In 1991-92, Mian Abdul Qayoom, a lawyer in Srinagar was arrested and sent to jail for two years. He was later released on bail. Though it was still early years for the rise of terrorism in the Kashmir valley — AFSPA was introduced in the state in July 1990 — Qayoom had behind him over a decade of defending the terror-accused or those accused of plotting against the country.
“Even before the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act were introduced, people in Kashmir were booked under the Enemy Agent Ordinance. I have been defending such people in the state since the 1970s and was finally arrested for it in 1991,” says Qayoom, president of the Bar Association in Srinagar, in a telephonic interview.
In the past few weeks, the legal fraternity in India has presented a dual image. In Chhattisgarh, a group of human rights lawyers were forced out of their practice in Jagdalpur for representing and defending those branded as Maoists. On the other hand, at the Patiala House Court in Delhi, a group of lawyers resorted to violence as student leader Kanhaiya Kumar, booked under sedition charges, was brought for trial. The lawyers beat up Kumar as well as media personnel present in court.
The political and public war of words that broke out after the incident over the definition of who was “anti-national” continues to rage with the Ishrat Jahan case being back in the news. Jahan was killed in an encounter in 2004 and was posthumously accused of being a Lashkar-e-Taiba operative.
The JNU incident, too, erupted over protests against the execution of Afzal Guru, convicted in the 2001 Parliament attack case. The lawyers who defended both find themselves in the spotlight because they made it their professional duty to stand up for those whom most were happy to condemn.
Guilty by association
“I have been called an anti-national,” says lawyer Kamini Jaiswal, who had represented SAR Geelani, a Delhi University professor who was arrested in the Parliament attack case of 2001. Later acquitted, he has now again been booked in a sedition case. Senior human rights lawyer Prashant Bhushan talks of abuse on social media for having appeared as a support lawyer in the appeal case of Yakub Memon, who was executed in the 1993 Mumbai blast case. “I have also repeatedly been called a Naxal lawyer for speaking in support of activist Soni Sori and others branded as Maoists,” he says.
For many, as in the case of Qayoom, the repercussions have gone beyond slander. In 2010, Mumbai lawyer Shahid Azmi was shot dead in his office. Azmi, who himself had been arrested on terror charges in his youth, had defended many terror accused as a lawyer, including Faheem Ansari, accused in the 2008 Mumbai attacks. Ansari was later acquitted owing to lack of evidence.
The list of lawyers targeted for providing what the law of the land grants every accused — legal representation and a fair trial — is endless. In June 2015, lawyer Mehmood Pracha was allegedly threatened by an officer of the Rajasthan Anti-Terrorism Squad while arguing a case in court. Pracha has been the defence counsel for many terror accused, including Ahmed Kazmi, accused in the 2012 Israeli Embassy attack in New Delhi and Mirza Himayat Baig, accused in the 2010 German Bakery blast case in Pune.
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In August 2015, Shalini Gera of the Jagdalpur Legal Aid Group (JagLAG) in Chhattisgarh was asked to get off the bus she was travelling in by cops who claimed they had received information about “a suspicious person with a bob cut”. She was on her way back to Jagdalpur after attending a case hearing in the Sukma court. Last month, the group was forced out of Jagdalpur under pressure from the Samajik Ekta Manch (a vigilante group that, JagLAG says, maintains close links with the police), and the local Bar Association, which called the trio “outsiders” and therefore unsuitable for legal practice. At press conferences, the Manch has aired threats of “untoward incidents” and said that the group was their “next target”.
At times, the lawyers’ fight to ensure that the accused get a fair trial is against their own fraternity. In 2008, The Bombay Metropolitan Magistrate Court’s Bar Association passed a resolution that forbade members from representing Ajmal Kasab. In Uttar Pradesh, lawyer Mohamad Shoaib was twice physically assaulted by other lawyers for defending terror-accused.
In the line of duty
What spurs these lawyers to stand up for their clients is not only a desire to ensure that their rights as human beings are not violated, or that they are in principle against capital punishment — common in such cases — but a keen sense of professional integrity.
“A lawyer’s role is not to decide the innocence of a person. Everybody has a right to effective and appropriate legal representation. Nobody asks lawyers whether they have gone into the books or the accounts of Vijay Mallya or Sahara to see whether these people are good citizens, or whether they have paid their taxes… The job of the lawyer is to represent the client. But as a human rights lawyer, I think, by now, I have enough experience to know the manner in which state abuse is powered, the manner in which the State muddies the water about facts, and that is apparent in these cases. It doesn’t require too much hard work to negotiate that,” says Vrinda Grover, who has been representing Ishrat Jahan’s mother in her demands for a CBI enquiry into the case.
Similar reasons moved senior lawyer and former additional solicitor general of India Raju Ramachandran to appear as amicus curae for Ajmal Kasab and later to defend Yakub Memon. “In Memon’s case, there were questions about the legality of the death warrant that had been issued. Just two months before that I had appeared in another case at the Supreme Court where there had been a debate on what should be the procedure that should be followed while executing a death warrant and those principles had been violated in Yakub’s case,” he says.
Others like Mehmood Pracha take up a case when they believe in the innocence of the client. “When I go through the chargesheets, I can often make out the flawed reasoning and the forced manner in which the accused is being held. My attempt during the cross-examination is to bring out the truth so that the guilty might be punished,” he says.
Trial and error
What many lawyers find demoralising in such cases, however, is the court’s attitude. “In many cases, it does seem that the judge has already made his decision before he has heard the argument. Our law says that an accused is innocent till proved guilty, but in such cases the accused is held guilty and the burden to prove him innocent lies with the defence,” says Abdul Wahab, a Mumbai lawyer, speaking over the telephone.
The predisposition against the accused is worse in areas like Kashmir. Qayoom says the accused can hope for a fair trial only in Srinagar and no where else in the state. Speaking of the time when he was arrested in Jammu, he says, “No lawyer came forward to defend me. A lawyer from Srinagar came to arrange my bail.”
Ramachandran remembers the shock of having a judge in the Yakub Memon case ask him if he was aware of whom he was trying to save.
“In a high percentage of the cases, at least in the higher courts, the appeals are properly heard and the judges try and come to the correct conclusion. But in certain cases, where there has been a huge media trial and a lot of publicity has been attendant to the case leading to some kind of public perception being created about the person, sometimes judges do come under pressure of public opinion or perceived public opinion. To some extent, that detracts their ability to do justice in those cases,” says lawyer Prashant Bhushan.
Recent events would suggest that mob hysteria is on the rise. “When the Parliament attack case was being tried, it took place at the Patiala House court (where Kanhaiya was attacked). I don’t remember any lawyer getting attacked, any accused getting attacked, it was in the very same premises of Patiala House that the entire trial for a period of six-seven months took place. So what is very apparent is there is a deliberate way in which this kind of frenzy and hysteria is being ignited and orchestrated. And I think there are very clearly political interests that are involved here, which is very unfortunate,” says Grover.
What these lawyers want is a space for debate and dialogue. It is the destruction of that space and that freedom — “the very basis of a democratic society” -- that they rue more than the personal attacks on themselves.