• Lawyering in a period of judicial collapse

    Amritanandan Chakravorthy

    January 9, 2020

    It is often said that lawyers’ language and doctors’ handwriting are hard to understand. The legalese of lawyers, bogged down by legal jargon, often sounds alien and too technical for common people. And for long, the Constitution of India remained the holy book and sacrament mostly for lawyers and judges to argue about, interpret and to uphold. Besides the period of Emergency (1975-1977), when the country in unison had risen in revolt against the suspension of fundamental rights, and in effect, the Constitution, Indians after independence had, by and large, taken the constitutional values for granted, and had not deeply engaged with the same.

    In this regard, what India has been witnessing over the last one month through mass-scale protests against the Citizenship Amendment Act, 2019 (CAA) and the proposed National Register of Citizens (NRC) in most parts of the country, is nothing less than a ‘constitutional revolution’ or a ‘second satyagraha’ –– led, chiefly, by the Muslim community, women from all strata of society, and of course, the students. Mass reading of the Preamble of the Constitution in these spontaneous protests, and the distribution of the Preamble as leaflets, is a lawyer’s dream, and a dictator’s nightmare. The image of 40 lawyers reading out the Preamble at the lawns of the Supreme Court was, though deeply reassuring, a devastating reflection on the state of the country we are in, so much so that the Judiciary has to be reminded of the words of our Constitution-makers and India’s foundational ideals.

    At the same time, if one pauses and starts to think why at all the protests are happening on the streets and at such a large scale. One is led to understand how one by one all the institutional checks and balances that were set up vide the Constitutional mechanism –– especially the Judiciary that is supposed to be the counter-majoritarian institution in a constitutional democracy –– have miserably failed. People of India are left with no option, but to take to the streets, taking along with them the values enshrined in the Constitution.

    For a practising lawyer, it’s heartbreaking to admit that the biggest disappointment in the last six years has been the collapse of the Judiciary, especially the Supreme Court of India, which has sunk in the quicksand of the executive overreach of the BJP government, with its brute majority in Parliament. Presently, public trust in the administration of justice is at its lowest point, and it is the Supreme Court that is to be blamed for this current trust deficit.

    On January 5, 2020, a mob of 30-40 masked goons, allegedly members of Akhil Bharatiya Vidyarthi Parishad (ABVP), the student wing of BJP, went on a rampage in the campus of Jawaharlal Nehru University (JNU) and severely beat up students and teachers, wounding them gravely. Among the horribly injured was JNU Student Union President, Aishee Ghosh, a 23-year-old woman who was hit with an iron rod on her head and hand, leading to 16 stitches on her head. While the murderous assault on the unarmed and peacefully protesting JNU students was going on, Delhi Police not only looked away but even enabled the goons to destroy student hostels and damage university property, subsequently letting the marauding miscreants out by switching off the street lights outside JNU gates.

    In any other situation, lawyers would have approached either the Delhi High Court, or the Supreme Court, or the courts would have taken suo moto cognisance of the absolute mob brutality and police inaction, and made the State accountable for its omission and/or commission. But these are not ‘normal’ times, and students and activists have less expectation from the courts than even from the police. Precisely why, university teachers overseeing the students’ well-being as well as lawyers advising them decided to not knock on the doors of the Supreme Court, even though the bloody attack on JNU, easily one of the country’s best public universities, happened in the heart of the national capital, under the nose of Delhi Police, which answers directly to the Union Ministry of Home Affairs.

    The highest Constitutional Court in India, meanwhile, has set up a bench of nine judges to deliberate on all temple entry cases, at a time when the country is being ripped apart by anti-democratic forces and countered by democratic protests. How can the apex court that chooses to ignore the tyranny of the State agencies, that becomes the handmaiden of enabling and rubberstamping the boundless executive overreach, can even call itself a Constitutional Court?

    In this context, how does a lawyer –– who’s invested in the democratic and secular nature of the Indian polity –– work, when the courts have become complicit, and the Constitution is under attack? What is the role of a lawyer when the fight to preserve the Constitution has shifted from the Courts to the streets?

    In a way, it is not a difficult transition, since lawyers have played prominent roles in the social movements for long, whether in labour unions, women’s groups, minority rights, or LGBTQ issues. At the same time, lawyers are often heavily criticised for overly ‘lawyering’ movements, by agitating complex socio-economic issues in the Courts and stripping them of their radical content and edge. It is not a friction-less collaboration.

    Nevertheless, the lawyers have long known that law is to aid social movements, and not to substitute them, and if the affected community wants to pursue a non-legal strategy, then the legal ‘itch’ has to be curbed. Lawyers then ought to focus on the micro strategies of keeping people out of jail or detention, applying for bail of arrested persons, or to facilitate medical attention for injured protestors. In fact, the anti-CAA/NRC protests have shown the importance of having lawyers on the streets with the protestors, when the police become violent or illegal detention or arbitrary arrests happen. The days of rushing to court are over since the Courts are in no rush to protect the citizens.

    The near-collapse of the constitutional courts in India has been so quick that the lawyers and jurists have been completely taken by surprise, and it seems that one does not know how to function in a different way. But we have to now learn new ways to engage with the court system, not dissimilar to how one engages with the police in a fascist regime, knowing fully well that police is one of the main institutions of oppression. The idea is to merely record the dissent, despite there being little to no justice in sight. Similarly, each incident of violence and brutality ought to be recorded, complaint filed, and courts approached, from the trial court onwards, to shame them into working, and upholding the constitutional rights.

    In fact, the month-long protests in India have shown that the Constitution is no longer an abstract legal book for most citizens, but has become of their very own ‘holy’ books like the Quran or the Bible or the Bhagwad Gita, which ought to be read, understood, preserved and celebrated. After 70 years of India becoming a Republic, and drafting the Constitution, the Constitution of India has finally become a ‘People’s Constitution’.

    First published in The Leaflet.

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