I think that it's unfair to target a lawyer for appearing for a particular client", said Justice (Retd.) Madan B. Lokur, former Judge of the Supreme Court of India at a virtual session hosted by Delhi High Court Women Lawyers Forum and Women in Criminal Law Association.
"If a lawyer is dealing with hundreds of COFEPOSA cases, you can't say that he is also a smuggler. I don't think the Judge should ever get involved in the relationship between a lawyer and a client", the judge commented.
Held on Friday, the 20th of November, the webinar provided a platform for Justice Lokur to interact with Advocates Warisha Farasat, Tara Narula, Shalini Gera and Sowjhanya Shankaran and deliberate upon the topic of "Defending Liberties".
The Writ of Habeas Corpus
The session commenced with Narula underlining the importance of the writ of Habeas Corpus and invited Justice Lokur to shed a light upon the same.
"In my view, the writ of habeas corpus should be used liberally by the Courts. Matters of preventive detention under MISA, COFEPOSA and, now NSA and others, involve putting someone in detention without any trial for years", stated Justice Lokur.
He then informed the participants that the Supreme Court has been, historically, very liberal in allowing this writ.
"If you go through the judgments, there are very few cases where they have not been entertained. In fact, Supreme Court has also said that another habeas writ can be filed if one is dismissed. They have also said that a petition does not need to be filed and even a postcard can be sent. The interpretation has been liberal. There are different ways to go about it and I would give it the widest possible interpretation".
Advocate Warisha Farasat was then asked to weigh in with her extensive experience on habeas corpus petitions. Making two quick points, Farasat succinctly informed the audience that the writ was time-sensitive and it was the duty of the Courts to take it seriously as most of the people who approached them did not have an alternative remedy.
She further emphasized on the need to put the State to notice.
"Another thing is that the State must be put to notice. This is something which might be lacking as it is contrary to the guidelines put down by the Supreme Court itself. Tough questions must be put to the State", noted Farasat.
Advocate Shalini Gera then pointed out that need for a functional judicial system, and for people's faith to be reposed in it, for the effectiveness of Habeas Corpus.
She recounted her experience while deal with a matter pertaining to the detention of Sukma-based tribal activist Podium Panda, who had refuted being tortured by the police when he was produced before the Court, only to confide in his wife later on that he had lied about the same as he had no faith in the Court itself.
How Should Lawyers Strategise For Cases Pertaining to Preventive Detention
Advocate Sowjhanya Shankaran, referring to the Delhi Riots and how many of her clients had been charged under Unlawful Activities (Prevention) Act, stated that securing liberty was extremely important. In this context, she asked Gera and Farasat on ways to strategise in cases dealing with such stringent process.
Gera observed, "It's the process that kills you. It gets to you. Even with acquittals, it's not that we managed to get people out in a short amount of time. Every case depends on the pressing need at that point. UAPA is a very political case, always. All I can say is that, you have to learn the Court and sometimes, you have to give up on something".
To this, Farasat added that many a times, State had the tendency to file voluminous charge sheets that would run into 10,000 pages, but had no substance.
"As lawyers, we must not get intimidated. A lot of it is electronic evidence. We must look at them carefully, even if they have no meaning. You have to go behind all these pages and figure out what is prosecutable. Another learning is to stay the course and be patient. UAPA matters take years. But, like any other matter, you have to stay the course", opined Farasat.
The session also witnessed a conversation on how lawyers should counter leaking of evidence by the Prosecution in sensitive cases. Narula wondered whether one should fight fire with fire, however, the same was frowned upon.
On this matter, Justice Lokur stated that fire should be fought with water.
"You should fight fire with water. You should tell the Court about the statements. The Court is responsible for it. Not you, or the media. Where do these WhatsApp messages and disclosure statements come from? It is the Prosecution. But, it is up to the Court to bring them in line. If they don't do anything, then you should fight fire with fire."
Farasat, agreeing with Justice Lokur, added that the advice was wise, especially when it came to sub judice matters.
"The investigative agency will keep leaking stuff, especially in terror trials. I have seen this in my own cases, where the information is broadcast on media before it comes to my notice. I am quite wary of the media. Whatever you have to say, it's better to say it in Court first. There are times when the media hounds you for information, and if you don't give it, they give out wrong information", mused Farasat.
Label of "Activist-Lawyers"
Shankaran then brought up the issue of how some lawyers who take up a certain kind of cases were labelled as "activist-lawyers".
She asked, "Of course, the Opposing Counsel makes these comments. But, lately, the Courts have also been making such statements and imputing motives. These deter young lawyers, especially women. How do you toe the line in being both an activist and a lawyer?".
Farasat initiated the conversation by noting that the trend was on the rise and was worrying. However, she stated that it was upon the Bar to step up, especially the Senior members of the Bar, as the solidarity would go a long way.
Justice Lokur then joined the conversation by stating, "Ideology is important, but it should not come in the way of your professional assignment. Because that means that if you come across a person who differs, you won't defend him. I think ideology and your profession should be kept apart. There might be some instances, where you might find that it's better to sacrifice a particular point for the sake of ideology, but that's a rare occasion."
On the aspect of Judges criticizing lawyers, Justice Lokur disapproved of the practice and called it unfair.
"I think that it's unfair to target a lawyer for appearing for a particular client. Very, very unfair. If a lawyer is dealing with hundreds of COFEPOSA cases, you can't say that he is also a smuggler. I don't think the Judge should ever get involved in the relationship between a lawyer and a client", said Justice Lokur. He also underlined the importance of solidarity amongst the Bar.
Gera then observed that there "was a quantum shift in the way the State was dealing with dissidents" and, how "Jihadi lawyers" and "Naxalite lawyers" was becoming streamlined.
Recalling a recent webinar on "Urban Naxals", she stated that human rights lawyers were being viewed as a nuisance, even as combatants – "The very concept of providing legal defence to somebody that the State does not like has become an act of terror".
"Discouraging" Article 32 And Personal Liberty
Referring to the recent comment made by Chief Justice of India SA Bobde, while hearing cases pertaining to personal liberty, that Article 32 petitions were being discouraged, Justice Lokur was asked about the same.
"I don't know why they would say that, but I would imagine that it's because there has been an overload of cases under this Article. I'm guessing it could perhaps mean that the matter would need local understanding. Maybe this is what the CJI had in mind. But, of course, this does not apply to personal liberty cases".
Responding to a question on why the Courts have been "bitter" while dealing with cases such as those of Varavara Rao, Stan Swamy and other human rights defenders, Gera stated – "When there is an anti-terror legislation, the Bar gets so much higher to get any relief. If there is a serious charge against you, the Court has the tendency to give weight to the police. We have seen this repeatedly".
Farasat also observed that over the last 4-5 years, UAPA being added to general FIRs for dissenters and people the government finds "inconvenient".
"UAPA has been added because there is a bar to bail under Section 43D(5), which is why people are being targeted with it. In such situations, there is malafide right from the beginning itself. The situation has become too brazen for anyone's comfort and the Courts must be alive to it", said Farasat.