Lawyers' boycott and the accused persons’ right to be defended in court

While ANHAD's Report and other events raise concern about release of Muslim youths wrongfully detained in the police custody in relation to alleged acts of terrorism, a cognate issue that should not be missed is that of access to sound legal advice at the appropriate time. 

Some bar associations (such as that of Pune and  Faizabad) have passed resolutions to not defend any person accused of terrorist acts, it particularly affects minorities as they are 'labelled' as terrorists. Some lawyers who withstood by the ethics of the legal profession in such hard times had also filed writ petitions in before the High Court challenging such resolutions passed by the bar association. However, a recent decision passed by the Supreme Court is instructive on this point.

 In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, the Supreme Court of India observed that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations passes a resolution that they will not defend  a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case...” . Further that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage. One can hope that decision would be handy in at least ensuring persons branded as terrorist merely by virtue of their religious and social association have access to a lawyer.

I have commented on this aspect earlier and at length on the Law and Other Things which is available here and more recently here.  

Report: What it means to be a Muslim in India today

Act Now for Harmony and Democracy ("ANHAD"), an organisation and a platform for action on the issues of peace, communal harmony and secularism  has published a report titled "What it Means To Be a Muslim in India Today", which is a combined report on  Peoples Tribunal on the Atrocities Committed Against Minority In The Name of Fighting Terrorism & the National Meet on the Status of Muslims in Contemporary India Delhi 3 to 5 Oct 2009.

The report inter alia seems to set out issues concerning wrongful arrest and detentions of Muslims, especially the youths in connection with alleged acts of terrorism. 

Religious Ceremonies when performed in rem are secular

The Law and Other Things discusses a judgement by the Gujarat High Court, which has held that performance of religious ceremonies such as bhumi pujan which are for the benefit of the whole society cannot be regarded as being against the principles of secularism.   The PIL challenging participation of constitutional functionaries in bhumi pujan and performance of bhumi pujan in respect of government projects was dismissed with exemplary costs.

Scholars have argued that this is one the methods in which majoritarianism is colouring the definition of secularism as understood in the Constitution of India.

This aspect has been discussed here also.

Some Legal and Social Aspects of the Ayodhya Judgment

            On September 30, 2010, a bench of Allahabad High Court at Lucknow delivered judgment (“Ayodhya Judgment” ) in three separate opinions by Justices SU Khan (“Khan Opinion”), Sudhir Agarwal (“Agarwal Opinion”) and DV Sharma (“Sharma Opinion”) in civil suits relating to the land on which the Babri Masjid (“Disputed Structure”) and cognate land (“together Disputed Land”).  

            From the official gist of the judgment, and newspaper reports it appears that the Ayodhya Judgment is fit case for appeal to the Supreme Court. Legally speaking, there are several grounds on which the judgment could be assailed, and some of which are set out below. Firstly, neither of the parties to the suit appears to have prayed the court for trifurcation of the land, or have specifically requested the court to decide the dispute in exercise of its inherent powers such that it furthers the ends of justice. While the power to modify the relief to further the ends of justice is inherent, often the same is exercised only on parties request and not suo motu in such cases.  Such power by its nature is meant to be sparingly exercised; because such a power tends to erode the legitimacy of adversarial system of dispute resolution.  Unless the parties waive their right by requesting the court to exercise its inherent power, such exercise of inherent power, with or without specifically stating the same, may be seen as an attempt by the court to enhance the strength of the parties which has a weak case.

            Also, it appears that the testimony of expert witness relied upon is not independent, inter alia because the expert witnesses appearing on behalf of ASI had a mentor-protégé or guide-researcher relationship, and given the Indian system, their independence may be doubted. There are several concerns about the ASI Report itself, which could be discussed separately at a more appropriate stage.  For now, suffice to say that public may never be able to discover the assailable aspects of the report because of constricted view being taken by the courts. In an open letter published in the Economic & Political Weekly (October 16, 2010), several historians have petitioned the Allahabad High Court: “We learn that two archaeologists, D Mandal and Shereen Ratnagar, who criticised this report in a book published in 2007, were served with a contempt of court notice by the Allahabad High Court this summer. So far as we know the orders in the contempt case are yet to be passed. If that be so, the world at large is equally constrained to silence. Such a judicially ordained zone of uncertainty curbs freedom of expression and fair comment.”

            Further, avoidable reliance in Sharma Opinion and in Agarwal Opinion on ‘faith’ and Hindu mythological literature may tend to erode the value of legal reasoning and perceived judicial independence that a judgment should be imbued with. While reliance on religious text and other faith based material is common in judicial precedents, it is the reliance on faith (and sentiments) alone that may be problematic. Such an argument tends to separate democracy of numbers from the rule of law.

              As a matter of judicial process, observations in the Sharma Opinion that construction of Babri Masjid after demolition of a temple was against the tenets of Islam could have been avoided and the question could have been left open for a more appropriate case. This is critical as this may impact several structures across the country, including those of other minority faiths, or even majority faith.  

             Restrictions on the power of the State to acquire any property for public purpose spelt out in Sharma Opinion may jeopardize infrastructure projects which involve partaking of religious sites and deserves to be appropriately clarified by the Supreme Court. The Allahabad High Court has given a rather narrow and literal meaning to the Supreme Court’s decision in Ismail Faruqui Case.  

            The Ayodhya Judgment admittedly has several aspects that affect the society. The judges in Ayodhya Judgment have laid a foundation that ultimately the outcome will have to be a mid-way settlement acceptable to all, and not one that is completely legal. It does not however mean that it should be any less legitimate. The present proposal of inconveniently trifurcating the land poses practical difficulties (such as controlling pilgrims if the temples/mosque are built, if at all) in the long run.  It also echoes the Supreme Court’s concern in Ismail Faruqui Case, that judiciary is being used to lay down a foundation on which negotiated solution would result, and that State has no real intention of abiding by the judgment.

            The deserted streets across the country on September 30, 2010 will show that People of India are afraid of those elements who could attempt to politically encash the verdict. Absent a bright line test, fear must not be mistaken for maturity of the people. Had it been maturity normalcy wouldn’t have been affected. Those who have faced the brunt of 1992 Mumbai Riots and 2002 Gujarat Riots unequivocally agree that at the end, it is about numbers and not only have they got rioters to face, but a reluctant government too.

            The Ayodhya Judgment is a test for maturity of republic and democratic India, where the outcome is only marginally less important than the process. Also, while one can live with the outcome the reasoning for such outcome may be difficult to reconcile with. This is especially because, the language and tenor of Sharma Opinion tends to condone the demolition of the Disputed Structure.  While Sonia Gandhi’s recent assurance does remove some inhibitions, but unless the people see the results themselves, it does not add much force.  Dr. Rajeev Dhawan has pointed out that connection between “legitimacy of mosque” argument and the criminal trails, for if the mosque was not legitimate it was only a brick-wall structure that was demolished, for which the penalty in the eyes of law would much less. The observations and finding by the Allahabad High Court are likely to be appropriately utilized in criminal trials, for reduction of charge and of course penalty.

            Further, the language Ayodhya Judgment read with events of December 6, 1992, must not be allowed to be construed as a strategic precedent to excuse criminality of the events.  Irrespective of the outcome of the civil suits, it is vital for restoration of faith in democracy that the criminal trials relating to demolition of the Disputed Structure must be vigorously pursued by the State.

            Overawed with the projected ‘muslimness’ of the issue of Disputed Structure, one must not lose sight that Muslims of India are faced with same issues are everyone else – underdevelopment, inequality in access to opportunities, and marginalization. The Ayodhya Judgment or one mosque anywhere should not be allowed to eclipse the entire discourse on development of backward Muslims.  There is much more to worry Muslims than a mosque.

            It appears that for majority of Muslims the outcome of the Ayodhya Judgment appears to be less important than its consequences, which are in the nature of violence, loss of property and discrimination. Therefore, irrespective of the eventual outcome there is an obligation on the State to ensure that there is no further violence and forces will have to be accordingly mobilized (physically and emotionally).  The State further needs to ensure that the police force is humanitarian if not completely secular in its dealings.

            While reading the Khan Opinion one cannot avoid taking note of the partisan behaviour of the then District Collector of Faizabad, and generally raises doubts about the secular character of civil servants.  It is difficult to put down here what the “take home” lesson from this could be, but clearly there is a need to (a) secularize the actors in governance; and (b) ensure inclusive governance.

           

            It is difficult to conclude a piece like the present one taking a firm and exhaustive views on each and every issue. At the best, it can be said that “We, the People” have a long walk to real freedom.

Rise in Religious Fundamentalism in Educational Institutions

K.N. Panikkar, an eminent historian, in an article published in The Outlook, highlights through an incident in Newman College, a minority Christian institution in Thodupuzha in Kerala, the increasing religious fundamentalism in educational institutions. Th article highlights, how in an act of retribution, the palm of a lecturer was chopped off, allegedly by members of a fundamentalist group on the charge that the paper framed by him offended the religious sentiments of the Muslim students. Panikkar is particularly critical of the college authorities who endorsed this gory act of a fundamentalist group taking law into their own hand by suspending the ‘delinquent' teacher and consequently dismissing him from service after an enquiry, despite having not found any previous record of communal bias the lecturer. The entire episode shows how the college authorities played to the gallery for fundamentalist forces instead of acting responsibly and thus ultimately, harmed the cause of secularism, religious toleration and free speech.

The writer rues the shrinking of academic space and freedom of speech and expression, increase in violent incidents, indifferent and selfish attitude of management and lack of response from the public, which have combined to contribute to the steady rise of religious fundamentalism in academic institutions. He concludes, "Religious fundamentalists are on the rise among Muslims and Hindus. Permitting them to influence the practices of education has long-term implications. The most dangerous possibility is the state of social and political consciousness such compromises would produce. Compromising with religious fundamentalism, as the authorities of Newman College have done, is likely to lead the country to Talibanism."

It is a dangerous sign for future that the values of toleration and moderation, which form the basis of the 'idea of India' championed by the Constitution of India are being sorely tested and challenged by such loathsome incidents with increasing frequency. In addition to the self- interest of management private educational institutions post-liberalisation which had opened the door for rich economic returns, and hence makes them casually ignore trampling of individual rights for monetary benefits and stability rather than stand up to powerful extremist opposition, the state inaction should also share the blame for t the increase in religious intolerance. The state has repeatedly failed to live up to its duty for maintaining law and order and the watchdog for protection of fundamental rights. It has withdrawn from the public activity and left over a large space for frantic communal activity, which in fact rightfully belongs to the state acting in the name of its citizens. As a consequence, the vulnerable space has been usurped by the right wing groups, which play the communal card for legitimizing their existence. This results in their wider social acceptability in the long run, severely damaging the secular fabric of the society.

An earlier post had discussed the rise of communal frenzy in old Hyderabad for similar reasons of state inaction.

Religion of a terrorist?

A recent article published on IndianMuslims blog sets out how openly the extremist right wing Hindutva brigade is being formed - to facilitate working of groups like Abhinav Bharat.  This bears a striking resemblance with  the invitations to Jihad (the extremist violent understanding of the same) that is openly made in some other countries. 

Recently a special article by Christophe Jeffrelot was published in Economic & Political Weekly discusses the role and modus operandi of Abhinav Bharat, especially on its role in Hindutva terrorist attacks. 

On Muslimness

In a recent article published in Economic & Political Weekly which is available for reading by clicking here, Ananya Jahanara Kabir has presented an interesting perspective on the issue of burqa, based on her experiences in Bengal (India) in post Babri-demolition India. In the backdrop of broad identity issues, Ananya has underscored the position of that there are various versions of Islams and many colors of Muslims - there cannot be a single benchmark for what constitutes a Muslim. 

On a connected note, todays Hindustan Times (Mumbai Edition) carries a book review of the book "Love in a Headscarf". It appears that this work of fiction also attempts to open portals of thinking, on the points discussed above. (TMV has not read the book)