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Breathing Life Into the Constitution

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Breathing Life Into the Constitution Breathing Life into the Constitution Human Rights Lawyering In India Arvind Narrain | Saumya Uma Alternative Law Forum Bengaluru Breathing Life into the Constitution Human Rights Lawyering In India Arvind Narrain | Saumya Uma Alternative Law Forum Bengaluru Breathing Life into the Constitution Human Rights Lawyering in India Arvind Narrain | Saumya Uma Edition: January 2017 Published by: Alternative Law Forum 122/4 Infantry Road, Bengaluru - 560001. Karnataka, India. Design by: Vinay C About the Authors: Arvind Narrain is a founding member of the Alternative Law Forum in Bangalore, a collective of lawyers who work on a critical practise of law. He has worked on human rights issues including mass crimes, communal conflict, LGBT rights and human rights history. Saumya Uma has 22 years’ experience as a lawyer, law researcher, writer, campaigner, trainer and activist on gender, law and human rights. Cover page images copied from multiple news articles. All copyrights acknowledged. Any part of this publication may be reproduced, copied or transmitted as necessary. The authors only assert the right to be identified wtih the reproduced version. “I am not a religious person but the only sin I believe in is the sin of cynicism.” Parvez Imroz, Jammu and Kashmir Civil Society Coalition (JKCSS), on being told that nothing would change with respect to the human rights situation in Kashmir Dedication This book is dedicated to remembering the courageous work of human rights lawyers, Jalil Andrabi (1954-1996), Shahid Azmi (1977-2010), K. Balagopal (1952-2009), K.G. Kannabiran (1929-2010), Gobinda Mukhoty (1927-1995), T. Purushotham – (killed in 2000), Japa Lakshma Reddy (killed in 1992), P.A. Sebastian (1948– 2015) and Mukul Sinha (1951-2014), among many others, and acknowledging all human rights lawyers who continue to work under challenging circumstances. By believing that all human beings are entitled to justice, their luminous lives continue to be an inspiration for all of us. Contents Introduction ................................................................................................................9 1. Motivations of Human Rights Lawyers ..............................................................13 Critical Events in the Collective Life of the People ..............................................14 Role of Ideology/Peoples Movements ..................................................................20 Role of Religion .........................................................................................................24 Individual Experience of Humiliation and Suffering ..........................................24 Individuals as Inspiration .......................................................................................27 Being moved by Human Suffering .......................................................................30 Legal Education ........................................................................................................33 Role of Bar Associations ..........................................................................................34 Organizations as Incubating Human Rights Lawyers .......................................35 A Liberal Understanding of the Role of Law .......................................................36 Role of Literature .....................................................................................................36 2. Strategies and Approaches in Human Rights Lawyering ...............................39 A. Mass Crimes ........................................................................................................39 A1. Addressing Atrocities against Dalits through the Law .....................40 A1.1 Social Mobilization combined with Effective Prosecution .......42 A1.2 Pressing for Immediate Relief through Interim Orders .............43 A1.3 Atrocities against Dalit Women .....................................................44 A1.4 Responding to Challenges faced by Sewage/ Manhole Workers .............................................................................46 A1.5 Obtaining Clemency for Death Penalty to Dalits ........................51 A1.6 Facilitating a Compromise ..............................................................52 A2. Countering Impunity for Communal Violence .....................................53 A2.1 Relief and Rehabilitation ..................................................................54 A2.2 Justice through Courts of Law .......................................................57 Naroda Patiya case ..........................................................................59 Gulberg Society case ........................................................................61 Bilkis Bano case ...............................................................................61 Strategizing on Victims’ Right to Appeal .....................................63 Holding the State Accountable for Protecting Persons .................. and Property during Communal Violence ..................................63 Questioning Majoritarianism through the Legal Process: ............ Resisting Attacks on Churches in Karnataka ..............................64 A2.3 Assisting the National Human Rights Commission (NHRC) ....68 A2.4 Engaging with Commissions of Inquiry .......................................68 Justice Liberhan Commission on the Destruction of ..................... Babri Masjid ......................................................................................68 Justice Nanavati Commission of Inquiry for the ............................ Gujarat Carnage ...............................................................................69 Justice Srikrishna Commission of Inquiry for ................................ Communal Violence in Mumbai ...................................................73 Other Commissions of Inquiry ......................................................76 A2.5 Public Hearings and Fact-Finding ..................................................76 B. Extra Judicial Killings / ‘Encounter Deaths’ ..................................................77 B1. Mumbai ........................................................................................................79 B2. Gujarat..........................................................................................................82 B3. Andhra Pradesh ..........................................................................................85 B4. Tamil Nadu .................................................................................................88 B5. Kashmir ........................................................................................................90 C. Addressing the Arbitrariness Inherent in Anti-Terror Laws .....................94 C1. Presumption of Guilt .................................................................................95 C2. Fabricated Charges against Innocent Civilians ......................................96 C3. Violation of Fair Trial Guarantees ..........................................................99 C4. Poor Quality of Legal Aid .......................................................................100 C5. Inordinate Delay Leading to a Shattering of the Lives of ....................... the Accused ...............................................................................................102 C6. Difficulties in Obtaining a Discharge/Acquittal .................................102 D. Countering Death Penalty .............................................................................104 D1. The Torture of Being on a Death Row ...................................................106 D2. Miscarriage of Justice ..............................................................................106 D3. Double Standards and Disproportionate Award of Death Penalty ..106 D4. The Linkage between Anti-Terror Cases and Death Penalty ............107 D5. Juveniles on Death Row ..........................................................................108 D6. Strategies in Working against the Death Penalty ...............................109 D7. The Importance of Research on Death Penalty ....................................110 D8. The Importance of a Network ...............................................................110 E. Consolidating Women’s Rights in Matrimonial Law ...............................112 E1. Judicial Stereotypes as a Barrier Towards Gender Justice ................114 E2. Contending with the Public-Private Dichotomy ................................115 E3. Dealing with Matrimonial Law Cases in the Pre-Family Court Era .117 E4. Procedural Delays and Hardship Caused to Women .........................117 E5. The Problem of Implementation of Orders ..........................................117 E6. Asserting Rights of Muslim Women .....................................................118 E7. Creatively Using the Existing Legal Framework ................................119 E8. Emphasizing Legal Awareness .............................................................120 E9. Building the Capacities of Women’s Rights Lawyers Working ............. in District Courts ......................................................................................120 E10. Trope of Misuse of the Law ...................................................................121 F. Issues, Challenges and Strategies in Labour Law ......................................121 F1. Right of a Representative Trade Union to be Recognized .....................
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