Tortured By The Proceduer Of Law

TORTURED BY THE “PROCEDURE” OF LAW
(GUILTY…… UNTIL PROVEN INNOCENT)
Advocate Asim Sarode
Dodging clear, of the milk vendor slowly pushing his bicycle across the middle of the crossroads, impatient scooterists, three wheelers and other vehicles end up in a jam. Chaos and road rage follow; the milkman totally unawares of what his cutting corners has caused. Complying with traffic rules and procedure is common sense; it ought to be even for an uneducated milkman. However, in the disciplined traffic of the lower courts, is it in the best interests of the community to make “procedure” the unquestionable Rule of Law; or is it contrary to justice being served?

1. In a bail order the defense Lawyer wishes to confirm with the Registrar whether the 7/12 extract he intends to submit as surety is sufficient to serve the purpose. He is told to follow procedure, submit the papers and he will be informed in due course if they are admissible.

2. In a complaint against a `quack’ doctor making false claims of curing several thousands of HIV+ patients, the judge, refusing to take cognizance of the gravity of the matter, insists on procedural verification through oral and written re-telling of the complaint. Long dates are set, arguably because “this is not the only case!”

3. Any accused can represent his case and submit an application before the court. It is not expected of the layperson to know under which section of the Law the application is to be made. Such applications however are not even taken on record on the grounds that the applicant has not followed procedure. The code on Ethics and Principles makes it mandatory to accept all such applications and for the learned judge to ascertain the relevant sections.

4. The family of an Advocate was being harassed. With a son and three daughters at home and his wife no more, the man, a lawyer himself, lodged a complaint with the police. Arrests were made and three persons charged but soon released on bail. The harassment resumed. To the bureaucrat’s subsequent application that the accused were not following the bail conditions, and were more violent now giving death threats, the `in-charge’ court orders that the original judge, now on long maternal leave, will decide on the application! Bureaucracy and the Law having taken the best out of this man, he passed away recently.

5. A foreign national with family residing in India is ready to give all sureties to have his impounded passport returned. His request is finally granted by the Judicial Magistrate First Class (JMFC) the lowest court in the Indian Judicial System after 5 months of filing his petition. However, the same court requires him to submit a fresh application for the actual return of his passport. As a general rule the prosecution will oppose this application; not doing so might imply corruption.

6. Lower courts automatically grant the prosecution’s request for custody on arrests in a new case without really going into the evidence, which is more often than not purely circumstantial. Innocent suspects are thus harassed, traumatized and incarcerated until bailed out or proven innocent.

Though bail has been ordered, the accused in the first case above will languish in jail for some more time if the surety papers submitted are found inadmissible. In the second case the judge’s insistence on lengthy procedure means that in the interim period many more poor HIV+ patients will seek remedy from the quack doctor, incurring considerable expense on the false promise of a permanent cure against the stigma of HIV. Procedure in the third situation defies due process, violating the constitutional rights of the applicant. In the fourth case, what is the sense in appointing a substitute judge if he is not going to adjudicate in the cases placed originally before the now absentee judge? In the fifth, it defies common sense for the court to grant permission to travel without returning the passport; procedure compels the foreign national to appeal, meaning further delay and his effective detention within the country. Procedure in the sixth case above results in our prisons becoming over crowded that too with a high percentage of innocent under trials.

Imagine the frustration experienced by sincere lawyers who many a times are humiliated “before the dias of Court room” by the arrogant magistrates; imagine also then the torture for the lay citizen! Making procedure the rule of law has become a scourge on the democratic freedoms and human rights of the people of this nation. Judges positioning themselves safely in this `no man’s land’ must be seen as acting in contempt. How can justice be served where there is failure by default on grounds of procedure - as much a strategy of many lawyers in legal proceedings?
Such mechanical approach frustrates all norms of due process, diminishes the human perspective and erodes the very spirit and foundation of The Law. Where the discretionary powers of authority and a learned human mind is not to be utilized one is compelled to ask: “Why have human judges then?” With the IT expertise in our country, surely programs can be designed to fulfill procedures through slot machines. Not only will this save on human resources and maintenance costs, but in the event of error there will be no assigning of blame! Nobody will question humanitarian angles or the circumstances of the case – after all its only a machine!
Progressive legislations such as the Juvenile Justice (Care and Protection) Act 2000, Family Court Act, Labour Act, Consumer Protection Act, Probation of Offenders Act and Public Interest Litigation, supported by directions from the Supreme Court and International Conventions, are all meaningless if they function just like the conventional courts. The very purpose behind these special courts is to make the process of litigation informal, less intimidating and user friendly. It is also the popular notion among the lower judiciary and lawyers that human and civil rights issues under the Constitution may be discussed and interpreted only by the High Courts and Supreme Court.
Where previously a law graduate had to have at least three years experience before appearing for the JMFC exam, nowadays a fresh LLB graduate can appear for it, and on passing which is immediately appointed a judge. Justice can not function like corporate where “you catch them young”. Equipped with only classroom theory, judges in the lower courts possess neither the skill nor the humility of experience to take cognizance of the socio-legal perspective in the rule of law and apply modern concepts and interpretations on contemporary issues such as gender equality, human rights, social stigma and discrimination, etc.(There may be some exceptions) Further, our education, in fact the very essence of our national ethos is founded on `Don’t ask questions to your seniors(or to the persons on Authority chairs); it is rude to do so.”
If the power of a judge’s chair, if the robes of a lawyer remain unquestionable, accountability it would appear then lies with the accused: guilty until proven innocent.
The earlier precedent for JMFC exams needs to be re-instituted. Also judges from the High Courts and the Supreme Court could play a proactive role through periodic surprise visits to assess the performance of judicial magistrates; perhaps retired members of the fraternity can be assigned this task with a mandate to intervene, for an honorarium.
What is most telling is that in spite of its poor performance and inhumanness the common man continues to have faith in the judiciary and the legal machinery. Surely such faith in this pillar of civilization, calls for better returns. Otherwise that Day of Judgment will come when the millions of victims of a mechanical jurisprudence will rise against this thoughtless system.
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-Advocate Asim Sarode
The writer is a human rights activist and heading an organisation ‘Human Rights and Law Defenders’ (HRLD) He is an Ashoka Fellow. [1140 words]

Asim Sarode, the advocate with difference

Draft profile by Ashoka Innvators For The Public
Adv.Asim Sarode, India
Selected as an Ashoka Fellow in 2007
By setting up a victim support and witness protection program, Asim Sarode is seeking to change the power equation between the judiciary, witnesses and victims. Asim builds bridges between crime victims, their families, witnesses and their communities, as well as with the police, judges and lawyers to enable vulnerable populations to understand legal mechanisms and access justice.

The New Idea

According to Asim, “Every law is a social legislation and needs to be interpreted socially”. Through his work with the Sahayog Trust, Asim is seeking to answer the critical question of who interprets the law, and how to empower those vulnerable groups that have the toughest time accessing justice.

Asim works in different ways across three spectrums:

He builds knowledge about, and ways to negotiate the judicial system among victims and witnesses of crimes, especially those from marginalized populations.
He seeks to humanize the judicial system by building empathy with those who comprise the enforcement arm of the judicial system- police, lawyers and judges
He also sets up support systems outside the legal framework by working with the families and communities of victims and witnesses. He disseminates case studies and generates a larger public culture debate about access to justice through his work with the media.

By setting up a victim and witness protection programme, Asim is trying to change the prevalent top-down power equation, so that witnesses and victims are treated with respect and empathy, and eventually recapture their lost faith to become ambassadors of an effective, humane judicial system.

The Problem:

Despite the high incidence of crime and a low rate of conviction, India- unlike most developed countries, does not have a comprehensive witness protection program to safeguard witnesses in crucial cases.[1] This gap is especially emphasized when vulnerable groups seek to access justice through legal mechanisms. Such groups include women who are victims of domestic and/or sexual violence, children and those who are in danger of communal violence or under threat of intimidation from organized crime. The two key problems of a lack of faith in legal and judicial systems, and low rates of convictions are interconnected.

For witnesses, victims and their communities/families/support mechanisms, the legal system in place spans the police, lawyers- especially public prosecutors and the judiciary. While the onus of protecting the witnesses currently lies with the police, widespread corruption and bribery mean that there is little faith in their effectiveness. The judicial system too is seen as unapproachable and the processes in place to access legal systems are not pro-people. Beginning from the time a victim reaches a police station to report a crime to when s/he joins the proceedings in a court of law; witnesses and victims are given little respect or importance and are often bullied or belittled.

Access to justice is even tougher for marginalized groups, who may not have adequate information, familiarity or comfort to negotiate legalese and the tricky power dynamics between those who seek justice and those who are mandated to deliver it. For example, poor and/or rural rape victims who are represented by public prosecutors are often belabored with intrusive, demeaning questions- and are not aware that they can object to such treatment. This prevalent passive culture of not asking questions or demanding rights also pervades additional support systems- families and communities are worried about risking their safety and increasingly sensationalized media exposure in return for a lengthy, tortuous legal process about which they have limited understanding or confidence. In a highly stratified society, which is skewed towards class, caste, community and gender power, the pressure to speak falsely or the temptation to leave midway and turn ‘hostile’ is significant.

Asim’s work seeks to address the clear need for legal and moral support for victims, witnesses as well as victims who are also witnesses.

The Strategy

Asim believes in “advocacy after authority”, which means that he builds a volume of successful case studies where direct legal intervention has led to victim and/or witness protection, and then uses legal precedent to argue for changes with the judiciary.

Asim holds regular trainings in law colleges on how to build a rapport with witnesses. He also runs workshops for the police on human rights sensitization. He also functions as a watchdog for the judiciary through his work as a pro bono public prosecutor. In one recent instance, Asim used the Right to information Act to put together a blacklist of ‘stock witnesses’ who frequently work as tutored police witnesses.

Asim uses multiple strategies to arm marginalized groups with knowledge about the judiciary. These range from creating and disseminating booklets about legal procedures in simple language to developing games that make legalese accessible. He also uses role play and street theatre, sometimes actual court visits before a trial to ensure victims’ comfort with unfamiliar surroundings, and to assuage their fear of uniformed Government lawyers and judges. Asim also works on educating the larger community, which often forms the sustained support system for the witness/victim.

Asim uses the local print and electronic media to spread information about his approach and aims. A prolific writer of articles showcasing the socio-legal perspective, he has developed a media network which follows his cases. He also travels frequently to rural towns and villages, where he holds public meetings and debates that seek to demystify access to justice.

In the near future, Asim hopes to set up a help line that will provide both legal and moral support to victims and witnesses. He has also convinced a large automobile manufacturer to lend him a car for a road show across Maharashtra.

Asim is doing the social justice lawyering. He strongly believes that Social Justice Lawyering is necessarily an activist lawyering which transforms the power relations and thus facilitates the assertions of rights and entitlement of the poor through legal process. His legal interventions focus on social transformation through use of Law.

Key characteristics of the socio-legal lawyering which Asim Sarode is doing are-

1. It is not at all charity based only but emphasizing more on the right based perspective.

2. It allows Equal space for advocate to deal with the case as well as other activities- Traditional lawyering is based on taking advantage of the fear about law in the minds of lay persons. But social justice law practice is about demystifying law.

3. His practice as an advocate looks linkages between law and its impact- traditional lawyering is only related with winning some case but socio-legal lawyering involves close security of the impact a particular action will have on the society as a whole.

4. His activities as an advocate are not restricted to the court rooms only- his lawyering strategically uses different forums and unconventional way to meet the justice.

5. Asim uses Media advocacy for the larger social change through successful stories from the court rooms-Media Advocacy is a very important component of socio-legal lawyering which Asim is using to bring up the issues on the public agenda.

6. His use of legal power is inclusive of many things- He thinks that social justice practice does not operate in isolation. It constantly strives to involve various stake holders like the law college students, Social work students, new lawyers, media students, Police, victims of crime and witnesses also.

7. He says it is a myth if someone says that human rights practice is restricted to High Courts and Supreme Courts. Even lower judiciary can be used for human right justice lawyering. It is not just about filing Public Interest Litigation (PIL) but it is about getting justice with “Rights based perspective”. He thinks that such approach also is to changes the attitude of the judiciary towards understanding cases from a human rights angle.

8. Asim says Socio-legal lawyering is not about winning or loosing the case but it is about understanding a cause and extending our support by fighting for the cause. Sometimes loosing a case can have a greater impact which can be of strategically very relevant and important. But in this whole process the Honesty is the most important virtue which should reflect from every action.

The Person

Born and brought up in rural Maharashtra, Asim grew up in a family that was deeply engaged in social change. His grandfather worked with Vinoba Bhave in the Bhoodan Movement, and his father- whom he cites as his greatest influence- is a Gandhian social worker who set up an education NGO called the Sahayog Trust. Asim trained as a journalist in addition to studying law, and began his career by working to provide free legal aid to the undertrial prisoners of Yerawada Central Prison. He also provided free legal aid for sex workers who were being victimized under the Immoral Trafficking Prevention Act, and then set up the volunteer and student driven legal wing of the Sahayog Trust – called Human Rights and Law Defenders (HRLD).

Every year, HRLD provides free legal aid to about 500 cases, in addition to working on witness protection and victim support outside the courts. Asim has been a Majlis fellow for his work with victims of sexual violence. During the last seven years in Indian courts of law, Asim has been deeply disturbed by the way in which witnesses were treated, and the culture of intimidation and disrespect. In one incident, which received much media coverage, Asim rescued an illegally detained horse- who was indicted for carrying alcohol and was tethered outside a police station without food or water.

Asim also has a history of creating new precedents for more supportive ways of handling procedures. When he realized that rape victims were being detained in hospitals for checkups for up to 15 days after the crime (the current law only stipulates that the rape victim needs to be taken to a hospital for a physical, gynecological and psychological check-up within 24 hours, not how long these check ups should takes\ once she is in the hospital), Asim filed a petition in the high court to mandate that the check-up should be completed in a limited amount of time.
[1] Although India’s highest legal authority- the Supreme Court- recognized this in 2003 [in the case of National Human Rights Commission v. State of Gujarat, the Supreme Court regretted that "no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses."], the discussions have so far remained at the level of rhetoric and theoretical debates.

• Asim Sarode can be contacted at- # 302 Anil Housing Society, Opp.Kamala Nehru Park, Near Bhandarkar Road, Pune-411004, Maharashtra, INDIA
• CALL him on- +91-20-25667555 or +91 9850821117
• e mail him at- asim.human@gmail.com OR asimsarode@rediffmail.com