LAWYERING IN A PERIOD OF JUDICIAL COLLAPSE
By Amritananda Chakravorty
It is often said that lawyers’ language and doctors’ handwriting are hard to understand. The legalese of lawyers accompanied with legal jargon often sounds alien and too technical for common people, and for long, the Constitution of India remained the instrument mostly for lawyers, and judges to argue about, interpret and to uphold. Besides the time of emergency (1975-1977), when the country in unison had risen in revolt against the suspension of fundamental rights, and in effect, the Constitution, people in India after independence largely had taken the constitutional values for granted, and not deeply engaged with the same.
In this regard, what India is witnessing in 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 by the Muslim community, women from all strata of society, and of course the students. The mass reading of the Preamble of the Constitution in the 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 as to the state of the country we are in that the Judiciary has to be reminded of the words of our Constitution-makers.
At the same time, if one pauses and starts to think that why are the protests happening on the streets at such a large scale, then one understands that since all institutional checks and balances that were set up, vide the Constitutional mechanism, especially the Judiciary, which is supposed to be the counter-majoritarian institution in a constitutional democracy, have miserably failed, people are left with no option, but to take to the streets. The biggest disappointment in the last 6 years has been the collapse of the judiciary, especially the Supreme Court of India, like a quick sand in the wake of BJP government’s brute majority in Parliament. Presently, public’s 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 5th January, 2020, a mob of 30-40 alleged Akhil Bharatiya Vidyarthi Parishad (‘ABVP’), student wing of BJP, went on a rampage in the campus of Jawaharlal Nehru University (‘JNU’) and severely beat up students and teachers, including the JNU Student Union President, Aishee Ghosh, a 23 year old woman who was hit with an iron rod on her head, while Delhi Police looked away, even enabled the goons to destroy students hostels, and property, and then let them out by switching off the street lights. In any other situation, the lawyers would have approached either the Delhi High Court, or the Supreme Court, or the courts would have taken suo moto cognisance of the complete mob brutality and police inaction, and made the State accountable for its omission or commission. But these are not ‘normal’ times, and students and activists have less expectation from the Courts than even from the police. Otherwise how can the highest Constitutional Court in India set up a bench of nine judges to deliberate on all temple entry cases, when the country has been ripped apart by these protests, and the horrific backlash by the State agencies? How can one even call itself a Constitutional Court?
In this context, how does a lawyer 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 becomes violent or illegal detention or arbitrary arrests happens. 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 are 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, similar 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 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 Quran or Bible or ‘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’. (IPA Service)