Contents

Whats law got to do with justice? by Oishik Sircar and Saptarshi Mandal

The new avatar of the judiciary by Rakesh Shukla

Inequality before the law by Garga Chatterjee

11

Invisibilising mass violence in Gujarat by Anita Abraham

14

Citizen power or media power? by Maya Indira Ganesh and Gayatri Ganesh

18

Accessing justice in times of terror by Mayur Suresh

22

Impunity in the name of war against terror by Manisha Sethi

26

Afzal Guru case: Justice ended up the loser by Saurav Datta

30

Multiplicity of human rights institutions by Swagata Raha

34

How to file a PIL by Shambo Nandy

37

Meeting the law halfway by Abha Singhal Joshi

40

Is this reformatory justice? by Geeta Sajjanshetty

42

Undermining the domestic violence law by Jayna Kothari

45

Maintenance as an entitlement by Pooja Badarinath

47

The supportive role of womens organisations by Rukmini Sen

50

Commissions of compromise by Sonal Makhija

53

Disabled women and sexual violence by Shampa Sengupta and Saptarshi Mandal

56

Policing hijras by Siddharth Narrain

59

Cover: Survivors at the devastated Gulberg Colony in Ahmedabad, 10 years after the Gujarat riots (Reuters)
This volume has been guest-edited by Oishik Sircar and Saptarshi Mandal

ISSUE 26 2013

Editors: Hutokshi Doctor, John Samuel

Production and layout: Gita Vasudevan, Sameer Karmarkar
Infochange team: K C Dwarkanath,
Rifat Mumtaz, Neha Mathrani, Vijay Narvekar, Vishnu Walje

Access to justice

Whats law got to do with justice?

There are two perceptions of law and justice: One is of law delivering justice, the
other is law as justice. The state, in legislative overdrive, wants us to believe that
more laws equals more rights equals more justice. In fact, there are widening
fissures between law and justice. Identifying these fissures could help us mend them
for better access to and delivery of justice

ON JANUARY 26, 1950, we are going to enter into a life of

contradictions, B R Ambedkar had prophesied. He said: In
politics, we will have equality and in social and economic
structure, continue to deny the principle of (equality) How
long shall we continue to live this life of contradictions?...
We must remove this contradiction at the earliest possible
moment else those who suffer from inequality will blow up
the structure of democracy (1).
Contradictions continue to be the defining feature of Indian
democracy today as it sits on a precipice. The constitutional
promise of emancipation for all seems to have been frustrated
by the scandal of the powerful and elite who have usurped
both the mind-space and material-spaces where justice
can be imagined and claimed. Forests, hills and rivers are
being re-colonised by corporations; as Ambedkar had said,
the marginalised still have no mainstream press; there is an
upper-caste onslaught against reservations in institutions and
jobs; violence against women and the sexually marginalised
attract selective middle class outrage; streets are being
sanitised of the homeless; cities are being cleansed by
banishing the migrant poor; and the courts, as Justice
Dwivedi had observed in 1973, have become the arena of
legal quibbling for men with long purses (2).

ISSUE 26 2013

Despite the lived experience of the laws fraught and very

fragile relationship with justice, the poor place faith in the
law to deliver them from injustice, and the law holds them
captive while they are without rights. This double-binding
quality of the law works to maintain the rightsless citizens
continued faith in the state (and now increasingly the market)
even as they are left disappointed by the laws promises
of emancipation. Despite the contradiction between the
vision of emancipation that the law promises and the reality
of violence that the law performs, demands for more laws to
protect rights, and claims in courts for redressal of wrongs,
remain the most frequent forms of public engagement for the
poor and disenfranchised.

Faith in the law emerges from two sources: one is the lived
experience of knowing that the law delivers justice; the other is
the perception of the law as justice. We are made to understand
that there is a linear progressive equation at work here: more
laws equals more rights equals more justice. This is an equation

OISHIK SIRCAR
SAPTARSHI
MANDAL

that has informed and been informed by fundamental rights

jurisprudence and law reform, the enactment of legislation to
guarantee socio-economic rights, and many of the strategies of
social movement activism in India.
The state keeps alive this equation by being in a mode of
legislative overdrive, projecting new laws and law reform as
primary forms of good governance. The United Progressive
Alliance (UPA) government has been celebrating its pro-aam
aadmi commitment by continuously passing laws like the National
Rural Employment Guarantee Act, 2005, Right to Information Act,
2005, Protection of Women from Domestic Violence Act, 2005,
Right of Children to Free and Compulsory Education Act, 2009,
among others even as it has continued its military onslaught in
Kashmir and Manipur by not scrapping the Armed Forces Special
Powers Act. Whenever justice is in crisis, the government enacts
a law. The secret drafting and passage of the ordinance after the
Delhi gang-rape and murder is a case in point.
A court for Indians?
If our faith in the Indian Constitution has remained even
contingently intact for over 60 years, is this almost singularly
owed to the Supreme Courts efforts (in response to claims by
peoples movements and social action groups) in expanding
the horizons of the right to life under Article 21, as well
as rescuing us from the judicial blunder of suspending the
right to life made during the Emergency? As the renowned
legal scholar Upendra Baxi noted in 1985 in response to
the courts judicial activism: The Supreme Court of India
is at long last becoming the Supreme Court for Indians
(3). Baxis optimism, however, has waned over time, and
he wrote in 2002 about his disenchantment with the court:
This disenchantment is now more fully voiced when the still
rightsless peoples have to say even to the Supreme Court of
India: Physician heal thyself (4).
Baxis disenchantment is evident even after a spectacular
history of judicial activism and public interest litigation (PIL)
in India. The Supreme Court has time and again upheld the
constitutionality of draconian laws like the Terrorist And
Disruptive Activities (Prevention) Act, 1987, the Prevention
of Terrorism Act, 2002, and the Armed Forces Special Powers
Act. What, then, has allowed the highest court to maintain its
avowed position as the Supreme Court for Indians? Has the

Introduction

court built on the trail-blazing history of judicial activism from

the 1980s, or has it given in to the corporatised demands
of liberalisation that started in 1991 to keep pace with the
march of global capitalism?
One trend suggests that in deciding PIL cases where the litigant
is seeking redress for socio-economic rights violations judges
have become reluctant to strongly penalise the government
even when the state fail(s) to fulfil its statutory obligations.
Instead, courts adopt weak remedies, such as setting
up committees and (commissions) (5). This emphasis on
weak remedies marks a peculiar characteristic of legislative
democracies like India, where most socio-economic rights are
enumerated in the Constitution but are never on a par with
civil and political rights. This status makes socio-economic
rights non-justiciable and only progressively realisable. Given
their constitutionally vulnerable status, socio-economic rights
are further at a systemic risk in legislative democracies because
those who would benefit from them lack political power (6).
In effect, while we might have rights-enhancing judgments
from courts that interpret the Constitution expansively, these
judgments do not transform structures of injustice.
A plain reading of the Constitution sets up the spectacular
potential of its design: its commonsensical distinction between

fundamental rights (FRs) and directive principles of state

policy (DPs). As is evident from the language used, there is a
clear hierarchy between these two sets of entitlements. FRs
like equality (Article 14) and life (Article 21) are worded in a
way that imposes a positive limitation on state action, namely
that the state shall not deny to any person or no person
shall be deprived. On the other hand, the DPs such as work
(Articles 41 to 43), education (Article 45), health (Article 47),
and environment (Article 48A) are preceded by aspirational
language the state shall promote with special care;
the state shall take steps by suitable legislation; the state
shall make effective provision for; the state shall, within
the limits of its economic capacity and development; or the
state shall endeavour to secure. The distinction between the
two, then, is a matter of the intention with which they were
inserted into the Constitution in the first place. Regarding the
DPs, B R Ambedkar noted during the Constituent Assembly
Debates that it was the intention of the Assembly that in
future both legislature and the executive should not merely pay
lip-service to these principles enacted in this part but that they
should be made the basis of all executive and legislative action
that may be taken thereafter in the matter of governance of
the country (7).

ISSUE 26 2013

Success rates for the disadvantaged in

fundamental rights cases before the Supreme
Court have declined sharply since the 1990s,
while those for advantaged classes have risen

Access to justice

Yet, the DPs were, from the beginning, imagined as entitlements

that would be progressively realised, contingent upon the
economic ability of the state. While the state has always put
rights enshrined in the DPs on the backburner by hiding behind
the fig leaf of economic incapacity, it has continued to pump
money to arm the state to the extent of investing enough
monetary resources to orchestrate the Emergency in 1975 and
current emergencies spread across India.
As Radha DSouza notes, during the first phase of the PIL
years (1977-1987) the Supreme Court emphasised human
rights and facilitated access to justice for marginalised classes
and groups (8). In the second phase (1988-1998) it started
engaging with PIL primarily on issues of governance (9). And
during the third phase, which began in 1998, the (Supreme
Courts) responses to economic legislation in the wake of
neo-liberal reforms, which include privatisation, liberalisation,
withdrawal of the state from critical areas of decision-making,
and increased federal intervention in the states among
other things raised concerns about the ramifications of
PIL in the era of globalisation (10). Since the beginning of
this phase, the (Supreme Court) has upheld liberalisation
and privatisation but declined to intervene in matters of
redistributive justice (11). In doing so, the Supreme Court
fashioned itself as an organ of neo-liberal governance and
according to Balakrishnan Rajagopal started sharing the
biases of many of the goals and methods of (neo-liberal)
governance itself (like) market fundamentalism, state
fetishism, and the culture-ideology of consumerism (12).

ISSUE 26 2013

This turn has been substantiated through an empirical study by

Varun Gauri, which shows that between 1961 and 2008, the
Supreme Courts response to socio-economic rights questions
increasingly became pro-middle class and anti-poor. Among
other things, success rates for disadvantaged social classes
in selected FRs cases before the Supreme Court decreased
drastically from 71.4% (1961-1989) to 47.2% (2000-2008).
Conversely, the success rates for claimants from advantaged
social classes increased from 57.9% (1961-1989) to 73.3%
(2000-2008) (13). As the conclusion of this study notes: The
data here constitute a prima facie validation of the concern
that judicial attitudes are less favourably inclined to the claims
of the poor than they used to be, either as the exclusive result
of new judicial interpretations or, more likely, in conjunction
with changes in the political and legislative climate (13).

In another survey of the Supreme Courts docket, Nick

Robinson finds a court overwhelmed by petitions not from
poor or ordinary people but from those with money and
resources. In fact, these more privileged litigants very often
swamp the court using the very mechanisms that were
historically justified to make it more accessible to the less
fortunate (14). In 2007, 40% of the Supreme Courts regular
hearings were on tax, arbitration, and service issues: A
disproportionate number of appeals are made up of these
cases, which generally involve the more affluent litigants
or government lawyers (who do not bear the cost of the
appeal themselves) (15). Robinsons findings show that in

the 1970s, around 10% of cases before the Supreme Court

were fundamental rights writ petitions, of which 5% were
admitted, and, in 2008, the numbers dropped drastically
to 2%, of which none were admitted: In 2008, the court
received 24,666 letters, postcards, or petitions asking its
intervention in cases that might be considered public interest
litigation. Of these, just 226 were even placed before judges
on admission days, and only a small fraction of these were
heard as regular hearing matters. The rest were rejected (16).
This drop might have had a lot to do with an articulated
stand by successive governments and many political parties
that have frowned upon judicial activism allegedly usurping
the turf of the executive (17). The present UPA government
has even proposed a national litigation policy to claim
damages from those who file frivolous PILs. This move
comes at a time when it is well-known that it is neither poor
communities nor human rights activists who file PILs on their
behalf but rather the state that is the most active litigant (18).
The troubling concern here is that the PIL has turned into the
proverbial Frankenstein that the state is unable to control
which is why the state needs to discredit it forcibly. This is bad
news for the rightsless, for whom PIL seemed to be the most
powerful means of gaining at least recognition and visibility,
if not emancipation and justice.
Who delivers justice?
The PIL in many ways served as an alternative path to
justice delivery, particularly for the poor and powerless. The
mainstream path is expensive, legalistic and has for long been
overwhelmingly crowded. As of 2010, there was a backlog
of 31.28 million cases pending in various courts including
high courts in the country, which would take 320 years to
clear (19). The situation certainly hasnt improved in 2013.
We have seen a range of governmental innovations from
lok adalats to fast-track courts to specialised courts for family
and consumer disputes to commissions to out-of-court
settlements through arbitration and conciliation and state
legal aid services to name a few as attempts to tide over
the enormity of this backlog and enable swifter access to
justice. Yet, all of these alternative routes are beset with deep
problems, and seem to have made access to justice more
complicated, bureaucratic and cumbersome. The problems
with alternative routes are not only functional but also
structural: absence of adequate funding for many of these
systems, inherent biases towards marginalised groups and
individuals who approach them seeking remedy, and lack of
collective commitment to social justice.
After the December 2012 gang-rape and murder of a 23-yearold physiotherapy student in Delhi, the government quickly
set up fast-track courts to try rape cases, as if the speed with
which rape cases were disposed of were all that mattered.
There was scant mention of how trials would be conducted
in these new structures and whether these fast-track courts
would be any different from regular courts in their attitude
towards the rape victim. While speedy trial became the

Introduction

SMS justice: 24/7 news media

turns into a courtroom and
fuels the national bloodlust

In the family courts, lip-service is paid to alternate legal

methods, but judges and counsellors still work in the ways
in which they themselves were disciplined to learn about
rights or entitlements. Litigants are subjected to judges
directions and are expected to be best represented through
the judges mediation rather than their own. In fact, it could
be argued that this format has vastly increased judges
unilateral powers in exchange for lawyers and has fewer
checks and balances. Those litigants with few educational
and financial resources are at a further disadvantage, unable
either to perform satisfactorily in court or to hire lawyers for
a potentially better outcome (21).
Similar accounts are provided of other alternative justice
mechanisms by a number of pieces in this issue of Agenda.
The failure of many of these state-generated justice

delivery mechanisms, along with a near collapse of the

court system under the burden of backlogs, has led to
the amplification of two extra-constitutional systems of
justice delivery in modern India: first is the likes of the
khap panchayats, which have dared to continue issuing
their violent, patriarchal and casteist diktats; and the rise
of what can be called SMS justice, where it is the 24/7
news media that turns into a courtroom, the accused is
publicly on trial (without being able to defend him/herself)
and anybody gets to play judge and jury by just sending
SMSs to opinion polls. Take an opinion poll that The Times
of India published in the wake of the Delhi gang-rape
and murder. The poll asked the question: Whats the
punishment for a man who takes away a womans life,
while she is still alive? The copy of the advertisement
identifies the assailants as shameless maniacs and
inhuman criminals. The options that you can choose to
SMS include death sentence, bobbitisation and chemical
castration. Even before the actual trial had started, polls
like these and paranoid TV programmes at primetime
fuelled the national bloodlust of angry protestors, a
majority of whom were demanding that the accused be
sent to the gallows. None of these protestors spoke up in
defence of Afzal Guru and his illegal execution.
Are we caught between the deep sea of never-ending legal
entanglements and the devil in the form of the state (and
corporation and media)?
Where do we look for justice?
The aim of this issue of Infochange Agenda on law and

ISSUE 26 2013

buzzword bandied about by the state, the very nature of the

trials, which victims found humiliating and traumatising, was
left untouched by the reforms. The cosmetic nature of the
state-initiated alternatives is further illustrated by the example
of the family courts. Family courts were set up in several
metropolitan cities through the 1990s with the hope that
these alternative courts would prioritise justice over legality
in marital disputes, so that women, who by and large have a
weaker bargaining position in such disputes, do not always
end up with unfavourable outcomes. It was hoped that
without the involvement of lawyers, litigants and especially
women would be enabled to place their concerns before the
courts and would have better control over their own cases.
This is what anthropologist Srimati Basu observed in a recent
article based on her study of a Kolkata family court:

Access to justice

(in)justice is not to disparage or dismiss the laws connection

with justice. That would be both an exercise in futility,
given the hope that peoples struggles rest in the law, as
well as politically dishonest, given our contingent belief
in the ability of the law to deliver at least a semblance of
justice. This issue brings to the fore the enormous and everexpanding fissures that mark the terrain between law and
justice, and the apathy and assaults that make these fissures
grow wider with each passing day.
The identification of these fissures will caution both the
aggrieved as well as those working with them about how not
to be fooled by the laws hollow promises of justice, and it will
equip us to mend the fissures for better access to and delivery
of justice. This recognition is essential for those who engage
the law for the sake of claiming justice, as well as for calling its
bluff: a strategic juggling that we continue to do as law and
its afflictions give shape and meaning to our lives and ideas of
justice. A critical dissection of the laws connections with justice
is also a means to identify the limits of legal justice: of what
it can and cannot do and how much of our struggles should
invest in seeking legal redress. Clearly, there are experiences of
injustice that the law cannot address adequately, and calling
on the law to respond to such experiences will only leave
us disillusioned and disenchanted about the law. Knowing
this limit can allow us to search for other repertoires of
redress, some of which include community-based support
networks, collective actions of solidarity, and, most powerfully,
experiences of the quotidian: squabbles, laughs, negotiations,
leisure. It is in the everyday and ordinary that many of the
contradictions that Ambedkar pointed at get addressed, if not
resolved, and that has saved our democracy from being blown
up by the sufferers of injustice.

ISSUE 26 2013

However, recognition of the quotidian should not take

our attention away from the violence of the state, and the
imperative to hold it constitutionally accountable. This has
become increasingly difficult because that state has been
conveniently withdrawing from a range of areas to allow
private capital to step in. Which is why in our collective
struggles against injustice, we need to start looking at the
state and the corporation as part of a compact: in which the
state clears the space for corporate capitals takeover, using
violent laws like the Land Acquisition Act, and then profits
from the corporations exploits over the natural resources of
indigenous populations.

Leftist views on resisting private capital, and bringing the

state back in, have become inadequate in responding to
the deep intimacy between the state and corporations. As
the French historian Ferdnand Bruadel sharply observed:
Capitalism only triumphs when it becomes identified with
the state, when it is the state (22). In such a situation
corporations have great influence on what the state decides
and legislates. Our justice-seeking strategies need to be
attentive to this state-corporation compact, and not set up
the binary of the state as benevolent and the corporation as
evil. Theyve become two sides of the same proverbial coin,

and we cannot let the state absolve itself of responsibility by

saying that private actors like corporations are responsible
for harms done. There is adequate brutal evidence of the
history of suffering and consequent legal struggles
from Bhopal to Nandigram to Niyamgiri to Kalinganagar
to Narmada to Koodankulam and beyond that should
provide us enough caution and inspiration about what
role we want the law to play in getting us justice. Indeed,
whether we want it to play any role at all.

Oishik Sircar is a lawyer, academic and documentary filmmaker, and presently a

Teaching Fellow at the Institute for International Law and the Humanities, University
of Melbourne
Saptarshi Mandal is a lawyer and researcher based in New Delhi. He researches and
writes in the areas of sexual violence, feminist legal theory and disability rights

Endnotes
1 B R Ambedkar, The Future of Parliamentary Democracy, in Barbara R Joshi, ed,
Untouchable! Voices of the Dalit Liberation Movement (London: Zed Books, 1986) at 40
2 Kesavananda Bharati Sripadagalvaru and Ors vs State of Kerala and Anr (1973) AIR
1461
3 Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court
of India (1985), Third World Legal Studies 107 at 107
4 Upendra Baxi, Preface in S P Sathe, Judicial Activism in India: Transgressing Border
and Enforcing Limits (New Delhi: Oxford University Press, 2002) i at xvi-xvii (emphasis in
original)
5 Shylashri Shankar and Pratap Bhanu Mehta, Courts and Socio-Economic Rights
in India in Varun Gauri and Daniel M Brinks, eds, Courting Social Justice: Judicial
Enforcement of Social and Economic Rights in the Developing World (Cambridge, NY:
Cambridge University Press, 2008) 146 at 147
6 Ibid
7 Constituent Assembly of India Debates Vol VII (Friday, November 19, 1948) available
at http://parliamentofindia.nic.in/ls/debates/vol7p9.htm
8 Radha DSouza, The Third World and Socio-Legal Studies: Neo-Liberalism and
Lessons from Indias Legal Innovations, (2005) 4 Soc & Leg Stud 487 at 488
9 Ibid
10 Id
11 Id, at 506
12 Balakrishnan Rajagopal, Pro-Human Rights but Anti-Poor? A Critical Evaluation of
the Indian Supreme Court from a Social Movement Perspective (2007) 8 Human Rights
Review 157 at 180
13 Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving?
(Working Paper No 5109) (Washington: The World Bank, 2009) at 16
14 Ibid, at 13
15 Nick Robinson, Hard to Reach, Frontline 27:3 (February 12, 2010)
16 Ibid
17 Id
18 Seetha, Turf Tussle Judicial Pronouncements Have Ranged from the Divine to the
Comical , The Telegraph (December 24, 2006); TNN, Judiciary Shouldnt Undermine
Executive PM, The Times of India (February 7, 2011)
19 Anindo Dey, Government the Biggest Litigant in the State, The Times of India
(February 10, 2009)
20 http://articles.timesofindia.indiatimes.com/2010-03-06/india/28143242_1_high
court-judges-literacy-rate-backlog
21 Srimati Basu, Judges of Normality: Mediating Marriage in the Family Courts of
Kolkata, India, Signs, Vol 37, No 2, Unfinished Revolutions, a special issue edited by
Phillip Rothwell (Winter 2012), pp 469-492 at 489
22 Ferdnand Braudel, Civilisation and Capitalism, 15th-18th Century: The Perspective of
the World, Vol 3 (University of California Press, 1984), pp 64-65 (emphasis provided)

Evolution of PIL

The new avatar of the judiciary

Public interest litigation started out as a way to make justice and fundamental
rights accessible to the exploited and oppressed. There was a time when the higher
judiciary would provide relief from the arbitrary actions of the executive, such as
slum demolitions. Now the tables have turned and it is the courts that are ordering
slum demolitions!

As far back as the 18th century, Voltaire pointed out the

fundamental flaw in the Anglo-Saxon jurisprudence of our
legal system: The law in its majestic equality forbids the rich
as well as the poor from sleeping under bridges and stealing
bread. The judiciary did not recognise the inability, due to
poverty, of an overwhelming majority of people to approach
the Supreme Court and high courts for violations of the
fundamental rights to life, liberty and equality. The principle
of locus standi was strictly adhered to and the person whose
fundamental rights had been violated was the only one
entitled to approach the courts seeking redressal. Lack of
implementation of social welfare legislation contributed to
the pathetic condition of the exploited and downtrodden
sections of our society. Attempts at mobilisation to secure
minimum wages and an eight-hour working day, land to the
tiller, or even the abolition of bonded and contract labour
were repressed. Democratic and peaceful efforts to enforce
rights under duly passed laws were met with police action
and the institution of criminal cases.
Until the concept of public interest litigation (PIL) was
introduced.
Glorious beginnings
On January 8, 1979, a news item appeared in a national
daily revealing that hundreds of prisoners had been
languishing in jails as undertrials for periods longer
than the maximum term for which they could have been
sentenced, if convicted. A public-spirited lawyer filed
a writ petition in the Supreme Court for violation of
prisoners fundamental rights. In a historic departure from

the principles of Anglo-Saxon jurisprudence and more in

tune with the socio-economic realities of our country, the
court entertained the petition on behalf of the prisoners.
In a series of orders, in what is referred to as the Bihar
undertrials case (1), the Supreme Court directed the
release of such prisoners and laid down that speedy trial
was an essential ingredient of the right to life and liberty
guaranteed under Article 21 of the Constitution.
This was followed by the Bhagalpur blindings case where
the Supreme Court issued orders for the treatment of
prisoners blinded by cycle spokes and acid by the police. The
court also ordered an investigation by the CBI in order to
punish the guilty (2). A letter petition by the Peoples Union
for Democratic Rights, for payment of minimum wages to
workers employed in construction projects for the Asian
Games in Delhi, resulted in the Asiad case judgment (3).
A series of cases followed the Bandhua Mukti Morcha
case (4) for the release of bonded labour, the Agra Mental
Home case on behalf of women incarcerated in the asylum,
the Sheila Barse case with regard to the condition of
children in institutions, and the M C Mehta cases dealing
with environmental pollution. These constitute some of the
leading judgments of the era. Prisoners rights was another
issue where a series of cases followed, led by the Sunil Batra
case (5). Violence at the hands of police and security forces
was an important area of intervention beginning with the
award of compensation and direction to prosecute in the
case of the disappearance of two people taken into custody
by the army in Manipur (6).
Thereafter, the scope of PIL was extended to cover diverse
issues like corruption, hawala transactions, fodder scams,
petrol pump allotments, and the environment.
Paradigm shift
Although PIL started off as a pro-poor means to effectuate
the rights of the exploited, it has been moving in a
diametrically opposite direction. There was a time when the
courts would provide relief from the harsh, arbitrary action
of the executive, reflected in, say, a stay on demolition of
slums on grounds of lack of rehabilitation plans or hardship
of the monsoons or school examinations. Today, slum
demolitions are being directed on orders from the courts.
In fact, the tables have turned; today, it is the executive and

ISSUE 26 2013

THE AUCTION OF NATURAL RESOURCES, conservation of

tigers, guidelines for media reporting, preservation of
the Taj Mahal, corruption, mid-day meals, CNG, location
of industry, banks in residential areas Today the list of
issues before the courts appears endless. The origins of
public interest litigation (PIL) seem to be overshadowed
by the present avatar of PILs. Revisiting the genesis of PIL
and subsequent developments in the context of the role
of the higher judiciary since Independence, particularly the
Supreme Court, can assist us in taking a critical look at the
phenomenon.

RAKESH SHUKLA

Access to justice

legislature that are trying to put relief and rehabilitation

schemes in place before demolitions, while the courts are
maintaining that demolitions be carried out immediately
and people rendered homeless. In fact, the Supreme Court
declared that people staying in slums had no right to
notification before eviction and that rehabilitating these
encroachers on public land was like giving a reward to a
pickpocket (7).
In fact, a similar trend is reflected in many areas of PIL. Thus,
in the case which led to the decision to shift heavy industries
out of Delhi (8), the court heard the public interest litigant,
owners of the industries, and the government, but denied
an opportunity to the workers to be heard. In the name
of public interest, people whose life and livelihoods were
directly going to be affected by the decision were not even
heard by the court!
Protection of environment is another area in PIL where the
people-versus-environment paradigm has been constructed.
The courts seem to be coming out with a series of orders
in the ongoing Godaverman case to evict tribals and other
villagers from sanctuaries, national parks and tiger reserves.
The right to life and livelihood of thousands of people
residing in these areas finds no place in the developing
environmental jurisprudence.
Overview of the Supreme Court

ISSUE 26 2013

An overview of the functioning of the Supreme Court since

its inception is instructive in forming an understanding of
the transition of PIL from its roots in trying to make justice
accessible and fundamental rights real for exploited and
oppressed sections and communities, to its present avatar. It
also has lessons for us on the role of the institution in terms
of the interests of various sections of society.

Land reforms: After Independence, abolition of the

zamindari system and implementation of land reforms
formed the agenda of the Congress party and the
government. Zamindars were symbols of oppression and
there was near-total support from the rural population for
these measures. Land reform laws were passed in most
states by Congress governments in power. The landlords
challenged the validity of these Acts in the courts. The
courts approach was one of protection of the rights of
property, an aversion to land reforms, and indignation
that zamindars were being deprived without adequate
compensation. The Bihar Land Reforms Act of 1950 was
struck down by the Patna High Court as violative of the
right to equality. After the Act was struck down, parliament
amended the Constitution in order to protect laws passed
for acquisition by the state of any estate, or any rights from
being struck down on grounds of violation of fundamental
rights (9). Despite the amendments, however, the provisions
of land reform legislation were struck down by the Supreme
Court in cases like Maharajadhiraj Kameshwar Singh (1952)
(10) and Thakur Raghubir Singh (1953) (11). Cases of

compensation after acquisition of land or property were

inevitably decided in favour of the owner of the property, as
in Bela Banerjee (1954) (12), Dwarkanath Das (1954) (13),
Subodh Bose (1954) (14) and Saghir Ahmed (1955) (15).
Economic laissez-faire: Thereafter, the court supported
economic laissez-faire and struck down the nationalisation
of banks in the R C Cooper case (1970) (16) holding it
to be discriminatory and violative of the guarantee of
compensation. The Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1969 had been passed with
the objective of public control over national finance and
elimination of concentration of wealth. However, the court
ruled in favour of private business and private enterprise.
There was a strong demand for the abolition of privy purses
granted to erstwhile rulers of princely states. The court,
in H H Maharajadhiraja Madhav Rao Jiwaji Rao (1971)
(17), held the abolition to be unconstitutional, violative
of fundamental rights and contrary to the rule of law. The
judgment declared that the government did not have the
power to abolish the concept of rulership, privy purses and
privileges on grounds that these were incompatible with
democracy, equality and social justice.
Civil liberties: In the area of civil liberties, the court
soon after its inception had to engage with the issue of
preventive detention in the case of communist leader A
K Gopalan. The Preventive Detention Act, 1950 had been
passed by parliament. Under the provisions of this Act, a
person could be detained if the government was satisfied it
was necessary that he be prevented from acting prejudicially
to the interests of the state or maintenance of public order.
There would be no trial but the person could be put in jail
for a period of one year.
Gopalan was arrested by the Madras government as there
was disturbance in public order in Telengana. He challenged
the constitutionality of the Act as well as his detention. The
submission was that a person who is detained would lose
his other fundamental rights like freedom of movement,
freedom of speech and expression, freedom to conduct a
business, trade or profession. Under the Constitution, these
rights could only be taken away if the legislation satisfied
the test of reasonableness. Therefore, the preventive
detention law must satisfy the test of reasonableness. A
majority of the judges were of the view that guarantees and
restrictions relating to other freedoms should not apply to
preventive detention.
Each of the fundamental rights was held to be specific and
independent with its own individual limitations. Justice
Fazl Ali, representing the minority view, held that principles
of elementary justice applied and a person could not be
condemned without a hearing by an impartial tribunal. The
majority judgment of the court declared that the test of
reasonableness was not applicable and upheld the preventive
detention law in Gopalans case (1950) (18).

Evolution of PIL

Industrial jurisprudence
Akin to the paradigm shift in PIL today, the trend in
industrial law has a similar anti-worker/employee and antiegalitarian aspect. As in the area of demolitions, the courts
earlier provided protection against harsh and arbitrary
actions by governments and employers, directing the
implementation of social reform legislation and expanding
the concept of equality. Equal pay for equal work was laid
down as part of the fundamental right to equality, in the
Randhir Singh case (23). In a number of cases, the courts,
led by the Supreme Court, directed the regularisation of
contract workers performing work of a permanent nature.
Reinstatement with back wages was the norm in case of
harsh punishments imposed by employers.

In this era of globalisation, however, there is a lot of

pressure to change Indias labour and industrial laws in
favour of employers. Indeed, even before any such changes
have been effected, the court has begun changing the
face of industrial jurisprudence. The recent trend in the
courts and tribunals is of non-interference in administrative
action, quasi-judicial decisions and cases where harsh and
disproportionate punishment like dismissal of employees
for minor infractions (24) has been imposed. Labour
legislation, the preamble and directive principles of state
policy in the Constitution laying down the move towards a
more equitable distribution of material wealth remain, yet
the approach of the courts today is of dilution of principles
like equal pay for equal work (25) and the abolition of
contract labour for permanent work (26).
Constitutional balance of power
The Constituent Assembly Debates make clear that the
Supreme Court was never visualised as playing an active
role in Indias policymaking or governance. At that time,
parliament, representing the sovereign will of the people,
was considered the final arbiter of the policies and laws
that would serve the best interests of society. However, in
more than half-a-century of functioning, the court has come
a long way and today occupies centrestage in almost all
aspects of policy and governance.

ISSUE 26 2013

In the shameful A D M Jabalpur case (1976) (19), during the

1975-77 Emergency, the Supreme Court upheld a suspension
of the fundamental right to life and declared that no habeas
corpus petitions could be filed for deprivation of life and
liberty. The Terrorist and Disruptive Activities (Prevention) Act
(TADA) was upheld by the court in Kartar Singhs case, in
1994 (20), the Armed Forces Special Powers Act in the Naga
Peoples Movement for Human Rights case in 1997 (21), and
POTA in Peoples Union for Civil Liberties in 2004 (22). In fact,
it is parliament that allowed TADA and POTA to lapse.

Access to justice

The area of public interest litigation has played a major role

in the enhancement and expansion of the courts powers
in almost every sphere of life and governance. It has also
impacted on the balance between the three wings of the
Constitution legislature, judiciary and executive.

entities like Vedanta, Sterlite and POSCO could also perhaps

be added to this list.

In fact, in the ongoing Godaverman forest case, an

application was moved by the amicus curiae seeking
intervention with respect to the Scheduled Tribes
(Recognition of Forest Rights) Bill, 2005 which was to be
tabled in parliament. The apex court, rather than dismiss
it outright as not maintainable, thought it fit to keep the
application pending before it. Although totally antithetical
to the Constitution, we seem to be moving towards a
stage where courts consider passing orders restraining
the legislature from passing laws, judging them to be
unconstitutional even before they are made!

Endnotes

Rakesh Shukla practises law and psychotherapy

1 Hussainara Khatoon vs Home Secretary, State of Bihar, AIR 1979 SC 1979

2 Khatri vs State of Bihar, 1981 (1) SCC 623
3 PUDR vs Union of India, AIR 1982 SC 1473
4 Bandhua Mukti Morcha vs Union of India, (1984) 3 SCC 161
5 Sunil Batra vs Delhi Administration, (1978) 4 SCC 49
6 Sebastian Hongary vs Union of India, 1984 (3) SCC 339
7 Justice B N Kirpal sitting with M B Shah and D P Mohapatra. J J speaking on
behalf of a three-judge bench of the Supreme Court in Almira. Patel vs Union of
India, AIR 2000 SC 1256
8 M C Mehta vs Union of India, (1996) 4 SCC 750

The plummeting credibility of other institutions has led to the

court being looked upon as the ultimate resolver of all societys
social ills. Instead of judicial restraint, the court appears happy
to usurp this space. The current slew of scams, corruption and
bribery cases has resulted in the legitimacy and moral integrity
of the political class reaching a new low. A weak and unstable
Centre, coalitions with razor-thin majorities and defections
have all contributed to an unhealthy tilt in the balance between
institutions. Under our Constitution, parliament and state
legislatures are independent sovereign entities; the courts
do not have the powers to inquire into their proceedings.
The totally unconstitutional act of setting a date for the UP
assembly session, the Supreme Court fixing the agenda for a
composite floor test to determine a majority in the assembly
in the Jagdambika Pal case (27), is a striking illustration of this.
A government where the judiciary treats the legislature like an
inferior court! It seems unlikely that the genie of public interest
litigation jurisdiction enabling the higher judiciary to intervene
in every sphere regardless of constitutional provisions or
validly enacted laws can be circumscribed to fulfil the original
limited objective of making fundamental rights real for the
marginalised and the poor.

9 Articles 31 A and 31 B First Constitutional Amendment 1951

Future

18 A K Gopalan vs State of Madras, 1950 SCR 88

10 Sections 4 (b) and 23 (f) of the Bihar Land Reforms Act, 1950 were declared
unconstitutional and void in the State of Bihar vs Maharajadhiraj Kameshwar
Singh, 1952 SCR 889
11 Section 112 of the Ajmer Tenancy and Land Records Act, 1950 was declared
unreasonable and violative of the right to acquire, hold and dispose of property
under Article 19 (1) (f) in Thakur Raghubir Singh vs Court of Wards, Ajmer,
1953 SCR 1049. Article 19 (1) (f) was omitted by the Constitution (Forty-fourth
Amendment) Act, 1978
12 Section 8 of the West Bengal Land Development and Planning Act, 1948 was
struck down as unconstitutional and void in State of West Bengal vs Mrs Bela
Banerjee, 1954 SCR 558
13 Taking possession of Sholapur Spinning Mills when the mill was closed first
by an ordinance and then by an Act was declared to be overstepping the limits
of legitimate social control legislation in Dwarkadas Shrinivas vs the Sholapur
Spinning and Weaving Co Ltd, 1954 SCR 674
14 State of West Bengal vs Subhod Gopal Bose, 1954 SCR 587
15 With the exclusion of private bus owners from road transport, the UP Road
Transport Act was held to be unconstitutional as it amounted to deprivation of
property without compensation as well as violative of the fundamental right
to carry on a business, trade and profession under Article 19 (1) (g) of the
Constitution in Sagir Ahmed vs the State of UP (1955), 1 SCR 707
16 Rustom Cavasjee Cooper vs Union of India, (1970) 2 SCC 298
17 H H Maharajadhiraja Madhav Rao Jiwaji Rao vs Union of India, (1971) 1 SCC 85

ISSUE 26 2013

19 A D M Jabalpur vs S S Shukla, (1976) 2 SCC 521

10

The portents are ominous: declining authority and erosion

of the legislature and executive along with an increasingly
activist judiciary favouring the haves rather than the havenots. More than two decades ago, then Law Minister Shiv
Shankar remarked (28): Mahadhipatis like Kehsavananda
and zamindars like Golaknath evoked a sympathetic chord
nowhere in the whole country except in the Supreme Court
of India. And the bank magnates, the representatives
of the elitist culture of this country, ably supported by
industrialists, the beneficiaries of Independence, got higher
compensation by the intervention of the Supreme Court
in the Cooper case. Antisocial elements, ie FERA violators,
bride-burners and a whole lot of reactionaries have found
their haven in the Supreme Court. Certain other corporate

20 Kartar Singh vs State of Punjab, (1994) 3 SCC 569

21 Naga Peoples Movement for Human Rights vs Union of India, (1998)
2 SCC 109
22 Peoples Union for Civil Liberties vs Union of India, 2004 (9) SCC 580
23 Randhir Singh vs Union of India, (1982) 1 SCC 618
24 State of NCT of Delhi vs Sanjeev, (2005) 5 SCC 181; Damoh Panna Sagar Rural
Regional Bank vs Munna Lal, (2005) 10 SCC 84
25 State of West Bengal vs T K Ghosh (2005) 10 SCC 339; Deb Narayan Shyam vs
State of West Bengal, (2005) 2 SCC 286
26 SAIL vs National Union Waterfront Workers, (2001) 7 SCC 1
27 Jagdambika Pal vs Union of India, AIR 1998 SC 998
28 Excerpted from P N Duda vs P Shiv Shanker, (1988) 3 SCC 167, where it was
held that the statement does not amount to contempt

Tribals access to justice

Inequality before the law

In a tribal state, and at a police station set up to redress atrocities against
scheduled castes and tribes, a glimpse of the indifference, brutality and
convenient roadblocks encountered by the marginalised looking for a modicum
of justice

I recently saw a full-page advertisement put out by the

Jharkhand tourism department with the caption Divinity
Reigns Here. Eight of the 13 tourist destinations listed
also detailed religious sites. Not a single divinity of local
Jharkhand extraction was on that list.
The marginalisation of the tribal people of Jharkhand cannot
be starker in a province created in their name and nurtured
by the dead bodies of their ancestors. Sometimes the state
itself unwittingly lays bare its socio-political priorities even
as it maintains a different rhetoric for public consumption.
The advertisement in question was one such instance, and it
provides an analogy for the tale I am going to tell. There is
another part of the tale one of law. In liberaldom, there
is a certain fiction about equality before the law and state
which helps a large number of people sleep well at night. It
is this fiction that helps create inward-looking technocratic
bubbles among uppity deshis. Again, it is this fiction that
helps newspapers pull off front-page stories about the
protocol in the Rashtrapatis coronation or the details of
the Formula 1 circuit in Noida, in a land with the worlds
largest number of hungry and the worlds largest number of
internally displaced people. The middle class needs a certain
idea of reality and justice to enjoy their morning cup of tea.
This tale is also a small snapshot of how fast that illusion can
be shattered if we step out of the bubble, even for a minute.
The events in question happened on January 13, 2010,
but really they have been going on since 1956-57. I was
in Ranchi at the time. The Heavy Engineering Corporation
(HEC), a public sector company, had been given huge
swathes of land in Dhurwa, in the vicinity of Ranchi. The
storyline is sadly familiar. The dispossessed were largely
adivasis (indigenous peoples) who were thrown off their
ancestral lands without compensation, though not without
the promise of compensation. By 2010, HEC was unable to

use most of the land. However, by now, this land was prime
real estate. Just the unused land was 3,500 acres. Of this,
HEC had sold 158 acres to the Central Industrial Security
Forces (CISF) to set up a camp. Setting up a CISF camp was
hardly industrial use of the land, the purpose for which the
land had been originally acquired. How many times original
intent has been set aside to swindle indigenous people in
the Indian Union we will never know. But in this case, people
cried foul the moment the plan was floated. Since the land
was clearly not being used for the original intent for which it
had been acquired, they demanded the return of the land to
its original owners. Most of them remained uncompensated,
nearly 60 years after the acquisition.
Dayamani Barla, an outspoken leader against the
exploitation of adivasi resources, was at the forefront of
the struggle from the start. After CISF began construction,
the protesting adivasis dug in, staging a dharna at the site.
(CISF began construction even though the matter was being
heard in the high court at Ranchi.) The vigil went on for over
six months, with desperately impoverished people often
forsaking their daily wage to devote time to the movement.
They were part of the Visthapit Morcha, inhabitants of the
36 villages that were uprooted, and had been keeping the
resistance alive for generations. They also planted the Sarna
flag nearby, a sacred symbol of indigenous religion and
identity.
At dawn on January 13, CISF jawans uprooted the Sarna
flag. Women at the dharna site who pleaded with them
not to uproot the flag were beaten up. News spread and
people assembled at the site. CISF jawans brutally beat
the assembled people, men and women, including many
elderly people. At least 20 people were seriously injured. The
intimate and vigorous contact that a lathi-charge requires
attests to the dehumanisation people suffer at the hands
of these keepers of the law. When an ideology makes it
possible for an armed 30-year-old to beat and bloody an
unarmed 65-year-old woman, it raises serious questions
about all levels of the chain of command and the brutalising
ideology that keeps this chain well oiled.
Many of the injured were hospitalised in a nearby facility run
by HEC itself. People from Murma, Aani, Jaganathpur, Kute

ISSUE 26 2013

IN THE PUBLIC IMAGINATION Jharkhand is a tribal state.

In reality Jharkhand defies such characterisation with
disturbing regularity. I say disturbing because the movement
for a Jharkhand state, long after its inception, was really a
broad movement to secure rights and dignity for the tribal
people of the Chhotanagpur and Jangal-Mahal areas. The
subsequent betrayal of that spirit is now out in the open.

GARGA
CHATTERJEE

11

Access to justice

Dayamani Barla leads

the agitation of the
adivasis in Dhurwa

and Labed villages joined in. Such solidarity does not wait
for the theoretical ideas of participatory democracy that are
a favourite pastime in Delhi and its surrounds.

ISSUE 26 2013

My firsthand experience of a day on the other side of the

law began when I joined Dayamani Barla as she visited the
protest site shortly after noon. We arrived in a rickshaw and
shortly after we got down, people assembled around Barla.
We met people who were bandaged and bore clear signs
of the recent trauma. For about two hours, the assembled
people chanted slogans. There were a few press-wallahs
too. The wounded and the violated poured their hearts
out. Notes were taken. An agent of the local Congressman
arrived, said that the MLA would have come himself but
was busy. The assembled people heard him. They seemed
to have heard things like this before. A little distance away,
in the makeshift CISF camp, a column of cars arrived.
Smart men in khaki emerged and went inside. Salutes were
exchanged. Life was going on as usual. At this point, it was
suggested that a case be registered with the police. The
process was, for me, a real eye-opener.

12

In liberaldom, I was taught that the process went something

like this. I am aggrieved. I go to the police and lodge a
complaint. A case is registered. The police pursues the case,
investigates it, and books the guilty (if any). After that, the
law takes its own course. This is indeed how it works when
we pursue domestic help suspected of stealing.

The disused police station

for handling cases of
atrocities against dalits
and adivasis

The next few hours made it plain exactly how and with what
systematic indifference and brutality the odds of receiving
a modicum of justice are stacked against the marginalised.
And how I was not one of them. The first thing was the
police station itself. It was not any police station but a
special one set up with much fanfare exclusively to deal
with atrocities against people from scheduled castes and
scheduled tribes. This was the tribal state living up to its
promise. The station itself had an abandoned dilapidated
look. In front was a board that had the names and cellphone
numbers of the officers. The officers were not present. They
were not on a mission; they were simply not there. A look at
the police station showed why. The male and female lockups
meant to temporarily hold those who had prima facie
committed atrocities against people from scheduled castes
and tribes clearly had not been used in a while. The female
lockup was being used as a temporary store for sundry
things. The thick film of dust on the male lockup showed
that it too hadnt had a visitor in days.
If this was evidence of a lack of atrocities being committed
against the marginalised, that idea was soon dispelled. After
all, we were there to lodge exactly such a complaint. The
policeman on duty wanted to avoid everything; how could

Tribals access to justice

The policeman on duty

wanted to avoid everything;
how could we prove that
anyone had been hurt by
the lathi-charge, he asked.
Several injured men and
women old enough to be
his parents stood right in
front of him. He told us to
give him medical certificates
from the doctors who had
treated them. We were at a
loss as the staff at the HECrun hospital had made sure
that the treatment happened
without any admission
records or discharge
certificates

The gathered crowd insisted that he take the complaint.

It was written up and handed to the policeman. The
policeman simply kept it. We asked for a receipt. He said
he could not give us one. At this point, I told him I was a
journalist and that what he was doing was unfortunate. I
also asked him his name. I did not look like an adivasi from
the area and I had also spoken a smattering of English.
Ironically, being non-adivasi or non-marginalised has some
serious advantages in this adivasi province. For starters,
my presence was acknowledged! The policeman agreed to
put his name to the complaint copy as a receipt. However,
a random name without a stamp and designation means
nothing. He knew this, and so did we. He said that the
stamp was in a cupboard which was locked, and that he
did not have the key. Also, there was not enough ink on
the stamp-pad. Barla, being a veteran activist, tried to pull
strings to get the complaint received and stamped by calling
a known adivasi in the police chain of command. The key
suddenly materalised; so did a fresh stamp-pad. The receipt
was stamped with the seal of the Union of India, four lions
and all.
After the ordeal, sitting outside the police station in a tea
stall, we noticed that a new multi-storey swanky police
quarter was being built. White, clean, impeccable. Later,
Superintendent of Police Mohit Bundas told the press: The
matter is simple. Everything was set right immediately. That
is what you and I read in the news the next morning. All was
quiet on the western front, as we would love to believe.
This was a glimpse into how even the bare minimum that is
required to form the basis of legal action is denied to most
people. And this is not an error of omission but systemic,
procedural and regular commission. It is not dug deep in
the system; it is the system. The sheer number of welldevised roadblocks in something so apparently basic as
lodging a complaint, and how those roadblocks materialise
or disappear based on who the complainant is, is
something that positive beneficiaries of the Union of India
need to understand. They need to understand the cost of
their peace of mind, the uninterrupted revelry at the Blue
Frog, the banter at Dilli-Haat and the positive confidence
of the likes of Ramchandra Guha discussing who is the
Greatest Indian.
Justice, it is said, is blind. It does not see who the parties
involved are. It simply delivers its judgment based on what it
hears the pure stream of logic and evidence. However, in
the Indian Union, the lady of justice has posted at the door
an agent who regulates admission. This agent is not blind,
but deaf. He looks for those fit enough, safe enough, docile
enough to admit. They need to be docile for they are the
ones who will not want to examine the nature of the cloth
that the lady of justice purportedly blindfolds herself with.

Garga Chatterjee, an ex-physician, is a cognitive scientist at MIT and Harvard and

an observer-commentator on South Asian politics

ISSUE 26 2013

we prove that anyone had been hurt by the lathi-charge, he

asked. Several injured men and women old enough to be
his parents stood right in front of him. He told us to give
him medical certificates from the doctors who had treated
them. We were at a loss as the staff at the HEC-run hospital
had made sure that the treatment happened without any
admission records or discharge certificates. After all, it is not
easy to see through the ulterior motives of an establishment
that is bandaging your wounded arm. Thereafter, the story
changed. The lone policeman said that there was no one
to take the complaint. Dayamani Barla pointed out that he
himself could do it. At this point, he called a higher-up on
his cellphone. Then he said to us: I have been told that
this will be investigated thoroughly; there is no need for a
written complaint.

13

Access to justice

Invisibilising mass violence in Gujarat

International law mandates the prosecution and punishment of all perpetrators
of mass crimes, including heads of state and other leaders. But India has not
defined state criminality in mass atrocities in its jurisprudence, making it difficult
to address situations such as Gujarat in 2002
ANITA ABRAHAM

The need for a national mass crimes law

With the recent conviction of former Liberian President
Charles Taylor by the Special Court for Sierra Leone (SCSL)
on all 11 counts of aiding, abetting and planning war
crimes and crimes against humanity in Sierra Leone, the
jurisprudence of international human rights law and
international criminal law, by attaching liability to a former
head of state, has expanded in its application and covered
the situation of impunity that prevailed during Taylors
regime.
Likewise, the prosecution of people who planned and
conspired in the mass violence in Gujarat in 2002 whether
heads of state/leaders or other people actively engaged
in the killings, rape and other major crimes must be
carried out in an unbiased court of law. It is necessary to
invoke and incorporate into national law, the responsibility
of commanders and superiors as well as the irrelevance of
official capacity provided by international law, in particular
the Rome Statute and the ICTY (International Criminal
Tribunal for the former Yugoslavia) and ICTR (International
Criminal Tribunal for Rwanda) statutes.

ISSUE 26 2013

In the Indian context, specific acts and omissions committed

by heads of state in the context of genocide and crimes
against humanity have not yet been criminalised either
through statutes or through judge-made laws. Till date,
mass atrocities/crimes or gross human rights violations have
not been defined in national legal jurisprudence; nor has
it been acknowledged that the Indian state has committed
specific types of mass crimes.

14

International law, through the enactment of the Rome

Statute preceded by the Nuremberg Charter and Trials, the
Genocide Convention, the Geneva Conventions, ad-hoc
tribunals like the ICTY and ICTR, amongst others, has laid
down a voluminous legal jurisprudence for the prosecution
and punishment of all perpetrators of mass crimes, including
heads of state and other ranks of leadership. The Rome
Statute, the legal basis for the existence of the International
Criminal Court, defines four substantive types of mass
crimes genocide, crimes against humanity, war crimes
and crimes of aggression.

It is important for the Indian state to accept that there is a

lacuna in the existing laws and state redressal machinery
needed to address the situation of mass violence that took
place in Gujarat in 2002. Further, there is a need to create
legal concepts and jurisprudence for the description and
criminalisation of specific forms of state criminality.
Procedure according to the law
Till date, the mass crimes and gross human rights violations
that claimed the lives of thousands of people in Gujarat in
February and March 2002, and due to which the Muslim
community in Gujarat has still not been able to claim their
political and legal entitlements, have been referred to as
communal riots or communal violence. While the terms
communal riots or communal violence suggest that the
violence was initiated by a group of people belonging to
one religious community upon another group belonging
to another religious community, either due to provocation
or for self-defence, the violent incidents that took place in
Gujarat have nothing in common either with a spontaneous
riot or a mob fight.
In many of the cases registered during incidents of mass
violence in Gujarat in 2002, the actual facts of the case
were different from the facts recorded by the police in
the given case (1). In many instances, the perpetrators
modus operandi was to go in large groups/mobs to
houses and areas in which Muslim families lived. Hence,
in some areas or villages, Muslim families were killed and
properties destroyed and in other areas Muslim families
were threatened with their lives, and houses, shops and
establishments burnt, looted and destroyed. Many families
fled to relief camps. Sexual violence of the worst kind was
committed against women and young girls. As is a known
fact today, the people accused of the crimes lived in the
same area/locality as the victims. As a result, the victims
were more vulnerable because the aggressors were fully
aware of the details of their families, the size of their
houses, etc. The mobs would approach a house and kill its
occupants; in some cases, if the residents managed to flee
for their lives, the house was looted and set on fire. Since
many of the perpetrators were known to the victims, in
most cases they could be identified by the victims.

Mass crimes and genocide

Families mourn those who died

in the 2002 Gujarat riots

on. In other words, Section 154 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as CrPC) is drafted
in a manner that envisages that the description of the
event will be given in the best possible manner in order to
determine the exact way the incident took place. The FIR
is considered the fulcrum of an investigation; further and
potential investigation turns on the details stated in the FIR.
Hence, recording an omnibus FIR with little or no details,
sometimes even false details, incorporating a number of
cases, is the first step towards ensuring that the scales of
justice are tilted in favour of the accused.
The truth of the events of the case was thus completely
irrelevant to the investigating agency, and the entire exercise
of taking down the victims complaints was conducted in a
manner that shielded and protected the perpetrators. The
procedure was manipulated to hide the facts and enable the
perpetrators to deny that anything had happened. Arguably,
the entire state machinery connived to abstain from
providing legal protection to victims of crimes committed
against them in 2002.
It is pertinent to mention here that even if the information
registered in an FIR is sparse and insufficient, if strong,
reliable information is obtained subsequently during the
investigation, that information can be placed on record
by the investigating agency either through supplementary

ISSUE 26 2013

Close inspection of the first information reports (hereinafter

referred to as FIRs) registered by the police shows that
all details of the said offences have been left out. The FIR
would be recorded in such a way that, instead of recording
every single detail of the offences committed against a
person and his/her family, a summary of the destruction
of an entire village or locality spanning 3-4 km would be
written down in six to 12 sentences. In many cases, it was
made to appear as though altercations had broken out
between two communities/groups of people leading to
violence. The cases would go to trial as cross-cases, in an
attempt to justify the violence as communal riots. FIRs
that covered offences committed over large areas were
referred to as omnibus FIRs, wherein instead of pointing
out every offence pertaining to the person or his property,
a few general sweeping statements were made in one FIR
in order to cover all the aforesaid offences/crimes without
naming either the victim or the perpetrators. Statutorily,
it is mandated that when the commission of an offence is
alleged, for example in a case of alleged murder wherein
A kills B at location C, an FIR will be registered at the local
police station highlighting all the relevant details varying
between time of incident, date of incident, exact location,
weapon of offence, possible eyewitnesses, number of
victims, offences committed against them, what the victim
was doing at the time of the incident (if known), and so

15

Access to justice

statements or at the time the investigating agency files its

chargesheet. These steps, which are mandated by the law,
are enough to bring on record a transparent and truthful
revelation of facts revealing the manner in which the
offence was committed, so that accused persons are ably
prosecuted.
In a situation where, in the rest of the state, cases are
conducted with a sense of normalcy and by following
relevant legal procedures, the absence of redressal
mechanisms for victims of incidents that took place in
Gujarat appears to have been a result of trying to achieve
an invisibilisation of the mass violence that took place
against Muslims in Gujarat in 2002. It has only been through
persistent efforts by NGOs, the victims and their families,
and interventions by the Supreme Court that several
prosecutions have been fairly conducted.
Criminal prosecution
Criminal prosecution of people who have committed these
crimes, especially those from among the leadership, must
be carried out. People who indulge in mass violence in the
form of mass killings, mass rape, mass pillage, mass arson,
mass destruction of religious places of worship, even as
they hide under the cloak of the leadership, must be held
accountable in a democracy. It should be the mandate of
any government, irrespective of political ideology, to avoid
further incidents of mass violence in the name of religion
or ethnicity, and render accountability by prosecuting and
punishing the ranks of leadership. Kritz, while arguing for
accountability, states: In helping societies deal with a legacy
of past mass abuses, the process of criminal accountability
can serve several functions. Prosecutions can provide
victims with a sense of justice and catharsis a sense that
their grievances have been addressed and can hopefully
be put to rest, rather than smouldering in anticipation of
the next round of conflict. They provide a public forum for
the judicial confirmation of facts. They can also establish a
new dynamic in society, an understanding that aggressors
and those who attempt to abuse the rights of others will
henceforth be held accountable. Perhaps most importantly
for purposes of long-term reconciliation, this approach
makes the statement that specific individuals not entire
ethnic or religious or political groups committed atrocities
for which they need to be held accountable. In so doing,
it rejects the dangerous culture of collective guilt and
retribution that often produces further cycles of resentment
and violence. (2)

ISSUE 26 2013

Levels of culpability

16

Legal concepts to incriminate the ranks of leadership for

the commission of gross human rights violations must
be evolved (3). It may also be relevant to create levels
of culpability. The Rwandan government, which enacted
legislation (4) in 1996 in order to address the genocide
that took place in Rwanda, in 1994, created four levels

Zakia Jafri revisits her home in Gulberg Society, Ahmedabad, where

her husband Ehsaan Jafri and several others lost their lives in the
2002 riots

of culpability: 1) Leaders and organisers of the genocide,

and perpetrators of particularly heinous murders and
sexual torture. 2) All others who committed homicides.
3) Perpetrators of grave assaults against persons not
resulting in death. 4) Those who committed offences
against property (5).
According to Kritz: All those in the first category are
subject to full prosecution and punishment. Provision of a
series of incentives for people in Categories 2 and 3 by
far the largest categories to come forward voluntarily
and confess Specifically, those in these two groups who
participate in the confession and guilty plea procedure
which includes a full confession of their crimes, including
information on their accomplices or co-conspirators, will
benefit from an expedited process and a significantly
reduced schedule of penalties Those Rwandans who
confess to their role in the 1994 genocide in exchange for
lenient treatment need to do one more thing: they need to
formally apologise to their victims It assumes that, in this
way, the process of criminal accountability may be more
effective in facilitating national reconciliation. Finally, those
in Category 4 will not be subject to any criminal penalties.
The relevance of the Rwandan justice model to the mass
atrocities that took place in Gujarat is substantial. It is
pertinent to mention here that in several cases in Gujarat
the accused approached the victims/witnesses to reach
a compromise. While some of these cases may involve
offences related to property, which may be compounded
even legally, many cases in which the accused approached

Mass crimes and genocide

Hence, victims have to struggle for basic redressal

mechanisms such as getting complaints registered, getting
applications for further investigations allowed, participation
in criminal proceedings, compensation, etc. In addition,
they are forced to consider options for survival based
on the terms of the accused who quite often are wellknown persons of the village who use threat, including
those of social and economic boycott as well as monetary
inducement, to reach a compromise. In many cases, while
the victims may categorically refuse to compromise, some
accept a compromise in exchange for promises of no further
threats and no social boycotts in order to survive. Says Jha:
The phenomenon of compromise, whilst illegal, is deeply
institutionalised in the criminal justice system where the
norms of poor investigation, inordinate delays and low
conviction rates have been exacerbated by a communalised
society where communal offences have not been diligently
investigated or prosecuted. (7)
While studying the aforesaid situation, it may be
fruitful for the purposes of moving towards long-term
reconciliation and avoiding future such events from
taking place, if the courts in Gujarat effected the process
of compromise by following legal procedures. This is
especially relevant in view of the fact that even now, after
the violence, the two communities are living together.
And that the targeted Muslim community must be able
to live in their hometowns on a par with the rest of the
village. State intervention and judicial intervention is
essential to enable this.
The following practices may be applied in less serious crimes.
Sections 320, 265A-L and Section 306-308 of the Code of
Criminal Procedure are compounding, plea-bargaining and
grant of pardon proceedings provided in national criminal
law, respectively. The provisions of Sections 320, 265A-L,
306-308 of the CrPC allows an accused to compound a
matter, or plead guilty in order that the matter is settled on
terms agreed to and negotiated by the victim. This provides
a certain degree of closure for the victim who can even ask
for a public apology and compensation where necessary.
The entire case gets settled inside the courts. Hence, a
plea-bargaining procedure or compounding procedure for
less serious crimes such as those involving minor assault on
persons or property could be undertaken in the context of
the violence that took place in Gujarat.
These steps would be an improvement on the current
situation in which the victims agree to a compromise, in

a coercive social and political environment. This way, the

targeted Muslim community can at least begin the process
of healing. For less serious crimes which do not involve
offences that have caused death, etc, compounding or pleabargaining in the context of mass crimes for minor offences
that are permitted in Sections 320 and 265A-L of the CrPC
should include (a) an apology by the accused persons to
the victim; (b) narration of a truthful and accurate account
of the facts regarding the commission of offences by the
accused persons and; (c) where relevant, a disclosure of
accomplices in the manner provided in Sections 306-308
of the CrPC. Plea-bargaining procedures in the context
of mass crimes established by the state would assist in
reconciliation between the two communities since it would
finally allow the victims to be on par, politically, with the
accused persons, and would allow the accused to accept
and acknowledge their commission and participation in the
mass crimes.

Anita Abraham is a lawyer with an independent practice based in Delhi. She

has been involved in research in the areas of gender and communal violence.
This article is part of a Working Paper for the Centre for the Study of Law and
Governance, JNU, Delhi

Endnotes
1 The author has studied some of the cases registered in the state of Gujarat
during her work with Nyayagrah, the justice programme of Aman Biradari,
based in Ahmedabad, Gujarat. The views of the author are her own and do not
necessarily reflect those of the organisation
2 Kritz, Neil. 1998. Coming to Terms with Atrocities: A Review of Accountability
Mechanisms for Mass Violations of Human Rights. Law and Contemporary
Problems
3 Eichmann was convicted by a court in Israel in 1962 for endless war crimes and
crimes against humanity and crimes against the Jewish people. Nino Carlos says:
While the Israeli court recognised that Eichmann did not bear direct responsibility
for most of these crimes, it ruled that in the case of such massive crimes distance
between the agent and the victims did not diminish responsibility. On the contrary,
in general, the degree of responsibility increases as we draw further away from the
man who uses the fatal instrument with his own hands. See Nino Carlos. 1996.
Radical Evil on Trial. New Haven and London, Yale University Press, Introduction
(vii-xii)
4 The Organisation of Prosecutions for Offences Constituting the Crime of
Genocide or Crimes against Humanity Committed Since October 1, 1990, Organic
Law No 08/96 (August 30, 1996). See also H Morris, Madeline. 1997. The Trials
of Concurrent Jurisdiction: The Case of Rwanda. Duke Journal of Comparative and
International Law, Vol 7: 349
5 Id
6 Jha, Prita. 2011. Paper on Compromise. Unpublished paper on file with the
author
7 Id

ISSUE 26 2013

the victims for a settlement or compromise are those

wherein people have been killed in the violence. This is
not permitted under the law. Jha states: The technical
illegality and the impossibility of a legally valid compromise
agreement of non-compoundable riot and arson offences
is immaterial, given the prevalent culture of compromise
which routinely facilitates hostile witnesses on the basis of
agreements reached outside the courtrooms. (6)

17

Access to justice

Citizen power or media power?

TV news media campaigns such as those for Jessica Lall and Priyadarshini Mattoo
appear to be shaping and giving voice to public opinion. But is this democracy in
action or a sensationalist, manipulative drama to raise ratings? Is it more about
media power than citizen power?

JESSICA LALL, Priyadarshini Mattoo and Nitish Katara were

young people allegedly murdered by the rich and powerful
sons of politicians. In 2006, the accused in the Jessica Lall
case were acquitted by the courts because 99 out of 100
witnesses turned hostile. A strong public outcry against the
decision, relayed by electronic news media, rang out against
the judiciary which had appeared to buckle (yet again) under
the influence that the rich and powerful wield in India. Two
electronic news channels CNN-IBN Live and New Delhi
Television (NDTV) began a concerted campaign to seek
Justice for Jessica. Using text messages, blogs and offline
protests, CNN-IBN and NDTV generated a strong public
response. Individuals unconnected to any of the families
of the victims started their own campaigns on their behalf.
It is believed that this was the rebirth of citizen power.
From SMS and online campaigns and televised debates to
memorials, public vigils and protests, these two channels
were intimately involved in shaping and giving voice to
public opinion. Shortly after the launch of these campaigns,
the case was re-opened with fresh investigations and new
witnesses.
On the surface it appears that this was a case of democracy
in action: the political participation of citizens empowered
by an activist media protecting their interests by bringing
the powerful to book. But a closer look reveals how TV
news can be a sensationalist, manipulative drama to raise
ratings and selectively shape public opinion under the guise
of viewer participation. The phenomenon of SMS justice is
often spoken of as the rebirth of citizen power. This article
suggests that such public dialogue and action, believed to
be a sign of citizen power, follows a discursive agenda set
by the two channels and is about media power instead. The
Justice for Jessica campaign has been studied because it
was the first such media-driven campaign (1). Since 2006,
while both channels have had more audience-participationbased programmes we argue that at its core, the news
media industry still drives the agenda, selecting causes that
would most appeal to its target audience.

ISSUE 26 2013

The cases

18

In 1999, Jessica Lall, a 29-year-old model, was shot in the

head in a room full of people by Manu Sharma, the son of

MAYA
INDIRA GANESH
GAYATRI GANESH

Venod Sharma, a serving Member of Parliament. In 2002,

Nitish Katara, a 22-year-old student, was allegedly murdered
by Vikas Yadav, son of MP D P Yadav, for his alleged affair
with Vikas Yadavs sister. In 1996, Priyadarshini Mattoo,
a 22-year-old law student was raped and strangled in
her home by Santosh Singh, the son of the former joint
commissioner of police. The accused in each case was
acquitted by the lower courts. The grounds for acquittal
of the alleged murderers appeared flimsy: there was a lack
of forensic evidence, and key witnesses turned hostile.
That they escaped convictions in the lower courts was not
surprising to the jaded public but still upsetting because it
was another sign of corruption in the system. It seemed all
too coincidental that, yet again, sons of the high and mighty
had gotten away.
In the tradition of investigative journalists uncovering
corruption, NDTV and CNN-IBN began justice campaigns
on their websites, through talk shows and offline vigils for
justice to protest the verdict in the Jessica Lall case. The
campaign quickly encompassed the Mattoo and Katara cases
as well. Viewers were encouraged to share their responses
online and demand a fair trial to bring justice to the victims
and their families. By the channels reports the response
was positive: NDTV submitted a petition to the President
of India pressing for a re-trial in the Lall case when they
received 200,000 text messages of support from viewers
(NDTV 2006a). The Mattoo and Lall cases were re-opened
through appeals in the Delhi High Court, and in October and
December 2006 the lower courts verdicts were overturned
and both defendants found guilty of the murders.
The media coverage of public opinion had been so
persuasive that the chief justice of the Supreme Court,
Y K Sabharwal had instructed judges to go by the evidence
before (them), rather than pay heed to the media reports
(NDTV 2006b).
The campaigns
The role of television in shaping, and being shaped by,
a middle class audience is particularly relevant here. The
English-speaking audiences accessing NDTV and CNNIBN are a very small slice of the population, restricted
to upper and middle class households (http://www.

Trial by media

indiantelevision.com). This population includes college and

school students, working professionals, homemakers and
retired professionals (IAMAI 2006). Considering that the
audiences of these two channels are English-speaking and
therefore upper/middle class, their politics are likely to be
extremely specific and hardly generalisable in a country as

heterogeneous as India. This is reflected in and reinforced by

the justice campaigns as will be described below.
Securing audience appeal
The three victims appeal squarely to a middle class TVviewing, mobile-phone-toting audience. Jessica Lall was
a middle class girl who became a model. Priyadarshini
Mattoo was a student of law at Delhi University and lived
in a middle class Delhi suburb. Nitish Katara was allegedly
murdered because he refused to stop seeing his girlfriend,
whose family believed that it wasnt appropriate for
someone of her class/caste to associate with Katara.
Interestingly, Jessica was the only one whose photographs
were routinely displayed on TV: soft focus, air-brushed
and well-lit photographs from her days as a model.
Priyadarshinis photograph, if shown, was a grainy
black-and-white one; the other is one of the first police
photographs of her car where she was attacked. Nitish
Katara was rarely shown, but a framed photograph of
him was always seen behind his mother Neelam when she
appeared in TV interviews talking about her struggle for
justice.
All three were also murdered in ordinary contexts: in the
course of work, at home or in a familiar, known setting.
The everyday-ness of their lives punctured by horrific

ISSUE 26 2013

Jessica Lall (above) and the vigils for

justice spawned by the NDTV and CNN-IBN
campaigns

19

Access to justice

acts of rape and murder drew the audience into a closer

subjective identification with the victims and interest in
the progression of the news stories. Each of the deceased
had a family member who became a well-known face on
TV because of coverage of their fight for justice. After the
campaigns began, each of these three people Sabrina
(Jessica Lalls sister), C L Mattoo (Priyadarshinis father), and
Neelam Katara (Nitishs mother) became regulars on
TV news. Audiences were privy to interviews conducted in
their homes and in the context of their everyday lives, family
photo albums with pictures of the deceased as children
and teenagers and descriptions of their personalities, traits,
habits. Jasleen, a student who attended a rally in New Delhi
in July 2006 to support an appeal in the Mattoo case said: I
am being selfish. I am doing it for myself. If it happened to
her, it can happen to anyone in my family (Roy 2006).
In contrast to their victims, the alleged perpetrators of
the crimes were rich sons of politicians, whose evasion of
punishment came as no surprise to the TV-viewing public.
By selecting the issue of systemic corruption, TV news struck
a resonant chord with its largely middle class audience,
another source of appeal in this case. Corruption and
systemic breakdowns affect the everyday lives of the middle
classes. It is often the rich and powerful, who by their social
location, enjoy privilege and access to power and never
really have to queue up. Taking a swipe at politicians is thus
extremely appealing to the middle classes. The following
blog comment captures this sentiment.
In all these cases one thing has been common and that is
the culprit has been a son or relative of a powerful leader or
a businessman and the deceased has been a common man,
who was at a wrong position at the wrong time. Its mainly
because of media and common man, that the Jessica Lall
case has been re-opened. (Posted by Vivek Rawat on www.
ndtv.com 1/4/2006)

ISSUE 26 2013

The media shaping public opinion

20

In contrast to the Justice for Jessica campaign, the tragedy

of farmer suicides across the country in 2005-2006 or the
murder of a dalit family in Khairlanji were not the sites of
concerted campaigns by TV news channels or the public.
The urban-rural, upper caste-lower caste, Hindu-Muslim
divisions frame the everyday social experiences of middle
class Indians. Reinforcing the black-and-white binaries
that cleave our world the selection of these urban
stories, the representations of the victims as normal and
unsuspecting, their families as average and middle class,
politicians as greedy and the common man suffering
under them allowed the two channels to marshal their
power in constructing a specific representation of social
reality. Of all the tragedies that afflict rural Indians every
day, none of them (yet) has been the subject of such a
concerted TV campaign as Justice for Jessica. These two
channels consciously chose to reflect a very specific social
geography because of the greater appeal it would have to
their audience.

Those opposed to the media campaigns, like Ram Jethmalani

(lawyer for defendant Manu Sharma), say that the media
overstepped its role as impartial reporter by prejudicing the
viewer, declaring people guilty before they were fairly tried
in court. But many viewer posts on the channels websites
position the media and judiciary as the last bastion of hope
for this country.
I believe that the only two systems that can bring about
change in the country are judiciary and media. I think both
judiciary and media have only taken first baby steps towards
a flawless society. I am sure both will learn from each other
and lead our society to safety. (Posted by Harish Arora on
www.ibnlive.com 20/11/2006)
CNN-IBN editor-in-chief Rajdeep Sardesai defended TV news
overstepping its line in shaping public opinion:
If in the public interest and that must be the defining
badge for all journalism a hidden camera is able to
expose the rich and powerful, should they not be held
accountable for their actions? Is that not, after all, the
ultimate goal of the media? Or are we to see ourselves only
as stenographers who simply reproduce banal soundbites?
Moreover, who really is in the dock here: the journalist
who is attempting to uncover a dark reality or the stung
individual who has something to hide? (Sardesai 2006)
By juxtaposing the lofty ideals of journalism with the
ordinariness of stenographers, and the idea of the intrepid
journalist uncovering dark realities, Sardesai highlights the
power of the media again. On NDTVs 9 pm news broadcast
on the day Manu Sharma was convicted by the Delhi High
Court of Jessica Lalls murder, the extensive news coverage
included segments titled: The voice of the common man,
and The people have spoken. By speaking up for the
common man, the two channels reinforced the hierarchical
division between the media and the public while mouthing
a rhetoric of inclusiveness, one that was perhaps driven by a
need to maintain audiences and the markets they represent.
The campaigns, while positioned as an expression of public
opinion and demands, in fact reinforced the medias power
to control which issues are highlighted and to what extent
they choose to involve and stir up the public.
Twenty-four-hour news programming supported by
the Internet allows channels to position themselves as
interactive and engaging in a way that draws in viewersas-citizens, giving them a space to express their opinions
on topical issues. With increasing access to technology,
citizen-journalism and user-driven content is leading TV
news in India into a different phase of its evolution. Being
on TV in India today, or having some form of presence in or
contact with the media world might have the status that
owning a TV set had 20 years ago. Elation comes from the
simultaneity of people across the country sending in their
text messages and watching them scroll across the TV screen
on the 9 pm news. Thus, in these rituals of communication,

Trial by media

Todays journalists in the electronic media think that they

can bully their way into anybodys life. First of all they
should do their homework. Just because you can speak
some good English, have a degree in journalism, have a
camera and mic in your hand, you dont become an expert
on everything. (Posted by Langda Tyagi on www.ibnlive.com
15/10/2006)
Conclusions
While there are welcome changes in how TV journalism
engages its viewers and solicits their voices, there are
questions as to who is dictating the agenda the citizen or
the media news industry. As viewers, we are so entrenched
in our position that we are susceptible to the unspoken
power of the media, allowing ourselves to be herded along
the path of engagement set by it. Media power then is that
much more subtle when the causes appear noble.
When democracy does fail, the medias role in engaging
the citizen needs to be carefully considered. Media power,
though abstract and complex, underlies much of the
channels promises of justice and empowerment.
Responding to the criticism in the print media about TV
news being selective in issues they give voice to, Ghose
(2006b) amends her channels view saying that citizen
power now needs to be available in rural India. However,
it is never as simple as capturing a new set of causes in
the same programmed format. Peepli Live, a Hindi movie
released in 2010, takes a scathing look at the machinations
of television news in the present moment. Capturing a
growing awareness of the farcical nature of the mediation
of news, the justice campaigns portrayed in this film
focus on rural India and the tragic phenomenon of farmer
suicides. The film reiterates the idea that the narrow
discursive engagement set by electronic news media has
become a mutant force, barely about anything except
television itself.
Additionally, the political and economic interests of TV
news channels cannot be ignored. In saying that Indias
notoriously opaque society forces journalists to use a
range of methods to create transparency, Sardesai (2006)
sounds philosophically nave as he does not say out loud
that journalistic practice itself is embedded within power
structures, ideologies, and the consumerist demands of
running a TV news channel. In this highly charged media
world it is unlikely that the citizens voice is in command.
Finally, the idea that it is only the media that can save
Indian democracy is echoed through viewer responses online

and reflects its special, specific authority. It is as if there is

no possibility for any other form of civic action to liberate
the country, only the penetrating eye of the camera. If
the efficiency of the legislative and executive arms of this
democracy is questionable, the alternative strategy of media
action as the best way to redress the situation is hardly a
wiser choice.
In order to challenge discriminatory and unfair practices
endemic in any society there is a need for strong, creative
and independent citizen voices. However, the mediations
of citizenship by TV news are bound to be co-opted and
appropriated as this case study has shown. Citizen power is
not impossible. Citizen power needs to be grounded in its
integrity and independent, subtle, subversive methods. The
debates on the role of TV news journalism in this democracy
are far from over. There are wars of competing truths (and
ratings) to be fought yet. The magical whirligig that is Indian
TV reveals as much as it hides; it enchants as much as it
distorts. Like children on a funfair carousel, it is easy to lose
sight of who controls the music.

Maya Indira Ganesh is Programme Director of the Evidence & Action Programme at
Tactical Technology Collective in Bangalore, India
Gayatri Ganesh is a qualitative researcher trained in the UK, now freelancing
in India. She specialises in discourse analysis and semiotics in areas related to
communications, education, youth and marginalised groups

Endnotes
1 This paper has looked at the events and ideologies of the campaigns, the blogs
of two CNN-IBN journalists, news broadcasts and news stories on CNN and
NDTVs websites, and 300 viewer responses to the two news channels websites
between February 22 and November 22, 2006. This paper was originally written in
January 2007

References
indiantelevision.com (2006). CNN-IBN Asserts Leadership in English News Space
04/12/06 (online). Available at http://www.indiantelevision.com/headlines/
headlines_frame.htm?itvid=/headlines/y2k6/dec/dec28.htm (accessed December
4, 2006)
Internet and Mobile Association of India (2006). India Internet Usage Report
2006 (online). Available at www.indiantelevision.com (accessed November 27,
2006)
Kaushik, N (2003). The News Makes News. The Hindu Business Line (online).
Available at http://www.thehindubusinessline.com/catalyst/2003/01/23/
stories/2003012300180100.htm (accessed January 5, 2007)
NDTV (2006a) Kalam Promises Action in Jessica Case. 07/03/06. NDTV (online).
Available at http://www.ndtv.com/template/template.asp?template=jessicalall&id
=85485&callid=1 (accessed November 21, 2006)
NDTV (2006b). CJI Expresses Concern over Trial by Media. 04/11/06. NDTV
(online). Available at http://www.ndtv.com/morenews/showmorestory.asp?id=958
37&frmsrch=1&txtsrch=Jessica%2CLall%2Ccase (accessed November 28, 2006)
Roy, A (2006). Mattoo Murder: Students to Hold Protest March 04/07/06. NDTV
(online). Available at http://www.ndtv.com/template/template.asp?template=matt
oo&id=89799&callid=1 (accessed November 16, 2006)
Sardesai, R (2006). In the Name of Ram. CNN-IBN (online). Available at http://
www.ibnlive.com/blogs/rajdeepsardesai/1/25867/in-the-name-of-ram.html
(accessed November 14, 2006)

ISSUE 26 2013

ordinary people have access to the specialised and rarefied

world of the media. But not all are easily swayed; this
viewers biting reaction also reflects the specialised
knowledge and access that TV news journalists have, which
further emphasises the separation between the two worlds.

21

Access to justice

Accessing justice in times of terror

Knowing the law is different from experiencing it. Experience tells you that
sometimes the problem is not that people have no access to justice, but that
justice has too much access to them. These people include tribals accused of
waging war against the state, Muslims accused of sedition, and slum-dwellers who
have encroached on public lands

I
IN A MILIEU OF FEAR and uncertainty, on what terms does
one speak of justice? Does one look to the laws protection?
Or does one flee, bearing a well-founded fear of justice? If
the justice system is not merely an arbiter of legal meaning
and the referee of social conflicts, but rather deeply
implicated in engendering these conflicts, what does this
mean for our access to justice?
Access to justice is recognised as being essential to human
development, for ensuring democratic governance, in
reducing poverty and for the purpose of conflict prevention,
(1) proclaims a government publication. Sometimes, the
problem is not that people have no access to justice, but
that justice has too much access to them. Tribals accused
of waging war against the state, Muslims accused of
sedition, slum-dwellers who have encroached on public
lands. The courts, police and their processes often are very
much part of the conflict. Occasionally, the problem isnt so
much about access to justice as it is about your ability to run
away from it.

ISSUE 26 2013

Driving in Delhi one afternoon, I read on the back of an

autorickshaw: Jis desh mein log sansad aur nyayalay se
darte hain, waise desh mein azadi ya ghulami mein kya
farak? (In a country where people are scared of parliament
and the courts, what is the difference between freedom
and slavery?) Perhaps it is a commentary on the present
moment, or maybe it speaks from memory, one really cant
be sure. But the received wisdom from the back of an
autorickshaw tells us that sometimes you cannot tell the
difference between freedom and slavery, between law and
its violence. Indeed, the expressions, the law in force or the
law is enforced recognise at some level that the application
of force lies at the centre of the judicial process (2).

22

I first met Akram, or Akrambhai as I came to call him, in May

2008, on my first day at the Delhi High Court. I had come
to Delhi from Bangalore to help a lawyer friend who had
just been engaged to challenge the government-imposed
ban on an Islamic organisation. The central government had
notified the fourth consecutive ban on this organisation
under the Unlawful Activities (Prevention) Act, 1967. The

MAYUR SURESH

proceedings against the organisation were conducted by a

special tribunal comprising a single judge of the Delhi High
Court, and took place in the high court complex. During
the days confusion, I was separated from my lawyer friend
and walked into the complex with Akrambhai. As we passed
through security at Gate No 5, a security guard asked me
to deposit my cellphone with the reception. Akrambhai
immediately shouted: Cant you see he is a lawyer? He
can take his cellphone in. As he shepherded me through
security towards the court building, he explained that there
were two entrances into the court building, one for lawyers
and one for the general public. I was to go through the
lawyers entry and meet him inside. Once inside, he rapidly
shot out directions, telling me to go to the annexe building,
first floor, courtroom 35. I nodded blankly. I arrived at the
courtroom half-an-hour into the proceedings, lost in the
seemingly labyrinthine corridors, and sat down next to
Akram in the rows of chairs at the back of the courtroom.
These chairs, wooden and without cushions, were meant
for the general public, and apparently unworthy of lawyers.
He teased me: Go to the front! Sit with the lawyers! Youre
supposed to be a lawyer!
There are many words and phrases that are used to describe
the judicial process based on the rule of law. Clarity of rules
comes to mind, as do transparency, natural justice and
due process. One rarely associates the words confusion,
panic, frustration or boredom with courts of law. Yet
an experience of the courts can most often be described
in these very words. Goodrich writes: Assuming that the
process of justice, of receiving a hearing, is best understood
in terms of that point at which law is created and applied
to members of the public (that is, at the point at which it
becomes law for them) then the image of legal rationality as
a phenomenon of texts and rules has only the most indirect
relevances. The day in court is likely to be experienced in
terms of confusion, ambiguity, incomprehension, panic and
frustration
II
Akram was born in India. When he was in high school, he
and his parents migrated to the United States where they
were naturalised as citizens and settled down in the suburbs

Violence of the law

Over the years, I came to appreciate Akrambhais dark sense

of humour. He once asked me, almost as if asking me a
riddle: Do you know why Muslims have so many children?
The police take away two children as terrorists, two they kill
in an encounter; they leave one child to take care of us in
our old age.
On a rainy September morning of 2011, I headed to the
Delhi High Court to watch the proceedings of an appeal
filed by Akram and his brother-in-law Javed, against
their conviction by a special court constituted under the
Prevention of Terrorism Act (POTA). Their crime? According
to the police chargesheet, a secret informer told the Delhi
polices anti-terrorism wing, the Special Cell, that Akram
and his brother-in-law, who were members of the nowbanned organisation, were putting up anti-national posters
in a predominantly Muslim area in south Delhi at a busy
intersection, in broad daylight. The posters which were
described in the chargesheet had an anti-national slogan
Destroy Nationalism. Establish Khilafat in big letters,

An accused in 14 terror
cases, Ali spent half of his 36
years in jail, eight of those in
Tihar... He pulled out a copy
of a letter that he had written
to the high court asking that
his case be assigned to a
fast-track court, as in the six
years since its institution no
proceedings had been held

with a picture of a closed fist crushing the flags of Russia,

the USA and India. At the bottom of the poster were several
Muslim youth raising hands, below which was the name
of their organisation. The special POTA court convicted them
under Section 124A of the Indian Penal Code (sedition), and
Section 20 of the Prevention of Terrorism Act (membership
of a terrorist organisation). They were sentenced to seven
years for sedition, and five years for membership of a
banned organisation.
As if prosecuting someone for terrorist offences for putting
up posters wasnt bad enough, the trial itself was a bit
suspect. The only witnesses were police witnesses. There
were no independent witnesses to corroborate the polices
story, when the prosecution itself argued that the two were
putting up the posters at a busy intersection during the day.
The police have no reason to lie, the court proclaimed.
Akram once hinted that his lawyer deliberately messed
up his defence to cut a better deal with the cops in
another case.
The evening before arguments on his appeal were set to
commence before the high court, I spoke to Akrambhai
and we fixed to meet at the courtroom. On my way to the
high court, I received calls about a bomb blast at the court.
I shrugged off the news, as only the previous week similar
news of a car bomb at the court had turned out to be a car
that had caught fire. But as I approached the high court
I began to hear sirens and saw police cars race towards
the court. The police had cordoned off an area around
the visitors entrance to the court complex. From beyond
the yellow tape and over the heads of the crowd that
had gathered I could see the mangled roof of the visitors
reception at Gate No 5, where Akrambhai and I had entered
the court complex three years before.
I tried Akrams cellphone number and received a switched
off message. I called him again and again only to be met
with the same reply. I wasnt sure what I feared more: that
he had been injured, or worse, killed, in the bomb blast or
that he would be accused of planting the bomb, arrested
and would disappear into the bowels of the state. As
Akrambhai himself once told me: Once you are accused
of a terrorist crime there is nothing you cannot do: from
making stones cry to being in two places at once. They can
accuse you of anything, and it will be true. I telephoned
our common friend and asked him if he had heard from
Akram. He too had not heard from him and was trying to
get through to his cellphone. We sent texts and repeatedly
called him. Finally, two hours after the blast, I received
a call from Akram. I am all right, he said. I am at my
lawyers office. Were you at the blast site, I asked him,
and immediately bit my tongue. I knew Akrambhai did not
like talking over the phone as he suspected that his phone
was being tapped. After a long pause he repeated: I am
at my lawyers office. I am all right. Please let me know if
anything happens, I said, anticipating a midnight arrest,

ISSUE 26 2013

of a big city. Akram never fit in. They were afraid of my

long beard, he says half jokingly. He returned to study in a
madrassa in Azamgarh, Uttar Pradesh, where he met Umer,
who would become president of the Islamic organisation
at the time it was first banned in 2001. Akram joined the
organisation in 1985. He rose to become the secretary of
one of the organisations state units and continued till his
mandatory retirement at the age of 30. He set up a printing
unit in Gujarat where he printed pamphlets, visiting cards
and wedding invitations. It was burnt down in the antiMuslim riots in Gujarat in 2002, after which he moved
to Delhi.

23

Access to justice

blindfolds and torture stories of others who had been

accused of terror crimes. Inshallah, everything will be all
right, he replied and ended the call.

Dharamveer (name changed) who had taken part in that

encounter, and a witness against Shahid. We were all
waiting for the proceedings to begin.

How does one imagine the law, the state, the justice
system when it can enter and recede from everyday life
with no predictable pattern? When one can be killed in an
encounter, or blindfolded and kidnapped at any moment,
one has a more complicated relationship with the rule of
law than merely seeking it out in search of justice. The
experience of the law involves the ability to stand in an
atmosphere whipping back between clarity and opacity,
seeing both ways at once. We have to look at the law
differently. In order to have a perspective on the laws
violence, we need to cultivate the ability to move rapidly
between the optics of blur and focus (3).

Shahid (to Dharamveer): I heard about your son. I was very

sad to hear that he died.

Perhaps the ability to attend to the confusion, panic and

frustration of law involves a different way of looking at our
justice system. Rather than expecting clarity in the law and
its processes, we should expect something else. Reading the
law does not involve looking at the text directly. Rather, it
involves looking through the text, with the letters slightly
blurred.

Dharamveer: Achcha, yes. The two Bangladeshis they are

the best of friends. I had arrested them. When I caught the
two of them and I was interrogating them, I told Muzzamil
that out of the two of them, one of them had to die. You
choose. Then Muzzamil told me to kill him since Rizwan was
still young. Then I told Rizwan the same thing and Rizwan
said, kill me. Look at their friendship! Another time, I
caught two brothers and interrogated them. I told the
younger brother that from the two of them, one of them
had to die. He told me to kill him as his older brother had
just got married. Then I asked the older brother the same
question. Do you know what he told me? He told me: Ive
just got married, so kill my younger brother! What kind of
world is this? Two brothers and two best friends. The friends
say kill me and the brothers say kill the other!

III

ISSUE 26 2013

The police come in various avatars. In one incarnation they

illegally detain, torture and even kill people. The police
abuse human rights with impunity they stage-manage
encounters, foist false cases and crack down on democratic
protests. In another form, we invoke them as protectors, call
upon them to protect the weak and underprivileged, and
demand that they prosecute offenders. In either case, one
cant imagine the law without its enforcers, its muscle the
police.

24

Me: What? Your son died?

Dharamveer: He had cancer. We came to know eight months
ago, and then he passed away one month ago.
Me: Im so sorry.
Dharamveer (to Shahid): Who told you?
Shahid: Muzzamil and Rizwan.

After a brief lull in the conversation I turned to Shahid.

Me: So what do you do in jail?

There is a strange and complicated relationship between

the police and the terrorists. And no, Im not simply
making the point that the state can also unleash terror.
Anthropologist Michael Taussig argues that to understand
the law of the police one must acknowledge two things:
firstly, that the police stand outside the law, and secondly
that the power of the police is bound to be corrupt as it
combines might with right. Thus, no matter how much
moral imperative dictates weeding out corruption among
the police, intelligence decrees that one approach this with
a certain pessimism, understanding the task as endless, if
not forlorn in its necessity. (4) The question is not so much
what differentiates the police from the criminal, but rather
the moments at which they unite. Both police and criminal
stand outside the law; at times its difficult to tell one
from the other. And at times, strange relationships emerge
between them.

Shahid: Im studying law.

I was sitting in a trial court one day between Shahid (name

changed), a person accused of killing a police officer during
the course of an encounter, a police officer, Sub-Inspector

Dharamveer: Haan, in these sorts of cases your entire youth

gets wasted. Are you the only accused in this case? Do you
have any other cases against you?

Me: Achcha, thats great.

Shahid: I was anyway getting a practical training in law, so I
thought I might as well study it properly (laughs).
Me: Is Humam (another terror-accused) also studying law?
Shahid: No. Hes studying BTS.
Me: BTS?
Shahid: Yes, Bachelor of Tourism Studies. He was saying that
for 10 years we cant go anywhere, so we might as well
see the world after we are acquitted and come out of jail
(laughs).

Violence of the law

Dharamveer: What about Humam?

Shahid: Hes only in that same bomb blast case.
Dharamveer: Achcha, anyways in this case there is no strong
evidence against you. This case against you will probably be
dismissed and you will be acquitted.
Shahid: I have full faith that I will be acquitted.
At this point the court master called the case. When
asked to point out the person involved in the killing of the
police officer, Sub-Inspector Dharamveer pointed straight
at Shahid. Dharamveer then faced a cross-examination
by Shahids lawyer, where his memory of the events was
questioned, his presence at the scene of the crime was
doubted and he was accused of fabricating evidence against
Shahid.
As Dharamveer left the court following his deposition,
he stopped in front of Shahid. Shahid bent to touch
Dharamveers feet. Dharamveer stopped him, held Shahids
face and blessed him.
Legal knowledge comes in a variety of forms. I may
brandish my law degree while others may claim an activist
knowledge of the law. Police officers know how to tweak
investigations so that evidence is, or at least appears to be,
legally obtained. Some lawyers post signs outside their stalls
in court complexes: Court marriage, affidavit, stamp paper
typing, anti-ragging undertaking can be done here.
All the terror-accused in Delhi are kept in Jail No 3, Tihar Jail.
In the jail, legal knowledge is a shared asset and becomes
self-organised; an organic effort. The older convicts and
undertrials pass down legal knowledge which judges
convict, which acquit, how to write petitions, which lawyers
are good, and which ones will get you convicted.
An accused in 14 terror cases, Ali spent half of his 36 years
in jail, eight of those in Tihar. He was acquitted in all but
one, and his lawyer is confident that the one conviction will
be overturned on appeal. He tells me: When I went into
jail there was no Internet or mobile phones. All of this is a
new magic to me. I feel lost in this new world. But he did
seem at ease while taking me through his case documents.
Delving into a bulky file, he pulled out a copy of a letter
that he had written to the high court asking that his case
be assigned to a fast-track court, as in the six years since its
institution no proceedings had been held. He then showed
me the high courts order which, in treating the letter as a
writ petition, directed that the sessions court hold day-today hearings of the case to dispose of it within six months.
Did you get this done through legal aid, I asked. He

laughed in response. Then how did you know how to do

this? His reply: Because one day I was telling chacha (an
older inmate of Jail No 3) about one of my cases that had
not even begun. He said I should write a letter to the high
court, and told me it had been done before. He gave me
a copy of someone elses letter asking for a speedy trial,
and he said: Here. Take this. Copy this, add your details
and bring it back to me. Ill correct it for you. I wrote it
out and took it back to him. He took out a pen and made
corrections. I then made a fair copy of the letter and sent
it to the high court. After this happened in my case, news
spread and everyone started asking me for copies of my
letter. So I made copies of it and gave it to whoever wanted
it. Later, he added: I really wasnt sure if it would work
or not. I was just shooting in the dark. Who says that a
traditional legal practice is any different?
There has been a tendency to frame issues of access to
justice via the tropes of literacy and awareness, where
the needs of the people are defined in pedagogic terms.
We hold rights awareness workshops with vulnerable
communities, teaching them about their rights under the
law. In the context of criminal law, we often tell people
about the Supreme Court judgment of D K Basu. It says
that complainants are entitled to a copy of the FIR that
the police are legally bound to register. If arrested, we are
entitled to know the reason for our arrest, and that the
name and badge number of the police officer arresting
us must be clearly visible. We are also told that, once
arrested, we must be produced before a magistrate within
24 hours.
Access to justice initiatives do not, perhaps cannot, tell us
that the police can never be policed. And they cannot tell
us how we are to live, once we are arrested. It cannot tell
us how to forge friendships or how to nurture communities
while incarcerated in jail. Nor can it tell us of the relationship
between these communities and the way we inhabit
courtrooms and other legal places. Accessing justice
sometimes involves delving into the shared and quotidian
knowledge that marks the communities we inhabit, legal
awareness not from the top down but from a visceral
experience of the law.

Mayur Suresh is a doctoral candidate at the School of Law, Birkbeck, University of

London

Endnotes
1 Government of India and United Nations Development Programme. Access to
Justice for Marginalised Communities. May 2012
2 Costas Douzinas and Ronnie Warrington. A Well Founded Fear of Justice: Law
and Ethics in Post-Modernity. Law and Critique Vol II No 2 (1991)
3 Michael Taussig. Terror as Usual: Walter Benjamins Theory of History as a State
of Siege in Social Text No 23 (Autumn-Winter, 1989)
4 Michael Taussig. The Injustice of Policing: Prehistory and Rectitude in Justice
and Injustice in Law and Legal Theory (Austin Sarat and Thomas Kearns eds, Ann
Arbor: University of Michigan Press, 1998)

ISSUE 26 2013

Shahid: Haan. I am alone in this case. I was accused in

another bomb blast in ******** but they have not filed a
chargesheet as yet.

25

Access to justice

Impunity in the name of war against terror

When and how did the purveyors of illegal execution gain the respectable title
of encounter specialists? Terrorism is redefining our criminal justice system. It
produces a sense of emergency, calling for the loosening of ethical compunctions,
weakening established conventions of legal procedure, and fetishising encounters
as legitimate means of disbursing justice

IT WOULD BE INTERESTING and insightful to map the

trajectory of the term encounter. How and when did it gain
such currency? At what point did it seep into our collective
consciousness and invade our legal discourse? When did the
purveyors of illegal executions gain the respectability and
indeed glamour of encounter specialists?
By the 1990s, opposition to such killings and torture
and illegal detention had acquired a critical momentum
leading to the creation of the NHRC (National Human Rights
Commission) first and then to the issue of its guidelines on
encounter killings, initially in 1997, revised later in 2003.
The recommendations of the National Human Rights
Commission on encounter killings clearly state that when
information is received that death was caused in an
encounter as a result of firing by the police, prima facie the
ingredients of culpable homicide under Section 299 of the
IPC are satisfied. That is sufficient to suspect that an offence
of culpable homicide has been committed. The procedure
to be followed in case of any death arising out of an
encounter with the police was laid out as follows:
When the police officer in charge of a police station
receives information about deaths in an encounter between
the police party and others, he shall enter that information
in the appropriate register.
Where the police officers belonging to the same police
station are members of the encounter party whose action
resulted in deaths, it is desirable that such cases are
made over for investigation to some other independent
investigating agency, such as the state CBCID.

ISSUE 26 2013

Whenever a specific complaint is made against the police

alleging commission of a criminal act on their part, which
makes out a cognisable case of culpable homicide, an FIR to
this effect must be registered under appropriate sections of
the IPC. Such a case shall invariably be investigated by the
state CBCID.

26

A magisterial inquiry must invariably be held in all cases of

death which occur in the course of police action. The next of
kin of the deceased must invariably be associated with such
an inquiry.

MANISHA SETHI

Prompt prosecution and disciplinary action must be

initiated against all delinquent officers found guilty in the
magisterial inquiry/police investigation.
The question of granting compensation to the dependants
of the deceased would depend upon the facts and
circumstances of each case.
No out-of-turn promotion or instant gallantry awards
shall be bestowed on the concerned officers soon after the
occurrence. It must be ensured at all costs that such rewards
are given/recommended only when the gallantry of the
concerned officer is established beyond doubt.
The right to private defence
The fate of the NHRC guidelines was not too different from
the fate of the commission itself: meaningless. There is
no mechanism to ensure that the guidelines are actually
followed or implemented. Being the perpetrators as well as
the recorders of crime, the police cleverly circumvent and
distort the legal requirements, turning it to their advantage.
Instead of registering a crime under Section 302 of the
IPC culpable homicide amounting to murder against
the police officers involved in the encounter killing, what is
registered is a case of 307 of the IPC attempt to murder
against those killed! Indeed, writing to the chief ministers
in 2003 about the revised guidelines, the chairperson of
the NHRC displayed a surprisingly accommodative attitude
towards deaths caused by the police.
The police does not have a right to take away the life of
a person, begins the letter. If, by his act, the policeman
kills a person, he commits an offence of culpable homicide
or not amounting to murder, unless it is established
that such killing was not an offence under the law. The
chairperson felt it a bounden duty to explain to the chief
ministers that under the scheme of criminal law prevailing
in India, it would not be an offence if the death is caused
in exercise of right of private defence. He then helpfully
adds: Another provision under which the police officer
can justify causing the death of a person is Section 46 of
the Criminal Procedure Code. This provision authorises the
police to use reasonable force, even extending to causing

The Supreme Court has ruled time and again that private
defence is a right which must be demonstrated. In State of
Madhya Pradesh vs Ramesh, in 2004, the Supreme Court
ruled that where the right of private defence is pleaded,
the defence must be a reasonable and probable version
satisfying the court that the harm caused by the accused
was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from the
side of the accused. The burden of establishing the plea
of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record.
(http://indiankanoon.org/doc/171461/)

The absence of even the most common circumstances in

which encounters take place such as abductions preceded
by illegal detention and unprovoked shooting on unarmed
persons (circumstances with which the NHRC must have
been familiar, if only through the complaints it receives)
puts in serious doubt the motivation of the NHRC to secure
the rights of citizens as opposed to the claimed right to selfdefence of the police forces.

No doubt, the apex court was ruling about a private citizens

right to self-defence. Would it change significantly if the
agent of death and violence was a policeman? The law
clearly envisages that a case of culpable homicide even
if purportedly in self-defence be booked against the
police party, thereby granting no special exception to the
police when it takes life. Moreover, under Section 105 of the
Indian Evidence Act, the mere claiming of exception does
not by itself remove the burden of satisfying the court of
the existence of circumstances which bring the case within

However, the right to self-defence is hardly self-evident.

A girl looks on as police secure the area

during the 2008 Batla House encounter in
Delhi. Police shot two suspected militants

ISSUE 26 2013

of death, if found necessary, to arrest the person accused of

an offence punishable with death or imprisonment for life.
Thus, it is evident that death caused in an encounter if not
justified would amount to an offence of culpable homicide.
Further, seeking details of deaths in police operations, the
NHRC asks the states to furnish the circumstances leading
to death. It gives the police three choices of circumstances:
a) self-defence in an encounter; b) in the course of dispersal
of unlawful assembly; c) in the course of effecting arrest.
(Letter to chief ministers from NHRC Chairperson A S
Anand, December 23, 2003. Accessed at http://nhrc.nic.in/
Documents/RevisedGuidelinesDealingInEncounterDeaths.
pdf)

REUTERS/Adnan Abidi

Encounter killings

27

Access to justice

being terrorists of the Indian Mujahideen and therefore

need no resolution.
In fact, terrorism or at least its spectre is effectively
redefining our criminal justice system. There is a marked
shift from law enforcement to securing the nations
sovereignty and integrity, from crime to waging war, from
ordinary laws to special ones. The drumbeats of war
allow the loosening of ethical compunctions, weakening
of established conventions of legal procedures, and
fetishisation of encounters as legitimate means of
disbursing justice.
Protesting the Batla House
encounter

any of the General Exceptions in the Indian Penal Code. But

our police continue to claim, and are granted, exception as
a right.
Dead, hence guilty
Section 46 (3) mandates that nothing in this section gives
a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment
for life. This brings us to the object of the violence, and not
its agent. It also presents us with a strange circularity: A is
killed; A is alleged to be guilty of crimes attracting death or
life sentence; thus A has been killed in good faith; ergo the
encounter is genuine. If the genuineness of an encounter
killing is to be built on the guilt of the encountered, there
is an immediate shift in discourse. The police only need
demonstrate an allegation to justify an encounter, shifting
the burden of proving their innocence on those killed.
And, as everyone knows, dead people dont talk. This is the
ultimate convenience of an encounter killing. It effectively
silences the victim and erases the possibility of trial for the
alleged guilt.

ISSUE 26 2013

Consider for example the encounter killing of 19-year-old

Ishrat Jehan, accused post mortem of being a Lashkare-Toiba operative on her way to assassinate the Gujarat
chief minister (who incidentally built his Hindu hriday
samrat reputation on the dead bodies of several purported
assassins). When the Tamang report established that the
teenager had been killed in cold blood, former Home
Secretary G K Pillai continued to defend his affidavit in the
Supreme Court wherein he had sworn that the slain girl
was a Lashkar operative. Pillai was driven by the need to
establish guilt.

28

Or take the Batla House encounter. No court of law will

examine the circumstances that led to the death of Atif
Amin and Mohammad Sajid. The Batla House encounter trial
currently pending before a court in Delhi seeks to bring to
justice the killer of Inspector Sharma. The deaths of Atif and
Sajid have become inseparable from their alleged guilt of

It is instructive to follow the message of a former chief

justice of the Supreme Court, the very same judge who
insisted on subjecting the right to private self-defence to
extreme scrutiny. Speaking at a seminar at the Indian Law
Institute on the theme of Investigation and Prosecution
of Offences Relating to Terrorism, Justice Arijit Pasayat,
referring to Ajmal Kasab, said: He is not fit to be called a
human. He is an animal. So what is required is animal rights,
not human rights. Kasab is a convenient shorthand for
appeasement of human rights alarmists credit must go
to The Economic Times for coining this term immediately
invoking the apparition of a biryani-chomping, jihad-crazed
terrorist undeserving of the refinements of legal procedure.
Morale booster
The very term terrorism produces a sense of urgency and
emergency, calling for suspension of ordinary norms. At
times, the courts and institutions of democracy see their
role as perilously close to that of film stars on the war front:
cheering the troops. The Batla House encounter provides
an apt illustration of this tendency. The following is an
excerpt from the communication received by the NHRC from
the office of the deputy secretary (home) informing it of the
reasons behind the lieutenant governors refusal to grant
sanction for a magisterial inquiry into the case.
He (Lt Governor) has further observed that in these
circumstances, when the police went to apprehend the
accused and they were fired upon, there was no option
with them but to open fire in self-defence and to arrest
the accused. The modules of the Indian Mujahideen
have conducted bomb explosions in various parts of the
country including Delhi, Uttar Pradesh, Rajasthan, Gujarat,
Karnataka, Andhra Pradesh, etc, subjecting police officers,
who have worked out this case at the cost of loosing (sic)
a gallant colleague and nearly loosing (sic) another would
be highly demoralising and would weaken the resolve of
the police officers to fight against terrorists. A police officer
confronted by armed terrorists should not have to start
thinking whether to die of the firing from the militants or
if the militant dies to face the magisterial inquiries which
are to follow. The Crime Branch is already conducting
investigation of the shootout. Two accused persons are
yet to be arrested. Crime Branch is expected to file its

Encounter killings

We return once again to the tautological reasoning of guilt

and murder. However, the lieutenant governor deems it fit to
not only pronounce his verdict in the Batla House encounter
case but clearly settles it in favour of all police officers
who must not be allowed to be demoralised by magisterial
inquiries which are to follow their fight against terrorists.
This reasoning was considered perfectly acceptable by the
NHRC which while issuing the guidelines on encounter
killings had already explicitly spelt out the escape route.
Little surprise then that the NHRC in disposing of its inquiry
and in giving the police a clean chit chose to rely on the
account of three senior policemen.
Civil rights activists approached the Supreme Court seeking
a judicial probe into the encounter killings on grounds that
the NHRC had accepted, in toto, the police version while
disregarding conflicting evidence and voices. The Supreme
Court chose also to play cheerleader to the policemen saying
that an inquiry one year after the encounter would only
negatively impact the morale of the police.
A major departure from this morale-boosting adjudication
was the landmark judgment of the five-judge bench of
the Andhra Pradesh High Court in 2009. Responding to
the writ petitions of several civil rights groups, including
the Andhra Pradesh Civil Liberties Committee (APCLC),
the bench, headed by Justice Goda Raghuram, held that
the first information relating to death caused by a police
officer acting or purporting to act in discharge of official
duties or in self-defence ought to be recorded and
registered as an FIR. This would have effectively ensured
that the deaths of Atif and Sajid did not disappear into a
legal black hole; Jamia Nagar thana would have been forced
to recognise their deaths too. The exceptions claimed by
the police the circumstances of self-defence would
be critically examined by the magistrate. The statements
of the senior police officers of the Delhi police, embraced
so wholeheartedly by the lieutenant governor and the
NHRC, would thus have been treated as mere opinion,
not as unassailable truth. Moreover, the bench held that
a magisterial inquiry would not be a substitute for the
recording of an FIR. The Batla House encounter in this sense
was a double travesty, with neither an FIR being filed against
the police party nor the magisterial probe being allowed.
Earlier, deliberating on the nature of action to be taken
in the event of an encounter death, the full bench of the
Andhra Pradesh High Court in a majority decision ruled that,
no crime can be registered under Section 307 of the IPC
against a person killed in an encounter.
The Andhra Pradesh High Courts ruling would have
impeded the routines of encounter killings and created a
legal precedent which would have eroded the very basis of
police impunity. Within days, therefore, the Andhra Pradesh

Police Officers Association rushed to the Supreme Court

for a stay. It is difficult to say with certainty whether the
Supreme Court would have been inclined to stay the high
court order had it not heard the petition just months after
the mayhem in Mumbai obnoxiously and mimetically
referred to as 26/11. The imperative to protect the
morale of the police engaged in performing duties under
hazardous conditions was underlined by the affidavit
submitted by the Police Officers Association in the Supreme
Court. Its counsel, Harish Salve, argued that police officers
who averted the attack on parliament and the commandos
of the National Security Guard engaged in Mumbai would
also face criminal charges under the Andhra Pradesh High
Courts ruling.
In short, the associations main argument was that fixing
culpability of individual officers would prevent the police
from countering terrorist or subversive elements implying
that extrajudicial killings be sanctioned and legitimised.
The Supreme Court concurred. The chief justice, now the
chairperson of the NHRC, told the counsel: We cant fully
endorse the judgment If we have to accept what you say
then all police officers involved in the Mumbai terror attack
of November 26, 2008, should face criminal charges. On
another occasion, the former CJI stated that encounters
are unavoidable sometimes the law and order problem
is increasing. Criminals are taking law into their hands,
attacking even the police. Police have to take control of the
situation. One would think he was reading from the Police
Officers Association affidavit submitted to the Supreme
Court.
In this impatience with what are perceived as inconveniences
and unnecessaries of law, all those arguing for rule of law
are also condemned as anti-nationals. The Police Officers
Association lamented to the Supreme Court in its affidavit
that the petitioner, APCLC, which directly aids and abets
the unlawful activities of the underground CPI (Maoist)
filed frivolous court cases and resorted to agitations to
demoralise and portray the police in a poor light. Thus,
upholding the morale of the police force is almost elevated
to a national duty one that overrules the commitment to
justice and civil rights.
The moot issue is that till such time as the political
consensus over impunity in the name of war against terror
does not break; till due process of law is not regarded as
supreme; till bodies such as the NHRC continue to be ruled
by political appointees, part of that same consensus and
eager to please their masters in government, the guidelines
on encounter killings will exist only to be violated, and civil
rights, including the right to life of certain groups of people,
expendable at the altar of national security.

Manisha Sethi teaches at the Centre for the Study of Comparative Religions and
Civilisations, Jamia Millia Islamia, New Delhi. She is an activist with the Jamia
Teachers Solidarity Association

ISSUE 26 2013

chargesheet in the court shortly where after the case will be

subjected to due judicial scrutiny.

29

Access to justice

Afzal Guru case: Justice ended up the loser

In the Afzal Guru case the legal community, swayed by misconceived perceptions of
patriotism, demonstrated its abject failure to adhere to its core ethics. The judiciary
was carried away by bloodlust. And the state, paranoid about terrorism, was
cavalier in its interpretation of effective legal aid to the accused. Did Afzal Guru
have any meaningful access to justice?

NOTHING RANKLES more in the human heart than a brooding

sense of injustice. Justice Brennan, Supreme Court of the
United States
It is a strange thing what authority the opinion of mankind
generally accords to the intervention of courts. It clings even
to the mere appearance of justice long after the substance has
evaporated; it lends bodily form to the shadow of the law.
Alexis de Tocqueville
The collective voices of society, polity, the state, media and
legal fraternity have all hailed Mohammad Afzal Gurus
execution as a triumph of the rule of law.
Appalled by this macabre manifestation of jingoism (1), I
wish to utilise this space to express my unhappiness over the
collective failure of these hallowed institutions that are held
up as the fulcra of democracy.
In the following paragraphs, I will scrutinise Afzals trial, the
conduct of the legal fraternity and especially the lawyers
whom the law and judiciary, in their magnanimity and lipservice to legal aid, heaped on him despite his protestations,
the flawed reasoning, reliance on erroneous precedent,
and the sentencing caprice of the Supreme Court of India.
I conclude that the act was nothing short of judiciallysanctioned murder, and that justice, instead of being
triumphant, ended up being the loser.

ISSUE 26 2013

The gravamen of my indictment is this: the legal community,

swayed by misconceived perceptions of patriotism,
demonstrated its abject failure to adhere to its core ethics;
the judiciary (from the trial court right up to the Supreme
Court of India), carried away by bloodlust, the fantastic
paranoia of the Indian state succumbing to the hegemonic
concept of terrorism and abjectly cavalier in its approach to
judicial interpretation of effective legal aid and assistance of
counsel together were complicit in an insidious conspiracy.
What makes the indictment all the more serious is the fact
that the conspiracy was successfully executed in the garb of
upholding a fair legal process, apparently under the aegis of
the Indian Constitution!

30

Patriotic lawyers or ethical delinquents?

The parliament attack case was not the first instance where the

SAURAV DATTA

legal community sprinted to prove its nationalistic and patriotic

credentials, by adopting unanimous, vociferous and zealously
enforced resolutions prohibiting anyone from defending
those accused of committing acts of terrorism. I put this term
in quotes because post-9/11, 26/11, and a spate of similar
events, we live in a world where dissent is punished as treason,
where taking up cudgels for the cause of justice is deemed an
insurrection. Those swearing by civil liberties and believing in
cause-justice lawyering are pilloried and vilified, persecuted
and even killed (2). As John Ashcroft, George W Bush acolyte
and ex-attorney general of the US who was the key legal mind
behind the Guantanamo torture programme, said in 2005: To
those who scare peace-loving people with phantoms of lost
liberty, my message is this: your tactics only aid terrorists.
However, considering that certain bogeys created by the state,
its allies and its agents are used as the perfect foil and reason
for illegal wars and every kind of defenestration of human
rights and civil liberties, it becomes imperative for any lawyer
worth his salt to embrace and espouse the jurisprudence of
insurrection as was done by stalwarts like Roy Black, Thurgood
Marshall and K G Kannabiran because both the bar and the
bench are equally responsible for carrying the mantle of justice
and rule of law. And when both abdicate their responsibilities,
as they did in Afzals case, both become handmaidens of the
gravest injustice.
One of the most eloquent statements on the duties of a lawyer
came from Thomas Erskine in his defence of Thomas Paine
when he was tried for seditious libel in 1792: I will forever,
at all hazards, assert the dignity, independence, and integrity
of the English Bar, without which impartial justice can have
no existence. From the moment that any advocate can be
permitted to say that he will or will not stand between the
Crown and the subject arraigned in the court from that
moment the liberties of England are at an end. If the advocate
refuses to defend, from what he may think of the charge of
the defence, he assumes the character of the judge; nay, he
assumes it before the hour of judgment
Lord Brougham, a tireless crusader of civil liberties, said in
1937: An advocate, by the sacred duty which he owes to his
client, knows in the discharge of that office but one person in
the world the client, and no other to protect that client
at all hazards and costs to all others, and among others to

Justice for the indigent accused

Nancy Hollander, past president of the National Association

of Criminal Defence Lawyers (US), proclaims with pride and
devoid of any compunction: So let me say it: I am a terrorist
lawyer, if that means I am willing to defend those accused of
terrorism. I am currently defending two men imprisoned in
Guantanamo and I defend others accused of terrorism.
Contrary to recent attacks by those who claim to be supporters
of American justice, my defence of people accused of serious
and sometimes horrific crimes is not an endorsement of those
crimes. Rather, it is a testament to the strength of my belief in,
and commitment to, the American system of justice.
Why? Because in my defence of every client, I am defending
the United States Constitution and the laws and treaties to
which it is bound, and I am defending the rule of law. If I am a
terrorist lawyer, I also am a rule-of-law lawyer, a constitutional
lawyer and a treaty lawyer. (3)
Capital defence cases, legal aid, and the right to
effective counsel
One mans terrorist is another mans freedom fighter, goes
the saying. This aphorism holds true for Kashmir. For the sake
of brevity, I am not going into Afzals history and background
which has been mentioned, discussed, debated, and disputed

ad nauseam in the media and elsewhere before he was thrown

into the crosshairs of the police and judiciary. His lament, I
am Afzal for Kashmiris, and I am Afzal for Indians as well, but
the two groups have an entirely conflicting perception of my
being, (4) makes it clear that his trial was a political one, as
many cases of terrorism usually are.
Justice in political trials is more tenuous than in any other trial,
for it is not merely criminal procedure or substantive law, but
values of democracy and liberty which are affected by the
language and logic of the law.
The case of the parliament attack (5) on December 13, 2001,
was no ordinary one. The Supreme Court regarded it as waging
war against the state because the citadel of Indian democracy
had been attacked. It was a case in which Mohammad Afzal,
one of the accused and convicted of criminal conspiracy, was
sent to the gallows. For, nothing less could have satisfied the
collective conscience of society, as the Supreme Court was
pleased to hold.
Afzal was too indigent to be able to afford a lawyer, and had
exercised his fundamental right to demand legal aid from
the state and the court. How the court dealt with it has been
described later in this article, but before that one needs to
understand that, in India, legal aid, despite all its trappings, is
considered charity, not a bounden duty. Otherwise, how is it
that there is not a single ruling laying down a set of minimum
standards of legal assistance for the indigent accused?
Yug Mohit Chaudhry, who champions abolition of the death

ISSUE 26 2013

himself, is the highest and most unquestioned of his duties

Nay, separating even the duties of a patriot from those of an
advocate, and casting them if need be to the wind, he must go
on reckless of the consequences

31

Access to justice

penalty, sums up the inextricable link between lack of effective

legal aid and cases of mistrial and miscarriage of justice: In the
nine years from January 1, 2000, to December 31, 2009, the
Supreme Court gave the death sentence in 30 cases. At least 14
of them were defended on legal aid, and many more had legalaid lawyers in the earlier stages. Twelve of the 14 prisoners
wrongly sentenced to death in the Ravji cases, including Ravji
himself, who has been executed, were represented on legal aid.
In the US, where legal aid is more organised and better
remunerated than it is in India, Justice Ruth Ginsburg of the US
Supreme Court observed that she had never seen a death case
coming in appeal to the Supreme Court where the defendant
was well represented at the trial. It is hardly surprising,
therefore, that most cases of miscarriage of justice, wrongful
conviction and executions have been defended at some stage
on legal aid. Prisoners facing the death sentence who are
handicapped by poverty are doomed ab initio by a system that
pays legal aid lawyers a pittance for their work. (6)
Monroe H Freedman in his seminal work, Understanding
Lawyers Ethics (1990), regards the right to counsel as the most
important of all rights because it is inextricably linked to the
clients ability to assert all other rights (7). Through adversarial
advocacy, the lawyer functions to uphold the clients rights,
and protect the clients autonomy, dignity, and freedom (8).

ISSUE 26 2013

The right to effective counsel arises because judicial justice

with procedural intricacies, legal submissions and critical
examination of evidence leans upon professional expertise; and
a failure of equal justice under the law is on the cards where
such supportive skill is absent for one side. Our judicature
and judicial process, engineered by kindred legal technology,
compel the collaboration of lawyer-power for steering the
wheels of equal justice under the law (9).

32

a gross miscarriage of justice) was summarily dismissed.

What if the accused happens to be someone like Afzal who
was illegally picked up by the police, tortured in custody, then
shown as arrested on a later date, and made to narrate a
confession (10) in the full glare of the television cameras,
surrounded by armed policemen? Then, to insist that the
right to counsel becomes applicable only from the time
proceedings start in court would be the surest way to ensure
a travesty of justice.
The accused has an inalienable right to be defended by a
lawyer of his choice, and such representation and defence must
be effective this has been a part of Indian jurisprudence
since 1956 (11). It traces its roots to American jurisprudence,
where, in Powell vs Alabama (12), for the first time, the US
Supreme Court allowed the right to counsel to three black
teenagers who had been charged with rape and robbery of
white women, and had been sentenced to death, because
it was considered an essential jurisdictional prerequisite to
depriving a person of his life or liberty.
In 1945, regarding the standard of a counsels assistance, in
Diggs vs Welch, it was held that assistance of counsel would
not be regarded as effective if it reduced the trial to a farce
and mockery (13). This was obviously too high a threshold
to judge the counsels incompetence, hence in McMann vs
Richardson (14) it was clarified that right to counsel means
reasonably effective and competent assistance by the lawyer.
The brightest beacon remains Gideon vs Wainwright, where
Justice Hugo Black pronounced that an accuseds right to
counsel is one of the fundamental principles of liberty and
justice (15).
Why the Strickland Test fails

In an atmosphere charged with such hate and prejudice as

was the aftermath of December 13, 2001, continuing right
till the end of the legal proceedings, if a lawyer appearing
for any of the accused did not oppose the prosecutions
case tooth-and-nail on every question of fact and law, or
conducted his duties in a cavalier manner, it would have
been nothing short of forming an insidious allegiance with
the prosecution. The accused will never be able to believe
in equality before the law when he knows he is inherently
disabled from proving the state wrong.

Strickland vs Washington (16) is what the Supreme Court of

India decided to apply to Afzals case. It was gravely erroneous
on two counts: one, as shown above, there already were
existing precedents in Indian law, hence the adherence to
Strickland was whimsical, and dispensable. Moreover, as
proved below, Strickland was a study in prejudice.

In the present jurisprudential framework, bearing in mind the

myriad amoral and coercive tactics adopted by the police and
prosecution, an accused needs, and is entitled to, effective
legal representation from the very moment he is arrested or
detained. This is because the machinations of prosecutorial
malice are put to work much before the commencement of
proceedings, and these have a crucial bearing on the outcome
of the trial. Moreover, in a criminal case, what is blotted at
the trial stage cannot be blotted on appeal, because appellate
courts deal with questions of law, not fact, unless of course
there is a re-trial, Afzals pleas for which were steadfastly
rejected by the courts. Even a curative petition (filed to remedy

This deficient performance prejudiced the defence so

seriously as to deprive him of a fair trial, a trial whose results
are reliable.

In Strickland, a two-pronged test was laid down:

The accused must show deficient performance on the part of
counsel.

The court went on to stress that the evaluation of such

assistance by counsel must be very deferential and a strong
presumption would be drawn that such assistance was
reasonable and effective.
It does not require any explanation that adherence to such
pre-judicial standards, which are so loaded against the
accused, would more often than not result in punishment

Justice for the indigent accused

Conduct of Afzals lawyers at his trial, and the Supreme

Courts injustice
Afzal had provided the special court with a list of four lawyers,
and wanted to be represented by any one among them.
Strangely, the trial court recorded that all four had refused,
but no reasons were provided. There is nothing on record to
even verify whether these four lawyers were approached at all,
and what, if any, had been their grounds for refusal. Both the
high court and the Supreme Court glossed over this strongly
suspicious situation in the most blas manner.
On May 17, 2002, the day the trial began, Seema Gulati,
a person whom he had never met before, was assigned to
Afzal. Gulati easily conceded that the prosecution had prima
facie evidence to frame charges, and not only that, admitted
without demanding any formal proof all the crucial documents
and recovered items which later on were used as the basis for
Afzals conviction. If this performance does not belie credulity,
theres more.
On July 2, 2002, Gulati, without giving any reasons, withdrew
her vakalatnaama in favour of Afzal and decided to appear
for S A R Geelani, another accused in the same case. She
assigned the case to her junior Niraj Bansal who made clear his
unwillingness to represent Afzal. But the court, for reasons
which can at best befuddle, appointed Bansal amicus curiae
(friend of the court), because he had experience in handling
TADA cases! (Afzal was being tried under POTA, and charged
with waging war against the state u/s 121 of the Indian
Penal Code. Both are far more draconian than TADA.) When
there is dire need for a lawyer to withstand the prosecutions
onslaught, the court cherry-picked a friend!
Afzals repeated pleas that he had no confidence in Bansals
performance and requests for another lawyer went unheeded.
He had no option but to cross-examine most of the witnesses
himself because most of Bansals questions were perfunctory,
at best. So we had an accused, who had no training in the law,
staring at death, forced to do the best he could and fight a
Titanic battle because he had been deprived of a basic right by
none other than the court!
In one of the most astounding displays of institutional selfreferentialism, the Supreme Court went on to perpetrate
a greater violation. It found nothing wrong with Gulatis
conduct and instead held that she had exercised her discretion
reasonably. When the law mandates holding someone to an
inviolable standard of duty, can anyone even conceive of the
exercise of discretion?

As for the complaints regarding Bansals lackadaisical

approach, the court was content to follow the deferential
path of Strickland, receive an annexure (which contained the
list of questions he had asked during cross-examination) from
the prosecution, and without even bothering to examine those,
condemned Afzal by ruling that he had received a fair trial.
In the high court, when Afzal protested again against Bansals
now-proven incompetence and unwillingness, a human rights
lawyer offered to represent him, and he accepted. However,
this benefactor started his argument by asking the court not
to hang Afzal but to order his death by lethal injection (19)!
Saurav Datta is an independent legal researcher and faculty, Symbiosis Law School,
Pune. A shorter and modified version of this article was published here: http://
kafila.org/2013/02/20/punishment-by-procedure-saurav-datta/

Endnotes
1 The Parliament attack case was the first litigation I was part of. I was a student
intern in the chambers of Kamini Jaiswal, who was briefing Ram Jethmalani. I
got to see and understand the case from the closest of quarters, and maybe that
exacerbates my indignation at this egregious miscarriage of justice
2 Like Shahid Azmi (http://kafila.org/2012/11/24/remembering-shahid-azmican-the-love-of-justice-be-assassinated-arvind-narrain-saumya-uma/ ) or Jitendra
Sharma, whom the NIA (National Investigation Agency) is hounding because he
was defending people accused of naxalism (yet another of those terms thrust into
the vocabulary of terror by a tyrannical state). http://daily.bhaskar.com/article/MPBHO-nia-targeting-lawyer-who-represents-terror-accused-4164462-NOR.html
3 A Terrorist Lawyer, and Proud of It, NYT, March 24, 2010. Available at
http://www.nytimes.com/2010/03/24/opinion/24iht-edhollander.html?_
r=0&pagewanted=print
4 Mulakat Afzal, Caravan, February 9, 2013. Available at http://caravanmagazine.
in/reportage/mulakat-afzal
5 State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru (2005, Supreme Court of India)
6 Legal Aid, Frontline. Available at http://www.flonnet.com/fl2917/
stories/20120907291702800.htm
7 p 13
8 Id, pp 15-17
9 Madhav Hayawadanrao Hoskot vs State of Maharashtra, AIR 1978, SC 1548,
para 3
10 This confession was discarded by the Supreme Court, but by then the damage
had been done. The prosecution had a free hand in concocting evidence
something that was never challenged by his lawyer in the trial court!
11 Hansraj and Ors vs State AIR, 1956, all 641; affirmed in State of Madhya
Pradesh vs Shobharam and Others, AIR 1966, SC 1910
12 287 US 45 (1932)
13 Diggs vs Welch, 148 F 2d 667, 670 (D C Cir 1945)
14 397 US 759 (1970)
15 372 US 335, 341 (1963)
16 466 US 668 (1984)
17 Per Gideon, supra
18 See, for instance, Victoria Nourse, Gideons Muted Trumpet, 58 Md L Rev 1417
(1999), where a very cogent claim is staked for debunking Strickland and reviving
Gideon
19 A Collaborator in Kashmir, psp 172-182 in Amitava Kumar, Evidence of
Suspicion A Writers Report on the War on Terror, Picador (2010) at 178

ISSUE 26 2013

by procedure (17), and for these very reasons the Strickland

standard has been subjected to trenchant criticism (18). The
sole mitigating factors in Strickland were some of counsels
basic duties. These included, but were not limited to: duty to
advocate the case, and duty to consult with the accused on
important decisions. As I shall demonstrate in the subsequent
paragraphs, even redeeming aspects of the Strickland Test were
overlooked by the Supreme Court.

33

Access to justice

Multiplicity of human rights institutions

The proliferation of HRIs to inquire into human rights, women and child rights,
minority rights and SC/ST rights has not translated into better protection of
human rights as the state machinery remains largely indifferent to them. Is it
time to look at the possibility of a merged institution?
SWAGATA RAHA

Establishment of HRIs in India

India has seven national human rights institutions (HRIs)
known as commissions, with varying structures, powers
and mandates that have been established with a view to
promoting and protecting human rights, womens rights,
childrens rights, rights of minorities, and the rights of
persons belonging to scheduled castes and scheduled
tribes. Except for the National Commission for Scheduled
Castes (NCSC) and the National Commission for Scheduled
Tribes (NCST), which have been provided for under the
Constitution, all other human rights institutions at the
national level have been established through legislation.

ISSUE 26 2013

The functions of these commissions include evaluation

of existing safeguards for human rights protection and
making recommendations for strengthening them, inquiry
into complaints of human rights violations, inspection
of custodial institutions, creation of awareness about
rights, promotion of harmony between domestic laws
and international conventions, and research and analysis
on human rights issues. They have all been empowered
with certain powers of a civil court while looking into the
violation of rights. After the completion of inquiry, they
can recommend that the government or public authorities
initiate proceedings against those responsible for the
violation, pay compensation, or take further steps to remedy
the violation. Although their recommendations have no
binding value, these commissions are seen as alternative
forums that have the potential to offer speedy, accessible,
and inexpensive relief.

34

The Protection of Human Rights Act, 1993 (PHR Act)

and the CPCR Act, 2005 also provide a framework for
the establishment of commissions at the state level and
have vested the state governments with the discretion to
constitute the commissions. Owing to lethargy on the part
of the states, only 20 have set up the State Human Rights
Commission (SHRC) and 14 have constituted the State
Commission for Protection of Child Rights (CPCR). Some
commissions were established only because the high courts
had directed the state government to do so (1). However,
some of these institutions exist only on paper and some do
not function because of poor infrastructure, lack of staff,

and the reluctance of the government in appointing a

chairperson and members (2).
How independent are HRIs in India?
According to the Principles relating to the Status of
National Institutions, 1993 (Paris Principles), a set of
internationally accepted minimum standards that states
must aim to comply with while establishing a national
human rights institution, HRIs must be functionally and
financially independent. They must not be controlled by
the government and must have adequate funding that
allows them to have their own staff and premises. The
Paris Principles and other international guidelines and best
practices on human rights institutions lay unequivocal
emphasis on the independence of these institutions (3).
The term independence has to be understood in its fullest
sense as signifying foundational, functional and operational,
and financial independence. Foundational independence
depends on the manner in which the institution has been
brought into existence, its composition, and the process
followed to appoint members. The appointment process
should be fair, transparent, and bereft of political influence.
Operational autonomy stems from the authority to
appoint staff and take administrative decisions. Financial
independence is very critical as dependence on the
government for funds can stymie the effectiveness of an
oversight authority.
In order to discharge its mandate effectively, a human rights
institution must be absolutely independent of governmental
and political control or interference. It must distance
itself from the government whose policies and actions it
is expected to scrutinise and inquire into. Further, it must
strive to ensure that it is not perceived as a government
department or an NGO. The former is likely to compromise
its credibility, and the latter might earn it the label of being
pro-NGO.
Commissions in India enjoy varying degrees of
independence. For instance, the National Human Rights
Commission (NHRC) is headed by a former chief justice of
the Supreme Court, while the chairperson of the National
Commission for Women (NCW) has nearly always been a

Human rights

Do we need multiple human rights institutions?

Most commissions have earned the reputation of being
post-retirement hubs for bureaucrats and a parking lot
for members of political parties with no background in or
understanding of human rights. This is borne out by facts
which indicate that the present chairperson of the NCSC
(7) is also a Member of Parliament while the chairpersons
of the NCST (8), NCW (9), and the Orissa SCPCR are former
MP, MLA, and minister, respectively. The chairperson of the
National Commission for Minorities is a retired member
of the Indian Administrative Service (10). Although the
PHR Act requires that persons with knowledge of or
experience in human rights be appointed members, retired
bureaucrats have predominantly occupied the position of
member. Political appointees and bureaucrats often lack the
necessary qualifications and do not inspire confidence in the
independence of the commission.
The non-binding nature of recommendations made by
the commissions often evokes the sentiment that these
commissions do not serve any purpose. Some commissions
have openly raised the issue of governmental indifference
and refusal to act on recommendations (11). At the state
level, commissions fail to take off or fulfil their mandate
because of the governments tardiness in providing them
space, staff, finances, and infrastructure. Civil society has

In order to discharge its

mandate effectively, a human
rights institution must be
absolutely independent of
governmental and political
control or interference. It
must distance itself from the
government whose policies
and actions it is expected to
scrutinise and inquire into
also expressed its disappointment over their inefficacy and
has tagged them toothless.
The commissions in India have emerged in response to
international and domestic pressures, and barring the NHRC,
which has a general mandate, they have been vested with a
special mandate. They are premised on the belief that they
can protect and promote the rights of a special group more
effectively than a single institution with a broad mandate.
However, such an approach raises several questions. Does it
not undermine the principle of the indivisibility of rights?
(12) Is it efficacious to have multiple institutions with a
different composition, mandate, and powers? Will the
existence of institutions devoted to issues of a particular
group lead to better protection and promotion of their
rights? Will they help avoid the risk of prioritising the
interests of one group over others? On the other hand, the
presence of these institutions has also led to duplication
of efforts and simultaneous inquiries, and it is debatable
whether they serve as one among many options for a victim
of a human rights violation.
In an article on the issue of one versus multiple human
rights institutions, Richard Carver reviewed the international
legal framework and observed that there is no clear principle
or guideline on this matter and that the decision must be
driven by the pragmatism and effectiveness (13) of the
options. Based on these considerations, he states that a
single institution is preferable as: generally the model of
a single national human rights institution is likely to lead
to greater effectiveness, provided that it is designed with
inbuilt guarantees that the interests of particular vulnerable
groups will not be neglected and will receive an appropriate
level of priority. A single institution offers several clear

ISSUE 26 2013

political appointee. The executive exclusively determines

the appointment of chairperson and members of all the
commissions except the NHRC where appointments are
based on the recommendations of a high-powered selection
committee comprising representatives of parliament and
the executive. The extent of political control over some
commissions is more than others. For instance, a change
in government at the Centre in 2005 led to the dismissal
of members appointed by the previous government (4). All
the commissions except the CPCRs have been empowered
to frame their own regulations. Further, the National
Commission for the Protection of Rights of Children (NCPCR)
has to seek the approval of the government before incurring
expenditure under certain heads (5) and must abide by the
directions of the central government on questions of policy
relating to national purposes (6). The NHRC can appoint
technical staff and the NCPCR can constitute a panel of
consultants. However, all commissions are dependent on
the government for their establishment, infrastructure, staff,
and grants. Though an appropriation is made by parliament,
the funds are routed through a ministry. The mandate of the
NHRC is limited to inquiring into complaints of violation of
human rights or abetment or negligence in the prevention
of such violations by public servants. The NCW and NCPCR,
on the other hand, can look into complaints relating to
deprivation of womens rights and child rights, respectively,
irrespective of whether the complaints relate to public
servants or private entities. Because of its composition and
powers, the NHRC is perceived as being more independent
than others.

35

Access to justice

advantages. It will work within a coherent legal framework

with consistent powers in relation to all vulnerable groups.
It will maximise institutional resources, avoiding duplication
and sharing best practice. It will be more accessible to
vulnerable groups and better able to address cases of
multiple discrimination. It will exercise greater authority in
relation to governmental and other bodies and will offer a
clear, comprehensible public profile on human rights issues.
(14)
He acknowledges that a single institution may be looked
upon as being cost-effective by government, but terms this
irrelevant as it is hard to see the validity in human rights
terms of an argument that says that money should be spent
wastefully, simply in order that the human rights budget
not be cut (15). Carver cites the examples of the United
Kingdom, Croatia, Sweden, and Australia where multiple
institutions were merged to form one single human rights
institution.
In India, the composition, mandate, functions, and powers
of human rights institutions vary. Carver also makes an
important point about the need for equal protection of
rights of victims of human rights violations, a service that
can be provided consistently only by a single institution (16).
This right stands diluted owing to the difference in powers
and mandate of multiple institutions. Should a victim not be
equally protected no matter which commission he/she may
appear before? As commissions are prohibited from looking
into complaints before another commission, an ignorant
victim should not have to suffer for not approaching the
appropriate body in the first instance.
The downside of multiple institutions with different
powers and mandates is that it leads to inconsistencies
in the handling of issues affecting different groups
(17). The difference in stature of the chairperson and
members in each of the commissions often determines
their relationship with government departments and
the seriousness with which their recommendations are
regarded. On the other hand, it is also cumbersome
for officials to deal with and respond to different
commissions instead of a single institution. The
commissions often cite inadequacy of infrastructure,
staff, resources, and funds as critical factors that hinder
their effectiveness. Whether or not we need multiple
institutions with varying powers and structures at the
national and state level to protect and promote the rights
of various groups requires close examination.

ISSUE 26 2013

Conclusion

36

The proliferation of HRIs at the national and state level has

not necessarily translated into better protection of human
rights as the state machinery remains largely indifferent
towards them. The presence of multiple institutions has also
led to parallel inquiries and turf wars which have resulted
in loss of considerable time and resources, and secondary

victimisation of victims of violations. The merits and

demerits of a merged institution vis--vis existing institutions
need to be looked at.
Nevertheless, there is a definite need for greater
cooperation and coordination between HRIs at the national
and state level so that considered and effective responses
are framed to address issues of overlapping concern. The
Protection of Human Rights Act, 1993 (PHR Act) is the only
legislation which provides a platform for coordination
between some of these institutions at the national level.
According to Section 3(3) of the PHR Act, the chairpersons
of the NCW, NCM, NCSC, and NCST are deemed to be
members of the NHRC for the purpose of discharge of
all functions other than inquiry into complaints. The
chairperson or member of the NCPCR attends the meetings
of the full commission as a special invitee. However, these
meetings are usually held only once a year.
At an Inter-Commission Dialogue on Child Rights
in India, organised by the Centre for Child and the
Law, representatives of six national commissions and
chairpersons of various state commissions agreed that
commissions must collaborate on policy issues and make
joint recommendations to the government as collective
action would likely elicit better results (18). They also
agreed on the need to develop an integrated complaints
registration mechanism that would aid detection of
complaints filed before multiple authorities. Pending law
reform, a coordinated approach is probably the only way
in which HRIs can posit themselves as strong, effective and
independent monitors of human rights.
Note: The author has relied on research undertaken at the Centre for
Child and the Law, NLSIU, on a project titled Justice to Children through
Independent Human Rights Institutions and a report she co-authored
titled A Review of the Working of the Karnataka State Human Rights
Commission and the Karnataka State Commission for Women, Daksh &
Accountability Initiative, April 2011, at http://www.accountabilityindia.
in/sites/default/files/daksh_kshrc_kscw_apr_2011.pdf

Swagata Raha works as an independent human rights researcher based in New

Delhi. She has extensively researched and written on human rights institutions in
India

Endnotes
1 In Peoples Union for Civil Liberties vs Union of India, 1999 (4) Bom CR 608,
the Bombay High Court directed the state of Maharashtra to establish a State
Human Rights Commission. Similar directions were issued by the high courts of
Allahabad (Peoples Union for Civil Liberties vs State of Uttar Pradesh, AIR 2000
All 103) and Karnataka (Shri P Hanumanthappa vs the Home Secretary, the State
of Karnataka, decided on 05.12.2006). In the states of Jharkhand, Uttar Pradesh,
Manipur and Punjab and Haryana, the respective high courts had directed the
state governments to establish SCPCRs
2 The position of chairperson in seven SHRCs is lying vacant while not all six
members have been appointed in 12 SCPCRs. While all states have established
a State Commission for Women (SCW), this does not necessarily imply that they
are active or functional. In Karnataka, for instance, a chairperson was appointed
after a gap of three-and-a-half years. SCWs in Arunachal Pradesh, Andhra

Public interest litigation

3 International Council on Human Rights Policy, Assessing the Effectiveness of

National Human Rights Institutions, Switzerland: ICHRP, 2005; Commonwealth
Secretariat, National Human Rights Institutions Best Practice, London:
Commonwealth Secretariat, 2001, at http://www.asiapacificforum.net/members/
international-standards/downloads/best-practice-for-nhris/nhri_best_practice.pdf;
National Human Rights Institutions Amnesty Internationals Recommendations
on Effective Protection and Promotion of Human Rights, 2001, at http://www.
amnesty.org/en/library/asset/IOR40/007/2001/en/3c676e38-d8e3-11dd-ad8cf3d4445c118e/ior400072001en.html
4 Anon, Expulsion of NCW Members Degrading and Unconstitutional, Deccan
Herald, May 29, 2005, http://archive.deccanherald.com/Deccanherald/may292005/
national1841462005528.asp; Anon, UPA Axe Falls on Three NCW Members, The
New Indian Express, May 21, 2005, http://www.hvk.org/articles/0505/62.html
5 Rule 24 (3) of the National Commission for Protection of Child Rights
Rules, 2006 states: The chairperson shall obtain prior approval of the central
government in matters of creation of posts, revision of pay scales, procurement
of vehicles, re-appropriation of funds from one head to another, permitting
any officer of the commission to participate in seminars, conferences, or
training programmes abroad and such other matters determined by the central
government, by order.
6 Section 33, Commissions for Protection of Child Rights Act, 2005
7 Profile, P L Punia, http://ncsc.nic.in/writereaddata/sublinkimages/156.pdf
8 http://www.ncst.nic.in/writereaddata/linkimages/Biodata-Rameshwar%20OraonCP2880148912.pdf
9 http://ncw.nic.in/frmCurrentCommission.aspx
10 http://ncm.nic.in/Wajahat Habibullah.html
11 Sugata Srinivasaraju, Drill Them All Into Line, Outlook, May 24, 2010, http://
www.outlookindia.com/article.aspx?265435
12 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 11
13 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 21
14 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at pp 2-3
15 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 14
16 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at pp 13-14
17 Richard Carver, One NHRI or Many? How Many Institutions Does It Take To
Protect Human Rights? Lessons from the European Experience, Journal of
Human Rights Practice Vol 3, Number 1, 2011, pp 1-24 at p 2
18 Centre for Child and the Law, Inter-Commission Dialogue on Child
Rights in India A Report, http://www.nls.ac.in/ccl/justicetochildren/
ReportCommissionDialogue.pdf, Centre for Child and the Law, Proposed Plan of
Action for a Coordinated Response of Human Rights Institutions to Child Rights,
Suggested Plan of Action Emerging out of the Inter-Commission Dialogue on Child
Rights, organised by Centre for Child and the Law, National Law School of India
University in partnership with UNICEF-India Country Office, on February 22, 2012,
New Delhi, p 22, at http://www.nls.ac.in/ccl/cclsuugested/ICD%20annexures/
AnnexureB-ICDpalnofaction.pdf

How to file a PIL

PILs have become a powerful
tool of empowerment and
access to justice for the
common man
SHAMBO NANDY

RECENTLY, the Supreme Court, in a public interest litigation

(PIL) filed before it by an NGO, ruled that the Centre and
states should provide basic infrastructure including drinking
water and washroom facilities in all schools within six
months. That very same day, in another case, the Supreme
Court also ruled that the government should desist from
altering the existing pricing system for essential medicines,
a step which could allegedly lead to a steep hike in their
prices.
Cases like these, wherein the interests of a large section of
the populace are at stake, are routinely heard and disposed
of by the Supreme Court and in most of the cases the
petitioners get a favourable order. This is reflected in the fact
that filing a PIL is now bread-and-butter for many lawyers,
with several PILs being filed in various Indian high courts
and the Supreme Court every day. And so, PILs have become
not only an important and powerful tool of empowerment
and access to justice for the common man over the years, it
has also become a dominant grievance redressal mechanism
for many unheard voices in the country.
But to say that PILs have largely helped the countrys aam
admi better represent themselves and their cause before
the courts of law is probably an understatement of the
influential role the courts have begun to play in Indias
political system. Our school civics lessons have taught us
that the three branches of government are the executive,
legislature and judiciary, each independent of the other. For
some time though, the courts have been going beyond their
domain, donning the mantle of the executive by ruling on
policy matters which traditionally are within the realm of the
executive and legislature. As a result of this enthusiasm,
courts have ruled on a wide range of issues. From
entertaining corruption-related petitions to environmental
cases to prison reforms, meting out justice to undertrials or
the functioning of tribunals, the courts have dealt with it all.
In fact, instead of merely being adjudicatory forums, courts
have now become all-powerful and sit in judgment over the
way the other two branches function.
The primary advantage of filing a PIL is that one does not
have to show an interest in a particular case. In legal terms,
one does not need to exhibit a locus standi in the case or

ISSUE 26 2013

Pradesh, Chhattisgarh, Maharashtra, Karnataka, Rajasthan, Manipur, Meghalaya

and Mizoram are functioning without members. Thirteen state governments
have enacted legislation that provide for the establishment of a State Minorities
Commission and the states of Manipur and Uttarakhand have constituted nonstatutory commissions, that is institutions that have not been created under a
statute

37

Access to justice

the fact that one has suffered or is likely to suffer legal

injury. Thus, a person is able to approach the courts on
behalf of others even though he is not the aggrieved person
in the traditional sense of the term. One of the hallmarks of
a PIL is the tendency of the courts to do away with stringent
customs and rules which prohibit them from meting out
justice. In the interests of the greater good, formal filing
procedures are dispensed with in matters that are of urgent
common interest. This is especially true of cases where
poor and helpless people are involved who have almost no
knowledge of the countrys formal adjudication process.
The first of such cases where a PIL was used to grant
justice was in the Sunil Batra vs Delhi Administration case
wherein Justice Krishna Iyer used a letter written by a
prisoner to start a case. However, what really started the
formal PIL mechanism in India was the Hussainara Khatoon
vs Home Secretary, State of Bihar case. In this case, Kapila
Hingorani, an advocate practising before the Supreme
Court, brought before it through a habeas corpus petition
(meaning to produce the body) based on a newspaper
report, the case of 19 undertrials who were languishing in
a jail in Bihar. The first-named petitioner was Hussainara
Khatoon, a young woman who had fled with her family
from Bangladesh some time in 1975. She was lodged in jail
under protective custody despite an order by the central
government to release all Bangladeshis arrested under the
Foreigners Act.
Habeas corpus petitions are usually not filed by the aggrieved
persons themselves but by their relatives. What made
this case different was that Kapila Hingorani was in no
way related to the petitioners, nor had she secured their
permission before filing the case. On being admitted by the
court for hearing, the case established four distinct principles
of PIL in India: (a) a petition need not be filed by the person
whose own legal rights are at issue and can be brought
before the court by any public-spirited citizen, (b) a petitioner
need not have personal knowledge of the case details but
can support it by materials such as newspaper articles, (c)
both legal principles and substantial relief can be used in the
preliminary stage of litigation, and (d) the scope of litigation
can expand rapidly beyond what was stated in the original
petition if the progress of the case exposes greater injustice.

ISSUE 26 2013

Although these principles were propounded in the Hussainara

Khatoon case, they have travelled more widely and have
since been used extensively to deliver justice to the helpless
and needy. Thus, in most landmark PIL cases we see that the
courts have waived the locus standi requirement. It has also
actively involved itself in the investigation of facts and has
quickly issued remedial relief in the form of interim orders.

38

Since PILs have become a part of the mainstream

adjudicatory process of our country, it is important that
we understand how a PIL is filed in court, the essential
contents of a PIL, and the way it is to be presented in court.

(Although courts often waive formal filing requirements,

with the increasing number of PILs being filed every day
the courts now use their discretionary powers to consider
such letters.) Such an understanding will help us evaluate
whether the situation merits filing a PIL in the first place,
the chances of it being admitted in court, and the likely
outcome from the court.
The basic thing that one needs to keep in mind while
considering whether or not to file a PIL is the amount
of public interest involved in the matter. It must be
demonstrated that the concerns of a class, section or group
of people are involved as opposed to that of an individual.
It must also be shown that there is a constitutional or legal
dimension to that interest or concern. It should have the
potential to defend the rights of a large number of people
and redress wrongs done to them. For the existence of a PIL,
one needs to show that there has been an act or omission
by the state or its authorities that has affected a substantial
number of people. A PIL is least likely to be admitted if it
alleges that a governmental authority is selectively targeting
individuals who indulged in tax evasion when the petitioner
himself has also committed the wrong. On the other hand, if
a PIL is brought forward that a state authority is not offering
minimum wages for work done, then it is most likely to be
admitted if brought forward by any person.
As stated earlier, PILs act as a grievance redressal
mechanism by ensuring that there is good governance in
the country. The courts usually direct that the government
take appropriate measures in cases where the interests
of a large section of the public are at stake. For example,
the Calcutta High Court is currently hearing a PIL and
passing orders relating to the misuse of red beacons
on top of cars. Recently there have also been several
anti-corruption-related PILs wherein the court was
asked to direct the government to start an appropriate
investigation against relevant officials. PILs are filed as
writs under Article 32 of the Constitution in the Supreme
Court of India, and under Article 226 in the various high
courts of the country. Most of these writs are in the
nature of mandamus (meaning to direct) and the court
uses its powers to direct the government to carry out
measures in the interest of the public.
Apart from the element of sufficient public interest, it helps
if a credible person is filing the PIL. It is easier to establish
then that the PIL has been brought forward in good faith
and with no motive apart from the best interests of the
public. This varies from case to case, but is easy to figure
out. For example, if one wants to file a PIL regarding arsenic
contamination in the groundwater of a particular village,
it would help if the village sarpanch is the person filing the
petition. Or an environmentalist working in the field. Petitions
challenging the constitutionality of legislation are best done
through someone from the bar or someone from academia.
For example, in the case of D C Wadhwa vs State of Bihar

Public interest litigation

Another important aspect of filing a PIL is that one should

properly implead the parties to the petition. If we take the
previous example of arsenic contamination in groundwater
then one should ideally make the central water resources
ministry, the state water resources ministry, the central
environment ministry, the state environment ministry and
the state pollution control board the respondents. The
thumb-rule in such cases is that one should implead as many
parties as possible to the petition if they are in any way
connected to the issue at hand. This is essential because all
such parties have to be given an opportunity to be heard.
Parties can be impleaded later in the case too, but that
would mean further delays in disposing of the case as the
court wont pass any orders against any party without giving
it enough time to hear its side of the story.
The main part of the PIL usually starts by introducing the
petitioner and his reasons for filing the petition. Earlier cases
where the courts have entertained similar petitions should
be mentioned and are helpful in getting the PIL admitted.
Thereafter, one should present all the facts in the petition.
The history of the case should be mentioned. For example, if
one is challenging the constitutionality of a legislation, the
petitioner should state the way the law came into existence,
reasons for parliament enacting such legislation, details
about the legislation, and so on. If there was a prior law in
that field which the current statute replaced it should be
mentioned along with some of its features. All this helps
present a holistic picture of the scenario in which the court
will be hearing the main issues of the case. Further, one
should state the current facts and the situation on the
ground. Here, the petition should be very well researched
and, if possible, backed by field data.
The next part is where one states the grounds for filing
the PIL. This is the most important part, as this is where
one states the legal and constitutional basis on which the
PIL has been filed and relief asked for. One needs to state
and substantiate clearly the reasons why one thinks rights
have been violated. For example, in the Visakha vs State
of Rajasthan case (the case in which the Supreme Court
issued guidelines relating to sexual harassment of women
in the workplace), it was alleged that the police and doctors
violated the complainants rights under Articles 14, 19
and 21 of the Constitution of India. In cases where the
constitutionality of a statute or a regulation is challenged,
more often than not a violation of Article 14 (right to
equality) is alleged. If a government regulation or activity or

statute violates the directions given in a previous judgment

of the Supreme Court or high court, that too forms
independent grounds.
At the end comes the prayer portion of the petition where
one lists the possible remedies one wants from the court.
Usually there are two sorts of remedies one temporary
and immediate, the other permanent. For example, in cases
where statutes are challenged it is often prayed for that
bodies created under it should stop functioning immediately
until the case has been disposed of, otherwise there will be
further miscarriage of justice.
PILs are often filed by poor and aggrieved people who
approach the courts as a last resort, and so there are
no court fees levied on any PIL. Since this provision has
often been misused by people who file numerous PILs
for publicitys sake, courts of late have begun to impose
costs on such petitioners to dissuade people from filing
frivolous PILs and wasting the precious time of the court.
Apart from this, the petitioner needs to pay the fees of the
lawyer representing him in the case, from time to time. This
amount is variable and depends on the quality of lawyer one
hires. In many cases, however, lawyers waive their fees and
argue the case as a pro bono matter.
If one is fully aware of the facts of the case and more or less
aware of relevant portions of the law, one can also argue
ones own case in court. However, with the courts becoming
increasingly wary of the large number of PILs being filed, a
petitioner usually seeks out the services of an advocate to
argue the case. In fact, senior counsel is often drafted to get a
PIL admitted; thereafter, some other counsel argues the case.
One also needs to be aware of delays that could take place
in the proceedings of a PIL. Often, government authorities
take a long time replying and may submit their replies many
months after the time limit fixed by the court. Court staff
too often do not list matters properly on the days they
should. Such cases should be immediately brought to the
notice of the judges who heard the case or, in their absence,
the chief justice of that court.
Though PILs constitute an excellent mechanism to force the
government to work, rather to work in the most appropriate
manner possible, there have been many instances of frivolous
PILs being filed. Such petitions have earned PILs a bad name
and have resulted in the Supreme Court and high courts
issuing guidelines on the nature of cases that will be accepted
as PILs. As citizens of this country, we must thwart the
efforts of a few self-centred individuals or else this effective
mechanism for grievance redressal will slip from our hands.

Shambo Nandy is Executive Editor of Journal of Indian Law and Society. He is a

petitioner in a PIL filed in the Supreme Court challenging the selection procedure of
the judicial member of the Appellate Tribunal for Electricity

ISSUE 26 2013

(AIR 1987 SC 579), a professor of political science who had

done substantial research and was deeply interested in
ensuring proper implementation of constitutional provisions,
challenged the practice followed by the state of Bihar in
repromulgating a number of ordinances without getting
approval from the legislature. The court held that the
petitioner as a member of the public had sufficient interest
to maintain a petition under Article 32.

39

Access to justice

Meeting the law halfway

Most people dismiss the law as tangled, futile, expensive and biased. But legal
literacy trainings can help citizens negotiate the legal system and restore their
faith in justice
ABHA SINGHAL
JOSHI

YOU CAN AVOID IT, break it, invoke it, challenge it, repeal
it, amend it, stretch it, and call it an ass. Yet, its spectre
shadows you wherever you go. Like a friendly ghost helping
you out in unseen ways, or even a scary tormentor waiting
to boo you around unseen corners. The Law.
Working in legal literacy and legal training has been about
giving form and shape to this ephemeral presence, to learn
that the only way of exorcising the law from your life is to
turn around, grab its long arm as it reaches for your collar,
and shake it warmly.
There is great resistance among all classes of people to the
idea of meeting the law halfway to not duck it but make
a friend and ally of it. For the law, in the form and shape
known to most people, is something to be dreaded, avoided
and shaken off by dubious and illegal means bribery, or
settling scores through violent methods. The idea of law as
relating to justice is alarmingly weak in the common mind.
To many the law represents a tangled web, a connection
possibly born of the unfortunate and complete identification
of the law with the legal profession!
Interacting with hundreds of people over a range of
different laws and legal problems and situations throws
up interesting patterns of socio-legal thinking, including
peoples needs and aspirations which are or need to be
reflected in the law, and about gaps in implementation
because of a lack of knowledge and understanding on the
part of the beneficiary as well as the duty-bearer. It also
throws up the shame and sham of the kind of democratic
governance that not only denies the value of the law
underpinning all social and political activity, but also actively
resists the following of law as impractical.

ISSUE 26 2013

How people respond to neutral, just, stand-alone propositions

set down in the law, or support the notion that the idea of
justice has universal appeal which cuts across classes and even
frontiers has very little to do with an academic or intellectual
analysis of the form or the provisions themselves.

40

The job of the structures of justice-delivery informal or

formal is to facilitate and bring to fruition this inherent belief
in justice. What they actually do is the opposite resulting in
people confounding the notion of justice with the engrafted
structures of justice and labelling it useless, unfair, expensive

and biased. The refrain Nyaya jaisi koi cheez hi nahin hai,
(There is no such thing as justice) from every corner of society is
something everyone should be worrying about.
Over two decades ago we encountered an old widow in
Chhattisgarh whose sons were depriving her of the basic
necessities even though there was a fair amount of family
land. On learning of the provision in the Hindu Succession
Act that allowed her a share in her late husbands property,
she sat her sons down and told them calmly that either they
support her properly or they should hand over her share
with which she could manage her life. They resisted initially
saying, Auraton ka koi hissa nahin hota, (Women dont
have any share in property). But the woman checked with
the patwari who confirmed the right and surprise! the
sons turned into ideal offspring. And so a gentle but anxious
and neglected mother was able to reclaim her life. In Bihar,
a woman explained how she was constantly being bothered
by the local policeman who kept calling her and others to
the police station on pretext of questioning them. She was
told about Section 160 of the CrPC, which puts a complete
embargo on summoning women to the police station for any
kind of questioning. The woman noted down the provision
carefully and when we went back for a review session some
months later, she reported with glee the dialogue between
her and the policeman. Chalo thane bulaya hai, (You have
been summoned to the police station). Aurat ko thane nahin
bulaa sakte, (Women cannot be asked to come to the police
station). Achcha? Kaun kehta hai? (Is it? Who says so?)
Kanoon ki dhara kehti hai nahin pata? (The law. You dont
know that?) Achcha, tujhe kaise pata? (How do you know
this?) Pata hai, tujhe nahin malum to sikha deti hun, aur tere
thanedar ko bhi, (I know it. If you dont, I could teach you,
and the other police officers too). A mutually abusive exchange
then took place, and the policeman retreated with threats of
Dekh lenge tujhe aur tere kanoon ko! (Ill show you, and
your law!)
As our own experiences have been incrementally gleaned
from similar experiences across the country, we now temper
our sharing of legal information with caveats of expecting
some amount of aggression, threat, delay and refusal. We
also point out how each of these can be dealt with.
The results of this tutoring have been good. People have

Legal literacy

The law, when explained to people in the language of justice,

will find resonance with all but the extremely obdurate. A
young tribal man in Andhra Pradeshs East Godavari district
sat through a legal training workshop sullenly and came
out with an outburst on the second day. Roughly translated
from the Telugu, he said: I dont think the law is any good.
It only scares people it is used to extract money from
innocent people. The police have been troubling me for days
and are asking me to pay Rs 20,000 to my neighbour whose
few trees got burnt when I burnt the stubs of my crop. It
wasnt my fault that the wind blew in that direction and
his trees got burnt. Besides explaining to him that unless it
was a deliberate case of causing mischief by fire, the police
had no business to be involved in the case, least of all to
be negotiating the damages to be paid to the neighbour,
a panchayat was simulated in the workshop and he was
made to argue out his case with another trainee acting as
his neighbour. After an excellent round of both trainees
presenting their cases with passion and reason, the roles
were reversed. He was told to be the neighbour whose trees
had been burnt, and to ask for compensation. After initial
confusion and resistance, he started arguing against himself
and for his neighbour with equal passion and reason! Deep
into the argument, he suddenly turned around with a weak
smile Got it! At the next workshop, a smiling face met us.
He had settled the matter with his neighbour by mutually
calculating the loss and promising to pay him in instalments.
Moreover, both of them told the police to stay out of it.
The stories are many and varied. They may sound like small
and negligible successes. They may even suggest a certain
naive romanticism to those who want larger, systemic
or policy changes so that people get justice from the
system. Yet, there is a power to them that suggests that a
massive push towards enabling people to negotiate in this
manner will bring about a change in negotiating justice
and correcting the perversity of crassly exploitative, corrupt
and even criminal behaviour on the part of individuals and
state. It is often said that there is no point telling people
who are in weak and vulnerable situations about the law.
Yet, it appears that these are precisely the people who need
the law and who will negotiate with the law simply because
they have no money or power.
Which brings us to the downside of the quest for justice
through law, since the law no longer operates from the
fundamentals of human relationships but in a man-made
system gone badly awry. Were we to follow these upbeat
stories through, we would find that many of the pacts do

not last long, taking us to the next step in the search for
justice litigation. For those seeking a remedy for a wrong
done, this is a harsh experience that both attracts and
repels people. This is what builds the case for reforms in the
judicial system to make it worthy of the belief in it that
makes the poor trudge miles for their dates in court; that
makes people mortgage and sell bits of their jewellery and
land. The philosophy behind this strange faith seems to be
the same as that of the villagers of Assam who, when asked
why they worshipped the Brahmaputra when year after year
it destroyed everything they had, said it was because the
river also gave them life!
Despite its drawbacks in terms of delays, expenses, even
outright cheating, people feel a comfort in the neutrality of
the law courts. Men and women, and surprisingly women
vehemently, have said that they prefer the law courts
to community mediation. This trust and hope possibly
comes from seeing the law courts as the most objective in
environments that are unacceptably subjective. The courts
are the resort for all those who would cock a snook at the
jat panchayats, the qazis and the khaps. Thus it is that
you find dozens of reported cases from the high courts,
of Muslim women challenging the oral talaq, denial of
maintenance, denial of custody of their children. Likewise,
many people who have been unjustly or inhumanly treated
have approached the courts and fought it out. A random
look at the nature and numbers of relief sought by people
through the courts concludes the argument in favour of a
structured system of justice. The fact that it is also a system
that is abused and misused only underlines that it needs
cleaning out and rejuvenating. Its demise would mean a
slide into anarchy and distress.
Over the years, state agencies have touted justice at the
doorstep, but what is on offer is cheap, fake versions of
mediation and adjudication by tackily-put-together lok
adalats, in which the desperation of struggling and tired
litigants is converted into numbers that satisfy the budgets
for justice. This curious concoction is a shortcut version of
justice with all the rigmarole of regular justice lawyers,
files, bribes, unfair orders. Again, it will be a doughty litigant
who will once in a while challenge this hegemony of the
legal system and drag it back to what it was meant to be
an instrument of justice, not a marketplace for justice.
For every debate on law and justice which rages in outraged
righteousness and spreads itself over reams of precious
paper, there is a simple fellow back in the boondocks
making a simple statement to an earnest law researcher
eager to know the worst from the horses mouth: Nahin,
judge achche hain, sab achche hain. Jab kismet aur kanoon
mein hi aisa likha hai to bechaare judge kya karenge? (No,
the judge is good, everyone is good. If destiny and law dont
favour us, what can the judge do?)
Abha Singhal Joshi is a lawyer working in the field of legal literacy for over
25 years. At present, she is Consultant Professor (Law) at the National Police
Academy, Hyderabad

ISSUE 26 2013

reported high levels of verbal aggression in the initial

stages of interaction, of having the law flung in their faces
whether in personal relationships or with state agencies.
This gradually turns into threats of unspecified serious
consequences, and then to a stiff-backed retreat. There are
many who are cowed down by the legal danda. Violent
husbands, on seeing legal pamphlets on the living room
table, first resort to threats of more violence. But that is
followed by abstinence from violence.

41

Access to justice

Is this reformatory justice?

The Juvenile Justice Act requires a child-friendly approach in investigating and
adjudicating cases of children in conflict with the law. The idea is to give these
children access to reformative and restorative justice. This article reveals what
juvenile offenders and their families really come up against

ACCORDING TO Crime in India, 2011, there has been an

increase of 10.5% in the juvenile crime rate for offences under
the Indian Penal Code, and an increase of 10.9% in offences
under special and local laws. This basically implies that the
number of children within the purview of the Juvenile Justice
(Care and Protection of Children) Act, 2000 (JJ Act) has
substantially increased (1). Also, according to Crime in India,
2011: Out of the total juveniles involved in various crimes,
6,122 were illiterate and 12,803 had an education up to
primary level, and these two categories have accounted for
55.8% of the total juveniles arrested during the year 2011
A large chunk of the juveniles (56.7%) belonged to poor
families whose annual income was up to Rs 25,000. Most
children and their families who come before juvenile justice
boards (JJBs) across the country are poor, vulnerable and
unaware of their rights under the juvenile justice system.
This article looks at issues surrounding access to justice,
quality of child rights lawyering, and the right to free legal
aid. My experiences have revealed several problems, including
the incompetence of lawyers providing free legal services,
a lack of clarity about legal aid and how to procure such
services, lack of sensitive and trained staff at observation
homes, absence of a defined constructive routine for children
at observation homes, lack of sensitised members on the
juvenile justice board, and non-filling of vacant positions.

ISSUE 26 2013

Structural and procedural gaps within the juvenile

justice system

42

The Juvenile Justice Act was enacted with the objective

of providing proper care, protection and treatment by
catering to their developmental needs, and by adopting a
child-friendly approach in adjudication and disposition of
matters in the best interest of children and for their ultimate
rehabilitation (2). It deals with children in conflict with
the law and children in need of care and protection. The
competent authority to deal with children in conflict with
the law is the juvenile justice board (JJB) and for children in
need of care and protection it is the child welfare committee
(CWC). Proceedings before the juvenile justice board are
required to be held in a child-friendly manner and in a
language that the child understands. The child is given a
chance to be heard and participate in the proceedings.
The juvenile justice board comprises two social work

GEETA
SAJJANSHETTY

members and one judicial magistrate first class. Of the two

social work members, one has to be a woman. The social
work members should have been actively involved in issues
like education, health or welfare activities pertaining to
children for at least seven years, and the magistrate must
have special knowledge or training in child psychology.
The board has powers conferred on it under the Criminal
Procedure Code available to a magistrate.
The usual practice is that the chief judicial magistrate is
appointed as chairperson of the juvenile justice board.
It is difficult to find a magistrate who is well-versed in
child psychology; as a result, this eligibility clause remains
mostly on paper. Most magistrates who are appointed
to the juvenile justice board have no knowledge of child
psychology; training is provided to them after their
appointment. This impacts the boards functioning. The
tenure of juvenile justice board members is three years.
Pendency and its impact on hearings
The principle of a child-friendly approach contained in
the preamble to the Juvenile Justice Act is hardly ever
implemented. Due to the heavy case load and increasing
backlogs, the juvenile justice board in Bangalore is unable to
spare enough time to hear every individual case. So, multiple
matters are heard in parallel. For instance, while the magistrate
records the evidence in a case, one social work member
explains the plea and the other hears the bail application. The
process of hearing is thus disorganised and chaotic, turning the
goal of promoting child participation into a distant dream. A
child who is part of the system finds it difficult to understand
or navigate through the procedures and processes.
What compounds the problem is the fact that there are
no full-time magistrates at the juvenile justice board in
Bangalore and other parts of Karnataka. The magistrate
attends to criminal cases five days a week in the regular
courts and devotes only a day or half-a-day for juvenile
justice board hearings depending on the case load. Delays
in filing chargesheets and initiating trials also contribute to
high pendency in the juvenile justice boards.
Delayed social investigation reports and the impact on bail
Investigation of the background of children in conflict with the

Children in conflict with the law

The social investigation report should help the board arrive

at a decision with respect to bail. However, the probation
officer charged with conducting the social investigation is
responsible for the PO reports of hundreds of adult offenders
in regular courts as well as children placed in childrens
homes. As a result, the reports are sketchy and provide little
insight into the background of children in conflict with the
law. Often, bail is delayed because the report is not available
on time. It is the duty of the lawyer to coordinate with the
officer and get the report filed in time. It is critical to have
dedicated officers responsible for the preparation of social
investigation reports for children in conflict with the law.
Child rights lawyering and the right to legal aid
If the right to access to justice is to be fully realised, the
state must provide the right to free, effective and competent
legal aid. Article 39A of the Constitution of India says: The
state shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall,
in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities

for securing justice are not denied to any citizen by reason

of economic or other disabilities.
Legal aid is not limited to representing the client before a
court; it also entails helping clients understand the process of
justice and make an informed decision about the course of
action to be taken. Lawyers also have a duty to assist the board
in adjudicating the matter. The lawyer needs to understand
that the child and his family may require psycho-social
intervention; it is necessary that the lawyer coordinates with
other professionals such as counsellors, probationary officers
and NGOs for the required services. For instance, a child in
conflict with the law may be ousted from school because of
an ongoing case. In such circumstances, the lawyer needs to
ensure that the child does not face any injustice or suffer social
ostracism because of the case, and that the child is re-admitted
to school once the case is over. The ultimate objective is that
the child should lead a normal life.
There are systemic issues that plague free legal aid
to juveniles in conflict with the law. To start with, the
procedure of availing of free legal aid details about
lawyers and their contact numbers is not made available
to family members when they come to rescue the child.
There is often a nexus between the police and private
lawyers and on apprehension of a juvenile, families are often
directed to a private lawyer by the police.
The quality of representation before the justice juvenile board
also warrants scrutiny. Most lawyers appearing before the
board are interested only in getting the child out on bail,
which is also the familys demand. They betray a shallow
understanding of juvenile justice, as little consideration
is given to whether it is in the interests of the child to be

ISSUE 26 2013

law is an essential component of the justice process before the

juvenile justice board. The childs social investigation report/
probationary report (PO report) is considered before bail is
granted. The rationale behind this is to become aware of the
childs socio-economic background. The PO report is a detailed
report which should include the educational qualifications of
the parents and siblings, physical or mental disability of any
member of the family or the child concerned, whether any
member of the family is an alcoholic or addicted to any other
substance, economic background in terms of monthly income
of the family, kind of neighbourhood, etc.

43

Access to justice

released on bail. The board has to consider whether the

child should be let out on bail or whether bail would expose
the child to moral, physical or psychological danger. These
matters are usually handled in a routine manner and once bail
is granted and the child goes home, the lawyer disappears.
After getting bail, the juvenile needs to appear before
court only after the police files a chargesheet. And since
the chargesheet is rarely filed on time, there is a long gap
between hearings. The hunt for a new lawyer commences at
the start of the next hearing. This is a problem many families
face irrespective of whether the lawyer is a free legal aid
lawyer or a private one.
Things need to be explained to the child and his/her family
at every stage of the process. The most crucial stage in
these proceedings is the recording of the plea. The child
must be thoroughly counselled, and emotional, social and
psychological support extended at this stage. However, cases
are often routinely dealt with and the child is told to plead
not guilty, with a view to defending the child. There may be
cases where the child has committed an offence and a guilty
plea may have therapeutic/healing effects on the child. At
times, board members ask the child in conflict with the law to
plead guilty so that the case can be closed immediately. This
happens especially in old cases; the interests of the child are
completely negated and become secondary.

ISSUE 26 2013

The measly remuneration offered to lawyers on the legal aid

panel may explain the lack of interest in providing services
to children in conflict with the law. In Karnataka, a legal aid
lawyer is paid Rs 250 per sitting, which is too little for any
lawyer to sustain his services. Enhanced remuneration could
potentially improve the quality of legal services. At the same
time, the need to monitor and evaluate the provision of legal
aid is important. For its part, the juvenile justice board should
try and ensure that lawyers who are assigned cases handle
the matter until it is over and not just concern themselves
with getting the child out on bail. The state has to ensure
that free legal aid lawyers are effective, competent, childrights oriented, and sensitive. Completion of legal education
in itself does not prepare law graduates for handling child
cases; child rights lawyering is a specialised area requiring
an understanding of the case not just from a legal context
but from the psycho-social perspective as well. Therefore,
in-depth training could help build a cadre of lawyers who
promote child rights jurisprudence in India.

44

The right to legal aid for children in conflict with the law
who have been denied bail and are living in observation
homes cannot be ignored. Training for staff at observation
homes is non-negotiable. The stark reality is that most staff
are not trained to handle children in conflict with the law.
Out of sheer frustration with the system, in January 2012,
three children in conflict with the law and housed at an
observation home at Bangalore allegedly attempted suicide
(3). Staff members often hurl abuse at the children and are
incapable of handling children from different backgrounds
and children in difficult circumstances. The rehabilitative

aspect of these spaces stands severely compromised due to

these shortcomings. Staff at such homes must ensure a lively
atmosphere for all children.
The right of children in observation homes to education should
be respected. Although the Right of Children to Free and
Compulsory Education Act, 2009 mandates that all children
from the ages of 6 to 14 must attend school, this right finds no
place in the juvenile justice system as these children represent
a floating population. The government has made no effort to
ensure that children in conflict with the law who do not get
out on bail are given the benefit of an education.
Some children suffer emotional trauma because of the guilt of
having committed the offence, or because they are away from
their families, or because of the abuse that they may suffer. Such
children desperately need the services of a counsellor. There
is, however, no facility for full-time counsellors. In places like
Gulbarga and Bidar, there is no counsellor at all.
With the aim of reforming children, the JJB can give disposition
orders according to Section 15 of the Juvenile Justice Act; the
case can be closed with advice and an admonition; a child in
conflict with the law can be asked to do community service; a
fine may be imposed if the child is above 14 years of age and
is working or has parents who can pay the fine; the juvenile
can be directed to participate in group counselling or similar
activities. The juvenile justice board can pass an order directing
that the child be placed in a special home for a period of three
years; this is the highest penalty/punishment that the board
can order even for the most serious offence. The special home
should provide vocational training and set a daily routine so
that the child receives special attention. This training should
help him resume life on a fresh note. However, orders such as
group counselling and community service are used very rarely
as a means of reformation of juveniles.
Conclusion
Improving and providing uninhibited access to effective,
competent and free legal aid lawyers, capacity-building and
sensitisation of staff in observation homes, probationary
officers, members of the juvenile justice board, and allocation
of full-time magistrates may help implement the law in spirit.
Children in conflict with the law should have access not
merely to justice but to reformative and restorative justice.
Note: This article draws most of its observations from the Juvenile
Justice Board (Urban and Rural), Bangalore

Geeta Sajjanshetty works with the Centre for Child and the Law (CCL), National
Law School of India, as a Research Associate, and is part of CCLs multidisciplinary
help desk team at the observation home, Bangalore. The team provides free legal
aid, assistance and counselling services to juveniles and their families

Endnotes
1 Crime in India, 2011
2 Preamble of the Juvenile Justice (Care and Protection) Rules, 2007
3 http://www.thehindu.com/news/states/karnataka/article2868193.ece

Women

Undermining the domestic violence law

The Protection of Women from Domestic Violence Act, 2005 aims to provide
women quick decisions on protection, residence, maintenance and child custody.
This is an account of how the best intentions of the law are thwarted in the
process of implementation
JAYNA KOTHARI

What has been the experience of women using the PWDVA

in the last few years? Did they get the relief they needed
quickly? Were the courts accessible? Was the enforcement of
interim and final orders easy? As a lawyer who has taken up
several cases under the PWDVA, I shall try and answer some
of these questions based on my experiences in Karnataka.
Effective implementation of the PWDVA can take place only
if the judiciary understands the core objective of the law,
which is to provide immediate relief to women in emergency
situations where they face domestic violence.
Access to courts
The womens movement wanted women facing domestic
violence to have easy access to courts everywhere to file
complaints under the Act. It was decided that magistrates
courts, which are situated at the local level, were the ideal
forum; civil or family courts are only available at the district
level, would not provide speedy justice, and would further
ghettoise women. Studies on family courts in India and
abroad showed that specialised courts offered no greater
advantage to women; nor did they offer quick disposal of
domestic violence cases (1). Magistrates courts were also
chosen because criminal proceedings are usually much
quicker than civil proceedings. Thus, Section 27 of the
PWDVA provides the forum for filing complaints at the
jurisdictional magistrate of the first class or the metropolitan
magistrates courts (2).
A unique combination was thus arrived at the PWDVA,
a civil law, provided for the speedy disposal of cases and
easy access to justice for women in the magistrates courts,

which are criminal courts. The courts recognised this fact.

In Manish Tandon and Ors vs State and Anr (3), the Delhi
High Court held that: It will be apposite to take note of
the fact that though it is a piece of civil law, evidently in
the interests of expedition and to cut down procedural
delays, the forum provided for enforcement of rights
under the Protection of Women from Domestic Violence
Act is that of the magistrate courts constituted under the
provisions of the CrPC.
This objective of the PWDVA, however, is being thwarted by
several states in unique ways. In Bangalore, all cases under
the PWDVA are assigned only to the traffic courts or to the
metropolitan magistrate (traffic court). At present there are
only around four to five metropolitan magistrates in the
traffic courts. This assignment of domestic violence cases
was done under the CrPC, which gives powers to the chief
magistrate to assign cases for the better administration of
the court. Thanks to this order, in Bangalore, all cases under
the PWDVA are in effect assigned to a handful of magistrates
courts, undoing all the promises of Section 27, of facilitating
access to the courts. The courts are clogged as a result;
some of them take up domestic violence cases only two
days a week. This makes obtaining emergency interim orders
extremely difficult and nullifies the purpose of the PWDVA
and speedy relief for women. The mandate of disposal of
cases within 60 days is a long way from being achieved, with
the magistrates caseload increasing every day (4).
In the rest of Karnataka too, domestic violence cases are
handled by the traffic courts. The registrar general of the
Karnataka High Court has reportedly issued a circular to
all magistrates to fix one day a week/fortnight/month for
the hearing of cases under the PWDVA (5). Such measures,
though prompted by procedural reasons, strike at the core of
the PWDVA.
Interim orders
The PWDVA, under Section 23, specifically provides for ex-parte
and interim orders for protection, residence, monetary relief,
child custody, etc, to be granted to women facing domestic
violence. Section 23 (1) refers to interim orders generally and
Section 23 (2) provides specifically for ex-parte orders.

ISSUE 26 2013

WITH THE ENACTMENT of the Protection of Women from

Domestic Violence Act, 2005 (PWDVA) it was imagined
that justice for women would be quick and relief-oriented.
However, five and more years after the laws passage,
many of these notions are being reconsidered. A number of
innovative solutions introduced in the law, such as having the
jurisdictional magistrates court as the forum for domestic
violence complaints, specific provisions for ex-parte and
interim orders, special provisions for breach of interim orders,
and others, have not worked out very well in practice.

45

Access to justice

Usually, protection orders restraining the abuser from

committing any further acts of domestic violence are easily
obtained from the courts as they are negative orders.
Positive orders such as residence orders, maintenance and
custody orders are more difficult to obtain and usually take
a long time as notices must be issued to the respondents,
after which they are required to file their reply, then
arguments are heard on the applications and finally orders
are passed.
In Karnataka, especially in Bangalore, magistrates were
liberal in granting ex-parte maintenance orders as well when
prima facie evidence of domestic violence was found. Even
when ex-parte orders for maintenance were not granted,
after a notice was issued and in cases where the salary
certificate of the respondent was available and produced,
magistrates would grant maintenance orders fairly quickly,
and were reasonably generous in awarding maintenance.
Thanks to a 2009 judgment by the Karnataka High Court,
however, the procedure of even granting interim orders has
been brought to a standstill. Justice Jawad Rahim in Krishna
Murthy Nookula vs Y Savitha (6) held that before granting
any interim relief the magistrate had to conduct an inquiry
as prescribed under the Code of Criminal Procedure for
summons cases, and pass orders only after taking evidence
in the matter. He only excluded orders granted ex-parte,
and held that all other interim relief orders could be passed
only after taking evidence, which could take months, even
a year or two. Holding that even interim relief will be
available after collecting evidence undermines Section 23 of
the PWDVA which provides for the claiming of immediate
interim relief.
Following this high court decision, most magistrates across the
state are granting ex-parte orders only where required, leaving
maintenance and residence orders to be decided after evidence
has been taken. The judgment has not been challenged and,
unfortunately, unless it is overturned by the Supreme Court it
will continue to subvert the PWDVA and deny women quick
interim orders as envisioned under the Act.
Maintenance

ISSUE 26 2013

While the PWDVA has specifically provided for monetary

relief in Section 20, with maintenance based on the status
of the parties, this is not being seriously followed by the
higher courts in Karnataka. It is strange but true that the
best orders for monetary relief are often granted by the
lowest courts, that is, the magistrates courts and as the
respondents appeal to higher courts, the monetary relief
amount gets reduced further and further. The general
experience in Karnataka has been that the sessions courts
and the high court usually reduce the maintenance amount
granted.

46

are very different from the reality in which the courts and
judiciary implement the law. The Karnataka High Courts
judgment, for example, in Krishna Murthy Nookula vs
Y Savitha, makes it clear that even members of the higher
judiciary have not understood the provisions of the PWDVA,
and have been treating it as a criminal law when in fact it is
a civil law providing civil remedies to women.
Unless the courts clearly understand the PWDVA as a
law that works positively for women and children facing
domestic violence it will not be effectively implemented.
Unfortunately, while some magistrates are made to undergo
training, no training on the PWDVA is provided to sessions
court judges and judges of the high court. And so we find
that good orders passed by magistrates are often reversed
by the sessions and high courts.
Allegations are still being made that women are misusing
the PWDVA, when in fact interim relief takes months to
obtain, if at all, cases drag on, sometimes for years, though
the timeframe suggested for disposal is two months, and
even a breach of orders is not taken seriously. In such an
environment, is it even reasonable to say that women are
misusing the law? In fact, women who file complaints often
end up feeling harassed and violated twice over in their daily
tribulations with the court system.
Only when the PWDVA is understood as a law which aims to
protect women from violence, recognise their right to live
within the home without abuse, and protect their rights to
equality and life with dignity guaranteed under Articles 14,
15 and 21 of the Constitution, will it be truly effective. Until
that happens, the courts and the legal system will find a
myriad ways to delay justice and effective access to the law
for women.

Jayna Kothari is Founder, Centre for Law and Policy Research, Bangalore, and an
advocate practising in the Karnataka High Court and Supreme Court

Endnotes
1 Garoupa, Nuno M, Jorgensen, Natalia and Vazquez, Pablo, Assessing the
Argument for Specialised Courts: Evidence from Family Courts in Spain (April
2010) International Journal of Law, Policy and the Family, Vol 24, Issue 1, pp 5466, 2010
2 Section 27 (1). The court of judicial magistrate of the first class or the
metropolitan magistrate, as the case may be, within the local limits of which:
(a) the person aggrieved permanently or temporarily resides or carries on business
or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a
protection order and other orders under this Act and to try offences under this Act
3 Criminal M C No 1784/2009 available at http://www.indiankanoon.org/
doc/1420423/
4 Staying Alive, 5th Monitoring and Evaluation Report 2012
5 Ibid, at page 36

In conclusion, one could say that the working of the PWDVA

leaves a lot to be desired. The ideals it was inspired by

6 Criminal Revision Petition No 815/2009 available at http://judgmenthck.kar.nic.

in/judgments/bitstream/123456789/500665/2/CRLRP815-09-09-12-2009.pdf

Women

Maintenance as an entitlement
The right to maintenance acknowledges the womans non-economic
contribution to the family. In patriarchal India, however, this right ends up being
linked to the real or perceived sexual purity of a woman. Also, it is usually
available only to middle class and elite women. How can this civil right be made
meaningful for all women?

POOJA
BADARINATH

THE TERM RIGHT TO MAINTENANCE is a loaded term and,

needless to say, a loaded right! Flavia Agnes explains this
very appropriately as: It is a need-based approach which
reduces the wife to a subordinate position and does not
recognise her as an equal partner in marriage. However,
marriage and the way it has been conceived in India is an
inherently patriarchal and unequal institution; against this
background it is a necessary right. It is also one of the very
few positive rights available for women. At a time when
the womens movement has been focusing on reforms in
criminal law and laws that impose greater penalties and
more stringent punishments, maintenance is one of the few
rights which provide civil remedies.

The general debate around maintenance in the past

decade has been regarding who is legally entitled to claim
maintenance and expanding the scope of maintenance to
extend beyond the myopic definition of a wife. The Delhi
High Court recently, in Narinder Pal Kaur Chawla vs M S
Chawla (1) went a step further in doing this very same
thing. In this case, the couple had lived like a married
couple for 14 years and the man had concealed the fact
that he was already married. They had two children from
this relationship. The view taken by the court was that
on account of the nature of the relationship, the woman
should not be deprived of her right to maintenance
under the personal law applicable to Hindus. The court
further expressed that denial of maintenance under such
circumstances would amount to putting a premium on
or rewarding the man for defrauding the woman by
concealing his first marriage. It was further recorded that
for the purpose of granting maintenance under personal

law, a woman placed in the position of a second wife

can be treated as a legally wedded wife and is entitled to
maintenance.
Before embarking on the meaning and implications of the
right to maintenance it is essential to examine the provisions
providing maintenance, and some of the issues surrounding
those provisions. I am going to refer to three major
legislations that deal with the right to maintenance, not all
the legislations.
Criminal Procedure Code, 1973 (CrPC)
Section 125 of the CrPC provides for maintenance of a
legally wedded wife, legitimate and illegitimate minor child/
children, legitimate or illegitimate child/children who cannot
maintain himself/herself because of an infirmity in body
or mind, and parents; the exception is a married daughter
who has attained majority. The law provides that if any
person (read, man) who has sufficient means (read, income
disclosed to the court) neglects or refuses to maintain
any one of the abovementioned categories of persons, a
magistrate can order a monthly allowance to be paid to
such persons. For the purpose of this piece I will be referring
only to the legally wedded wife, not discussing other issues
arising from it.

ISSUE 26 2013

But maintenance is also a right which necessarily tags along

a stigma of being a favour bestowed upon a woman
rather than an entitlement. Maintenance also comes with
the baggage of being a right that is and will be useful to
the elite and the middle class. For instance: in situations
where the woman is the sole earner or where both parties
earn equally (read, daily wages), the right to maintenance
becomes effectively redundant. This article explores the
different contradictions within this right, and attempts
to resolve them and understand what the ideal right to
maintenance should look like.

47

Access to justice

The section further provides an exception when maintenance

need not be paid to the woman. According to the law, a
wife will not be entitled to receive maintenance if she is
living in adultery or she refuses to live with her husband
without providing sufficient reasons, or if they are living
separately by mutual consent.
Three major issues arise out of this provision:
It is only a legally wedded wife who can claim
maintenance. And proof of marriage is almost non-existent
in non-urban, non-educated sections of society. Also, there
are so many different varieties of customary marriage that
one can never come to a clear unambiguous conclusion
as to who is a real wife (2). The prevailing debate on
the much-discussed proposed Compulsory Registration of
Marriages Act is centred precisely on this point (3).
Secondly, in many instances of bigamous marriage, the
second wife is not entitled to maintenance because it is only
the first marriage that is the legal marriage in the strictest
sense (4). This applies even to cases where the second wife is
not aware of the first marriage and the man has married her
fraudulently. This means that the woman pays the price for
the mans fraud, and he is actually rewarded for defrauding
the woman!
Thirdly, cases of maintenance are always accompanied by
accusations of adultery by the woman. Since an exception
is provided in the law, almost all cases have respondents
(husbands) accusing their wives of adultery; a baseless yet
traumatic experience for the woman.
The idea is that a woman who does not perform her
conjugal obligations (sic) faithfully by being an adulteress
is not entitled to any maintenance. One cannot escape
noticing the transactional nature of maintenance, which
being monitored by the court only adds to the dilemma
surrounding maintenance.
The Hindu Marriage Act, 1955 (HMA)

ISSUE 26 2013

Section 24 of the HMA provides for maintenance and

expenses of proceedings for cases where either the husband
or the wife does not have sufficient income for their own
support and the expenses of the proceedings. Either
party can apply to the court, and the court can order the
respondent to pay the petitioner (the person who has filed
the claim) the expenses of the proceedings and a monthly
income during the proceedings, keeping in mind the
petitioners needs and respondents means.

48

Section 25 of the HMA deals with permanent alimony and

maintenance which can be ordered to either husband or
wife. While passing a divorce decree, the court, after an
application in this regard, can order either the husband or
the wife to pay maintenance. The said maintenance can be
either a gross amount or a periodic sum. Needless to say,

such an order can be altered with a change in circumstances

and/or if the husband or wife has had sexual intercourse
(5) outside of wedlock. Sub-section 3 which deals with
this aspect maintains that the order can be changed if the
woman is not chaste and the man has sexual intercourse
outside the marriage, the section implying that a womans
sexuality is somehow much more protected. The word
chaste and chastity implies a sense of purity which is
automatically expected from a woman. One can argue
that the result of such behaviour is the same; however, the
language, especially on purity for the woman, belies any
such claim of equal treatment regarding sexual intercourse
outside of marriage in the law.
The Protection of Women from Domestic Violence Act,
2005 (PWDVA)
The PWDVA is the most recent and probably the most
secular addition to laws on maintenance. As the name
suggests, the law provides protection to women who
have been subjected to violence in their homes. The
law provides civil remedies for women who have been
subjected to domestic violence, maintenance being one
of them. Since violence has been defined broadly, many
cases can be covered under the PWDVA as well. Section 20
of the PWDVA provides a woman who has been subjected
to violence with monetary relief which includes loss of
earnings, medical expenses, loss caused by the destruction,
damage or removal of any property from the control of
the person, and maintenance for the woman and her
children. The most significant contribution of this law to
jurisprudence of maintenance is broadening the scope of
maintenance itself, that is, persons living together but not
married can also claim maintenance. Hence, all bigamous
marriages and other cases where there is no proof of
marriage can claim maintenance under the PWDVA.
However, it will not be wrong to say that the specific
provision relating to maintenance under the PWDVA is the
direct descendant of Section 125 of the CrPC. This can be
seen through the fact that enforcement of maintenance
under the PWDVA is the same as under Section 125 of the
CrPC. Hence, it has not only inherited the procedures but
also the baggage from that section. And it has also clearly
worded maintenance as just that maintenance. The
language in this section is significant because language
defines perspectives on any issue.
Maintenance as a transaction
In all the legal provisions referred to above, maintenance
is linked to the real or perceived sexual purity of the
woman. It is a reward earned for maintaining this purity and
essentially conditioning behaviour in regard to her sexuality.
Hence, if a woman behaves in a manner that is more often
than not beyond reproach, only then will her value within
a marriage be acknowledged. Every provision ensures that
maintenance is doled out without taking into consideration

Women

When the laws imbibe different meanings for the same

behaviour, as for example woman is not chaste being
equal to a man having sexual intercourse, it is reinforcing
an already cultural and patriarchal norm on womens
sexual behaviour being of higher value than a mans. This
discrimination percolates into different judicial decisionmaking where a woman is judged by a set of different
parameters from a man. In matrimonial litigation it is
invariably the people who are judged; very rarely are cases
seen on the merits of the facts and adjudicated in a cutand-dry manner as would be expected in civil matters. In
such cases, the law itself seems to condone an unequal
process of assessing who is more worthy of favour by
the judge doling out these favours and entitlements.
Consequently, it very rarely becomes a discussion about
the right but more a discussion on the obligations which
were not fulfilled and, in this case, the obligation of a
woman not seen or perceived to be an adulteress or unchaste. As a result, she is also held responsible for others
un-chaste behaviour!
Claims for maintenance by women
A study of matrimonial litigation and also cases filed
under the PWDVA shows that, almost always, a claim for
maintenance is the most commonly sought after remedy in
the courts. A study on family court litigation in West Bengal
conducted by Flavia Agnes (6) has shown that the bulk
of family court cases revolve around maintenance under
Section 125 of the CrPC. The study also showed that the
provision was generally used by poor, destitute women,
most of them illiterate (7). Similarly, analysis of court orders
under the PWDVA showed that maintenance was the most
commonly sought after order under the Act. This has been
the trend for five consecutive years (8). Due to a lack of such
studies with respect to other legal provisions providing for
maintenance, one cannot make the same claim. However,
we can safely make the statement that within matrimonial
litigation, maintenance has been a highly contested and very
valued provision.
Maintenance does become contentious when we look at
cases of women who are the sole earners in their household,
or daily wage labour. For example a typical scenario where
both husband and wife earn Rs 100 per day and have
one child. The wife is physically and mentally abused. The
typical solution suggested in such a case is always file for
maintenance and also a protection order and possibly
divorce depending on the circumstances of the woman and
the societal structures. In such a case, the court procedures
are long and the woman spends a lot of time coming and
going to court without any support. Eventually, she ends
up losing more money than she would ever gain. This is

without even going into the problem of enforcement of the

order, if made. At this point, do we say women do not need
maintenance at all? We need to think about custody of the
children with their mother; a single income is not sufficient
to make ends meet.
Conclusion
There is no doubt that maintenance as a concept is
an extremely invaluable provision. The idea behind
maintenance is to respect the womans non-economic
contribution to the family. It stresses the fact that women
have a right to monetary compensation in a marriage, not
necessarily of being maintained. It is also essential for a
womans sustenance and living. However, for the right of
maintenance to be available to all women including those
in extremely poor circumstances, the existing provision
should be amended to bring in the states liability in
such circumstances that is, welfare and social security
mechanisms. Since criminal law in this regard has not been
the most effective in providing rights to women, there has
to be an alternative through which a womans contribution
to the family and economy is recognised. We need to
question how the right of maintenance can move beyond
an entitlement for the middle class elite woman and find a
more effective and meaningful right for all women.

Pooja Badarinath works at CREA in New Delhi. She works on womens rights,
violence against women and sexuality

Endnotes
1 Crl Rev Pet No 238/2004 decided on March 19, 2012
2 For details please refer Rights in Intimate Relationships, Partners for Law in
Development, New Delhi, 2010
3 The Compulsory Registration of Marriages Act is hailed as ending the
ambiguities in such bigamous marriages because non-registration would result in
levy of a fine. It is also hailed as a way to prevent child marriages as all marriages
should be compulsorily registered. However, the opposite argument that such
compulsory registration will further marginalise the few women who are either
unaware or do not have access; further there is no mechanism to track whether
every marriage is registered and in cases of maintenance and other matrimonial
rights, denial of a wifes right becomes easier
4 Section 5, Hindu Marriage Act, 1955
5 Section 24 (3), Hindu Marriage Act, 1955
6 Agnes, Flavia. A Study of the Family Courts, West Bengal for the West Bengal
Womens Commission, September 2004, pg 26
7 Agnes, Flavia. A Study of the Family Courts, West Bengal for the West Bengal
Womens Commission, September 2004, pg 27
8 Please refer: Staying Alive; The First, Second, Third, Fourth and Fifth Monitoring
and Evaluation of the Protection of Women from Domestic Violence Act, 2005,
Lawyers Collective Womens Rights Initiative, New Delhi

ISSUE 26 2013

the financial or non-financial inputs a woman makes within

a marriage but only the apparent respectable behaviour of
the woman.

49

Access to justice

The supportive role

of womens organisations
In most situations, in spite of legal provisions being in place, women cannot
access the courts by themselves. They need the help of support groups.
Womens organisations become that support, helping the victim become a
survivor
RUKMINI SEN

ACCESS TO JUSTICE is a phrase specifically used with

reference to the judiciary and the manner in which a
proactive judiciary has increased access to the justice system
for vulnerable communities. This paper will talk about how
womens organisations have been liaising with the courts
and women who come to them for help.
Access to justice is not a one-time phenomenon of going
to the courts; it is continuous and lengthy. It is attempted
access to the justice delivery system: the access itself entails
various hurdles and womens organisations become an
agent of support and comfort to women who want to attain
justice through the courts. In the process, the organisation
makes a survivor out of the victim.
This article comes from my engagement with an activist
womens group in Kolkata between 2001 and 2009. It
elaborates on the various practices and debates that the
organisation has been engaged in while handling various
cases.

ISSUE 26 2013

Nari Nirjatan Pratirodh Mancha (Forum Against Oppression

of Women, hereinafter NNPM) is an autonomous womens
organisation thats been in existence since the early-1980s
in Kolkata. It was and remains a non-funded, voluntary
organisation running mostly through donations from
members and friends. It originated at a time when activist
womens groups and individual women activists were
common, but NGOs for women were not. With members
from radical left political parties and independent womens
libraries and study circles (patha chakra), the group, from
the start, took an oppositional stand against the left-ruled
West Bengal government. The main strategies employed were
campaigns, demonstrations, leafleting and pamphleteering,
street corner activities, and handling what they called cases.
The idea was to challenge and pressurise the government into
ensuring justice to all its citizens. It was primarily in following
up cases that the organisation came into direct contact with
the dispensers of justice the police and the courts.

50

Certain steps were followed when a woman came to NNPM

to present her case. But first let me explain the word case.
Members of NNPM would often casually refer to so-andsos case, or this didis case. Then when NGOs became

a common platform for womens issues to be discussed,

they had to write out case studies or case diaries as
well as success stories from the wide range of cases they
handled. There is a case study method in social science
research where the researcher takes a representative case
(a village, a piece of literature, a hospital) to carry out an
in-depth cultural and historical study, and also make certain
generalisations out of it within the main argument. Students
in law schools are expected to study law through the case
law approach, where important judicial decisions become
cases for them to analyse and interpret. The common
element among all these cases is that it is about a singular
person/event. However, there may be connections between
cases. A case that may start out at a womens organisation
may eventually become the case that a law student reads
in her/his classroom, because it went to court and justice
was either delivered or denied. Thus, the word case has a
connection with access to justice, both for the organisation
as well as for legal pedagogy. It is the case which seeks
justice, and it can become a part of the legal curriculum if
justice is provided or denied.
A woman coming to NNPM with her problems is usually
dealt with in the following way:
She is first asked whether she is comfortable talking to the
group or to a single/couple of individuals from the group.
While listening to her story, the NNPM member takes
down notes (this is what becomes a case diary). Listening
is a very important component since the woman is usually
hesitant, undecided about what to say and what not to. So
it is about both listening as well as trying to gather more
information (which might be seemingly irrelevant) from
the woman, in a supportive environment, never once being
intimidating towards the woman.
The next most important part is to ask the woman narrating
her life story, usually a story of violence and discrimination,
why she has come to NNPM and what it is she wants both
individually and from the organisation. Over the years I have
found this the most crucial question because often women
are confused about what they really want some want the
organisation to only talk to the husband (in most cases, the

Women

When we take the woman to the police station, the attitude

of the sub-inspector is usually one of cooperation rather than
indifference. One has to understand the interplay of class, caste
and gender in this attitude and the importance of the collective
against a single, marginalised woman trying to access justice.
If the woman does go to court finally, members of the
organisation, by turn, try and be present on the case dates.
One has to remember that all NNPM members have their
own employment (formal or informal) and it has always
been an area of deliberation as to which member shall
accompany the case to the court, and on what date.
On some occasions, the case did not remain a single,

individual case. NNPM tried to mobilise other womens

organisations to generate a larger campaign around the one
case, making a paradigm shift of what Peter Berger would
call personal trouble to a public issue. Of course the merit
of the case is an important criterion in making this leap and
making the case a matter of collective concern beyond NNPM.
There are certain benefits of having and running cases
within an organisational framework. A lot of human
interaction happens between various sets of stakeholders
the woman who has come to the organisation with
members of the organisation, at times with members of
the womans family and family members and friends of
NNPM members (I would discuss, keeping confidentiality
and anonymity, cases with my friends, or use examples in
my classroom teaching, so they became live persons in my
everyday life) and finally interaction between state agencies
(police, lawyers, doctors) that have the power to deliver
justice within the constitutional framework.
The woman and her troubles would become part of our
daily lives we would be concerned if she did not visit
the NNPM office on Friday (the one day of the week when
members would meet). The human in us gets shaken
when we are faced with stories of suffering. The justice
system, however, does not have much space for emotional
suffering; it is concerned with rational evidence, truth
and witnesses. There is a sense of trust and faith that is
developed as a result of all these interactions. For the

ISSUE 26 2013

perpetrator of the violence); some want the organisation to

accompany them to the police station because their individual
efforts at going to the police station to lodge a complaint
have failed; some want information about lawyers; some
want to fight their case in court; some may even want the
organisation to provide them economic help. When a woman
wants to go to court, there is always a word of caution that
she must be mentally strong and prepared for a difficult
long-drawn-out struggle. Not dissuading her, but laying bare
the realities of the courts and inevitable delays in accessing
justice. Many women ask for economic support, sometimes
jobs or a shelter at which to stay. We acknowledge our
helplessness in such situations and also the limitations of a
strictly legal understanding of access to justice.

51

Access to justice

woman in search of justice, the organisation and its

members become her friends and a place that she wants to
come to; at times, a sense of dependence is created.
It is only through handling and working with these cases
that members of NNPM are made aware of the functionings
of the police and the courts. That there is a wide gap
between what is written in law and how the law is enforced
is witnessed as the case proceeds. In court, one also gets to
understand the various provisions of the Criminal Procedure
Code and how maintenance laws work. Experience is
gathered about the kind of questions that the defence
counsel can ask; sometimes the woman fighting for justice
is counselled along these lines. In such cases, the lawyers
fighting for the woman will either be from the Legal Services
Authority or empanelled lawyers of other NGOs working on
womens rights. There are various occasions on which the
woman who has come as a case to the organisation ends
up becoming a member of the organisation, subsequently
fighting for other similarly placed women.
The search for justice necessarily transforms a woman from a
victim into a survivor; she survives the police station (where
she is often stereotyped as a bad woman because she has
complained against her significant other[s]), she survives the
trial (which is also a fight of the weak and vulnerable against
the more powerful patriarchy husband, defence counsel,
judge), she survives the everyday negotiation with her family
and community (her defiance makes her deviant), she
survives her friends in the organisation who support her, and
she survives in order to live life different from what she is
used to. She also survives knowing that she is not alone and
her situation is not unique; there are many other women
trying to access justice just like her.

ISSUE 26 2013

Although these are the positives, there are several limitations

to an organisation being largely dependent on cases. In an
activist group, where members have other regular jobs, the
resources factor is often a reason for the discontinuation
of cases. A lot of time and energy is required to follow up
cases, and sustained effort is mandatory in order to see
results. On many occasions, case follow-up can be stressful,
draining and also depressing because it is long and does not
yield immediate results. Emotional stress is common with
members involved in cases; to see the everyday harassment
of the powerless within the court premises can be daunting.

52

There used to be a well-intentioned tendency for everyone

to take up the role of counsellor when a woman came
to the organisation for help. As a result, counselling was
popular in the initial years of NNPMs handling of cases.
But this need to help, to reach out, to support, to tell the
woman what to do is often very different from professional
counselling, and there are specific methods to handle it. At
NNPM, we debated the need for a professional counsellor in
the 2000s, because by that time the counselling profession
had been well established and there were younger members
who thought it necessary to get specialised help rather

than a friendly didi (sister) who would lend a sensitive ear

to the persons traumatic situation. There were debates
within the organisation that at a time when there were
few womens groups the judiciary or the legal system had
not become proactive as a result of sustained campaigns
by womens movements; the need for organisations like
NNPM to deal with cases was relevant. But with more and
more funded NGOs emerging, with a dedicated workforce
to deal with cases, NNPM debated whether it should
become a referral centre and channelise its energies into
other campaigns and research-related activities. Moreover, a
case-specific understanding could develop where members
do not perceive feminist politics beyond cases. There is
therefore lack of holistic comprehension of substantive
issues concerning the womens movement and peoples
movements in general. The much-needed link between the
personal and the political may not best be established
through the case method. Teaching of the law through this
method could have similar limitations in that the pedagogy
becomes limited to understanding one case, without
analysing the context in which the case originated, the
politics and the philosophy of the case, how judgment was
reached, who the key players in the judgment were, etc.
Saheli, a group based in New Delhi with similar origins to
NNPM, has comparable views on case work. Some of us
in Saheli felt that the very nature of case work is inherently
curative, rather than preventive. Unless it is accompanied by
active efforts to organise for social and structural change,
case work can only provide symptomatic relief to a few
individual women. Yet case work, by becoming a primary
activity of Saheli, consumed the energies of volunteers so
completely that campaigns on issues emerging from the
case work did not receive enough attention. (https://sites.
google.com/site/saheliorgsite/other-activities/the-caseworkdebate-in-saheli, last visited on July 2, 2012)
Womens groups and activists in India have since the early1980s fought and campaigned vigorously for legal rights
from dowry-related torture, to cruelty within marriage, to
domestic violence within marriage or in the parental home,
to the demand to broaden the definition of rape and sexual
harassment. Its been a long journey. The legal rights that
have been acquired need to be exercised by ordinary citizens.
It is unfortunate that, in most situations, in spite of legal
provisions being in place, women cannot access the courts by
themselves, they need the help of support groups. Womens
organisations become that support. Indeed, today it is legally
legitimised: the Protection of Women from Domestic Violence
Act has a section on service-providers (NGOs that will take
in women and get them justice). Although not all women
supported by womens groups manage to get justice, these
groups often are the first step towards access to justice for
many women in India who are tentative about going to court.

Rukmini Sen is Assistant Professor, Sociology and Gender Studies, Ambedkar

University, Delhi

Women

Commissions of compromise
Womens commissions were set up at central and state levels to monitor violations
against women, recommend policies and legislation and take up cases related to
collective justice. But in Karnataka at least, the commission seems to be handling
marital and other private disputes
SONAL MAKHIJA

The law has always assumed a central role in womens

empowerment in India. The 1970s and 80s in particular
saw the womens movement focussing on legal reform to
improve the status of women. This period also saw an effort
by the judiciary and legislature to make justice accessible
to the poor. Accessibility to the courts featured in academic
and public policy debates on the law. The informalisation
of formal adjudicative institutions, such as relaxation of the
rule of locus standi and epistolary tradition in the Supreme
Court and the high courts was a step in that direction.
The debate on setting up womens commissions at the
national and state levels took place around the same time.
It was first voiced in Report of the Committee on the
Status of Women in India. The commissions would monitor
violations against women, evaluate existing policies and
bring womens concerns into policy decisions. They would
recommend new laws or law reforms to state legislature or
parliament, intervene in cases of violation or discrimination
against women, and file cases in court.
To increase womens access to justice, the commissions
also had the power to receive complaints. In investigating
a matter under the National Commission for Women Act,
1990, the commissions were empowered with all the powers
of a civil court in trying a suit, especially with respect to
summoning anyone before them, receiving evidence and
requisitioning any public records, and examining witnesses
and documents. The focus was on providing justice within
the realm of a formal state-controlled justice mechanism.
Subsequent to the setting up of these commissions,
however, there has been little assessment of the functioning
or evolution of these autonomous watchdogs. Are these
bodies meeting their objective of protecting and promoting
the rights of women? How have they performed?
These were some of the questions considered in the study
A Review of the Working of the Karnataka State Human
Rights Commissions (KSHRC) and the Karnataka State
Commission for Women (KSCW) (1). For the purpose of
this article, I will discuss the existing complaints unit and its

justice mechanism in light of the study on the Karnataka

State Commission for Women (KSCW). I will not examine
the nature of political appointments of chairpersons, or its
autonomy or transparency that has been discussed in the
report in detail.
The Karnataka State Commission for Women (KSCW)
In 2010, when my colleague Swagata Raha and I studied
the Karnataka State Commission for Women (KSCW), the
purpose was to evaluate the functioning of the commission
within the powers assigned to it under the Karnataka
State Commission for Women Act, 1995, and in light of
the international principles on human rights institutions.
The commission was constituted with the objective of
protecting and promoting the rights of women. Did it fulfil
that function? Frequent violations against Christian women
on the west coast of Karnataka in 2008 (2), and the 2009
Mangalore pub attack on women pub-goers by right-wing
parties (3) suggested otherwise. Since its establishment in
1995, the KSCW had done little to check violations against
women in the state. Not only that, it had failed to exercise
its powers to make policy changes and suggest law reforms/
schemes benefiting women.
It did however have a functioning complaints cell which
received and heard cases twice a week. Yet, it had achieved
little since its existence. In fact, from 2007 to April 2011,
the KSCW did not have a chairperson. In the absence of a
chairperson, the secretary presided over the cases and was
in charge of the commissions day-to-day functioning. The
Karnataka State Commission for Women Act, 1995 does
not empower the secretary to discharge functions which
are meant to be performed by the chairperson or other
members of the commission. Of course, for most women
complainants whom I interviewed as part of our fieldwork,
the absence of a chairperson was of little concern provided
the secretary heard their cases and they obtained relief.
Private justice and the culture of compromise
The bulk of cases received by the KSCW were essentially
concerning marital disputes, domestic violence, dowry
harassment, custody issues and restitution of conjugal

ISSUE 26 2013

Introduction

53

Access to justice

In its daily functioning, the

commission was content
running a complaints unit and
setting up kiosks outside family
courts to assist women. But
the complaints cell functioned
with the primary purpose of
resolving disputes. Does this
guarantee justice? Much of its
interventions at the time of the
study were driven by a culture
of compromise or taking the
saving the family approach

ISSUE 26 2013

rights. The receiving, hearing and disposing of cases made

up the majority of work discharged by the KSCW. The
criterion for accepting cases is that the case must involve
an issue related to womens rights. In one of my field
visits, I found case workers intervening in a neighbourhood
squabble between two women. In another case, a woman
filed a complaint against her former landlord who refused to
return her deposit after she vacated the flat. In yet another
case, a woman working in a hospital filed a case alleging
discrimination against hospital authorities. Cases pertaining
to domestic violence were directed to protection officers or
police stations in the given jurisdiction, as per the Protection
of Women against Domestic Violence Act (PWDVA), 2005.
Predictably, most cases relating to marital disputes were
compromised, suggested the secretary in an interview. The
objective was to resolve the matter and save the marriage.
The primary aim of counselling is to reconcile the parties
and to avoid breaking the marriage. If this is not possible,
then other steps are taken, explained one of the case
workers. The case workers essentially gathered all the facts
of the case from the petitioner, and the relief sought; they
then prepared the case file.

54

In its daily functioning, the commission was content running

a complaints unit and setting up kiosks outside family courts
to assist women. But the complaints cell functioned with the
primary purpose of resolving disputes. Does this guarantee
justice? Much of its interventions at the time of the study
were driven by a culture of compromise or taking the saving

the family approach. For women with little access to formal

courts, compromise suggested by KSCW staff, especially
in cases of violence, is coercive as opposed to the granting
of justice. Pratiksha Baxi, in her paper Access to Justice
and Rule-of-(Good) Law: The Cunning of Judicial Reform
in India, comments on the nature of compromise and the
inequality of negotiation where women are discouraged
from taking an adversarial position (4). The commission,
much like courts adjudicating on family law, encouraged
compromise.
Was the objective of womens commissions to transform
into yet another adjudicative body redressing private
disputes? How does this stand against the objective of
commissions providing relief to a wider population of
women?
The overriding objective of the constitution of commissions
was to improve the overall status of women in the state.
Its powers to examine and review laws, investigate the
status of women, take suo motu action, recommend and
suggest schemes for women, disseminate information
relating to the rights of women, and take up cases relating
to violation of constitutional rights of women in the state
stress on impacting the lives of a large body of women in
the state. This includes inspecting conditions of women in
prisons and funding litigation affecting women at large. The
purpose is to improve womens social and economic lives in
the state.
In the case of the KSCW, it rarely exercised its powers
to advise the state on law enactments, or demand that
the state take action against large-scale violence against
minority women in Karnataka. Both cases of violence
against Christian women and the 2009 Mangalore pub
attack are illustrations of the KSCWs inaction.
Instead, with the KSCW, the emphasis is on private justice
as opposed to collective justice. While one of the objectives
of the womens commissions is to assist women in receiving
justice in matrimonial disputes in family courts, the primary
objective of the womens commissions is to facilitate the
overall development of women in the state, as opposed to
merely focusing on resolving personal conflicts or disputes.
The assistance provided to women in matrimonial matters
too is to facilitate a change in womens conditions or the
repeal of discriminatory laws which have a larger impact on
family or personal laws.
Possibly one of the biggest achievements of the KSCW
has been a compensation scheme available to women
acid attack victims. Much of this was because of civil
society intervention and a petition filed by the Campaign
and Struggle Against Acid Attacks on Women (CSAAAW)
and Human Rights Law Network (HRLN) in the Bangalore
High Court. It was on directions from the Bangalore
High Court that victims of acid attacks were provided
compensation, loans and employment under the

Women

Courting informality
International principles mandate that human rights
institutions be accessible. Accessibility to commissions
includes not merely economic accessibility but also physical
and procedural. Most times, the KSCW functions as a
rudimentary court with all the intimidating formality of
adjudicative bodies a written complaints procedure,
issuance of notice to parties to attend the hearing, and
a hierarchical seating arrangement that constructs a safe
distance between the dispenser of justice and its claimants.
The counselling and hearing of cases take place in a large
room. The chairperson typically seats herself in a position of
authority accompanied by two counsellors and a typist. The
petitioner(s) and respondent(s) are seated on the other side.
The KSCW has adopted all the rituals of formal adjudicative
bodies which encourage fear, intimidation and are often
procedurally complex and incomprehensible to a layperson.
The KSCWs complaints unit is beset with all the same
problems that surround formal court systems delays,
inadequate staff and procedural and bureaucratic formality.
Almost all women applicants interviewed had their first
date of hearing after more than six months of filing their
complaint. On the date of hearing, they spent long hours
waiting for their turn.
More so, KSCW personnel, with the exception of a couple of
counsellors/case workers, were often deputed from another
government department. For instance, at the time of our
reviewing of the KSCW, one of the case workers was a first
division assistant deputed from the revenue department. She
had no knowledge or inclination towards womens rights.
Besides, she applied the same bureaucratic procedures and
practices that intimidate women and impede their access to
the commission.
This possibly is why the KSCW often functions like a mailbox
with long bureaucratic procedures, scarce information about
the law or the rights of women and an indifferent attitude
towards women applicants. Many women complainants
were redirected to a protection officer or a police station in
the given jurisdiction or the Legal Service Authority (LSA).
These cases were depicted in the annual reports as cases
resolved, much like the cases that have been compromised.
Similarly, much like the statistics on cases filed and cases
resolved that are maintained by the Supreme Court on its
official website, the annual reports of the KSCW provided
similar statistical evidence of success in dispensing justice
based on the number of cases filed and cases resolved
annually. Resolving cases is considered administering
justice.

paper Bread for the Poor: Access to Justice and the Rights of
the Needy in India (5) that the elite in India have access to
efficient formal courts, as opposed to being compelled to
seek justice in an alternative, inefficient dispute adjudicative
body. Not that efficiency and speed assure justice. But for
women who approached the KSCW, delays and inefficiency
meant not just greater disability in accessing justice; it also
operated as a barrier.
Decentralisation of the justice system and the setting up
of informal justice systems or mechanisms was done with
the purpose of increasing access to justice. This emphasis
on access to justice often neglects the nature and kind of
justice that is delivered. Moreover, since the establishment
of commissions at the state and national level, there has
been little evaluation of these institutions. Do these bodies
and their mandate need some restructuring and rethinking?
The founding legislations under which the human rights
institutions were constituted have not been reviewed
or amended since their enactment. In an interview with
Justice Santosh Hegde in 2010, former ombudsman of
Karnataka Lokayukta, he remarked that every enactment
after a certain decade needs to be amended based on
changes in human behaviour. (6) The commissions were
set up to promote and protect human rights by ensuring
implementation of international and domestic human rights
norms, encouraging accountability and proposing legislative
reform. What the KSCW, in particular, has been reduced to
is an alternative dispute-resolution body available to those
who can access it, as opposed to a human rights watchdog
just another platform to reduce court arrears.
Sonal Makhija is a Bangalore-based lawyer

Endnotes
1 The report A Review of the Working of the Karnataka State Human Rights
Commissions (KSHRC) and the Karnataka State Commission for Women (KSCW),
2011, was conceptualised and authored by Swagata Raha and Sonal Makhija
under the aegis of Daksh, a non-profit organisation based in Bangalore
2 The year 2008 witnessed a wave of attacks by Hindu fundamentalist political
parties against Christians in the west coast of Karnataka. This included isolated
attacks on Christian women. Although widely reported in the media, the state and
human rights institutions failed to intervene
3 In 2009, young women were assaulted in a pub in Mangalore by a Hindu
right wing political party. The attack was allegedly carried out in order to protect
the Indian culture and values. In this instance, it is the National Commission for
Women that conducted an inquiry after the KSCW failed to intervene. For further
details, please refer to: Anon, Hindu Brigade Attacks Women in Pub, IBN, January
25, 2009 (online). http://ibnlive.in.com/news/hindutva-moral-brigade-attackswomen-in-mangalore-pub/83648-3.html
4 Baxi, P. 2007. Access to Justice and Rule-of-(Good) Law: The Cunning of
Judicial Reform in India, Working Paper, commissioned by Institute of Human
Development on behalf of the UN Commission on the Legal Empowerment of the
Poor, New Delhi

Conclusion

5 Galanter, Marc and Jayanth K Krishnan. 2004. Bread for the Poor: Access to
Justice and the Rights of the Needy in India. Hastings Law Journal. Vol 55, No 4,
789-833

Professor Marc Galanter and Jayanth Krishnan write in their

6 Interview with Justice Santosh Hegde, Lokayukta, on 22.09.10 (on file with
Daksh)

ISSUE 26 2013

Suraksha Scheme issued by the KSCW.

55

Access to justice

Disabled women and sexual violence

What difficulties do disabled women face in accessing the legal system and
navigating the trial process? And what are the consequences for them of making
sexual assault gender-neutral for the perpetrator and the victim?

FOR THE FIRST TIME in the history of sexual violence law

reform in India, issues pertaining to disabled women are
being flagged as important items on the reform agenda.
Sexual violence against disabled women is rampant, both
within the supposedly safe zone of the home be it
familial or custodial and without. A small number
of cases manage to get reported and legal actions are
initiated. But most of these cases that reach the courts end
in acquittal. Some of the reasons behind the low rate of
conviction are common to all rape cases: faulty investigation
by the police, biased conclusions reached based on medical
examination of the victim and the accused, general attitude
of distrust towards the victim and so on. But there are also
factors that are specific to the cases of disabled women,
such as not recording the testimony of the victim during
the trial or recording the testimony without following the
procedure laid down in law, which weaken the prosecution
case at the appellate stage and result in acquittal.

ISSUE 26 2013

The Justice Verma Committee, constituted by the central

government to look into sexual assault law reform after
the Delhi gang-rape and murder last December, gave
many of us working on these issues an opportunity to
place some of these concerns before the government. The
committee responded positively and a large number of its
recommendations addressed difficulties faced by disabled
women in accessing the legal system and navigating through
the trial process. Among other things, the committee
recommended that the assistance of interpreters or special
educators be taken at the time of recording of the complaint
by the police and also during the trial, that the process
of identification of the accused be videographed and
that disabled women be exempted from recounting their
testimony once again at the time of cross-examination in
cases of sexual assault. The recommendations also addressed
issues of sexual abuse within institutions for the disabled and
suggested oversight mechanisms for both state and privately
run institutions. The recommendations of the committee
were welcomed by womens groups and disability groups,
including the ones that we are associated with.

56

However, when the government hurriedly introduced the

Criminal Law Amendment Ordinance just three weeks
before the upcoming session of parliament, we were faced

SHAMPA
SENGUPTA
SAPTARSHI
MANDAL

with a dilemma. The ordinance, which was promulgated

purportedly to give effect to the recommendations of the
Verma Committee, incorporated a majority of the disabilityspecific ones. But longstanding demands made by womens
movements such as recognising marital rape, rape by
security forces, compensation for rape victims, rejection of
the death penalty as a punishment and such others, which
were recommended this time around as well, were left out
of the ordinance. As activist and researcher respectively, we
were familiar with the travails of disabled women within
the legal system in rape cases. Hence we were acutely aware
of the relevance of the disability-specific clauses in the
ordinance and were happy to have been part of the process
which had led to those changes. But we were also politically
aligned with the womens movement and thus found
it difficult to endorse the ordinance, which had left out
issues which were fundamental to reconceptualising sexual
offences in a manner that protected the rights of victims of
sexual violence.
Leading from the personal/political dilemmas regarding our
position on the ordinance, we wondered if the disabilityspecific recommendations were so readily accepted by the
state because disability was seen as a safe, sympathyinducing issue that posed no threat to the established
orders. Demanding that marital rape be recognised as
an offence on the other hand, definitely threatened the
gendered/sexualised ordering of heterosexual marriage
and family. Was this the reason, we wondered, why the
two movements rarely spoke to each other in the course
of the sexual assault debates, although they raised similar
questions pertaining to the body and violence, power and
vulnerability? We also wondered whether the predominantly
service-providing nature of the disability sector was in
any way responsible for it being viewed as a safe issue.
If, for the state, disability was a safe issue and gender
a disruptive one, then what did it mean for movement
politics the business of building alliances and solidarities
across sectors while engaging with the state? And at a
much smaller level, what did it mean for our own work
where we try to think through both these axes of power and
vulnerability?
While we still do not have clear answers to any of these

Disabled women

In the last 12 years, several developments have taken place:

decriminalisation of adult same-sex sexual acts by the Delhi
High Court in 2009, greater public awareness and discussion
about child sexual abuse, and much more documented
evidence of sexual violence against gay, transgender and
transsexual persons. With the result that by the time the
government introduced the Criminal Law Amendment Bill in
June 2012, there was agreement on certain things among
the groups involved in these debates. Thus most groups
agreed that victims of sexual assault must be defined in
a gender-neutral manner so as to provide protection to
men and transgendered persons, in addition to women.
But the perpetrator should be kept as male alone, as,
making the perpetrator gender-neutral would weigh
heavily against women. Thus the 2012 Bill, which proposed
gender-neutrality with respect to both the victim and the
perpetrator, was opposed by womens groups as well as
some queer groups.
Cut to 2013, the Verma Committee recommended that in
the definition of rape, the perpetrator should be genderspecific (man), while the victim should be gender-neutral
(person). However, despite strong opposition, the ordinance
stuck to gender-neutrality with respect to both the victim
and the perpetrator, and till the time a new Criminal Law
Amendment Bill is introduced and passed to replace the
ordinance, it remains the operative law.
Surprisingly, disability groups have not been part of

these debates, though making sexual offences genderneutral clearly has consequences for disabled women. A
stereotypical view of disabled women, particularly those
with intellectual or psycho-social disability, is that they
are unable to control their sexual urges (1). Such a view,
historically propagated by the medical establishment, is
prevalent among the police, doctors and judges. In the
course of handling cases of sexual assault on disabled
women, we have often heard the authorities sympathising
with the accused based on the belief that such women
are prone to making sexual advances on men, and later
charge them with sexual assault. In 2001, in a case where
a speech- and hearing-impaired girl was raped by two

A stereotypical view of
disabled women, particularly
those with intellectual or
psycho-social disability, is that
they are unable to control
their sexual urges. Such a
view, historically propagated
by the medical establishment,
is prevalent among the police,
doctors and judges. In the
course of handling cases of
sexual assault on disabled
women, we have often heard
the authorities sympathising
with the accused based on
the belief that such women
are prone to making sexual
advances on men, and later
charge them with sexual
assault

ISSUE 26 2013

questions, we want to flag some cautionary notes on sexual

violence against disabled women and the legal response
to the same. Protecting the rights of the disabled against
sexual assault requires us to think beyond provisions for
interpreters and special educators, and engage with the
domain of power and sexuality as well. In the context
of sexual assault law reform, one issue that has created
sharp divides between the state and womens rights
groups, womens rights groups and queer and child rights
groups, and amongst womens rights groups as well, is the
proposition of making sexual offences gender-neutral. In
the year 2000, the 172nd Report of the Law Commission
mooted the idea of substituting the words man and
woman in Sections 375 and 376 of the Indian Penal Code
with the word person so as to bring instances of same-sex
sexual assault and sexual assault on male children by adults
within the scope of the law. The idea was rejected by a wide
section of the womens movement which argued that sexual
offences took place within a framework of gendered power
relations and the legal system which tried these offences
was heavily biased against women. These realities, it was
argued, could not be wished away just by changing words
in the law. Similarly, a number of lesbian womens groups
expressed concerns that in the absence of any affirmative
legal recognition of same-sex relationships, a gender-neutral
rape provision could be used by disapproving families to
lodge false complaints against same-sex lovers.

57

Access to justice

In Meeraj Alam vs State of

Bihar, the Patna High Court
kept on repeating throughout
the judgment that the victim
girl was a grown-up lady who
was unmarried because of such
infirmity and that her younger
sister was already married,
having children from before.
How were the marital statuses
of the victims of any relevance
here, unless the judges were
trying to implicitly suggest that
the women in these cases were
sexually mature and yet were
not getting any because they
were disabled and hence one
should be suspicious of their
motives?

ISSUE 26 2013

policemen inside a prison van in Kolkata, the officer-incharge had said to one of us that activists should not follow
up such cases. When asked why, he said it was common
knowledge that disabled girls were sex starved and it
was the girl who had in fact attacked the policemen. More
recently, in the course of inquiring about a case of sexual
assault on a female inmate by a male staffer at a Kolkata
mental health institution in April 2012, the superintendent
of the institution told one of us that he himself was scared
of going inside the female ward for fear of being molested.
He even asked us if there was any law to punish such
women who first molest/tempt and then complain against
hapless men.

58

In such a scenario where such attitudes are presented as

medical truths and where authorities put the blame on

the victims and their lack of sexual discipline, what might

be the implications of a gender-neutral rape law, where
even women can be made assaulters and men their targets?
Court judgments reveal how disabled womens accounts
of sexual assault are treated with suspicion by judges. For
instance, in an Orissa High Court case the prosecutrix was
deaf and mute and had not revealed to anyone that she
had been raped; it was discovered only when she became
pregnant. The court, while granting bail to the accused
observed that a case of consent on the part of the woman
could not be ruled out since (a) the woman was about 30
years old and still unmarried and (b) she could have at least
communicated it to her mother knowing that her mother
would naturally be anxious about her marriage (2). Again
in Meeraj Alam vs State of Bihar, the Patna High Court kept
on repeating throughout the judgment that the victim girl
was a grown-up lady who was unmarried because of such
infirmity and that her younger sister was already married,
having children from before (3). How were the marital
statuses of the victims of any relevance here, unless the
judges were trying to implicitly suggest that the women in
these cases were sexually mature and yet were not getting
any because they were disabled and hence one should be
suspicious of their motives? Earlier a standard defence by an
accused in a rape case used to be that the woman (disabled
or not) had consented to the sexual intercourse, which
then would be proved with reference to her dress, conduct,
sexual history, etc. Now, if the perpetrator is made genderneutral, whenever a disabled woman complains of sexual
assault, the alleged assaulter might file a counter-complaint
that it was he who was raped by the woman. And we have
good reason to believe that given the widely held view
regarding disabled womens hypersexuality, such counterallegations by men will be believed and sympathised with,
by investigators and adjudicators.
Thus gender-neutral definition of the perpetrator in sexual
offences, as is currently the case, is not in the interests of
disabled women. The government is preparing to introduce
a Criminal Law Amendment Bill, 2013 soon to replace the
ordinance. From media accounts, it seems the government
is undecided about the formulation of the offence in the
final Bill. But whatever it is, it is about time disability groups
appreciated the implications of it, took a stand on the issue
and made it known to the state.
Note: This article was written prior to the enactment of the Criminal
Law Amendment Act, 2013, which ultimately retained the pre-existing
formulation of rape where both the victim and the perpetrator were
defined in gender-specific terms
Shampa Sengupta is an activist working with disability and gender issues, based in
Kolkata
Saptarshi Mandal is a legal researcher based in New Delhi

Endnotes
1 An equally prevalent stereotypical view is that disabled women are asexual
2 Deepak Mahapatra vs State of Orissa, 107 (2009) CLT 93
3 2008 CriLJ 4384

Sexual minorities and the law

Policing hijras
In the wake of several positive developments for transgender communities in
Karnataka came 36A, a startling amendment to the state Police Act aimed at
controlling the objectionable activities of eunuchs. The new rule relegates
hijras to second-class citizens, vulnerable to police harassment and surveillance

There are multiple problems with this law, starting with

the term eunuch (napumsaka, in Kannada). Eunuch is
a term used by the British to refer to castrated males. The
movement for transgender rights in India has attempted to
relegate this word to the past. Identity-based politics have
introduced terms like hijra, aravani, and mangalamukhi
that have been reclaimed and sometimes created afresh
by transgender communities in the country. The reason
the term eunuch features in this law is the direct link
between Section 36A and provisions in the Hyderabad
Eunuchs Act, which, in turn, is based on the Criminal Tribes
Act Amendment of 1871. The British, in 1871, included
eunuchs among other tribes, castes and social groups
considered criminal at birth. Nehru, whose government
repealed this law in 1952, referred to it as a blot on the law
book of free India.
Understandably, members of the hijra community are
outraged by the enactment of Section 36A, which, they
feel, will exacerbate the harassment and violence they face
at the hands of the police. While there is no evidence yet of
the police invoking the amended law, the section will enable
them to invoke these provisions. The very presence of the
law in the statute books relegates hijras to second-class
citizens, vulnerable to police harassment and surveillance.
In Karnataka, LGBT-rights-based (lesbian, gay, bisexual,
transgender) groups have for many years fought police
harassment of hijras through protests and public action,
and through the courtroom. Hijras remain the target of a
number of laws, with charges ranging from public nuisance
and theft to sex work and begging. Many cases that have
been contested in court have resulted in acquittals, although
the police officers who file the charges are rarely rebuked,
punished or demoted for their actions.
A lot of problem lies with the discretion a policeman has

in targeting street-based work done by hijras sex work

and begging. This is further complicated by public attitudes
towards hijras. In Bangalore there has been intense public
and media debate on the harassment faced by the
public from hijras, especially at traffic junctions. The hijra
community has responded saying that an entire community
cannot be targeted because of a few stray incidents. They
have put the onus on society, saying that without job
opportunities and attempts at allowing hijras to participate
in the mainstream, society should not point fingers at them.
It is against this backdrop that K R Chamayya, former
law secretary and former vice-chairman of the Karnataka
Administrative Tribunal recommended that Section 36A be
introduced in the Police Act. The law was passed without
debate in April 2011, ironically as part of an omnibus
provision that repealed hundreds of archaic laws that had
remained in the statute books. Of the few laws that the
government decided to retain, one was this monstrous
section.
What puzzled LGBT activists and those working with the
issue of transgender rights in Karnataka is that this section
came in the wake of a number of positive developments
for transgender communities in the state. The Karnataka
government, through the Department of Women and
Child Development, in 2010, issued a government order
securing benefits for the transgender community which
is now included in the 2A category of the Backward
Class Commission. The government order also referred
to providing housing facilities and opportunities for
transgenders to avail of government loans. The order
covered a wide range of gender minorities including hijras,
kothis (1), jogappas (2), female-to-male and male-to-female
transsexuals (3), and mangalamukhis.
Following a petition filed by the Karnataka Sexual Minorities
Forum, the Backward Classes Commission headed by
Chairperson C S Dwarkanath, organised a public hearing
on sexual minorities issues in its premises a first for any
body of its stature in India. The commission heard around
20 members of sexual minorities present a case for their
community to be included in the list of backward classes in
Karnataka. In July, the commission in its recommendation

ISSUE 26 2013

IN APRIL 2011, the Karnataka government legislated an

amendment to the state Police Act, introducing Section
36A. The section is aimed at controlling the objectionable
activities of eunuchs. Under it, the police must record
the names of eunuchs in their jurisdiction suspected of
kidnapping boys, committing unnatural offences or any
such crimes in a register.

SIDDHARTH
NARRAIN

59

Access to justice

While advocacy and community

groups are demanding that Section
36A be repealed, one option is
for activists to take the issue to
court. However, any courtroom
challenge has to go hand-in-hand
with advocacy efforts, especially
with the media and with public
intellectuals and the larger human
rights community. Public attitudes
towards the hijra community have
always been at best ambivalent,
and at worst hostile
to the state government suggested that sexual minorities,
sex workers and children of people living with HIV/AIDS
be included in Category 2A of the backward classes list
to ensure up to 15% reservation for these communities.
Further, the government has allocated money for the
transgender community in this years budget.
Political leaders from the three main parties the BJP,
Congress and Janata Dal (S) spoke out publicly in favour
of these measures. The Karnataka Legal Services Authority in
2011 organised a programme on Transgenders and the Law
which was attended by a number of high court and trial
court judges. Interestingly, the chief guest and head of the
National Legal Services Authority (NALSA), Justice Altamas
Kabir, explained that he had suggested that a Bill related
to adoption rights for religious minorities be amended to
include adoption rights for transgender persons too.

ISSUE 26 2013

Amidst this wave of positive legal and policy changes,

the enactment of Section 36A has come as a rude shock,
overshadowing other individual gains made by transgender
persons. Both the state government and the Karnataka
High Court recently appointed transgender persons as
employees in the Class D category, and prominent members
of the ruling BJP party have publicly espoused the rights of
transgender persons in the state.

60

With reports of increasing police harassment and a

climate of fear amongst the hijra community, the repeal of
Section 36A has become a common demand for a range
of organisations working with the issue. Legal experts

have pointed out that the sections use of the language

unnatural offences flies in the face of the Delhi High
Courts decision in the Naz Foundation case which held that
consensual sex between adults in private, whatever form it
takes, is no longer criminal.
While advocacy and community groups are demanding
that Section 36A be repealed, one option is for activists to
take the issue to court. However, any courtroom challenge
has to go hand-in-hand with advocacy efforts, especially
with the media and with public intellectuals and the larger
human rights community. Public attitudes towards the
hijra community have always been at best ambivalent,
and at worst hostile. On the positive side, hijras can claim
indigenous roots and do not have to fight the tag of being
a western import. Their street-based work and gender nonconformity gives them a presence that is disproportionate to
their small numbers.
There have been two public events on this issue, one in
July 2011 and the other in August 2012, demanding the
repeal of Section 36A. Both the events were attended by
a large number of hijras, many of whom were vocal about
the demand to scrap this law. One of the discussions at
the events was how a numerically small community can
advocate for rights and be taken seriously. With the media
divided on this issue, and limited public support, the way
ahead is tricky. A possibility suggested was alternative
political formations or strategic voting, which of course
depends on the community getting voter ID cards, which is
a slow process because of the lack of identity documents.
While on the face of it the BJP government may seem
sympathetic to these demands, it has not yet taken concrete
measures to repeal the law. In Karnataka, more than a
decade of positive intervention on this issue by NGOs is
now making way for intervention efforts by the state.
Section 36A threatens to derail these gains by re-inscribing
discrimination and transphobia. It is crucial that there be a
sustained effort to oppose this law through efforts that will
bring together community members, NGOs and the larger
umbrella of human rights organisations.

Siddharth Narrain is a legal researcher with the Alternative Law Forum, Bangalore.
His areas of work include media laws and censorship, sexuality and gender law,
and the politics of the judiciary

Endnotes
1 Kothi refers to effeminate men, usually working class, who assume a receptive
role during sexual intercourse
2 Jogappas are found in north Karnataka and Andhra Pradesh and are
traditionally devotees of the Goddess Yellamma. They are sometimes compared to
devadasis
3 A transsexual person is one who has undergone or is in the process of
undergoing physical or hormonal alterations by surgery or therapy in order to
assume new physical gender characteristics. In India many transsexuals, especially
in the female-to-male transsexual (FTM) community, faced with the exorbitant cost
of surgery, do not undergo surgery but dress as men and identify as transsexuals