Barred from Justice


It's not an innocent coincidence and it's uncanny. A common trend among bar associations is gaining momentum in Uttar Pradesh - lawyers are being compelled not to take up cases of ‘terror suspects' - leaving the accused with no legal aid. This has become an organised and violent campaign. Consequently, no lawyer is ready to take up a case of a terror accused - even when there is neither any evidence nor chargesheet. Clearly, this is a gross violation of constitutional rights and has disturbed the legal community across the nation.

Two lawyers from Lucknow, Mohammed Shoaib and AM Faridi, defied the ban and came to the rescue of several of the accused who had been labeled ‘terrorists' by the Special Task Force (STF) and UP Police, often based on fabricated charges. For instance, Shoaib was instrumental in proving that Aftab Alam Ansari was innocent after the latter was labeled by the STF as a HUJI terrorist. However, their defiance didn't go down well with the bar associations and fellow lawyers in the state. They decided to teach the two a lesson. They were brutally assaulted, not once but several times, inside and outside the court premises.

The resolution that lawyers will not take up terror suspects' cases gained momentum when the Faizabad Bar Association set the trend after an attack on the makeshift temple in Ayodhya in 2005. Varanasi soon followed, after two blasts at the Sankatmochan temple in 2006. Serial blasts in Lucknow, Barabanki and Varanasi saw the Barabanki and Lucknow bar associations joining in. Since then, incidents of lawyers attacking fellow lawyers have become a recurrent phenomena.

On April 5, 2008, when Mohammed Shoaib went to submit the bail application for Mohammed Tariq and Mohammed Khalid Mujahid in Barabanki, a group of lawyers led by Pradeep Singh, secretary of the Barabanki Bar Association, forced him to withdraw the vakalatnama (registration of legal counsel). He withdrew his name from the case but later reconsidered after repeated requests from Tariq and Mujahid's families.

On August 12, 2008, in a sessions court in Lucknow, when Shoaib asked the judge that undertrials should not be handcuffed while present in court, the judge refused saying that it was a matter of national security. He was arguing on a case involving Naushad who works as a labourer in Alwar, Rajasthan. Later, on the same day, about 25 lawyers stormed into a courtroom in Lucknow shouting that Mohammed Shoaib was "appearing for the Pakistanis". They started abusing him and beating him up.

On the same day, lawyer AM Faridi was attacked in his cabin in Lucknow. "People in my adjoining chamber started shouting anti-Pakistan slogans. I thought there was a quarrel. As I came out to check, they called me a terrorist from Pakistan and started beating me. I tried to convince them that just like Aftab Ansari these boys are also innocent but they didn't budge," said Faridi.  On August 13, Shoaib was again attacked by the mob of same lawyers while they tried to burn Faridi's chamber in Lucknow. Several important files were burnt.

Speaking on telephone from Lucknow, Shoaib told Hardnews: "They said ‘Let us see who can save you here'. I was brutally beaten up, my clothes were ripped off and they paraded me in the court campus in my undergarments. Later, my junior, Rehan, tried to intervene and he was also beaten. These are not lawyers, these are criminals and most of them do property business and do not care either about law or the courts. Even the UP police is scared of them." Shoaib had to go to the trauma centre after the assault and lives in constant fear.

Faridi feels terrorised and humiliated. Speaking from Lucknow to Hardnews, he said that he is being victimised simply because he takes up cases of the poor and innocent. "If I see a terrorist, I will be the first person to get him booked. These are innocent boys who have been picked up on false charges and the police have fabricated the entire case. I am with them because they don't have any money and there is nobody ready to help them. These incidents have shattered my confidence. What should I do? Should I leave these people so that they get
hanged for no rhyme or reason? The truth is, these lawyers don't care for laws," said Faridi. He lives in constant fear, gets threatening phone calls and messages are being passed on to his juniors that he will be "eliminated". He is even afraid to venture out of his house.

Prashant Bhushan, senior advocate in the Supreme Court, said at a discussion organised by the Forum for Democratic Initiatives in Delhi, "This is a fascist tendency being displayed by lawyers. This is a gross form of contempt and professional misconduct. Judges issue notice of contempt of court on several petty issues, but Shoaib's complaint letters to the high court have been ignored to date. If this is what happens, it is the end of the justice system in our country. Everyone has a right to be defended and such a blanket ban is a gross violation of constitutional rights."

Several senior lawyers like K Kannabiran, Colin Gonzalves and Vrinda Grover, and former Chief Justice of Delhi High Court Rajinder Sachar (including head of the Sachar Committee) condemned the violence unleashed by the bar associations in UP. In a press meet in Delhi, they demanded that all offending lawyers who indulged in the assaults should be booked without delay, there should be action against the police officers who refused to register Mohammad Shoaib's FIR, and adequate security should be provided to him so that he can perform his legal duties. They stressed that it is becoming a common trend that innocent Muslims are routinely being picked up on terror charges without any concrete evidence and kept in jail, as had happened in the Aftab Ansari case.

If it wasn't for Shoaib, Aftab Ansari, who is from Kolkata, would still have been languishing in jail on fabricated charges. The 27-year-old, a victim of mistaken identity, was picked up by the STF of UP police on December 27, 2007, and later taken to Lucknow, where he was brutally beaten with leather belts for several days. He was labeled a HUJI commander who had masterminded the blasts in different courts in UP. The police said they recovered 1.5 kg of RDX, which turned out to be totally baseless.

"This is wrong. I want to know what they want to prove. They think every Muslim is a terrorist. We are educated and as patriotic as anybody else," said Aftab Ansari to Hardnews, in a telephone conversation from Kolkata. He mentioned how he lost his father at an early age and took care of his family of eight with just his salary of Rs 2,500. After his arrest, his sister's marriage was called off. By then, he had spent all his savings. He was paid Rs 30,000 as compensation, which he thinks is far less than what he should have received for the torture, trauma, disgrace and humiliation he suffered.

"I still can't sleep at nights as I get nightmares of my ordeal. Whenever there is a blast, I think someone will come and pick me up again. I can just imagine the state of others who have also been picked up on similar false charges and wish they are also bailed out soon. I still can't forget the whole process of interrogation. It was as brutal as it could get. I couldn't even master my education, and they made me the mastermind of HUJI," said Aftab.

Prashant Bhushan pointed out that there is a growing trend of Muslims being picked up whenever any ‘terrorist attack' takes place. "Branding people as SIMI activists and terrorists wherein no trial is being provided will have an inevitable consequence as some of these people will be forced to become terrorists. He also mentioned that the Delhi High Court, in a 267-page judgment, has stated that the material provided by the Union home ministry to justify the ban was insufficient. 

However, several ‘accused' persons are languishing in jails, often with no apparent proven evidence. And with lawyers refusing to take up such cases, they are being denied their constitutional right to be considered innocent till proved guilty. While Shoaib's list of such clients keeps growing, he is determined to fight for justice: "I have to not only fight the system to bail out these innocents but also struggle against the nexus of dubious lawyers who are trying to intimidate, attack and ban me. All I can say is that I will keep fighting because the law of the land should prevail and the judicial process should uphold justice -- not the goondagardi of a handful of lawyers."

Democracy on trial

Khalid Akhter Delhi

The fight against terrorism and consequent fear psychosis pervades both the security agencies and civil society in most nations trapped in this social and political dilemma. Often, as human rights groups complain, this fight seems to be centered more on a ‘witch-hunt' than actually fighting terrorism, making the world more insecure for minorities.
If arrests and accusations are made without any evidence, randomly targeting one particular community with the media baying for blood and completely relying on the police version, than, democratic sections within the society are bound to question the justice system and the credentials of the State. In the same vein, if it is proved that certain individuals are behind terrorist acts, whatever community or religion they may belong to, they surely deserve to be punished under the law of the land, after a due process of judicial trial.

One of the main reasons behind such detentions is the biased attitude of the security forces towards Muslims, argue civil society groups. Prashant Bhushan, senior public interest lawyer in the Supreme Court, argues that this bias pervades large sections of the security and judicial apparatus.

The innocent who are arrested and condemned as ‘terrorists' by the State and the media languish in jails and suffer all kinds of victimisation, including social ostracism, economic deprivation and exile, often without any proof of their involvement in terrorist activity. Of late, even educated Muslims have suffered that fate. Once picked up by investigating agencies on any pretext related to an act of terror, a person has to live with the ‘terrorist' tag for the rest of his life, ruining his career, even if he is later found innocent.

Such is the case of Rashid Hussain, a senior network engineer with Infosys, Jaipur. He was picked up from Jaipur by the Rajasthan Police after the Jaipur blasts on June 1, 2008 and kept in illegal detention till June 9. He was later released as investigating agencies could not find anything to prove his involvement in the blasts and his alleged links with the banned Students' Islamic Movement of India (SIMI). His employers, Infosys, however terminated his employment citing minor technical issues. This shows that an anti-Muslim tendency exists in the corporate sector as well, which is supposed to be meritocratic and blind to other differences. This incident has left a blot on the integrity of a software professional who has been actively involved in social activities since his student days.

Dr Anwar Hussein, an All India Institute of Medical Sciences (AIIMS) trained trauma specialist in Delhi, spent more than 28 hours in police custody, interrogated on the suspicion of being part of the group that organised and executed the Jaipur and Ahmedabad serial blasts. He was picked up on August 17 from his residence at village Niwai, district Tonk. The reason for his detention was that a textbook bearing his name was recovered from a room in the Sawai Man Singh Medical College in Jaipur. That room was earlier allotted to Dr Hussein and then to Abrar Ahmad, who is still in police custody. The doctor is free now, but he will have to live with the ‘terrorist' tag for the rest of his life. And the trauma of it all.

The prison statistics released by the National Crime Records Bureau (NCRB) are revealing. According to classification done on the basis of religion, Muslims constitute 18 per cent of the total number of convicts in Indian prisons, 21.8 per cent of undertrials and 37.2 per cent of detainees. Their proportionate share in prisons is much higher than their 13.4 per cent share of the total population of the country, as per the 2001 census.

Whatever reasons official agencies might cite to rationalise these statistics, the belief that is becoming widespread among civil society groups is that Muslims are a ‘soft target' for India's law enforcement agencies. Social activist Shabnam Hashmi of Anhad believes that the "entire State machinery is communalised". She says, "There are loopholes in the judicial system that are manipulated in framing charges against not only members of the minority community but against anyone standing for secularism or those who try to be non-conformist and anti-establishment."

All this is an organised and relentless campaign to limit the social and political space of young and educated Muslims and push them to the wall. Indeed, in a deeply divided society where justice seems to elude victims and innocent citizens, this could be a sign of grave social conflict and unrest.