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.)