Sunday, September 09, 2012

Lawyers fighting cases of accused Maoists face Harrasment

Lawyers who represent terror suspects often end up being seriously harassed, discovers Sonia Sarkar

Backlash: Lawyer Anjali Waghmare, whose house was attacked after she took up the case of Ajmal Kasab, the prime accused in the 26/11 Mumbai terror attack

Director Anurag Kashyap’s forthcoming film Shahid, which tells the story of slain lawyer Shahid Azmi, is set to be screened at the Toronto Film Festival next month. Around the same time, Azmi’s lawyer brother Khalid will be fighting for justice for him before the Bombay High Court.

Shahid Azmi was shot dead by three gunmen in his chamber in a Mumbai suburb in 2010 — two years after he took up the case of 26/11 co-accused Fahim Ansari. He had also represented many Muslim boys accused of being involved in the Ghatkopar blasts (2003), Malegaon blasts (2006) and Mumbai’s 7/11 (2006). That’s not all. Azmi had taken up the cases of 64 suspected operatives of the Indian Mujahideen (IM) involved in the Ahmedabad terror strikes in 2008.

“Four months before his death, he told me that there would be attempts to murder him. But he continued to fight for the accused,” says his brother Khalid Azmi.

Shahid Azmi is not the only one who has suffered — in his case with fatal consequences — for having chosen to defend terror suspects. In fact, such is the backlash against them — from society, from fundamentalist groups and even from the police — that getting a lawyer to represent those allegedly linked to terrorist and Maoist activities is becoming more and more difficult.

Take the case of Abdul Shakeel Pasha, who was arrested in Delhi in 2010 on charges of alleged links to Maoists. He languished in a Surat jail for three months before senior advocate Kirit Panwala came to his rescue.

“Before Panwala, four lawyers refused to take up the case,” says Pasha, who runs a non government organisation called Haq in Delhi. Though he got bail six months after his arrest, his case is still on.

Section 304 of the Code of Criminal Procedure lays down that the state shall provide legal aid to the accused in certain cases. But experts point out that in most cases, the legal aid provided to terror suspects is perfunctory. “Often, lawyers don’t take the trouble of meeting the accused in jail. They barely investigate the case and the accused do not get a fair representation in court,” says Bilaspur-based senior advocate Sudha Bharadwaj.

Of course, one reason for the lack of interest in representing these undertrials is that the state pays a pittance to defence lawyers — a sum of Rs 1,500 to Rs 5,000. “If the government can pay Rs 30,000 to Rs 1 lakh to a public prosecutor, why can’t this be paid to a lawyer who represents the accused,” asks senior advocate Colin Gonsalves of Human Rights Law Network, a lawyers’ collective that takes up human rights cases.

However, the few who do try to defend terror suspects to the best of their abilities complain that the environment is not at all conducive for them to work freely.

“Our photographs and identity cards are taken away by the police before we are allowed to meet the accused. We are treated like criminals,” says Bharadwaj.

A Human Rights Watch report titled The ‘Anti Nationals’ on the detention and torture of terrorism suspects in India released in February this year too states that when lawyers met suspects in jail “police in some cases unlawfully remained within earshot, making it difficult for the detainees to reveal abuse or seek counsel.”

In Chhattisgarh, where there are many Maoist-related cases, lawyers represent ing the accused are often harassed by the police. In 2009, one tribal lawyer, Alban Toppo, was allegedly beaten up by the police for taking up the case of human rights activist Kopa Kunjam who was arrested on murder charges.

Another senior Chhattisgarh lawyer, Amarnath Pandey, has been charged with sedition and 12 other criminal cases since 2000. Pandey had taken up a fake encounter case. “The state targets such lawyers as they don’t want the voice of the accused to be heard in court,” he alleges.

However, Chhattisgarh government spokesperson Baijendra Kumar denies these charges. “The state has no reason to target lawyers. If any illegal action is being taken against them, the state is answerable to the court.”

But charges of discrimination against lawyers who defend terror suspects are too numerous to be dismissed outright. Cuttack’s Pratima Das, who represented many villagers with alleged “Maoists” links, was arrested on charges of sedition and attempt to murder in 2008. She was acquitted only after having spent two years in jail. She has now filed a petition in Cuttack High Court, demanding a compensation of Rs 20 lakh from the state.

Harassment of such defence lawyers is common in Kashmir too. When senior advocates Miyan Abdul Qayoom and G.N. Shaheen took up the cases of young boys arrested on charges of stone pelting in 2010, both were arrested under the Public Safety Act and had to spend almost nine months in jail.

It is not state bodies alone that tend to make things tough for these lawyers. Often, they face flak from their own fraternity as well. Senior Lucknow lawyers Mohammed Shoaib and A.M. Faridi faced the wrath of their colleagues when they took up the cases of several of those accused in serial blasts in Lucknow and Faizabad in 2007. Earlier, various bar associations across UP had passed a resolution that no lawyer would defend the accused in terrorism cases.

“Lawyers called me ‘a terrorist’ and started beating me up. My clothes were ripped off and I was paraded in the court campus in my undergarments,” says Shoaib, recalling the treatment meted out to him in 2008 in a Lucknow court complex. Two years later, the Bar Council of Uttar Pradesh apologised to him in writing.

When lawyers defy such bans, they are attacked by political parties too. After 26/11, the Mumbai Metropolitan Magistrate Bar Association passed a resolution not to defend 26/11 accused Ajmal Kasab. Despite that, Anjali Waghmare took up his case, following which her house was allegedly attacked by Shiv Sainiks.

Again, in 2010 the Mumbai High Court ordered the Maharashtra State Legal Aid Services Authority to appoint criminal Lawyers Amin Solkar and Farhana Shah for Kasab. Shah was promptly labelled “anti-national” — even though he had been appointed by the court. “Many lawyers have asked me to leave the case but I didn’t because I saw Kasab as just another client,” says Shah, who is also the defence counsel for the accused in the Mumbai blasts of 1993.

A laudable sentiment. But if lawyers continue to be harassed for carrying out their professional duty, how many will have the resilience to defend terror suspects?

Is the government listening?

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