Gave up US citizenship because I felt Indian, wanted to work in India: Sudha Bharadwaj [Watch video interview]

Lawyer and activist Sudha Bharadwaj, the first default bail recipient in the Bhima Koregaon case of 2018, speaks about the quality of legal aid for prisoners and others, her time in jail, future plans, and more.
Sudha Bharadwaj
Sudha Bharadwaj

Sudha Bharadwaj, a lawyer and activist who has worked for the rights of tribal communities and labour workers in Chhattisgarh, is finally a free woman. For now, at least.

Bharadwaj was teaching at the prestigious National Law University, Delhi at the time of her arrest as part of the probe into the Bhima Koregaon case. After three years of incarceration, she was granted default bail, and became the first among the 16 accused to see the outside of a jail cell.

Having given up her US citizenship, Bharadwaj chose to stay in India to work for rights of labourers and tribals.

In this interview with Bar & Bench's Neha Joshi, Bharadwaj speaks about the quality of legal aid available for prisoners and others, her time in jail, future plans, and more.

Edited excerpts follow.

How are you adjusting to a life in a city like Mumbai?

It is a very new city for me, a little alien. It is a city of working people, so "kaam-kaaji sheher" I would say. So, I find it maybe a little expensive in terms of rent, etc. but very efficient. People are going about their work and business all the time. That is nice to see.

What is your plan of action now?

Well, I would have loved to teach. But I very seriously doubt that with a stigma of a case like this, I would get a teaching position. What I am thinking at the moment is that I would like to, if possible, get back into practice. I am thinking of working with unions for labour matters. In the time we have been in jail, labour courts have changed and I think a lot of adjustment is required to think of legal remedies and how to go about things now.

When I was in jail, I met a lot of prisoners who were really in quite a helpless condition. I would like to do as much as I can to help. As far as I have understood here, if I have a local lawyer along with me on my vakalatnama, I should be able to begin. So, a low-level practice, but yes I would like to do that. But I also have to think how to earn my living. I am also looking to do some kind of research and writing.

Do you miss Chhattisgarh?

Oh yes, very much. I first went to Chhattisgarh in 1983 and since 1986, I have been mostly there. So it is 30-35 years of association now. I worked as a trade unionist before I became a lawyer. So all my years in the industrial areas and the labour camp and then after that about 15 years of practice in the High Court. I also remember my colleagues there and the language, the festivals...I have a lot of friends there, lot of activists and lot of clients, who have all been phoning me up ever since I have come out. So I have to keep telling them “Sorry, I cannot do anything now.”

[Watch Video]

As someone who has worked tirelessly to provide the best possible legal aid to persons in dire need, what is your take on the legal aid that was being provided to prisoners?

I was in Byculla in a period when the issue of legal aid became very acute because that was the Corona period. If you remember that is the period when mulaqats (prison visits) had stopped, people were not being taken to courts. Even for the lawyers, you had to take cabs to go to courts, and maybe it was too expensive for legal aid lawyers. So basically for people who are on legal aid, these two years have been like a pause in their history. Nothing was happening. That accentuated the general problems which are there in legal aid anyway. But they became very acute in that period. There were so many women there, who first of all could not contact their lawyer. Many of them did not have information, did not have mobile numbers or addresses. In many cases, chargesheet was supposed to be filed and there was no chargesheet, so they couldn’t apply for default bail, which is a precious right as I know, as I am out on default bail. Precious rights were being lost in that period.

There were people who were undergoing hospitalization, deliveries, miscarriages. Their lawyers knew nothing about what was going on with them and that could not be brought before the court. That was the period where I made a lot of applications. But I must say that the jail tried its best. A lot of interim bail applications were forwarded. But unfortunately, maybe it was the wording in the High Powered Committee order which said that it should not be treated as automatic and so on. So because there was nobody to argue out the prisoners’ side, it was treated more or less like bail on merits. And so many of them were just rejected; even I had written applications for women with HIV, Tuberculosis, Asthma and co-morbidities and very elderly women, but couldn’t get much relief for them.

I really thought that particularly in these times, for a legal aid lawyer, communication and accountability to the client is so important and for that they need to be better paid and better equipped. It is a problem with the structure of the way legal aid is given.

Any advice for legal aid lawyers or students who aspire to get into legal aid services?

When I taught for one year, I had very many bright students. I am quite convinced that a lot of students would like to go into legal aid. But the whole question is one of supporting yourself because the remuneration a legal aid lawyer is so paltry that really you cannot do a good job. And then ultimately your loyalty is to the system and not to the client at all.

This is one thing which I think all of us need to fight for.

For example, I always joke with people that if you go to any High Court, there is this huge office with Advocate General, Deputy AG, Assistant AG, so many Government Pleaders. Everybody is on the roles. For the State, you have so many people on the roles, what about for the citizen?

The whole idea of legal aid is to balance the issue of citizens not being able to defend themselves. So you need equally well-paid lawyers and I am sure even if a reasonable payment starts for legal aid lawyers, a lot of young people who otherwise are being forced to go into firms and so on will come to litigation and will come to legal aid. I think they are many young people who are idealistic at the time when they join. But they have student loans to pay back, they do not want to be dependent on their parents anymore, they need to earn something, they end up not prioritising legal aid.

So I think we need as students and as lawyers to fight for a better legal aid system. And once people join legal aid, I think there are few things which we must take very seriously. It should be mandatory once you take vakalatnama as a legal aid lawyer that you have at least have one meeting with the client. You must know their side of the story. It might be quite different from what is in the chargesheet. There might be so many things you do not know, and nobody knows the facts better than the client. That is one thing we should always remember.

When the chargesheet comes - many of the women were illiterate, they did not know Marathi language, for them to defend themselves… you have to meet them, explain to them. You should also be in very close communication with them. If there is a problem in their family, there is a death, some child has fallen ill or if a person is being hospitalised - these things must be brought before the court, and that is your job as a legal aid lawyer. And many times, what we have found is that particularly during the pre-trial part, legal aid lawyers are not able to pay attention to them and don’t pay attention to them. We need to take that very seriously. I think a lot of miscarriage of justice happens because of this. I do hope many more people go to legal aid, and I am even contemplating to filing a PIL to improve legal aid facilities, including the remuneration for lawyers. Because if we do not have effective legal aid, then to say that constitutionally we are providing this, we fall very short of the mark of proper representation.

I am sure even if a reasonable payment starts for legal aid lawyers, a lot of young people who otherwise are being forced to go into firms and so on will come to litigation and will come to legal aid.
Sudha Bharadwaj

You had mentioned in an earlier interview with Bar & Bench that there is a “kaagaz ki ladai” (fight on paper) and “sadak ki ladai” (fight on the streets). Do you still believe in that?

Very much so! Because I think change comes about both with social movements and with legal precedent.

Sometimes you may have a very progressive legal precedent. For example, the de-criminalization of Section 377 of the Indian Penal Code. But it is not being reflected in the practice of people in the society. Legal precedent alone is not an answer. On the other side, sometimes there are very important social movements, but because they do not have a legal backing, they are not able to make headway. And that does not become part of established law or precedent.

I think both of them are very important. This I have noticed in trade unionism. Many laws have come about as movements- right to information, forest rights, most of the labour laws have come from century-long struggles of the working class, laws protecting women all came from women’s movements.

I think we need to have both and I have been fortunate to be associated with both. Of course, now I think I cannot be associated with them, because I am so far away from Chhattisgarh.

Sudha Bharadwaj in 2016
Sudha Bharadwaj in 2016

Can you share what kind of advice prison inmates asked you for during your time in jail?

I used to be asked advice a lot. People were quite lost when it came to legalese and many times, they would not understand what they were charged with. The notion of justice and law are quite different things. Sometimes it is not translatable. Something which a person thinks is unjust may be perfectly legal.

I remember a case when someone told me a long story, of their land being acquired and I was listening to it. They found it very unjust, but I found it be legal. But then I asked them “Did you get a notice?” And they said “No”. They said “Acha how does that matter?” But then I said “Well it becomes illegal now!” What was unjust has now become illegal.

One thing I used to be very worried about is the people who were mentally ill (in prison). There is a whole chapter in the CrPC (Code of Criminal Procedure) which deals with accused of unsound mind who don’t have a legal aid lawyer or a family to help them, and who is not really understanding what is happening with them. Also because they are mentally not in a good condition, they provoke people and people fight them and they get beaten up and they are treated very harshly by prison authorities.

How does that person actually get to the point when they are able to tell the Court that “Look here, I am a person of unsound mind and you please treat me with a different chapter under the CrPC?” How is that ever going to happen? I used to feel very worried about those kinds of cases.

They were 3-4 such women when I was in Byculla. There was one who used to become very violent and aggressive and she had to be chained in a separate cell. And though they were sent to the mental asylum, I don’t know whether that would be any better. But you know, I really felt that something had to be done to get them out of that misery and also so that they would be represented in court better.

Was Yerawada a better equipped prison than Byculla Jail?

In Yerawada, I did not get a chance to interact with many prisoners because we were in the phansi (death sentence) yard. So we were actually not allowed to communicate. Of course, some communication automatically happens when you are taken to the court and when you sit in the same lockup or you go to fill water and you come to know of people’s cases. You go for mulaqat and other people are having mulaqat. I was never able to speak in detail with anybody.

As such, Yerawada is a central jail, it is more a convict jail than an undertrial jail. So the compound was much more beautiful. It was a very old jail, there are people who have been there for a much longer time. There is a factory there where you can go to work. I think Yerawada jail used to take much more efforts to bring in NGOs, though most of the programmes were related to religious functions. But still there was some scope of entertainment or some scope of diverting one’s mind in Yerawada.

Yerawada Jail
Yerawada Jail

Were there any life lessons that you learned in the three years in prison?

Outside, I used to be very busy as a lawyer and social activist. I think when you go to jail, you understand what being alone is. At least for me, it was good, I learnt to look after myself. So my diabetes came under control. Though it was very over-crowded, I got a little bit of time and place for some exercise.

The other thing I saw was people around me were so much less fortunate. They did not have friends outside helping. They could not understand what is happening with their case. So, I found that people have so many different ways of coping. Somebody prays, somebody does needlework, somebody helps other people. They all have coping mechanisms and there is a lot to learn. From each and every prisoner, you can learn something.

What did you do to stay abreast of legal developments while in prison?

The time when we were really starved of information was when newspapers were not coming. When newspapers would come, of course we would read it cover to cover. In jail, you don’t know how eagerly people wait for legal developments. And of course, they misrepresent them totally.

Hey didi, has SC said everybody should be released?”

“Hang on, hang on! Supreme Court has not said everybody should be released. SC has said...“

“But they have said na...”

“Please listen, there is a lot of qualification, it is not as easy.”

They really used to wait. This I saw in the Aryan Khan case - the TV was on the whole time! You would be surprised, the amount of information about criminal law you get to know just from discussing with each other. Of course, there were some hilarious instances.

I remember this lady coming up and saying,

“Didi, High Court did time-bomb in my case...”

And I said, “Oh, you got a time-bound case!”

But yes, legal news is followed very much and we were lucky that we had very attentive and good lawyers. We managed to get copies of other Unlawful Activities (Prevention) Act (under which Bharadwaj was charged) judgments and so on.

Another accused gave me a copy of the Pegasus judgement. We tried to keep abreast.

Have the three years in prison given you a different perspective about your fight against injustice?

Well, yes! I was very closely associated with the working class, being a trade unionist, and later on because of land acquisition, I became quite close to farmers and adivasis who were protesting land acquisition and environmental issues. So I had been there, I knew what it looked like. Being in jail actually showed me the plight of the undertrials and I am quite passionate at the moment about legal aid for undertrials. I’d really like to do something about it, and I hope I am given an opportunity to do that.

You got a law degree much later in life, after having advocated for workers’ rights for over 15-16 years. Did you ever want to become a judge at any point?

As you said, I was 40 when I became a lawyer. Fortunately, at that time we were allowed to. I think now the Bar Council of India (BCI) regulations don’t even allow you to become lawyer that late in life, which is foolish because at any stage people should be allowed to be educated in law.

And in fact, a person who has gone through other kinds of experiences knows exactly what they want to do as a lawyer. So I wanted to be a lawyer for the workers.

I never thought of the Bench as a career option like young people give the examination for sessions judge or magistrate, never did that. When I became a lawyer in the High Court, the Chief Justice Yatindra Singh was very kind and he once called me and he actually asked me if I would like to be on the other side. I told him I felt very honoured. But I really felt that the kind of efforts that it takes to be a lawyer for those who don’t have any documentation or are unable to access things, I felt that I would be deserting all my poor clients who don’t have access by going to the other side. I told him very politely,

“Sir, to give justice, there needs to be good people on both sides, so I would prefer to remain a lawyer. Thank you.”

Chhattisgarh High Court
Chhattisgarh High Court

As someone who had an opportunity to work in the US, how did you resist that temptation?

I thought that I would be much more comfortable (to be in India). I felt Indian, I wanted to stay in India, work in India, so what is the point of having it? (US citizenship) I just gave it up!
Sudha Bharadwaj

I got the citizenship by fluke, I simply was born there. And I came back at the age of one year and again my mother took me with her to Cambridge, England till the age of 11.

I had a choice to make at the age of 21. At that time, this dual citizenship concept was also there, but at the age of 21, one would take a decision generally. By that time, I had already got quite involved with workers’ issues and I remember at that time, we were supposed to go and register with the foreign registration office and tell them where we are going and what you we doing, and if we are going to be out. Somehow I felt that I am trying to do something for my own people in my own country, and to be informing this foreign embassy of what I am doing all the time appeared ridiculous (to me)!

And somehow I had already made up my mind, that I would, more or less, be devoting my life to social work. So I thought it would be more of a hindrance. I never thought of it seriously as an option. So it was not a sacrifice really. I thought that I would be much more comfortable (to be in India). I felt Indian, I wanted to stay in India, work in India, so what is the point of having it? (US citizenship) I just gave it up!

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