manish on good human rights lawyering – Page 2

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 case 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”).

When 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

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.)

Good human rights lawyering at the trial courts

Even 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.

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

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.

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.
As 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).