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Tag: trial courts

More tools for litigators after Commercial Courts Act boosts discovery in India

JSaiDeepak_OnTrialI have often heard it lamented that India lacks U.S.-style discovery mechanisms at trial. While I am no expert on U.S. procedural law, I believe that Indian civil procedure contains substantial mechanisms for discovery. Let us now look at the mechanisms available under the Code of Civil Procedure, 1908 (“CPC”) including those recently introduced to the CPC through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act“). Employed effectively, they can narrow down the scope of facts and issues that need examination at trial.

Discovery under the CPC

Section 30 of the CPC provides for a court’s power to order discovery. At any time during the conduct of a suit, this provision empowers a court, either of its own motion or on the application of a party, to pass necessary and reasonable orders relating to the delivery and answering of interrogatories; the admission of documents and facts; and the discovery, inspection, production, impounding, and return of documents or other material objects that may be produced as evidence. The provision also empowers a court to issue summons to persons whose attendance is required either to give evidence or to produce documents or other objects that may be led in evidence. A court can also order any fact to be proved by way of an affidavit. While it is commonly assumed that only Order XI of the CPC corresponds to Section 30, Orders XII, XIII, and XVI also contain provisions that relate to Section 30.

What’s the role of a court in discovery proceedings?

The framework that emerges from a combined reading of Section 30 and Orders X, XI, XII, XIII, XVI, and XVIII informs us that the assumption that Indian courts lack powers of discovery because they adhere to the adversarial system of justice may not be true. In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012), the Supreme Court, holding that discovery was one of the main purposes of the existence of courts, made some telling observations:

“A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

41. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.”

The Court also quoted from the report of the Malimath Committee, which had highlighted the drawbacks in a strictly adversarial system and recommended that courts be statutorily mandated to become active seekers of truth. This fundamental shift in the Indian approach to disputes must be borne in mind when one invokes the mechanisms for discovery. In A. Shanmugam v. Ariya K.R.K.M.N.P.Sangam (2012), the Court, apart from reiterating the ratio of Maria Margadia Sequeria, categorically observed that ensuring discovery and production of documents and a proper admission or denial is imperative for the effective adjudication of civil cases.

Bar raised by Commercial Courts Act

The Commercial Courts Act, 2015 builds on this approach further by introducing an improved discovery mechanism, evident from the language and structure of Rules 1 to 5 in the revised Order XI, which is specific to suits of a commercial nature. The spirit of the revised framework is perhaps best captured by Sub-rule 12 of Rule 1. It unequivocally states that the duty to disclose documents that have come to the notice of the party shall continue until the disposal of the suit. It goes without saying that the reference here is to documents, which are relevant and necessary to decide any question that is germane to the dispute before the court. Critically, both parties are expected to file a list of all relevant documents which are in their power, possession, or control regardless of whether those documents support or undermine their respective positions on merits. Clearly, the bar has been raised under the Commercial Courts Act and both the parties and the courts have access to fairly effective discovery options to facilitate expeditious disposal of suits. The actual employment of these options, of course, remains to be seen.

In the next part of this series, I shall discuss framing of issues and the commencement of trial.

J. Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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‘Material facts’, ‘material particulars’ and other common CPC terms that are vital for a trial lawyer

JSaiDeepak_OnTrialThere are some terms that are frequently used in the Code of Civil Procedure, 1908 (“CPC”), and it is important to understand them well because the maintainability of a civil action can depend on your understanding. As you know, the court will not address the merits of a dispute until it is prima facie satisfied about the maintainability of an action.

Cause of action, act, and interest

In Orders 1 and 2 of the CPC, where joinder of parties and causes of actions are discussed among other things, one frequently comes across the terms “cause of action”, “interest”, and “act or transaction”. While Order 1 Rule 1 refers to “acts or transactions”, Order 1 Rule 8, which permits the filing of a representative suit, clarifies in its explanation that those claiming to file a representative suit need only have the “same interest”, they need not have the “same cause of action”. What do these terms mean?

An “act or transaction” is different from “cause of action”. The former gives rise to the latter. An actionable cause arises from an act when the act amounts to the infraction of a party’s right. For instance, selling a patented product without consent is an act which gives rise to a cause of action in favour of the patentee. The same act could also give rise to different causes of action in favour of the same right owner or several right owners. In the example above, the sale of a product could result in infringement of a patent as well as a trademark held by the same individual or could infringe several patents held by unrelated parties.

In contrast to Order 1, Rule 1, which deals with joinder of plaintiffs and Order 1, Rule 3 which deals with joinder of defendants, Order 1, Rule 8,which permits filing of a representative suit, uses the term “interest” to increase the scope for joinder of parties beyond what is provided in Rules 1 and 3. The word “interest” has been used to facilitate adjudication of all questions which arise from the same set of acts or transactions. This provision is intended to avoid multiplicity of litigation where all persons are aggrieved by the same acts or transactions. Importantly, this permits one person to represent all other “interested parties”. For instance, if a host of tenants have an issue with an act or acts of the landlord, instead of filing multiple suits or instead of naming all tenants as parties in one suit, one tenant may represent the rest. Therefore, Rule 8 enlarges the scope of joinder of parties so long as there is a communion of “interest” between the parties.

The distinction between “act or transaction”, “cause of action”, and “interest” affects the maintainability of a civil action. The failure to disclose a prima facie cause of action, for instance, would result in the dismissal of a suit at the outset under Order 7, Rule 11. Similarly, to justify arraying a host of parties as defendants, a plaintiff must set out their relationship inter se, along with their nexus to the transaction which has given rise to the cause of action in favour of the plaintiff against all the defendants. Should the plaintiff fail to justify this, his plaint could be assailed for misjoinder of parties or non-joinder of necessary parties.

Now, let us look at “facts” and “particulars”, two terms that occur frequently in relation to pleadings in Order VI.

Facts, material facts, and material particulars

CPCcontentsOrder VI of the CPC, as discussed earlier, deals with pleadings. It uses the terms “material facts” and “particulars” in different places. Are “material facts” and “particulars” the same? The rules of statutory interpretation and even a common sense understanding of the English language tell us that there is a clear difference. “Facts” refer to the broad matrix or the canvas in the backdrop of which a dispute is contested. “Material facts” are those facts which must find mention in a party’s pleadings in order to establish a claim. “Particulars”, on the other hand, refer to the addition of greater detail to the facts.

The absence of material facts prejudices a party’s case at the outset. The absence of material particulars on the other hand, is curable. The Supreme Court has discussed the distinction between material facts and particulars in Udhav Singh v. Madhav Rao Scindia (1975)In this case, the Court held that “all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts”. The Court also explained the consequences of the absence of material facts and material particulars.

“The distinction between “material facts” and “material particulars” is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure.

If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.”

These terms not only affect the the maintainability of an action, they also influence a party’s prospects at trial when a party is expected to lead evidence with respect to facts in issue. If such facts have not even been pleaded, the party cannot lead evidence to prove such facts. This would necessitate amendment of pleadings under Order 6, Rule 17, which can be a pretty messy affair.

In the next post, I will discuss interim applications under the CPC and the circumstances in which they may be employed.

 J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.c 

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

RatlamMunicipality_VRKrishnaIyer_CrPC

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.

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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.)

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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.

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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.)

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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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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).

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Don’t sweat it, Dwarka! New courts in the Delhi neighbourhood are a template for the future

Justin Thomas visited the Dwarka District Court Complex and explored the possible future of district courts in India.

Justin Thomas visited the Dwarka District Court Complex and explored the possible future of district courts in India.

A district court in India, usually housed in a majestic colonial-era building, is easy to describe. There are the rows of advocates and notaries under every semblance of a shade. Liver-red pan stains, that marker of Indian civil space, is ubiquitous. The milling crowd haplessly try making sense of the time-place set. It is crowded, chaotic, confusing and altogether brutish.

Since the September of 2008, the Dwarka District Court Complex (“the DDCC”) has strived to be not just an exception to the rule, but also a prototype for the future rule. Situated right next to the Sector-10 Metro station in the Delhi suburb of Dwarka, the complex is a sensible blend of practicality and the futuristic.

That the DDCC is different from other courts is apparent as soon as you enter it. As you go past the gates manned by private security guards and into the complex, two things stand out – it is rather unexpectedly spic and span, and even at the peak of a Delhi summer, it is pleasantly cool. The DDCC is India’s first district court with centralised air-conditioning and 24-hours power backup.

The 79 courtrooms of the DDCA are housed in four wings in two seven-storey buildings built around a tasteful, circular courtyard. Courtrooms are at every alternate floor, surrounding expansive lobbies, with the judges’ chambers distributed in the other floors. Separate buildings house the lawyers’ chambers and the administrative block. The entire facility is disabled-friendly and provides barrier-free access.

dwarka-tjThe complex also has a canteen, a post office, a facilitation centre, and separate libraries for judges and lawyers apart from the police station and judicial lock-up. Could not find a white shirt in the morning? There is a TJ’s outlet, a Tihar Jail initiative, where white shirts sell as briskly as their famed namkeens.

The facilitation centre provides all the information the litigant or the lawyer might need about matters taken up during the day and the courtrooms where they will be heard. Coupled with the digital display boards outside every courtroom, it goes a long way in making life simpler for those with business before the court.

Mr. I. S. Mehta, the honourable district judge, who has been at the helm of affairs here since the inception of the complex, has a very hands-on approach in running it.  “When we took possession of the complex, none of these amenities were around,” he points out, “Since then we have kept adding user-friendly features to it.”

The court is also in the forefront in the use of technology. Video-conferencing enabled courtrooms are extensively used in deposing in such sensitive matters as rape cases. A new biometric attendance system will be in place from next month for employees.

The lawyers’ chambers go a long way in adding to the dignity of the complex. It provides consultation rooms to lawyers at a nominal amount. “Chambers are essential for the efficient functioning of lawyers. The facilities provided in other (Delhi) courts are hardly conducive for business,” said Mr. P. S. Singh, Secretary of Dwarka District Court Bar Association, as he was overseeing the final work on the chambers on the sixth floor.

The facilities available at the DDCC have prompted demands for the shifting of more business here. Though the court’s jurisdiction is limited to the South-West district, it has special jurisdiction over all S.138, Negotiable Instruments Act, 1881 (cheque bounce) cases involving financial institutions in Delhi. The lion’s share of pendency emanates from the S.138 cases, and eight evening courts function exclusively to dispose of them. The Family Court, too, functions in the premise. The complex also has state-of-the-art alternate dispute resolution facilities.

dwarka1With just thirty-odd functioning courtrooms, the complex is heavily under-utilised. The authorities here deem this issue a policy matter for the Delhi High Court to decide on. “There is a lot of opposition from bar associations of other courts to shifting more matters here. ” a lawyer, who did not want to be identified, informed this correspondent. There is an excellent case to be made for the shifting of more tribunals to the complex. The real test for the complex would be when it approaches capacity functioning. Also, for a court complex that has automatic taps in the washrooms where you would be loath to touch the plumbing with your bare hands in most other courts, it is extraordinary not to have a website.
It is easy to pine for the architectural refinement of Patiala House. But once you visit the cool environs of the DDCC, it is hard to keep complaining.

Justin Thomas Panachackel works at Rainmaker.

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