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Advocate Shafeeq Mahajir is a prominent human rights supporter and an expert trial lawyer. Well known for defending the accused in the Mecca Masjid blasts case, Mahajir has been in the profession for nearly 3 decades. In this interview with Bar & Bench, Mahajir talks about changes in the Bar, the inertness of the Indian judiciary towards human rights issues and various other problems plaguing the Bar and the Bench.
Bar & Bench: Why did you decide to join the legal profession?
Shafeeq Rehman Mahajir: I belong to a family of lawyers. My great grandfather and grandfather were lawyers. My uncle who brought me up from the age of 3 was also a lawyer. It was but natural that I would gravitate in that direction. As a kid, I remember being not very physically active. It so happened that I frequently ran into Perry Mason books. After I did my intermediate, I escaped to Bombay for some time and worked in a bank for about two and a half years. Then, I came back to Hyderabad and graduated in Economics, English Literature and Philosophy and subsequently proceeded to complete law from Osmania University. Thereafter, I went to London for my Masters. I returned [to India] in October 1985, and have been practising ever since.
B&B: What are the changes in the Bar that you have seen over the years?
Shafeeq Mahajir: Well, there are marked differences, both positive and negative. In so far as the negatives are concerned, there is a complete absence of humour in the court. Previously there used to be some humour. I remember two specific instances. One was when Justice Jeevan Reddy was on the Bench. One day an advocate, very indignantly complained, “m’Lord, when we went to the Collector, he was asking for money.” And his lordship said, “Well, why don’t you accommodate him?!”
Then there was another instance which again involved J. Jeevan Reddy. There was a large portly advocate, Vara Prasad. He used to argue in a leisurely fashion and while doing so, on one occasion, he put both his hands in his jacket pocket. J. Reddy from the Bench, “Mr. Vara Prasad, are you trying to take out cash?” and Vara Prasad “I didn’t know your lordships accepted cash!” and the whole court room burst out laughing. All this is missing. Today if you crack a joke, the judge looks at you blankly. Of course, there are a few notable exceptions.
The positives are that you find a better command over the language than you used to earlier. You find people wanting to take up law as a profession instead like in earlier times when people drifted into law as a last ditch alternative. So apart from the people who are second or third generation lawyers, you find first generation lawyers. They are very interested in making a mark for themselves, in doing well, in matching their wits against the best and are not willing to take ‘no’ for an answer.
Again one flip side is that there used to be a certain code of conduct, a certain degree of honour, a certain approach to conventions being followed. You would never meet a judge outside the court room, or visit a judge’s chamber, forget about meeting him socially or for that matter, “anti-socially!” That seems to have been diluted substantially. People are socialising. That enables them to rub shoulders with judges in an informal atmosphere which naturally later manifests itself in the manner in which judges sometimes deal with one type of advocate and another type of advocate. There is also this tendency of having advocates who are closely related to judges or recently retired judges practising in these court rooms. This brings the fair name of the Bar as well as the Bench under a cloud.
There is another aspect – a disguised form of forum shopping has crept into the system. On some occasions I have seen judges being spoken to roughly by advocates, almost inviting contempt so that the judge in disgust says, “Don’t post this man’s matter before me”. And this is how matters are then manoeuvred into more receptive waters. These are things which don’t augur very well for the justice delivery system.
We have judges who will be able to conduct themselves honourably and creditably even when pitted against the best in the field. Notwithstanding that, sometimes we do find situations where it appears as if the calibre of the persons on the Bench could have been better. I believe that the system in which you determine that every district in a State is represented in the concerned [High] Court or every State is represented in the Supreme Court is a flawed system. The only relevant criteria should be merit. Why is it that you need X number of Reddy judges or Y number of Kamma judges or Z number of Muslim judges? How does this matter? The only consideration should be the person’s capability to deliver justice, understand the issues, apply the law and reach the right conclusion.
B&B: You were also into teaching. Could you tell us about that?
Shafeeq Mahajir: I used to teach. I have lectured at 3 colleges primarily on the Law of Evidence. For the past few years, I have been going to the United States to give lectures. It started with MIT in Boston. Subsequently, I was called to give lectures in other places on human rights and the manner in which the judiciary performs under certain conditions of stress and so on.
B&B: Could you tell us about the state of legal pedagogy in India given the fact law colleges including the prestigious National Law Schools are facing a dearth of good teachers.
Shafeeq Mahajir: I think the only people who can effectively teach law are people who have been in the profession for a fair amount of time so that you see how applied law works in practice. Now if you look at a purely academic person, since exposure to applied law is absent, the teaching in that sense is also limited. A person who has been in the profession for a good amount of time would be able to bring a completely different perspective and the teaching would, therefore, be much more effective.
I think a proliferation of law colleges is not the answer. We have to accept that except in a few elite cases, we don’t have real intellectual capital. We don’t have research orientation at all. Our concept of research is to look at existing publications, cull out material from there and then present a rehash as a research paper.
I remember the teachers we had when I was a student here. They used to teach us from the prescribed text books. Subsequently, when I went to England, Noel Coulson was teaching Islamic law and he was teaching from the book prescribed, which he had himself written after having learnt Arabic and done research on the original works of Ibn Khaldoon. The law of International Institutions was being taught by Professor Rosalyn Higgins whose name would figure in all the ICJ judgments of that time. That was the calibre of our teachers [there]. It is not for nothing that teachers are a sought after commodity in the western world.
When we are talking about projecting India into the future as a world leader, we need that level of legal expertise. We need that legal expertise which is forged in the crucibles within the country.
B&B: You have worked on human rights issues and are well known for your activism in this field. How has the Indian judiciary responded to human rights issues?
Shafeeq Mahajir: We have inherited a system of jurisprudence from the British minus their ability to rise above their personal views or prejudices. We have inherited from the British the belief that the system or the administration or the government would be honest, fair, reasonable and proper; and we make presumptions in favour of governments and government agencies which are in many cases wholly unjustified. We find courts reluctant to award compensation in cases where human rights abuses have taken place.
Violation of rights like liberty, freedom from torture, freedom from self incrimination etc. are routine under conditions of custody and they qualify, very often, as custodial torture. In such cases, considering that the persons who are supposed to be the upholders and protectors of the law are the persons who are guilty, the courts should make it mandatory not only to award heavy compensation but ensure that the compensation is recovered from the personal assets of the guilty officials. Merely because you wear a uniform does not entitle you to do something that is illegal. What is illegal for a civilian is illegal for a uniformed person. There is a great deal of reluctance in the judiciary to effectively address these issues.
B&B: Do you find that same degree of reluctance even with the higher judiciary, the High Courts and the Supreme Court?
Shafeeq Mahajir: Yes. I will answer this with reference to one or two incidents. Of course, there are exceptions. We are talking of the general trend. For instance, Gujarat genocide; witnesses being jeered at in courtrooms and judges delivering acquittal after acquittal! The matter goes to the Supreme Court and re-trials are ordered in certain cases and in those re-trials, we are now seeing a series of convictions. Are all these cases coincidentally cases where the judiciary innocently, honestly and sincerely took an erroneous view? You can’t have a series of coincidences. This indicates that something had gone wrong.
Now the question that comes to mind is, “Could the Supreme Court not have gone one step further and instead of merely seeing that retrials were ordered, also asked the concerned judges how they came to pass a different type of order in the first place?” Unless that question is asked, the message that goes is that, “Even if you are deliberately wrong, you are immune”; and the message that does not go is, “If you step out of line, you shall be called to account.” What is the meaning of Section 219 of the Indian Penal Code which says that if during the course of a judicial proceeding, an order is passed either maliciously or corruptly, a 7 years prison term including of a rigorous type is the consequence? Who passes orders in a judicial proceeding?
The immunity of the judicial officer has to be balanced with the requirement that justice must be delivered and if there is a perceptible, visible sign of something else having been done, it must be thoroughly investigated in order to restore the public credibility of the institution.
Another instance that comes to my mind is one wherein 9 young men were convicted of an act of terror and sentenced to death by the Sessions court. The matter went to the Delhi High Court (HC) which acquitted them, expressing surprise at how the police could have made out a case on such flimsy evidence. Now the question is, if the police ought not to have made out a case on such flimsy evidence, could there have been the remotest justification for a judicial mind to have pronounced a death sentence? If you have considered it proper to ask how the police could have made out a case on such evidence, was there not an occasion for you to ask the concerned judge how he could have passed a sentence of death on that evidence?
It is my view that the judiciary is less responsive than it ought to be to the violation of human rights. While killing somebody in cold blood by the police can be easily perceived as violation of human rights, subtle violations of human rights go unrecognised. Take for example, this allegation that Muslims are not being given accommodation in certain areas, in certain buildings and not being allowed to buy properties in certain places. This is a violation of human rights. Women being discriminated against in terms of education etc. is a violation of human rights.
All these are issues with respect to which the judiciary ought to be more responsive and the only manner in which it can demonstrate that it is responsible is by passing orders of that type and making sure in passing its orders that its orders are what I like to say “self executing”. Meaning, the judge passes an order that your retirement benefits not being given to you for 17 years is a violation of your human rights and directs that it be released to you within 15 days. It is not released. So you have to come to the court again in a contempt petition. Why should you be made to run around? Can the court not pass an order that the man shall be paid his dues within 15 days and on the 16th day a compliance report shall be filed. Then, this man doesn’t need to do anything. It will happen. And if it does not happen, it is the judge’s responsibility.
And it is always the weaker, oppressed and marginalised sections, the Dalits, who are at the receiving end. Other people are capable of having their issues resolved either by police strength or by paying money. The people who are unable to bring [their problems] to the court’s notice are the people who are most in need of justice. It is they who have a higher claim on the time and resources [of the court] than people like me and you who can pay their way through.
B&B: What do you think is the reason for the passiveness of the judiciary? Is it the political or executive pressure or is it that the Bench is not bold enough?
Shafeeq Mahajir: I think there are 4 to 5 reasons. One is, if you look at the judgments from the Partition to the 60’s, you will find that there is a great focus on what is proper under the law. Slowly from the 70’s and positively from the 80’s, you find a dilution because the system of having judges of type A and type B started. Consequently, judges who were literally like Colossus striding the corridors of judicial power were substituted by relatively ‘smaller’ people. Then, during the Emergency there were allegations of packing the Benches with compliant judges. This has now become a trend with many governments and you find in many cases that people owing allegiance to a certain political party are accommodated on Benches.
It is but natural that if these appointments are made on considerations other than merit, you cannot really expect people to continue to recognise and pay homage to time honoured, elevated principles of law.
Secondly, very often judges are persons elevated from the Bar. And the Bar also has been susceptible to falling standards. So, if members of a Bar that is plagued by falling standards are elevated to the judiciary, it is natural that they are not going to suddenly change colour and acquire some kind of halo after they sit on the Bench.
Today you find that the government wants to sit in on judicial appointments. How is it entitled to? I have spoken to Supreme Court judges and they say that between the Judiciary and Parliament, Parliament is supreme.
But the person who is going to decide whether the Parliament has done something right or wrong cannot be an appointee of the Parliament. That is dangerous. Also, the politician has to go back to the people to seek a renewal of his mandate, the judicial officer does not. He is appointed effectively for life until he retires.
Of course, the judiciary must learn not to overstep. For example, look at the manner in which the judiciary allowed (an application seeking) closed circuit television cameras for relaying parliamentary proceedings to be approved. If Parliament were to pass a law that there shall be cameras installed in the courts and large screens shall be kept outside on the streets, (for more citizen awareness) will the judges take it?
B&B: You were also involved in law making? How was that experience?
Shafeeq Mahajir: It was a very pleasant and learning experience. I was associated with the initial stages of the Communal Violence Bill and had the occasion to participate in the Steering Committee deliberations. I was also associated with the Equal Opportunities Commission Bill for which I was called to advise the expert group that was advising the Ministry.
Participation in law making enables you to consider what I call legal engineering. It is only a person who has been exposed to law in practice who can consider how provisions will work in applied law situations and come up with suggestions on why a specific provision needs modification.
B&B: Recently the Khap Panchayats suggested modifications to Hindu marriage laws for North India? In that context, what is your take on the Uniform Civil Code?
Shafeeq Mahajir: The Constitution recognises personal law differences. Nobody can impose their moral or other code on you because the law of the land is the law of the land.
Either you argue for the right of self determination of people or you argue for oppression and draconian measures to eliminate pluralism and say we shall have a monochromatic society. As long as you are arguing for freedom, you can’t argue for freedom in a certain manner and restrict something else.
You have to recognise the value of pluralism, variety and dissension and nurture that, because it is that alone which ensures a thriving, intellectually active, evolving community. And as far as the Uniform Civil Code is concerned, there is one Civil Procedure Code which regulates procedure. As far as substantive law is concerned, there is no requirement that my substantive law and your substantive law should be the same. In one judgment, the Supreme Court said that they would prefer a Uniform Civil Code. Then they said loyalty to different laws brings about disharmony. Loyalty to what laws?
You don’t have loyalty to laws. You have loyalty to the country and your Constitution. The law places different people differently. Reasonable classification is an accepted form of positive discrimination. It classifies people differently, and is based on their different needs, their different perception, their different desires to regulate themselves.
These differences don’t make for disharmony in society. Disharmony in society is caused when one section does not want to let another section practise its own laws within itself. That is a demonstration of intolerance. Let somebody craft a Common Civil Code and show us what provisions we are to have, so that we can hold a referendum, a plebiscite and ask the people what they think.
B&B: You were the lawyer appearing in the Mecca Masjid blasts case in Hyderabad. Could you share that experience?
Shafeeq Mahajir: I appeared for Asaduddin Owaisi, the concerned area MP, who asked me to work as a representative and mouthpiece for the Muslim community. The evidence that we managed to collect was horrifying. It showed the police fabricating evidence, firing into a closed space using high velocity rifles and making false statements. The police version was that there was a mob of 5000 people which was trying to set a petrol bunk on fire and kill the policemen on duty and, therefore, the policemen fired in self defence and 5 people fell on the spot.
Not a single body was found on the spot. The nearest body was 198 feet away. The person who filed the FIR, one Sudhakar, was the person who fired first. Sudhakar’s testimony was that the crowd became uncontrollable and in spite of firing, they could not bring it under control. And therefore, they hid in a lane leading to the toilet of the petrol bunk and radioed for help. Help arrived half an hour later in the form of one Ramachandra Reddy, another inspector. Now can a mob of 5000 people – without any police presence – fail to burn a pump for half an hour? It is not possible. The police had gone into hiding. Help came half an hour later. And all this while the mob was there waiting? It doesn’t make sense. It is a false story!
Further, Sudhakar’s affidavit is a verbatim copy of Ramachandra Reddy’s including spelling mistakes and punctuation errors. Since Ramachandra Reddy arrived on the scene half an hour later, they both couldn’t have seen the same thing. Then the officer who was appointed to investigate their conduct filed his affidavit which was again a replica of these [the first two affidavits]. When I cross examined Sudhakar, I told him that the FIR which he has filed does not correspond with the facts. He said, “Yes..when I went to the police station, there was a senior officer sitting there and he told me, aisa aisa likhega toh acha rahega, toh main vaisa vaisa likha (if you prepare the report in this manner, it will be better)”. Straight and simple!
In spite of such testimony, Justice Bhaskar Rao Commission’s report has not been made public, obviously, because it would be disastrous.
B&B: On the art of cross examination and its’ significance to a lawyer.
Shafeeq Mahajir: It is a forensic science and it needs skilful handling. It is like a scalpel which in the hands of an expert will cure and in the hands of a novice can do irreversible damage. You have to study a case – and I am talking to younger lawyers – you have to draw up your own set of questions. You must watch an expert in action in that same matter. And if what he does is different from what you would have done, then ask yourself why he did what he did. And start wondering if he had asked question A before question B would it have made a difference? Could he be pretending not to have understood [something] in order to draw out the witness somehow? Is he trying to provoke the witness?
Of course, at the end of the day all this very often goes for a toss. The witness may say “I don’t know”. He may answer differently than what you expected in which case a whole new line of cross examination would open up. You have to have a great deal of flexibility, a good understanding of human nature, and a good understanding of a number of subjects.
B&B: Why do you think people from the lower judiciary are not able to make it to the Supreme Court?
Shafeeq Mahajir: A person who joins as a Munsiff Magistrate will rarely rise to the Supreme Court unless he falls within the very restricted category of reserved seats. The reason obviously is that seniority is what counts.
[I think] seniority should not count at all. There may be a young person who has got a brilliant legal mind and he needs to sit at the Supreme Court right away. Why not? Merit should be the chief and the only criterion, nothing else. This issue of seniority etc. causes many people to become frustrated and their judicial work also suffers. They become disinterested also and are sometimes tempted to look in other directions.
B&B: Your opinion on the practise of designating advocates as Seniors?
Shafeeq Mahajir: I find it a disgraceful thing that I am supposed to apply to the court to consider me as senior. I consider it a matter of shame. If the judges feel that a certain person’s merit requires him to be given a certain status subject to him being willing to accept it, it is fine. Also Senior Advocates should not be given the kind of unnecessary respect that they are given. This face value tamasha has grown today. Many people say “aray yaar, before so and so, we should have so and so”. Why? If so, that is matter of shame and disgrace.
B&B: Any advice for young lawyers?
SRM: Work very hard. Remember that you owe a debt to society which has put you in a position where you have the audience and you have the ear of the courts. You have been given a status where people bring their difficulties to you in order to enable you to carry their problems to the judiciary.
Ensure that all the information needed to arrive at a judicious decision is placed at the disposal of the judge. Ensure that your conduct both vis a vis the profession as well as in your personal life is of such a high calibre that the glory that seems to have been eluding the professionals of this field for the last decade and a half or so is substituted with the position and the respect that they used to enjoy two-three decades in the past. Be completely honest and genuine in your representations. Take up the matters which genuinely deserve to have your skills applied and conduct yourself honourably so that each day you look at yourself in the mirror you feel a sense of pride.
B&B: What are your hobbies and interests apart from law?
Shafeeq Mahajir: I like reading. I like teaching although I don’t get much of an opportunity nowadays. I like analysing legislations and suggesting measures to enhance and improve its effectiveness. Unfortunately, legal practice takes up so much time that I get very little opportunity these days. At the end of the day, if you ask me what I would like to do, after another decade of legal practice, I would like to pay more attention to teaching and writing so that we pass on whatever we have learnt to coming generations and keep the torch burning.
Bar & Bench would like to thank Advocate Rohit Bharadwaj for his assistance in arranging this interview.