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In Part II of our interview with Senior Advocate Colin Gonsalves, he talks about human rights cases in the Supreme Court, his most memorable case, what keeps him going, and more.
There are a number of draconian laws that exist on our statue books, including the AFSPA and CSPSA in Chhattisgarh. Do you see these being repealed in the future?
The repeal of these laws is impossible, in fact, more laws like these will come in. And why more laws come in is because the Supreme Court made fatal mistakes in its judgment on AFSPA, which is the Naga People’s Movement for Human Rights case. The Supreme Court takes the approach that when we are looking at a law, we will only look at the letter of the law. As was the case in the judgments upholding TADA and POTA. If I were to take TADA and POTA and give it to an American lawyer, a European lawyer, and ask if its stands Constitutional scrutiny, they would tear into them.
The second major mistake is when the Supreme Court observed – it was an oral observation – that they are not going to look into current misuse and malpractices. They said that they would only look at the piece of paper, as if it is devoid of life. Now that is a very big mistake; you must always interpret the statute in the context of the perceived misuse of the statute everywhere. TADA was misused. The Court said it was perfectly Constitutional. Then, Parliament sat and said no, there is an uprising in the country against it, and repealed it. What a shame. The Court could have taken the initiative.
So, you must always, while interpreting a statute, not treat it like a lifeless piece of paper. The Supreme Court even said that there are blood curling instances of torture in our country during the TADA period. You know how it is – labourers, trade unionists, all those agitating and struggling for justice were caught in under TADA. The police officer will put your fingerprint and he take a confession and courts will uphold it.
And only Justice K Ramaswamy had the courage to say – what a sterling dissent – how can we accept, that a confession to a police officer was constitutionally valid in our country? A dark period I would say. People talk of the Emergency judgment. The TADA judgment stands on the same footing. The POTA judgment stands on the same footing. No difference.
Do you think if we completely overhaul the way our police functions, there won’t be a need for these statutes?
Is there any way that the police will be reformed? I don’t think so. The Court’s judgment on police reform, which is Prakash Singh’s case, is such a mild judgment. It is so far removed from real and meaningful police reform. And even that is not implemented. So, are the police going to change? No chance. Does the political establishment want the police to reformed? No chance. They like a system where the party in power at the Centre or the state uses policemen as bodyguards for VIPs. So the policemen are being reduced in India to that stature. They are the bodyguards of the rich, and the tormentors of the poor. People don’t understand, our democracy is not a democracy – it is a police state.
Moving on to the Rohingya matter in the Supreme Court, the stand of the Centre is that it is a matter of Executive policy.
Well that’s a relatively simple and straightforward kind of argument. I think Fali Nariman answered it very nicely when he said that almost everything is capable of judicial scrutiny now. And to tell a Supreme Court or a High Court that you can’t look at this, you can’t look at that, is quite anachronistic. It might have been said twenty, thirty, forty years ago – I even doubt that. But certainly today, you can’t tell the Court that they can’t look at an issue like the mass deportation of 40,000 Rohingyas.
In the Marital Rape case in the Delhi High Court, in which you appeared, the Centre fears that making it an offence will lead to destabilization of marriages. Your take on that?
My answer would be the Nepal Supreme Court judgment, which criminalized marital rape, I think over a decade ago. The government had made a similar submission, saying it would result in the breakdown of the family and that would result in chaos in society. To this, the judges of the Supreme Court beautifully responded that Hinduism is a very pure religion, and it cannot tolerate inequality and violence within it. If there is violence against the wife, we have to criminalise that violence. Surely it can’t be said that it would cause chaos in our society and in our marital relations and so on.
The Nepal judgement is particularly apt for India, because I think we have a government that prides itself on certain things, and they said almost the same thing that was said to the Nepal Supreme Court, I think, ten-twelve years ago. It’s like a knee jerk reaction without thinking – without thinking seriously about what it is they are saying.
What has been the most memorable case you have argued?
Well, the most memorable case was the Right to Food case, which was not my case actually. It was a case of the Right to Food Campaign, where so many persons participated. Lawyers had a limited role to play. People’s views, fact finding reports, all kinds of inputs were taken from all across the country.
And it was also memorable because at that time, the situation was very bad. Starvation deaths were taking place right across the country. Secondly, the mid-day meal had almost collapsed. Thirdly, the anganwadi system had almost collapsed. And fourthly, and most important, the World Bank and the IMF were pressurizing Manmohan Singh to scrap the PDS system. They said it was such a waste of valuable resources.
We had this guy in the Planning Commission – I’m glad I don’t remember his name because I would be taken for defamation otherwise! – who was particularly horrifying in his views on poor people and poverty and subsidies and so on. So, it was a confluence of the World Bank and IMF and very articulate and powerful people in the Indian political establishment who wanted to completely close down the PDS system. The IMF had closed down the PDS system in Mexico and in many other countries.
The Supreme Court intervened, which was such a surprising thing. Chief Justice BN Kirpal, who wasn’t particularly known for his human rights values or approach, took it up, in a very brave fashion. Then the other judges also gave it a push – Justice YK Sabharwal took it up very well. So, in a sense, judges played a role that I really never expected. I remember telling Kavita Srivastava when the matter was to come up first before Justice Kirpal, ‘Don’t tell anybody that we filed a case – if it gets dismissed, there won’t be such a big setback’.
But Justice Kirpal just looked at his papers – I was a young advocate then, I was quite afraid – and said, ‘This cannot be. Gonsalves, amend your petition, make it for the whole country. We cannot allow this’. And then Justice Arijit Pasayat gave it a huge push. He was a very determined judge in many ways. So, he pushed it, and the anganwadi system went from zero to several lakh anganwadis in the country. The mid-day meal went up like anything. He summoned Chief Secretaries to court, maybe five or six times in those years.
So, I have seen the power of PIL, to do certain things in certain circumstances. As a result of that case, the Right to Food came in 2013.
But yet, the country remains in the same position. The Act was supposed to benefit 350 million people, but things remain the same. 50% people are hungry, 50% women are anemic, 17% children stunted, 50% children going to bed hungry every day, in a country with 7% GDP growth – what an amazing thing. But now, in the judiciary, we can’t see that enthusiasm. I can’t understand it. It’s like a mystery to me. So, what some people say, that the PIL is a double-edged sword, is actually correct.
There seems to be a dearth of quality lawyers doing pro bono and legal aid work. What do you think is the reason for that?
It’s a sign of our times. Globalisation has killed the spirit. When we were young, we all thought we would be Che Gueveras and start a revolution tomorrow. I worked with Dr. Samant with five hundred rupees a month for four years, from eight o’ clock in the morning till midnight. We never worried about food. We never worried about not having a place to stay. I told you, I lived in a chawl. After getting an IIT degree. But we were intoxicated with love for the country and love for social change.
When I go to universities, I can see it, although there are embers of maybe a new growth. So, the first thing about Public Interest Litigation is that you don’t learn from the law, you don’t learn from lawyers. You have to go into social movements. I tell young lawyers who want to work, you have to attach yourselves to social movements, women’s movements, Dalit movements, tribal movements. You have to attach and participate in agitations, get arrested, do dharnas, break the law a little bit here and there. Young people are expected to do all these things, then learn.
It comes from a feeling inside you, it is not a thing you learn from a textbook, it comes spontaneously. The law books only enrich what you already feel inside. They must go the movement first. That is why we try as much as we can to attach our young lawyers to social movements. You have to attach to a movement first. Like the Dalai Lama said, first your heart is to be affected, then your law will come.
A majority of Senior Advocates in India gauge their success in terms of money made, cases won etc. How would you define success? What keeps you fighting the good fight, so to speak?
See it’s very simple. We deal with clients for whom we win cases. We lose many, we win many. We see happiness on the faces of people who come. So, this is like a hospital with an intensive care unit. Like a legal ICU. We get lots of injured people, communities, families, and we try using the law to repair some of it, to get them back to life, try to get them to smile again. What more can a person want than that? That is such a satisfying thing. How many lawyers can go to bed with that feeling?
Our lawyers in HRLN are also lawyers outside. There are many lawyers, even outside HRLN who work like this. For example, K Balagopal from Andhra, who would go every weekend to the tribal areas there. He would take down their details meticulously, come back, type it up, and file a case. There’s a great revolutionary tradition among movement lawyers, but they don’t get to be made Senior Advocates. Nobody would give Balagopal a senior gown. He was a master in tribal law, and he moved with the people. So, when they think about giving people the honour, they mustn’t just give it to people in urban areas with big offices. At least thirty-forty percent of your senior gowns, if not half, should go to people who are working with people, and doing cases for them.
On a final note I would like to congratulate you on your Right Livelihood award. So would you like to say something about it?
Well, it was quite a surprise and we’re quite pleased with it. You know, there are at least a thousand more people who deserve it more, and I can think of them on my fingertips. It’s just that they’re not so known. Do they work harder and better? Does their work achieve more? Yes. They don’t get money, the police and the government are harassing them, and they still work.
We take it as a pat on the back of the social movements in this country. Maybe it was recognized that in India there is a great spiritual force of resistance. Under great stress and strain, people are fighting. So, we see ourselves only as a make-do representative of those people.