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Accessing justice in times of terror

By Mayur Suresh

Knowing the law is different from experiencing it. Experience tells you that sometimes the problem is not that people have no access to justice, but that ‘justice’ has too much access to them. These people include tribals accused of waging war against the state, Muslims accused of sedition, and slum-dwellers who have encroached on public lands

I

In a milieu of fear and uncertainty, on what terms does one speak of justice? Does one look to the law’s protection? Or does one flee, bearing a well-founded fear of justice? If the ‘justice system’ is not merely an arbiter of legal meaning and the referee of social conflicts, but rather deeply implicated in engendering these conflicts, what does this mean for our access to justice?

‘Access to justice is recognised as being essential to human development, for ensuring democratic governance, in reducing poverty and for the purpose of conflict prevention,’ (1) proclaims a government publication. Sometimes, the problem is not that people have no access to justice, but that ‘justice’ has too much access to them. Tribals accused of waging war against the state, Muslims accused of sedition, slum-dwellers who have encroached on public lands. The courts, police and their processes often are very much part of the conflict. Occasionally, the problem isn’t so much about access to justice as it is about your ability to run away from it.

Driving in Delhi one afternoon, I read on the back of an autorickshaw: ‘Jis desh mein log sansad aur nyayalay se darte hain, waise desh mein azadi ya ghulami mein kya farak?’ (In a country where people are scared of parliament and the courts, what is the difference between freedom and slavery?) Perhaps it is a commentary on the present moment, or maybe it speaks from memory, one really can’t be sure. But the received wisdom from the back of an autorickshaw tells us that sometimes you cannot tell the difference between freedom and slavery, between law and its violence. Indeed, the expressions, ‘the law in force’ or the ‘law is enforced’ recognise at some level that the application of force lies at the centre of the judicial process (2).

I first met Akram, or Akrambhai as I came to call him, in May 2008, on my first day at the Delhi High Court. I had come to Delhi from Bangalore to help a lawyer friend who had just been engaged to challenge the government-imposed ban on an Islamic organisation. The central government had notified the fourth consecutive ban on this organisation under the Unlawful Activities (Prevention) Act, 1967. The proceedings against the organisation were conducted by a special tribunal comprising a single judge of the Delhi High Court, and took place in the high court complex. During the day’s confusion, I was separated from my lawyer friend and walked into the complex with Akrambhai. As we passed through security at Gate No 5, a security guard asked me to deposit my cellphone with the reception. Akrambhai immediately shouted: “Can’t you see he is a lawyer? He can take his cellphone in.” As he shepherded me through security towards the court building, he explained that there were two entrances into the court building, one for lawyers and one for the general public. I was to go through the lawyers’ entry and meet him inside. Once inside, he rapidly shot out directions, telling me to go to the annexe building, first floor, courtroom 35. I nodded blankly. I arrived at the courtroom half-an-hour into the proceedings, lost in the seemingly labyrinthine corridors, and sat down next to Akram in the rows of chairs at the back of the courtroom. These chairs, wooden and without cushions, were meant for the general public, and apparently unworthy of lawyers. He teased me: “Go to the front! Sit with the lawyers! You’re supposed to be a lawyer!”

There are many words and phrases that are used to describe the judicial process based on the rule of law. ‘Clarity of rules’ comes to mind, as do ‘transparency’, ‘natural justice’ and ‘due process’. One rarely associates the words ‘confusion’, ‘panic’, ‘frustration’ or ‘boredom’ with courts of law. Yet an experience of the courts can most often be described in these very words. Goodrich writes: ‘Assuming that the process of justice, of receiving a hearing, is best understood in terms of that point at which law is created and applied to members of the public (that is, at the point at which it becomes law for them) then the image of legal rationality as a phenomenon of texts and rules has only the most indirect relevances. The day in court is likely to be experienced in terms of confusion, ambiguity, incomprehension, panic and frustration…’

II

Akram was born in India. When he was in high school, he and his parents migrated to the United States where they were naturalised as citizens and settled down in the suburbs of a big city. Akramnever fit in. “They were afraid of my long beard,” he says half jokingly. He returned to study in a madrassa in Azamgarh, Uttar Pradesh, where he met Umer, who would become president of the Islamic organisation at the time it was first banned in 2001. Akram joined the organisation in 1985. He rose to become the secretary of one of the organisation’s state units and continued till his mandatory retirement at the age of 30. He set up a printing unit in Gujarat where he printed pamphlets, visiting cards and wedding invitations. It was burnt down in the anti-Muslim riots in Gujarat in 2002, after which he moved to Delhi.

Over the years, I came to appreciate Akrambhai’s dark sense of humour. He once asked me, almost as if asking me a riddle: “Do you know why Muslims have so many children? The police take away two children as terrorists, two they kill in an encounter; they leave one child to take care of us in our old age.”

On a rainy September morning of 2011, I headed to the Delhi High Court to watch the proceedings of an appeal filed by Akram and his brother-in-law Javed, against their conviction by a special court constituted under the Prevention of Terrorism Act (POTA). Their crime? According to the police chargesheet, a ‘secret informer’ told the Delhi police’s anti-terrorism wing, the Special Cell, that Akram and his brother-in-law, who were members of the now-banned organisation, were putting up anti-national posters in a predominantly Muslim area in south Delhi at a busy intersection, in broad daylight. The posters which were described in the chargesheet had an “anti-national” slogan -- ‘Destroy Nationalism. Establish Khilafat’ -- in big letters, with a picture of a closed fist crushing the flags of Russia, the USA and India. At the bottom of the poster were several “Muslim youth raising hands”, below which was the name of their organisation. The special POTA court convicted them under Section 124A of the Indian Penal Code (sedition), and Section 20 of the Prevention of Terrorism Act (membership of a terrorist organisation). They were sentenced to seven years for sedition, and five years for membership of a banned organisation.

As if prosecuting someone for terrorist offences for putting up posters wasn’t bad enough, the trial itself was a bit suspect. The only witnesses were police witnesses. There were no independent witnesses to corroborate the police’s story, when the prosecution itself argued that the two were putting up the posters at a busy intersection during the day. “The police have no reason to lie,” the court proclaimed. Akram once hinted that his lawyer deliberately messed up his defence to cut a better deal with the cops in another case.

The evening before arguments on his appeal were set to commence before the high court, I spoke to Akrambhai and we fixed to meet at the courtroom. On my way to the high court, I received calls about a bomb blast at the court. I shrugged off the news, as only the previous week similar news of a car bomb at the court had turned out to be a car that had caught fire. But as I approached the high court I began to hear sirens and saw police cars race towards the court. The police had cordoned off an area around the visitors’ entrance to the court complex. From beyond the yellow tape and over the heads of the crowd that had gathered I could see the mangled roof of the visitors’ reception at Gate No 5, where Akrambhaiand I had entered the court complex three years before.

I tried Akram’s cellphone number and received a ‘switched off’ message. I called him again and again only to be met with the same reply. I wasn’t sure what I feared more: that he had been injured, or worse, killed, in the bomb blast or that he would be accused of planting the bomb, arrested and would disappear into the bowels of the state. As Akrambhai himself once told me: “Once you are accused of a terrorist crime there is nothing you cannot do: from making stones cry to being in two places at once. They can accuse you of anything, and it will be true.” I telephoned our common friend and asked him if he had heard from Akram. He too had not heard from him and was trying to get through to his cellphone. We sent texts and repeatedly called him. Finally, two hours after the blast, I received a call from Akram. “I am all right,” he said. “I am at my lawyer’s office.” “Were you at the blast site,” I asked him, and immediately bit my tongue. I knew Akrambhai did not like talking over the phone as he suspected that his phone was being tapped. After a long pause he repeated: “I am at my lawyer’s office. I am all right.” “Please let me know if anything happens,” I said, anticipating a midnight arrest, blindfolds and torture -- stories of others who had been accused of terror crimes. “Insh’allah, everything will be all right,” he replied and ended the call.

How does one imagine the law, the state, the justice system when it can enter and recede from everyday life with no predictable pattern? When one can be killed in an ‘encounter’, or blindfolded and kidnapped at any moment, one has a more complicated relationship with the rule of law than merely seeking it out in search of justice. The experience of the law involves the ability to ‘stand in an atmosphere whipping back between clarity and opacity, seeing both ways at once’. We have to look at the law differently. In order to have a perspective on the law’s violence, we need to cultivate the ability to move rapidly between the optics of blur and focus (3).

Perhaps the ability to attend to the confusion, panic and frustration of law involves a different way of looking at our justice system. Rather than expecting clarity in the law and its processes, we should expect something else. Reading the law does not involve looking at the text directly. Rather, it involves looking through the text, with the letters slightly blurred.

III

The police come in various avatars. In one incarnation they illegally detain, torture and even kill people. The police abuse human rights with impunity -- they stage-manage ‘encounters’, foist false cases and crack down on democratic protests. In another form, we invoke them as protectors, call upon them to protect the weak and underprivileged, and demand that they prosecute offenders. In either case, one can’t imagine the law without its enforcers, its muscle -- the police.

There is a strange and complicated relationship between the police and the terrorists. And no, I’m not simply making the point that the state can also unleash terror. Anthropologist Michael Taussig argues that to understand the ‘law of the police’ one must acknowledge two things: firstly, that the police stand outside the law, and secondly that the power of the police is bound to be corrupt as it combines might with right. ‘Thus, no matter how much moral imperative dictates weeding out corruption among the police, intelligence decrees that one approach this with a certain pessimism, understanding the task as endless, if not forlorn in its necessity.’ (4) The question is not so much what differentiates the police from the criminal, but rather the moments at which they unite. Both police and criminal stand outside the law; at times it’s difficult to tell one from the other. And at times, strange relationships emerge between them.

I was sitting in a trial court one day between Shahid (name changed), a person accused of killing a police officer during the course of an ‘encounter’, a police officer, Sub-Inspector Dharamveer (name changed) who had taken part in that encounter, and a witness against Shahid. We were all waiting for the proceedings to begin.

Shahid (to Dharamveer): I heard about your son. I was very sad to hear that he died.

Me: What? Your son died?

Dharamveer: He had cancer. We came to know eight months ago, and then he passed away one month ago.

Me: I’m so sorry.

Dharamveer (to Shahid): Who told you?

Shahid: Muzzamil and Rizwan.

Dharamveer: Achcha, yes. The two Bangladeshis… they are the best of friends. I had arrested them. When I caught the two of them and I was interrogating them, I told Muzzamil that out of the two of them, one of them had to die. You choose. Then Muzzamil told me to kill him since Rizwan was still young. Then I told Rizwan the same thing and Rizwan said, “kill me”. Look at their friendship! Another time, I caught two brothers and interrogated them. I told the younger brother that from the two of them, one of them had to die. He told me to kill him as his older brother had just got married. Then I asked the older brother the same question. Do you know what he told me? He told me: “I’ve just got married, so kill my younger brother”! What kind of world is this? Two brothers and two best friends. The friends say “kill me” and the brothers say “kill the other”!

After a brief lull in the conversation I turned to Shahid.

Me: So what do you do in jail?

Shahid: I’m studying law.

Me: Achcha, that’s great.

Shahid: I was anyway getting a practical training in law, so I thought I might as well study it properly (laughs).

Me: Is Humam (another terror-accused) also studying law?

Shahid: No. He’s studying BTS.

Me: BTS?

Shahid: Yes, Bachelor of Tourism Studies. He was saying that for 10 years we can’t go anywhere, so we might as well see the world after we are acquitted and come out of jail (laughs).

Dharamveer: Haan, in these sorts of cases your entire youth gets wasted. Are you the only accused in this case? Do you have any other cases against you?

Shahid: Haan. I am alone in this case. I was accused in another bomb blast in ******** but they have not filed a chargesheet as yet.

Dharamveer: What about Humam?
Shahid: He’s only in that same bomb blast case.

Dharamveer: Achcha, anyways in this case there is no strong evidence against you. This case against you will probably be dismissed and you will be acquitted.

Shahid: I have full faith that I will be acquitted.

At this point the court master called the case. When asked to point out the person involved in the killing of the police officer, Sub-Inspector Dharamveer pointed straight at Shahid. Dharamveer then faced a cross-examination by Shahid’s lawyer, where his memory of the events was questioned, his presence at the scene of the ‘crime’ was doubted and he was accused of fabricating evidence against Shahid.

As Dharamveer left the court following his deposition, he stopped in front of Shahid. Shahid bent to touch Dharamveer’s feet. Dharamveer stopped him, held Shahid’s face and blessed him.

Legal knowledge comes in a variety of forms. I may brandish my law degree while others may claim an activist knowledge of the law. Police officers know how to tweak investigations so that evidence is, or at least appears to be, legally obtained. Some lawyers post signs outside their stalls in court complexes: ‘Court marriage, affidavit, stamp paper typing, anti-ragging undertaking can be done here’.

All the terror-accused in Delhi are kept in Jail No 3, Tihar Jail. In the jail, legal knowledge is a shared asset and becomes self-organised; an organic effort. The older convicts and undertrials pass down legal knowledge -- which judges convict, which acquit, how to write petitions, which lawyers are good, and which ones will get you convicted.

An accused in 14 terror cases, Ali spent half of his 36 years in jail, eight of those in Tihar. He was acquitted in all but one, and his lawyer is confident that the one conviction will be overturned on appeal. He tells me: “When I went into jail there was no Internet or mobile phones. All of this is a new magic to me. I feel lost in this new world.” But he did seem at ease while taking me through his case documents. Delving into a bulky file, he pulled out a copy of a letter that he had written to the high court asking that his case be assigned to a fast-track court, as in the six years since its institution no proceedings had been held. He then showed me the high court’s order which, in treating the letter as a writ petition, directed that the sessions court hold day-to-day hearings of the case to dispose of it within six months. “Did you get this done through legal aid,” I asked. He laughed in response. “Then how did you know how to do this?” His reply: “Because one day I was telling chacha (an older inmate of Jail No 3) about one of my cases that had not even begun. He said I should write a letter to the high court, and told me it had been done before. He gave me a copy of someone else’s letter asking for a speedy trial, and he said: ‘Here. Take this. Copy this, add your details and bring it back to me. I’ll correct it for you.’ I wrote it out and took it back to him. He took out a pen and made corrections. I then made a fair copy of the letter and sent it to the high court. After this happened in my case, news spread and everyone started asking me for copies of my letter. So I made copies of it and gave it to whoever wanted it.” Later, he added: “I really wasn’t sure if it would work or not. I was just shooting in the dark.” Who says that a ‘traditional’ legal practice is any different?

There has been a tendency to frame issues of access to justice via the tropes of literacy and awareness, where the needs of the people are defined in pedagogic terms. We hold ‘rights awareness workshops’ with vulnerable communities, teaching them about their rights under the law. In the context of criminal law, we often tell people about the Supreme Court judgment of D K Basu. It says that complainants are entitled to a copy of the FIR that the police are legally bound to register. If arrested, we are entitled to know the reason for our arrest, and that the name and badge number of the police officer arresting us must be clearly visible. We are also told that, once arrested, we must be produced before a magistrate within 24 hours.

Access to justice initiatives do not, perhaps cannot, tell us that the police can never be policed. And they cannot tell us how we are to live, once we are arrested. It cannot tell us how to forge friendships or how to nurture communities while incarcerated in jail. Nor can it tell us of the relationship between these communities and the way we inhabit courtrooms and other legal places. Accessing justice sometimes involves delving into the shared and quotidian knowledge that marks the communities we inhabit, legal awareness not from the top down but from a visceral experience of the law.

(Mayur Suresh is a doctoral candidate at the School of Law, Birkbeck, University of London)

Endnotes

1 Government of India and United Nations Development Programme. ‘Access to Justice for Marginalised Communities’. May 2012
2 Costas Douzinas and Ronnie Warrington. ‘A Well Founded Fear of Justice: Law and Ethics in Post-Modernity’.  Law and Critique Vol II No 2 (1991)
3 Michael Taussig. ‘Terror as Usual: Walter Benjamin’s Theory of History as a State of Siege’ in Social Text No 23 (Autumn-Winter, 1989)
4 Michael Taussig. ‘The Injustice of Policing: Prehistory and Rectitude’ in Justice and Injustice in Law and Legal Theory (Austin Sarat and Thomas Kearns eds, Ann Arbor: University of Michigan Press, 1998)

Infochange News & Features, March 2013