyer is committed to the issue and the advocate needs to let go of individual ego and think of the cause. Staying true to a cause also inspires greater levels of trust and confidence among one’s clients. This is why it is important, as a lawyer in this field, to choose one’s cases and remain committed to the cause – for instance, in a labour court, one cannot defend workers one day and managements the next. He clarifies that the right to legal representation is important, but so is the right of an advocate to choose her cases and causes: “An accused rapist is definitely has a right to receive legal representation; but I would not want to be his legal representative. And that’s a consistent stand I take.”

"Important to choose one's cases and remain committed to the cause" - the 28-year-old

“Important to choose one’s cases and remain committed to the cause” – the 28-year-old Rajat Kumar.

The ability to inspire trust and confidence from one’s clients is critical to good human rights lawyering. To illustrate this, Mr. Desai draws on his experiences while arguing some of the Gujarat riot cases as a lawyer for the victims, where despite his perception that the judges were not supportive, he, rather than give up, continued to advance his arguments.

In such situations, where people have been at the receiving end of severe human rights violations and have lost everything except their faith in the law, it is particularly important that they are able to trust their lawyer. A good human rights lawyer should be willing to be there throughout for her clients, no matter what difficulties one might face along the way. Ultimately, says Mr. Desai, what the victims want is complete support and dedication from their lawyer and – irrespective of the final outcome – the feeling that they have been heard, and had their day in court.

Social transformation through human rights litigation

Mr. Desai said that a human rights advocate should be able to use the court process to help and support movements. Therefore, strategy and court craft are critical to the practice of human rights lawyering, even more so at the trial court. Mr. Kumar says that it is important for a lawyer arguing at the trial court to be able to anticipate arguments at the High Court or even the Supreme Court, should her case be dismissed or appealed against. This is particularly significant since the higher courts do not normally deal with matters of evidence. They usually rely on the evidence brought on record before the trial court. Further, while it is difficult to make a direct prayer for relief at the trial court based on a constitutional argument, it is nevertheless important to frame these arguments since even if they are rejected by the trial court, the High Court has the power to recognise them and grant appropriate legal relief. In this context an important part of human rights lawyering is to use arguments that may have not traditionally been accepted by courts. Thus, an advocate has to try at all times to expand the horizon of the courts’ human rights jurisdiction by advancing arguments in that direction, rather than restricting oneself to a narrow legal perspective.

Public interest litigation, or the use of the Cr.P.C. to obtain basic amenities from local authorities, are all examples of this approach. As K.G. Kannabiran argued, lawyering for social justice necessitates a certain stretching of principles and breaking new ground in order to advance the progress of the law as an instrument of social transformation.

Sustainable human rights lawyering

Both Mr. Desai and Mr. Kumar dismiss the misconception that practising human rights lawyering is financially unsustainable. Says Mr. Desai, “If your ambition is to have a Mercedes and stay in five-star hotels, it won’t be remunerative. But it is definitely sustainable in that it will help you lead a reasonably comfortable standard of living.” Both of them cross-subsidise their human rights practice with revenue from regular commercial cases. While accepting commercial cases, they remain conscious of the conflict of interest and only accept cases from clients who do not put them in a situation where they have to compromise on their human rights work or the causes that they espouse. In addition, they also point out that not all human rights work is pro bono – there are several clients who are able to pay, although in these cases one would have to charge according to the client’s capacity and not the regular fees that one would charge in commercial matters.

Personal and professional growth as an advocate is greatly helped by having a mentor in the profession. In this regard, Mr. Desai recalls his early days when he started practising in the chambers of Indira Jaising, who was then (as also now) a leading light in the field of human rights, and an inspirational figure and role model in the profession. Mr. Kumar is grateful to Jawahar Raja, from whom he says he has learned more about the law than he ever did in his five years of law school. It is not an easy practice – as Mr. Desai puts it, while in mainstream lawyering one might win 70 per cent of the time, as a human rights lawyer one might only win 30 per cent of the time. Nevertheless, both Mr. Desai and Mr. Kumar suggest that human rights lawyering is a passion, rather than a sacrifice – both of them whole-heartedly state that they enjoy their work and there is nothing else they would rather be doing.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Human Rights

Three women from smaller towns are breaking the mould and representing the poor and the socially backward


Over three decades after the Supreme Court recognised and encouraged the use of the judiciary to enforce remedies against the state, Sarojani Tamshetty, 29, an advocate practising in Solapur, is using Section 133 of the Code of Criminal Procedure, 1973 (“CrPC”) to ensure that basic rights, including the rights to drinking water and sanitation, are not denied to the citizens of her city. Sections 49 and 50 of the Maharashtra Municipalities Act, 1965 obligates every municipal corporation to provide drinking water and sanitation to citizens. Solapur had been at the receiving end of its municipality’s inaction in this regard. The urban poor, doubly hit by their inability to access municipal offices, were most severely affected. Ms. Tamshetty stepped in and filed a complaint before the jurisdictional magistrate under Section 133 of the CrPC. An order was issued to the municipal authorities and the municipality eventually took action and commissioned water supply and sanitation projects.

Using legal notices to secure rights for the urban poor

Manish_goodhumanrightslawyeringIn non-municipal areas, the district administration and revenue authorities wield significant power. While the ordinary method of seeking redress from such authorities is by submitting applications and representations, it leaves the question of what to do in case the authority in question fails to respond. Ms. Tamshetty came up with a unique way of resolving this. After submitting several representations to the Solapur district administration for the implementation of the Sanjay Gandhi Niradhar Anudan Yojana (a scheme for provision of financial assistance to destitute persons) and not receiving any response, she issued a legal notice to the District Collector. The notice resulted in funds being sanctioned for the scheme and the appointment of a committee for receiving applications and disbursing the amount.

Legal notices have also been used to good effect by Salma Bano, a 26-year old lawyer practising in Nabarangpur, Odisha. An unscrupulous contractor had illegally confiscated the job cards of a few poor labourers under the National Rural Employment Guarantee Act, 2005 (“NREGA”). After they approached her, Ms. Bano issued a legal notice to the contractor, directing him to return the cards. These cards were returned to their rightful owners.

Litigating for victims of domestic violence

SarojaniThamshetty_humanrightsadvocateShe also handles a number of cases of domestic violence, where besides providing legal assistance, the lawyer is often required to extensively counsel her client, who may also be in need of medical assistance. In most of these cases, the victims seek an end to the violence and a means of sustenance, but do not wish to initiate criminal proceedings against their violent husbands. The Protection of Women from Domestic Violence Act, 2005 is a useful tool in such cases, for claiming a variety of civil remedies including protection orders, residence orders, and maintenance. The advocate also has to coordinate with protection officers for getting these orders implemented. Ms. Bano, who hails from an educationally backward area and a socially conservative community, takes pride in convincing members of her community to come out of their conservative mindsets, through her use of the law for making claims that have contributed to the advancement of her community. Says she, “The same people who opposed me earlier, now come to me seeking advice with their problems.

For Begum Rehana, the path to becoming a lawyer started at home – out of her own lived experience with domestic violence. Having gone through the difficulty of finding a supportive and affordable lawyer, especially in the conservative neighbourhood of the Old City in Hyderabad, she vowed never to be dependent on anyone again, and began studying and later practising law. Today, she enables several poor women, deserted by their husbands, to claim their legal rights to maintenance and residence. The Muslim Women (Protection of Rights on Divorce) Act, 1986, as interpreted by the Supreme Court, obligates a husband to make reasonable provision for maintenance of his wife (for her entire lifetime) within the iddat period (approximately three months from the date of the divorce). Ms. Rehana has used this law to good effect, helping several women obtain maintenance from their husbands. In circumstances where the husband is unable to pay, this responsibility ultimately falls on the State Wakf Board. In some such cases, Ms. Rehana has also obtained orders from a family court, directing the Wakf Board to pay maintenance to the destitute woman. The matter does not end there. The advocate also has to repeatedly visit the office of the Wakf Board and file right to information applications to ensure that the amount is finally disbursed to the woman.

SalmaBano_humanrightsadvocateLitigating cases of domestic violence or maintenance involves a fair amount of client counselling, especially during the trial at the stage of cross-examination. Often, women in such situations are already overwhelmed by their circumstances, and hence it is extremely important for an advocate to speak to the client and build up her confidence, so that she is able to withstand gruelling cross-examination by the opposing counsel. The most important thing, according to Rehana, both legally and psychologically, is to demand maintenance as a matter of right rather than charity.

Spreading awareness, filing RTI applications

Ms. Rehana also works with a local women’s collective, Shaheen, on spreading awareness in her community, especially among women, about access to government schemes and entitlements, such as scholarships, ration cards, and other government schemes providing financial assistance to women who have been victims of violence. Other means of enabling people to claim their entitlements under various schemes or legislations include using the Right to Information Act, 2005 to get information about the implementation of schemes and budgetary allocations. Generally, Ms. Rehana’s experience has been that officials are sometimes uncooperative or reluctant to disclose information but tend to become responsive when proceedings are initiated before the appellate authority or the state information commissions.

Overcoming the absence of role models

Ms. Tamshetty, Ms. Bano, and Rehana also work with the district legal services authority, as empanelled lawyers or otherwise. This gives them exposure to a wide range of legal issues faced by people who are socially and economically backward.

As with any other profession, litigation is also gendered. All of them report having encountered hurdles and obstacles in their career path, ranging from opposition from their families to sexist behaviour from their male colleagues. A major issue is the absence of senior female advocates at the district court level, for mentorship or just as role models. Another obstacle is that at the district court level, women are discouraged from taking up criminal litigation because it is “not suitable” for them, and advised to stick to the civil side instead. Institutional and organisational support for grassroots lawyers however, is available in the form of fellowships, including the Human Rights Law Defenders program by the Sahyog Trust, the Young Lawyers for Justice fellowships by the Committee for Legal Aid to Poor, and the Lawyers For Change fellowships by Econet and Centre for Social Justice. Ms. Tamshetty, Ms. Bano, and Ms. Rehana, have availed of one or more of these fellowships, and recognise their great value as learning resources, especially in terms of enabling them to interact and learn from other advocates doing similar work in other parts of the country. Given that human rights lawyering is not commercially remunerative, such fellowships also provide useful financial support.

(Manish is a legal researcher based in Ahmedabad.)

Human Rights

In the ‘red corridor’, human rights advocates fight misuse of stringent laws

Manish_goodhumanrightslawyeringThe difficulty of being a human rights lawyer is amplified in areas where the State is engaged in conflict with extremists or other organisations. Surendra Gadling is a Nagpur-based advocate who has successfully defended individuals accused of being Naxalites. Earlier this year, he was instrumental in securing the acquittal of Sudhir Dhawale, a Dalit activist and intellectual who was arrested by the police in 2011 for alleged Naxal links. Having dealt with extra-judicial killings and false cases during two decades of practice, he said that a major problem with working in conflict zones is that since their location is predominantly rural or in forested areas, victims of human rights violations face great difficulty in approaching lawyers. He also agrees with the approach advocated by Rajvinder Singh Bains, a human rights advocate he considers a good friend and colleague, of filing criminal complaints against State officials in cases of extra-judicial killings.

Manoranjan Routray, a young advocate practising in Koraput in Orissa, agrees. Many of those alleged Naxals are either poor adivasis or activists and intellectuals who have spoken out against the State, which in retaliation slapped them with the draconian provisions of the Unlawful Activities Prevention Act, 1967 (“UAPA”) and other similar laws invoked to ensure that the arrested person does not get bail easily. The police also use Section 3 of the Criminal Law Amendment Act, 1961 and Section 25 of the Arms Act, 1959 on a regular basis. He narrated the story of the Chasi Mulia Adivasi Sangh (“CMAS”), an organisation of tribals that came together to fight for land and forest rights. On suspicion of a few members having Naxal links, the Government of Odisha banned the entire organisation and began a systematic witch-hunt against its members. Most of those who were picked up or detained in this manner were poor adivasis who had very limited access to legal aid. Mr. Routray was representing some of them. This was only an indicator of the State’s larger effort to silence movements of assertion of identity and resistance by adivasis, who are constantly suspected and accused of supporting the Naxals even in the absence of any clear evidence.

KoraputDistrictAndSessionsCourtOn an earlier visit to Koraput, Mr. Routray had taken me to the district court there, which is a far cry from the swanky interiors of the courts in Delhi and Bangalore. Besides the abysmal infrastructure, the place had a generally depressing feel. The overwhelming presence of armed police personnel created an intimidating atmosphere even for an outsider like me. One can only imagine what undertrials and lawyers would have to go through, visiting this place on a regular basis.

Besides the lack of basic infrastructural facilities, courts in such locations tend to be less inclined to grant bail, when stringent provisions under national security legislations are invoked. Earlier, the Terrorist And Disruptive Activities (Prevention) Act, 1987 and then the Prevention Of Terrorism Act, 2002 were used for this purpose. After their repeal, the UAPA has been invoked, along with the occasional provision from the Indian Penal Code, 1860 such as Section 124A, which deals with sedition.

Surendra Gadling
Surendra Gadling

Another major issue in conflict zones is that since there are very few lawyers in these areas to deal with the large number of UAPA cases, they are heavily overburdened. The police also file a large number of cases against individuals. Mr. Gadling cited one instance where 101 cases were filed against a single individual and other cases where entire villages have been accused. Consequently, lawyers in this field get several matters on a single day and often have to resort to improvisation and innovation in their arguments across several cases since it is not possible to work on each case in a planned and systematic manner.

The extent to which the law is misused is evident from the fact that in the past ten years, there has only been one conviction in the whole of Vidarbha – that of Vernon Gonsalves in 2013 (which is being appealed in the High Court). The fact that a majority of these cases are false is also illustrated by the fact that there is very little evidence that the prosecution produces at the time of the trial, barring confessional statements of other persons in custody, which usually does not stand up to legal scrutiny. However, by the time an acquittal is secured, the individual has already spent a considerable amount of time in jail, which leaves him demoralised. Thus, the law is used to terrorise and intimidate not just activists working in the field, but also people who might be interested in and sympathetic to the cause. Likewise, lawyers and activists are often subject to direct or indirect intimidation and threats by the police. While neither Mr. Galding nor Mr. Routray had been directly threatened, they admitted that they were very often working in an atmosphere of great tension and pressure. The police have made general statements warning lawyers and made indirect threats through their clients.

(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen - victims of police excesses in the red corridor.
(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen – victims of police excesses in the red corridor.

Both Mr. Gadling and Mr. Routray, who are practising in the towns they grew up in, said that their entry into human rights lawyering was motivated by their activism during their student days, during which they became aware of pressing socio-political issues around them. Mr. Routray also cites as an inspiration, the mentorship he received from his senior, Nihar Ranjan Patnaik, an experienced advocate who also led the local bar association. While it is important to try and be self-financed, financial support is also available in the form of donations from well-wishers towards individual cases, as well as through informal networks with organisations like ActionAid which work in these areas.

In situations like these, where one is constantly under threat, solidarity is critical. There is an informal network of lawyers working in these conflict zones, particularly Vidarbha, Chhattisgarh, Jharkhand, Odisha, and southern Madhya Pradesh. This network is often called on to help in situations where the same individual is charged with offences in two or more states, which is often the case, given that the so-called ‘red corridor’ extends across state boundaries, as do police efforts against it. There are also a few senior advocates in some high courts and the Supreme Court who maintain contact and provide help when required. Indeed, the role of the advocate in conflict zones is more political than legal. It is a statement against the State’s attempt at silencing dissent and more lawyers need to take up cases in these areas.

(Manish is a legal researcher based in Ahmedabad.)

Human Rights

File criminal complaints and not writ petitions in extra-judicial execution cases – Rajvinder Singh Bains

Manish_goodhumanrightslawyeringHuman rights lawyers are not always advocating for the defence in criminal cases. There are often situations, such as extra-judicial killings, where the state has exercised power with impunity and a human rights lawyer has to prosecute in order to secure justice. This switching of roles is familiar to Rajvinder Singh Bains, an advocate who has, for almost thirty years, fought for the families of the victims of extra-judicial executions in the Punjab – the so-called “disappearances” of the 1980s. When I met him at his Chandigarh residence on a Sunday morning in May, he was still euphoric from having secured, a couple of days earlier, a conviction in the Kuljeet Singh Dhatt disappearance case.

A challenging environment to work in

Mr. Bains fought his cases in one of the most challenging situations possible for a human rights lawyer. During the disturbances of the late 1980s and the early 1990s, Punjab presented an atmosphere of continuous hostility and danger. According to Mr. Bains, lawyers defending people accused of offences were picked up and killed. The judiciary too, was completely unresponsive and Mr. Bains told me how at the High Court, habeas corpus petitions were summarily dismissed without even notice to the state. In fact, the judges would reprimand the petitioners for interfering in law and order issues. Warrants for the arrest of police officers were returned unserved and without any follow-up action. The situation at the trial courts was often far worse, with judges often being threatened and intimidated to the point where only the prosecution’s voice was heard in the courtroom. Most cases were registered under the draconian Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA”) and trials were held in jail, where most trial court lawyers would not even enter. The few that did visit jails were threatened and practiced law in spite of the risk to their lives. All of them, Mr. Bains told me, eventually became successful lawyers.

Lawyers in this situation, he said, must be prepared for anything from anonymous abusive calls to death threats, mentioning that his own father was threatened with phone calls warning of danger to his son. In certain cases, as in Punjab, the Supreme Court has stepped in and provided protection for lawyers arguing human rights cases, which is very helpful.

The modus operandi of the police in Punjab was to pick up persons whom they suspected of being involved in terrorist acts or disruptive activities, torture, and kill them extra-judicially. The police would then target their “support groups” of friends and family with false TADA cases even though these people were not involved in any way. This, Mr. Bains said, was the reason for a high number of acquittals in cases under TADA. The police often did not have even a shred of evidence against those that they accused. Mr. Bains narrated an incident where he pointed out to a judge in court that those listed as “proclaimed offenders” in a TADA case were in fact all dead. The judge ordered an investigation and the prosecution of the police officer involved, but the Supreme Court later quashed the case on unrelated grounds.

Born into human rights lawyering

Even these challenging circumstances did not demoralise Mr. Bains. Rather, they contributed to his learning curve. Originally trained as an engineer (“because the engineering college was right next door”), he started taking evening classes in law.

Rajvinder SIngh Bains
Picture courtesy: Arjun Sheoran

He was no stranger to the profession. His father was Ajit Singh Bains, a judge who, after retirement, founded the Punjab Human Rights Organisation and devoted himself to the cause of securing justice for the victims of the large-scale human rights violations taking place in Punjab. Mr. Bains started out in 1985 by assisting his father, counseling the victims and their families who approached the organisation. Eventually, he began arguing cases himself and thus began a career that has continued for almost three decades. The Dhatt disappearance case in which he secured a conviction recently, was also the first case that he argued in court.

Criminal complaints and the importance of evidence

The case was about the disappearance of a person after the police had picked him up. The prosecution’s version was that he had escaped from police custody. In the initial stages of an enquiry conducted by a retired judge, he filed an application to inspect the site where the victim had allegedly “escaped”. The police would protest and object at every stage, but with a great deal of difficulty he managed to obtain an order and inspect the site. It was a forty-foot deep gorge surrounded by a sandy area where it would be impossible for a handcuffed person to escape. Mr. Bains said that the police would try hard to suppress evidence if they knew that there was nothing in their favour.

Evidence provides an enormous advantage at the trial courts because they are bound by the evidence led – which in such cases, is likely to be stronger on the side of the victim rather than the state. In hindsight, Mr. Bains said, particularly after observing the Gujarat prosecutions, he should have filed criminal complaints in all cases, rather than writ petitions.

Mr. Bains would now advise his clients against approaching a superior court at the initial stage because of the discretion vested in them. The danger of this discretionary power at the higher courts is that it goes by public opinion – and as a victim, there is generally a much higher chance of success on the basis of evidence. Even in a politically polarised situation, the most practical remedy is to file criminal complaints, prosecute them, carefully collect evidence, and present it before court. While these cases start very slowly and may initially give the appearance that there is no chance of success, most of them in fact do succeed. Of course, these cases are largely dependent on strong witnesses, and there is a need to have witness protection programmes, particularly in cases against state officials. Mr. Bains pointed out that in the cases that he took up, most of the witnesses were extremely intimidated because they were from rural backgrounds and the accused were very senior police officers.

Financing a human rights practice amidst political polarisation

Working in a politically polarised situation also comes with its own dangers.  Funding is a sensitive issue while arguing human rights cases. Mr. Bains cautions against blindly accepting foreign funding, narrating incidents where traps were laid by state agencies to implicate human rights lawyers and organisations on spurious grounds. Indeed, a recent report by the Intelligence Bureau once again raises the bogey of foreign-funded NGOs indulging in ‘anti national activities’ under the garb of human rights. In addition, while some victims’ families may be rich and able to support the lawyer financially, a majority of them are not in a position to do so. As a lawyer, one way of supporting a human rights practice is to cross-subsidise it by taking up some commercial cases as well. It took Mr. Bains more than a decade to start earning. In his initial days, it was service law and commercial matters that subsidised his human rights practice.

His advice to young lawyers is to be positive and find a good mentor. Human rights lawyering requires a lot of dedication to be able to tirelessly pursue cases for twenty years, and continue the fight for justice. It is also a continuous learning experience. “Even after 30 years, I don’t feel like a master”, he said. While the profession demands a lot of commitment, it is also very empowering and positive, with good seniors who constantly offer encouragement to young lawyers.

(Manish is a legal researcher based in Delhi.)