The first thing we do, let’s kill all the (human rights) lawyers.
The relationship between civil liberties lawyers, more commonly identified by its universal moniker ‘human rights lawyers’ and repressive regimes globally demonstrate some common patterns of persecution and intimidation.
The reason, to borrow from Justice Kirby’s memorable words, is that ‘one of the features of the law that tends to irritate other sources of power is the demand of the law’s practitioners – judges and lawyers – for independence…those who are used to being obeyed and feared commonly find it intensely annoying that there is a source of power that they cannot control or buy – the law and the courts.’
Lawyers representing political prisoners, or other ‘unpopular’ clients are threatened with disciplinary action or charged with criminal cases themselves or killed, from Turkey to the Philippines to China to India.
On January 24, 1977, in what is now known as the Massacre of Atocha, five lawyers were assassinated and four wounded in their chambers in Madrid by neo-fascist terrorists after Franco’s death in 1975. They were members of the Workers Commission or Comisiones Obreras which fought against Francoist Spain.
Since 2011, hundreds of lawyers have been targeted in Turkey with mass arrests and mass trials. The Office of the UN High Commissioner for Human Rights noted in a report that by the end of 2017 in Turkey, around 570 lawyers had been arrested, 1,480 faced prosecution, and 79 had been sentenced to long-term imprisonment.
Of these, 14 presidents of bar associations were arrested or detained. Lawyers who were not arrested were being tried for criminal offences and barred from representing their clients.
In some cases, especially political cases, like that of Kurdish leader and founder of Kurdistan Workers’ Party (PKK), Abdullah Öcalan, 45 lawyers were arrested, simply for being Öcalan’s lawyers.
In Philippines, reports have indicated that human rights lawyers are ‘red-tagged’ for defending political dissidents and victims of human rights violations leading to harassment, surveillance, loss of employment and killing.
China’s 709 crackdown in 2015 convicted human rights lawyers for allegedly “subverting state power”, “inciting subversion of state power” or “picking quarrels and provoking trouble” for just performing their duties as lawyers. Some were disbarred.
The Bharatiya Janata Party-led government’s crackdown on its critics, including human rights lawyers, have largely followed the transnational pattern of intimidation and persecution. The two most visible instances of attack on human rights lawyers in recent times are the incarceration of lawyers in the Bhima Koregaon case and the continued persecution of Lawyers Collective.
In 2018, raids and arrests were conducted on human rights activists, including two prominent lawyers Sudha Bhardwaj and Surendra Gadling, in connection with a public meeting organised by Dalit and Adivasi rights groups days before caste-related violence broke out in Bhima Koregaon near Pune on January 1. These arrests were made under India’s draconian counter-terrorism law, the Unlawful Activities (Prevention) Act, which is routinely used to silence critics of the government and violates international human rights standards and even circumvents guarantees of fair trial under ordinary criminal law in India.
Bharadwaj, a trade union activist and human rights lawyer, spent decades of her life in Chhattisgarh representing the most marginalised Adivasis against dispossession and displacement by corporate powers and the Chhattisgarh state.
Realising that workers need good lawyers in their fight against corporations to demand fair wages and dignity, she relentlessly defended contract workers, and was also instrumental in bringing attention to human rights violations by the Salwa Judum, who are essentially state sponsored armed vigilantes in Chhattisgarh. Pune police arrested Bharadwaj and others on a dubious claim that Bharadwaj was involved in a plot to assassinate the prime minister.
A ‘letter’ purportedly written by Bharadwaj was released by the police to the media as a damning evidence of her culpability. The said letter, written in Marathi, a language foreign to Bharadwaj, offers a glimpse into the sinister world of malicious prosecution in India.
Surendra Gadling, a human rights lawyer and a Dalit rights activist, in his legal career of two and a half decades, represented numerous political prisoners and was successful in getting acquittals for activists charged with draconian anti-terror legislations.
Arun Ferreira, another human rights lawyer arrested in Bhima Koregaon, and who was earlier represented by Gadling leading to an acquittal, described the latter as ‘a thorn for the state government because in his entire career, he has managed to get a lot of acquittals for political prisoners who were falsely charged with Naxalism and other crimes’. Gadling represented G.N. Saibaba, a wheelchair-bound professor of Delhi University who was charged under the draconian UAPA for alleged ‘Maoist activity’.
He was also instrumental in probing the encounter killings of 40 alleged Maoists by police in Gadchiroli district last year. Gadling, Ferreira and Bharadwaj are all members of the Indian Association of People’s Lawyers, which is the Indian chapter of the International Association of People’s Lawyers.
Lawyers Collective, founded in 1981 by prominent human rights lawyers Indira Jaising and Anand Grover as a public interest lawyering collective has been constantly intimidated by the ruling government since 2016, when the government suspended the organisation’s licence to receive foreign donations under the Foreign Contributions (Regulation) Act (FCRA).
The FCRA, itself a product of India’s dark Emergency era, was devised as a way to keep civil society organisations under a tight leash by restricting electoral candidates, political parties, judges, MPs and even cartoonists from accepting foreign contributions.
The Act was clandestinely amended by way of a Finance Bill in 2016 to make it even more draconian than its predecessor leading to the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association decrying that the norms and regulations in FCRA are “not in conformity with international law, principles and standards”.
The BJP government cancelled licences of over 20,000 NGOs, including Lawyers Collective, by stating that funds received were being used for ‘political purposes’ or ‘anti-national work’.
Earlier this year, an unknown NGO, purported to have ties with BJP, known as Lawyers Voice, filed a public interest litigation in the Supreme Court seeking a court monitored probe by a Special Investigation Team (SIT) into the Centre’s ‘apparent illegality and non-action’ against Lawyers Collective and its founding trustees Jaising and Grover. The petition did not provide any specific detail, made vague accusations of ‘various malpractices’ and was listed in the court in a highly irregular manner.
Lawyers Collective is known for its human rights work of decades, and Jaising had defended Teesta Setalvad, who campaigned to hold Modi responsible for his role in 2002 Gujarat riots, and also appeared in the Sohrabuddin Sheikh encounter case which directly implicated Union home minister Amit Shah.
Grover had appeared for Yakub Memon, who was convicted in the Bombay blast case, arguing for commutation of his death sentence. The PIL was heard by a bench headed by Chief Justice of India Ranjan Gogoi, who himself was accused in a high-profile case of sexual harassment by a former staff of the Supreme Court and where Jaising was vocal in demanding that a proper inquiry be conducted.
On the basis of this petition, an FIR was lodged, followed by surprise raids by CBI into the residence and offices in Delhi and Mumbai of Jaising and Grover, actions which can only be described as unwarranted, illegal and amounting to gross abuse of the process of law. Later, when the lawyers and the organisation approached the Bombay high court for protection and the court granted the same by way of an interim order, the CBI approached the Supreme Court, demanding vacation of the interim protection granted by the court in a bid to conduct custodial interrogation.
Trumped up economic charges, thus, are given the colour and force of criminal offence in blatant disregard of law and established procedures.
Red-tagging, to borrow from the dissenting opinion of the Filipino judge Marvic Leonen in Zarate vs. Aquino III is “the act of labelling, branding, naming and accusing individuals and/or organisations of being left-leaning, subversives, communists or terrorists (used as) a strategy…by State agents, particularly law enforcement agencies and the military, against those perceived to be ‘threats’ or ‘enemies of the State’.”
In India, red-tagging translates to terming human rights lawyers, among others, as ‘urban Maoists’, ‘urban Naxals’ or ‘Maoist sympathisers’ or the more pervasive ‘anti-nationals’ even though exasperated courts at times have remarked that anyone speaking for human rights cannot be tagged as ‘Maoists’.
Bharadwaj, Gadling, Jaising and Grover are not the only ones to be at the receiving end of relentless persecution and intimidation.
Lawyers of the Jagdalpur Legal Aid Group (JagLAG) in Bastar, Chhattisgarh were hounded by the state government in 2016, by an assortment of legal manoeuvres and threats.
In Tamil Nadu, police arrested lawyer A. Murugan under the UAPA on charges of “instigating” two women towards ‘Maoist ideology’. As a defence lawyer, Murugan was known for taking up cases of suspected Maoists. Vague definitions of conspiracy, association and culpability under draconian anti-terror laws have assisted investigating agencies to book activists and their lawyers under the same charges.
While this goes against the rule of professional standards codified in the Advocate’s Act 1961, that an advocate ‘shall fearlessly uphold the interests of his client by all fair and honourable means’ and that ‘he shall do so without regard to any unpleasant consequences to himself or any other’, or Article 19 (1) (g) of the Constitution which guarantees a person the right to practice any profession or even Principle 18 of the Basic Principles of the Role of Lawyers, 1990 adopted by the 8th Congress of the United Nations in Havana, which categorically states that ‘lawyers shall not be identified with their clients’ causes as a result of discharging their functions’, the nature of the Indian bar has made resistance to these attempts at curbing independence of the legal profession a more complex and contested issue.
The crisis of the Indian legal system is ‘a crisis of the legitimation of law’, and in the words of Upendra Baxi, an interlocutor of Indian legal system, ‘most legal rules do not set any genuine moral constraints to behaviour motivated by strong personal or group interests’.
Naturally, populist discourse of ‘anti-nationalism’ easily trumps ethical considerations of the legal profession. To give an example, the Bar Council of India chairman, while openly addressing the prime minister as ‘my lord’, ‘our guardian, our guide’, ‘most efficient and able leader of the world,’ has taken strong objections to lawyers legitimately critical of executive interference on judiciary. At a time when human rights lawyers are regularly attacked, the Bar Council of India has continuously failed in its role to uphold and protect the rights of lawyers to defend their clients fearlessly.
The International Bar Association’s Task Force on the Independence of the Legal Profession, in its 2015 report, identified several indicators to determine the degree of independence or lack thereof in particular jurisdictions. These include among other things, threat indicators like incidents of violence, harassment and intimidation of lawyers, legislative attempts to limit the freedom of expression and freedom of association, arbitrary arrests and detention of lawyers, and so on.
It doesn’t take long to gauge the threats to independence of legal profession in India. The ‘irritants’ are sought to be silenced.
It is therefore hardly surprising that human rights lawyers featured prominently as targets in the most recent snooping storm engineered by ‘Pegasus’ generated by transnational network of surveillance capital in the service of powerful governments. One of the lawyers under surveillance is associated with Surendra Gadling’s office, two others are associated with or representing Sudha Bharadwaj, the rest are also human rights lawyers and activists.
The Bar Council of India should wake up and smell the stench of the rotting corpse of independence of legal profession.
Jhuma Sen is an assistant professor at Jindal Global Law School in India. She is the inaugural Future of Change India Research Fellow at the University of New South Wales, Sydney. She tweets @inabluehouse.