Prannv Dhawan speaks with Senior Advocate Colin Gonsalves, founder of Human Rights Law Network (HRLN) and Recipient of the Right Livelihood Prize.
LSPR: What do you think has been the course of changes in the development of Public Interest Litigation throughout the world, especially in developing countries?
Public Interest Litigation is a very revolutionary and dynamic tool which seeks to provide justice to people. Compared to Europe and the USA, PIL is more active and widely practiced in India.
It is interesting to notice that there is a shift of the centre of public interest litigation from America towards the developing nations. Columbia, a small country which still faces the ramifications of civil war, is doing some extraordinary work. Similarly, in Africa and low developed countries such as Nepal, interesting changes are taking place. It abolished marital rape 9 years ago. In fact, Pakistan has also brought about a huge change in suo moto public interest litigation. These are pithy but decisive judgements. These movements are primarily initiated by lawyers who even end up being jailed in the process. Women lawyers especially are quite an interesting lot of people who are more ardent towards seeking justice for people.
It may be a fact that public interest litigation started in America, but lately, there have not been many developments there. Earlier the US used to set precedents but times have certainly changed. It has been displaying a lag in the understanding of public interest law. Even today, the US does not accept the notion of collective rights, which has developed tremendously in the developing world. Economic rights of everyone are not seen as ‘justifiable’. So what is evident here is the outdated notion of separation of powers and undermining of individual rights.
LSPR: What according to you should be the role of judges in case of the disintegration of governance? What should be their priorities while taking decisions affecting the public at large?
When governance is declining, the primary duty of the judges in India is to uphold fundamental rights. When it comes to the enforcement of fundamental rights, they should not allow the state to tell the public that it has no funds. Enforcement of human rights is the first charge of the exchequer of the state. The argument put forth by the government that working for public welfare would lead to government budget distortion is inherently flawed.
LSPR: What do you think is the current state of public welfare in the country?
With a spurt in globalization, there has been a reduction in the role of the state in providing for necessaries to the public. The new trend puts forward a very succinct message that the state has no business in education and healthcare. This can be seen prevalent in the policies of all large developed and developing nations.
Today, the global financial institutions such as the World Bank, International Monetary Organization focus on the development of nations as a whole and are not supportive of welfare schemes such as subsidies. These institutions believe that subsidies pose a fiscal threat to the economy as in case of failure of crops, they may lead to a trickle-down effect. Since the orders of the World Bank is considered to be “word of God”, many nations have refrained from providing subsidies to the farmers.
The general belief in this era is that the answer to impending human problems is the development of industries, businesses which in turn will give people jobs and money for subsistence.
LSPR: What was your experience while working on the iconic 2001 Right to Food case? What difference do you think has the order made?
If you look into the background of the order, it was released at such a time when the public distribution system was on the verge of being lobbed out. Congress being in power didn’t have the courage to ask courts to withdraw the order because they were already about to close down the public distribution system. They were not in a position to restrain any order because of the constant political pressure.
This is not to say that the current BJP government is any better. There is practically no difference between the BJP and Congress governments. In fact, Prime Minister Modi has withdrawn public welfare schemes such as MNREGA, National maternity benefit scheme and quite a few. But the Right to food case had a huge impact on globalization which tends to ignore sorrows of the poor Indian population. Jean Dreze, Kavita Srivastava and all right to food activists are the unspoken heroes of the campaign. I was a happy beneficiary of all their instructions. I was a young lawyer and not any designated senior. Being my first year before the Supreme Court, odds were stacked against me. I remember standing before Justice Kirpal with my heart hammering, while he asked to make it a case for the whole country.
I have always believed that we cannot have an indirect system like Americans where their constitution does not allow direct Writ Petitions before the U.S. Supreme Court. The result of this case is said to be a victory for human dignity. The Court continuing mandamus of public interest litigation ordered the enforcement of a free midday meal for all schoolchildren and subsidised grain for over 400 million Indians living below the poverty line. It forced the government to spend millions on the Right to Food program without any opportunity to wash their hands off the responsibility. It was a great learning experience for me as I learned how to handle the work at the Supreme
Court and continue to serve the needs of mankind.
LSPR: As an expert in the area of human rights, do you think Human Rights Law is a promising area for young lawyers in the country?
I believe Human Rights Law is the mainstream field of law. A young lawyer with conviction and courage can change the course of history in the second or third year of practice.
I would like to use the Shatrughan Chauhan v Union of India case to talk about how it’s a myth that young lawyers cannot survive in human rights law. The Supreme Court was hearing this case in the matter of death sentence where about 19 people were sentenced to death. The President had sat over the mercy petitions for a decade. I fail to understand that why don’t we argue that sitting on mercy petitions itself stands for inhuman and degrading treatment. The convicts had received word that the gallows were being spruced up, and had been asked what they would like to eat for their final meal through which they realized their lives were coming to an end. I got a phone call at 4 a.m. in the morning and as soon as possible I began preparations for the case. In a couple of hours, I had put together a petition to stop the hanging. I had put in a request to see Chief Justice Sathasivam at his residence or in the court on that very day. I was lucky enough to meet him outside his house in the evening. Any other judge would have refused to budge because of the precedent set in Veerappan’s and Rajiv Gandhi assassination case. I am highly indebted to Justice Sathasivam who took pains and sat down to dictate the order which stopped the hanging of the convict, on the basis of the unjustifiable delay on part of the Executive while handling the mercy petitions. This judgement commuted the death sentence of 15 convicts who faced an inordinate delay in their mercy petitions. What is even more admirable is that Justice Sathasivam stayed until the staff called all the jail superintendents to make sure they received news of the order.
That interim order led to the historic Shatrughan Chauhan judgement. This is a remarkable example of how innovative judicial craftsmanship can lead to the upholding of constitutional values. This judgement was even relied on by the African courts. Nobody knows the back-stories of these cases because they are seldom told.
The world of law, judgements, courts, no matter how compromised judges may be, it is a terribly vibrant system. There is a dichotomy between how judges dismiss wonderful cases and so many want you to take cases to them. Lawyers are the conduits to a judge to enable her to use all the ethics and morality on her mind to change the country.
LSPR: What are your views on police or armed forces encounters which pose a threat to civilian lives at times? How far do you think these affect the lives of common masses and how has the legal system been dealing with these cases?
Police brutalities including all sorts of crimes are forgiven if tribals (read Naxalites) are killed during an encounter. Police officials often end up rounding tribal youth and killing them to bolster their record. The common argument which is used against them is that these men and women were terrorists and we fulfilled our jobs by protecting the country.
The Chhattisgarh government did not calculate that Justice Sudarshan Reddy, who were to decide in the matter of Nandini Sunder v State of Chhattisgarh, was from Andhra and used to be an active member of the PUCL. One day, he asked about the kind of training that was given to the ‘police’ who were present at the Salwa Judum camps. He asked upfront whether they had knowledge of the law, CPC, CrPc and the rest. He weighed all the evidence presented by the prosecuting counsel and once he found out the gross miscarriage of human rights he gave a stunning judgment in the present case. This
is one of the most hard-hitting judgments. These kinds of judgments insinuate that the real terrorists lie elsewhere that is the state and multinational corporations. It also brings into light that institutions such as the World Bank and IMF have a role to play in this.
Now, look at the AFSPA case in Manipur which caused a huge commotion in the country.
Approximately, 1528 people have been killed by the armed forces under the ambit of protection under the Act. There was a petition before the Court in the present case and judge, in this case, denied to go ahead into the matter because the army claimed them to be genuine encounters. The Hegde Commission was then constituted to look into the matter. While Hegde was not a great human rights activist-judge, he was inspired to help in this case. He collected all the possible evidence in Manipur and exhibited a great deal of compassion when he tried to get the testimonies of all the affected in that hilly state. Another great attorney, Mukul Sinha who handled the Gujarat riots cases came on board and did cross-examinations in Manipur. Despite suffering from lung cancer at that time, he still did his job in the most promising manner. The victims of the army oppressions testified against the army officials.
Even the mothers and wives of the disappeared gave their testimony, which was unshakeable in the cross-examination. As they say, the more you cross-examine, the better the evidence becomes. Mukul did an excellent job cross-examining the army’s case. He proved that the army had a very laidback way of performing its designated role. He uncovered the supreme confidence with which they killed innocent civilians and that’s how the ends of justice were met.
All these are true indications that a terrible crisis is unfolding because of ever-increasing
globalization. Earlier the situations did not turn pathetic and were somehow controlled, but that is not going to be your (the youth’s) future. In your 30s and 40s, all the savagery of India will catch up with you. The present generation is living in a cocoon. India is a country of Maya and deceit, we live in an unreal world where it is hard to get to the truth. Therefore, what I would suggest is that you all must take into account the present scenario taking into cognition the impending problems and be prepared for the real world.
Image Credits: developmentchannel.org
Editorial Assistance: Devansh Kaushik and Mansi Gupta