When Lawyers Masquerade As Judges
By Subhash Gatade
Those who can make you believe absurdities, can make you commit atrocities.
Ismail Jalagir, a senior counsel from Hubli (Karnataka) and Mohammad Shoaib, a senior advocate from Lucknow (U.P.) might not have heard about each other. But even their strongest critics would admit that they are made of the same mettle.If there are rewards meant for lawyers who are ready to go the extra mile to defend rigths granted to citizens under the constitution then both these worthy citizens of the country would be the first on the list.
What they have done and achieved - without bothering about the dangers to personal security and wellbeing - is really stupendous. They not only defied the unethical ban imposed by their fellow 'brethren' from their profession about not taking up specific cases but also exposed the manner in which a particular community is being 'stigmatised and terrorised' with due connivance of the police, media and a pliant legal fraternity.
It is for everyone to see that but for the efforts of Mohammad Shoaib, Aftab Alam Ansari from Kolkatta would have been languishing in jail as being a 'Lashkar-e-Toiba' operative supposedly involved in the bomb blasts in UP courts.
And there would have been no counsel for people like Asadullah Abubaker, Riyazuddin Nasir, Mohammad Asif and Mohammad Shakeel from Hubli and adjoining areas if Ismail Jalagir had not decided to take the plunge.In fact when Karnataka police arrested this foursome under charges of 'terrorism' there was no one to argue their case. Looking at the fact that nobody was ready to take up the cases of these people after the unanimous resolution by the Hubli bar association (12 th February) which had resolved not to fight cases on behalf of persons charged with 'anti-national' activities, Ismail Jalagir decided to act.
It need be emphasised that for such courageous act he faced wrath of Sangh Parivar. Miscreants tried to set fire to his office and even his junior's house was stoned. (Ref : Justice Can' See, Won't Hear, Suresh Bhatt, Letters, Tehelka, 10 May 2008) The role of the media in the whole case was also biased from day one. Despite senior police officers contention that the accused had no specific targets in Karnataka and there was no definite information, the local media had mounted a cacophonic campaign of misinformation.
As of now Mohammad Shoiab is handling many such cases in different courts of UP. Of course, there is no denying fact that much like Ismail Jalagir he is still facing the consequences of taking such a principled stand. He has come under direct physical attack at many places and in one latest incident in Faizabad courts he had to be literally 'cordoned' by a police team to save him from getting badly thrashed by fellow lawyers.
It is a different matter none of them have refused to be cowed down by such threats and intimidatory tactics.
A disturbing aspect of the whole scenario is that neither Hubli nor Lucknow are exceptions.
Today one after the other bar associations are coming forward and passing resolutions about not taking up cases of specific nature which according to them have 'anti-national' motives. And the latest to join the bandwagon is bar associations in Madhya Pradesh who have declared that they would not take up any cases where alleged operatives of a Islamic organisation were nabbed by the police. We know that the M.P. police arrested many people including ex-Chief of a particular organisation, claiming that they were associated with it. ( Let me make it very clear at this juncture that I do not hold any brief for sectarian organisations who have a very bigoted view of history - may they claim allegiance to any of the religions.)
The vehemence with which these bar associations have come forward to declare and implement their resolve, it is becoming clear that for them it is another name for wearing patriotism on their sleeves. And they have not limited themselves to passing resolutions, they have exhibited their 'readiness' to implement it also. At places they have not even hesitated in physically assaulting/intimidating anyone who opposed such a move or tried to take up cudgels on behalf of the accused who were charged with 'terrorism' by the police.
The case of Khalid and Tariq who are languishing in jail since last four months supposedly ( according to the police) for 'executing the serial blasts in courts of UP which left 14 people dead' presents a representative picture of the whole situation.
If one searches the record of the Jamia Tul-Salahat Madarsa in Jaunpur where Khalid use to teach, it tells us that not only he was present on the day (23 Nov) in the Madarsa but had also checked the copies of the students.The judge has been asked to cross-check the UP police story which says that Khalid landed in Lucknow in a bus on November 23 morning, met other accomplices, bought new cycles, planted bombs in Lucknow court premises and returned immediately to Jaunpur.
The recent decision of the UP government asking a retired judge to ascertain whether both these persons arrested for the court blasts in state are indeed terrorists or not, is an indicator of the pressure governments are facing over repeated complaints that the state police is implicating Muslims as terrorists.
STF - SPECIAL TASK FORCE OR SPECIAL TERRORIST FORCE ?
According to an investigation done by 'People's Union for Human Rights' (PUHR) whose extracts have appeared in different publications ( Re : 'Samayantar' - hindi magazine, April 2008)It tells us that Khalid was literally kidnapped by STF from a snacks shop on 16 th evening ( Mariyahu - Jaunpur) by people in civil dress who had come in a Tata Sumo which did not carry any number plate. Hundreds of people were mute witness to the kidnapping drama. Despite Khalid's family's best efforts no case of kidnapping was registered. On 19 th Decemeber police reached Khalid's house and interrogated his family members for hours together. Khalid's uncle Zaheer told the PUHR team that the police took with it Quran and a book on Hadees which was later claimed as part of 'terrorist literature'
Tariq was kidnapped by a similar team on 12 th December from Rani ke Sarai, Azamgarh at 12 noon. The police registered a case of 'missing' (not 'kidnapping') on 14 th December. The kidnapping case gave rise to lot of consternation in the area with political and social organisations coming forward to protest police inaction. On 17 th night around three dozen police personnel reached Tariq's house, interrogated his family members, took their signatures on blank papers and also carried with them some books in Tariq's possession ( which was later declared as 'terrorist literature).
Sixteen witnesses of Tariq's kidnapping ( which includes 12 Hindus and 4 Muslims) have filed an affidavit that Tariq was kidnapped before their eyes. Hundreds of residents of Mariyahu did a signature campaign and have presented a 'video recording' to the administration to tell it that Khalid was similary kidnapped before their eyes.
If one were to believe the STF version Khalid Mujahid and Tariq, are members of Harkat-Ul-Jehadi (HUJI) and were 'involved in the serial blasts that left 14 people dead.' it would nothing but a mockery of justice itself.
DENYING LEGAL HEARING 'DEMOCRATICALLY
If earlier the 'boycott' by bar associations, seemed to be a spontaneous reaction of the lawyers to any individual gory act which created revulsion in wider populace, now it seems to be more organised affair where vested interests owing allegiance to one of the sectarian ideologies seem to have taken over. These forces have tried to manipulate/orchestrate people's anger over 'violent acts' in such a manner that it has created 'us' versus 'them' like situation culminating in the stigmatisation of a particular minority community. Much on the lines of the law and order people, who are ready with an explanation after every such act with names and addresses of the miscreants 'from across the border', the vocal minority among the lawyer community have no qualms in fixing responsibility for the violent/terrorist act.
In fact the complete absence of the lawyers from the courts in addressing particular cases which have/had 'terrorist' bearings has led to a situation where many innocent persons are languishing in jails for no fault of theirs and it has become impossible to get them released even on bail.
It would not be incorrect to say that Uttar Pradesh is the 'birth-place' of this phenomenon. It all started in 2005 when there was a terrorist attack on the temporary structure at the disputed site. Faizabad bar association took a lead and declared that it would not take up cases of accused in the particular case. When a team of lawyers from outside the city ventured to reach the Faizabad courts to take up bail applications of the accused, it literally came under attack and had to leave the city under police protection. When legal proceedings in the Varanasi case started ( 2006) where there were terrorist incidents in Sankatmochan temple and railway station, one was witness to a similar action by the Varanasi lawyers. November 2007 witnessed bomb blasts in the courts of Varanasi, Lucknow and Faizabad and then the bar associations in Lucknow and Barabanki also joined the boycott of 'terrorist' cases.
Mr K.G. Kannabiran, Vice president of People's Union for Civil Liberties and a famous human rights activist, who is himself an advocate by profession, recently issued an appeal to fellow lawyers to reconsider and rescind their decision of boycott of particular cases. In his well publicised appeal he rightly said :
The Bar Resolution stifles right of the accused to defend himself at the trial. Our right to practice this profession is part of our fundamental rights. The accused has a right under Article 21 of the Constitution. Article 22 (1) gives the right to a suspect to have a lawyer present at the time of arrest and interrogation. The lawyers right to practice a profession or calling is directly concerned with these fundamental rights of a citizen who is an accused. Article 21 right includes the right of the accused to have lawyer for the defense. A lawyer’s freedom of choice while practicing his calling has limitations. We are not here concerned with the preferences available to a lawyer for practicing his calling. We are, Respected Members, concerned here with collectively imposing a ban on lawyers making themselves available to defend a particular accused? Have the professional members such freedom to practice their calling? Can the members of the Bar negate the right of the accused available to him under Article 21? The position taken by the Resolution is not morally or constitutionally justified. An emotional response is not a moral response. Arguing for a fair trial cannot be equated with or confused with asking to exonerate the guilty of his crime. Emotional indignation should not degenerate into pharisaical self-righteousness. There is no dichotomy between “morality” and the Constitution if one learns to do a moral reading of the Constitution. Let us not proceed on the facile assumption that there is no affinity between law and justice and law and morality.
OVER-LAWYERED BUT UNREPRESENTED !
are too many policemen, there can be no liberty.
When there are too many soldiers, there can be no peace.
When there are too many lawyers, there can be no justice.
- Lin Yutang (1895-1976), Chinese-American writer, translator, and editor.
One does not know the context in which the Chinese-American writer, translator and editor Lin Yutang mentioned the absence of justice when one has too many lawyers. Perhaps he was observing ( to quote Jimmy Carter) the 'over-lawyered and under-represented' US society which had 'heaviest concentration of lawyers on Earth' where 'legal skills seem to be unfairly distributed with ninety percent of the lawyers serving mere 10 per cent of the people.'
Definitely he was not contemplating the situation as it exists in many courts of h India at the fag end of 21 st century's first decade where one is witness to lawyers collectively refusing their services to accused in specific cases and thus facilitating denial of justice to them.
One can just hope that wiser sense prevail among the legal community and they would decide to rescind their earlier resolve to boycott such cases. In case it does not happen then it is "..[u]pto the Bar Council of India which is a regulatory body to take serious note of the resolutions passed by the bar associations (a forum of lawyers) which amount to not merely professional misconduct but are an infringement of the constitutional and human rights of the accused." (Accused, Presumed Guilty, april 26, 2008, Economic and Political Weekly)