The human rights lawyer talks to The Wire about the cancellation of Lawyers Collective’s FCRA license, the cases they took up against those in power and more.
It’s barely a fortnight that the doughty civil rights lawyer Indira Jaising received news that the Narendra Modi government had cancelled the Foreign Contributions (Regulation) Act (FCRA) license to her organisation Lawyers Collective (LC). But this has not stopped her from writing articles that Modi’s current pet project, demonetisation, is illegal and not backed by law. Jaising believes it is no coincidence the LC, like other organisations that work for 2002 Gujarat riot victims, Dalits and other minorities are being targeted and victimised, since this gets in the way of the top BJP leadership and their policy of exclusive development. The LC, like the rest of civil society organisations targeted, will continue their work, she says, irrespective of foreign funding or not, for their endeavor to deepen democracy, guard civil liberties and the right to dissent carries on uninterrupted.
In a freewheeling interview, Jaising talks to The Wire about the cases she took up, from the civil suit against Modi, to the murder charges against BJP party president Amit Shah, and governance today. Excerpts:
Is there a climate of aggression with the cancellation of FCRA to your organisation Lawyer’s Collective, Teesta Setalvad’s Citizens for Justice & Peace, Shabnam Hashmi’s Anhad, among others?
Speaking as a lawyer, the defining characteristic of the present government is that it undermines the rule of law. It began with the ordinances to amend the Land Acquisition Act, by trying to do away with the key component that needed the consent of 74% of the owners of the land the government wished to acquire in the name of infrastructure projects. This was sought to be pushed not through an act of parliament but through an ordinance. We, a group of lawyers on behalf of farmers, challenged it arguing that an ordinance can only be issued in an emergency. The court issued notices on the petition, but the ordinance was reenacted three times – the government would wait for parliament to adjourn and reenact the ordinance every time as they did not want to face the house. Ultimately, they realised the political folly of passing such an amendment because the farmers who are such a substantive constituency would go against them, so they dropped the idea of amending the act.
The second attempt to undermine the rule of law was the refusal to make appointments of judges to the high courts on the recommendation of the Chief Justice of India, despite the NJAC (National Judicial Appointments Commission) judgment which gave primacy to the judiciary in the matter of appointments. The third and most recent was the use of Section 26(2) of the Reserve Bank of India Act to demonetise 86% of the currency in circulation through subordinate legislation, instead of passing a law. This was the perfect occasion to introduce an ordinance but it was not done to avoid parliamentary approval. To disregard the constitution has now become a pattern with this government.
When did you first get the notice about investigations into Lawyers Collective?
It was on the day that Anand Grover went to file a petition in the Bombay high court on behalf of Harsh Mander, who wanted to question the discharge of Amit Shah as an accused in the murders of Sohrabuddin Sheikh, his wife Kauser Bi and prime witness Tulsiram Prajapati. The case was seen by three judges – the first judge was transferred summarily after he gave an adverse comment on Shah’s absence in court when it is a requirement to be present in a criminal case; the second judge died under mysterious circumstances, though it was ostensibly because of a heart attack. The third judge, who discharged Shah, gave a long judgment written in the style which is very different to the one he is known to write. He examined all the evidence on record, which you cannot do at that stage, and discharged Shah. This means the case against him does not go to trial. Meanwhile, Sohrabuddin’s brother Rubabuddin, who first filed a petition against the discharge, withdrew and Harsh Mander came in.
You were not served a notice by the government?
No, we did not receive a notice, but it was already put up on the home ministry website! The government soon realised they had made a mistake and took it down, and this shows their malafide intent. Interestingly, when the home ministry finally gave us a notice, after asking us some questions, inspecting our accounts, it was practically the same notice as the one they had put up in the first place. What does it prove? It shows that they had made up their minds that we were guilty and what followed was a mere formality.
One of the allegations in the show cause notice is that as a government servant you were also receiving remuneration from Lawyer’s Collective, which you could not?
I disputed this and asked the government a counter question – if your Attorney General Mukul Rohtagi is a government servant then why did you give him permission to appear for the liquor lobby of Kerala? I presume they realised they had blundered, in the final order they do not call me a government servant. The prohibition in the FCRA is only applicable to a government servant, which I was not. Yes, I took remuneration from Lawyers Collective when I was ASG, but I had written to the law minister asking for his permission to do so. At the time the Lawyers Collective was working on women’s issues, we were monitoring the Domestic Violence Act, issues of sexual harassment, sexual abuse, rape, the Nirbhaya case had just happened; we were working on these issues. So I asked the law minister to permit me to continue taking a fee; Veerappa Moily said yes.
Of course, in the order the home ministry agrees that I have the permission, but adds the law minister had no business giving me permission in the first place! In fact it is none of the business of the home ministry to question the decision of the law ministry. They know this but it suits their interest to make such allegations.
There were allegations of diverting funds on Anand Grover too.
Anand had claimed reimbursements for the expenses incurred on telephone and internet for the work done for Lawyers Collective while he was abroad on mission as the UN special rapporteur on health. He had to be in constant touch with his staff for various work when he was abroad. This was budgeted in the grant and he was reimbursed the expenses he had incurred through banking channels. The government claims that he diverted money for personal expenses.
When was the first time you challenged the Modi government?
It was way back in 2002, when Anand Grover and I, in our capacity as practicing lawyers, had filed a civil suit against then chief minister of Gujarat Narendra Modi, now prime minister, on behalf of three British citizens of Indian origin who were done to death because they were Muslims. This is the only civil suit filed in the 2002 riots against Modi, all other prosecutions are under criminal law against the accused. The civil suits ask for compensation for the three British citizens and their legal heirs. It is still pending in a district court in Gujarat for recording evidence and one of these days it will have to be decided.
You seem to have got under the Modi’s skin.
Let me bring in Lawyer’s Collective here – Anand and I are functionaries and trustees of Lawyer’s Collective. The LC does funded work which is in relation to women’s rights, human rights; it is institutional, advocacy, provision of inputs for legislation – as I’ve said, our legal team played a significant role in the Domestic Violence Act 2005, the HIV bill prohibiting discrimination against people, to taking the legal battle against Section 377, that criminalises same sex relations. Perhaps the tipping point in the victimisation of Lawyer’s Collective came after Anand in his personal capacity represented Yakub Memon on his mercy plea against the death penalty. This was seen as an anti-national act and the die was cast against the long line of grievances against us. This was like the last straw.
And the list includes representing Greenpeace activist Priya Pillai and Gujarat police officer Sanjiv Bhatt, who has deposed against Modi in the Gujarat riots? You’ve even written saying demonetisation is illegal?
Yes, when Priya Pillai was offloaded from her plane to London because there was a lookout notice for her, she went to the high court and succeeded in getting the notice struck down. I represented her. The court said that just because someone has a different point of view on the issue of development, you cannot prevent her from travelling abroad. Surprisingly that judge, who is a fine judge by all accounts, was transferred to Chennai. What is the message to all other judges? If you give an adverse order against the government, this is what is going to happen to you. So, talk about victimising the LC, judges are also being victimised.
In the case of Sanjiv Bhatt, when his petition came up in the Supreme Court, Kapil Sibal asked me to argue the matter in his place as he was busy. Bhatt had access to an exchange of emails between Tushar Mehta, the present AGS, who was then advocate-general of Gujarat, and counsel of the accused, namely Amit Shah. Mehta was prosecuting the accused but he was sharing drafts of the affidavits with the counsel of the accused asking if they were ok, should he go ahead and file it, etc. Similarly, Mehta was also consulting RSS ideologue S. Gurumurthy, who was writing long affidavits on what should be said about Teesta Setalvad. All this was brought to the attention of the Supreme Court but the court chose to reject the petition and made no comments about Tushar Mehta having communicated with the accused. As for Gurumurthy, the court said he was a “knowledgeable incumbent” and hence saw noting wrong in the advocate general of the state of Gujarat consulting an RSS ideologue on how to draft the affidavit of the state!
Why should the Modi government target you when it has won almost all the cases you challenged it on?
Yes, except in the Greenpeace case, they won all. Any sensible democratic government or person would leave these matters to the court of law, because everything we do is open and is in a court of law. We file our petitions, the other side is represented, the hearing is public, we do expect that the government will come and oppose our stand in a court of law. Even in the Sohrabuddin case, the petition was lost in the high court. Harsh Mander filed it in the SC, but it was dismissed. Kapil argued the case for Harsh Mandar and Harish Salve argued in favour of Amit Shah as his counsel. The government’s balance sheet is clear, they have nothing to fear, the only significant case pending in the court now is that of Zakia Jafri, which is being pursued by Teesta’s organisation, Citizens for Justice and Peace.
So Modi has not got a clean chit?
No court has given Modi a clean chit – the term ‘clean chit’ has no meaning in law, either there is an acquittal, discharge or conviction. The trial court gave a closure report saying that there was no evidence to show that Modi was in collusion or in a conspiracy for the riots; that decision is under challenge in the high court.
How did you feel when you were served the notice?
We were shocked but not surprised. In the final order they came up with a new allegation that there was no record of the work we had done. This is despite the fact that they had spent five days inspecting our records. These records document the enormous amount of work we have done, all reflected in our records and duly supported by proper documentation. They just ignored all that. The FCRA is used as a tool to malign those who are seen by the government as opposing them.
There was a strange article about you in the RSS magazine, Organiser.
Yes, the attack against us started after an article appeared in the Organiser, in reference to Kerala, in which a hilarious claim was made that I was responsible for the licentious behaviour of women and men who are now in live-in relationships, since we had provided legal inputs for the Domestic Violence Act. The article claimed that this was the reason why people in Kerala were anti-Hindutva. I thought it was a joke, but this was an RSS plan, because soon a complaint was filed in the home ministry by a known RSS person, Raj Kumar Sharma, from Jaipur, asking to investigate us.
Has the FCRA become a tool to ‘fix’ dissenting voices?
Here’s a government misusing its own law, in this case they are manipulating the FCRA. They’ve gone after Lawyer’s Collective, Teesta’s organisation, Anhad, people who work with Dalits, Muslims. The pattern is clear, even a blind person can see it.
Is there something intrinsically wrong with FCRA as a law?
There are a lot of problems with the law, the most important being why is foreign funding to NGOs under the home ministry when foreign direct investment, in sectors as critical as defence and media, comes under the finance ministry? Why is the office of the FCRA full of Intelligence agents? Our FCRA license has not been renewed on the basis of a “field agency report”. Here, the agency report means intelligence agencies and they come into the picture only when the sovereignty or national security of India is under threat. It’s laughable to be told that an NGO or individuals like Teesta or Shabnam Hashmi or Martin Mackwan who works on Dalit issues or I are compromising the sovereignty of India. And just because Greenpeace had a dissenting opinion on what is development, this compromises the security of India? Why are they criminalising a mindset?
You were also legal counsel to the UPA government, you also received funds under FCRA, was there any attempt to reform the law?
The law, as you rightly pointed out, has always been in existence since 1975, during the Emergency. It was reenacted in 2010. The UPA government did use this law against those protesting the Kudankulam nuclear plant. But today it’s an epidemic of cancellations. The use of the law has become very personal, it is used as a weapon of ideological war against dissenters. We believe that these decisions are being taken not by the home ministry but outside it.
Because there were cases against Modi and Shah that directly affect them?
Yes, that is very evident. However, taking away our licenses is foolish for two reasons: one, they can win cases in court as has been seen so far; and secondly, they should realise that it does not stop us from doing our work. Look at Teesta, she has been at the receiving end of the present administration(‘s anger) for the last several years, but it has not stopped her from pursuing the cases of the 2002 riots. This government should understand that some of us do what we do not because we are hired to do it or because we get money to do it, it’s not the foreign funding which makes us speak up; it is because we believe in the work we do. In any case, we are taking legal recourse to fight for our constitutional rights. The work is still continuing and will continue. We have had to downscale, but the work will not stop.
Have you approached Indian funders? How forthcoming are they? Indian funders don’t seem very forthcoming when it comes to advocacy and activism?
Yes, there are only certain approved activities of the government where you get funding, CSR for example or work on Swacch Bharat. We are not a mature democracy where rights-based work is accepted as being within the constitutional framework.
Do you believe there was a lot more judicial activism during UPA, from 2G to coal, than now?
It’s very difficult to answer that except to say the judiciary was active towards the tail end of the UPA. The issue is not about activism, it is what issues they pick up and what they don’t, the act of picking up an issue is a political act. For any judiciary, whether it’s functioning under UPA or whether it’s functioning under the present government, the very decision on whether to open the doors of the court is a political decision. You may file any case you want to, but it is the judge who decides when to open the gateway to the courts. Many cases get rejected at the threshold and never get heard, though they raise eminently just issues.
Vrinda Gopinath is a senior journalist.