The Catolic Secular Forum

‘Rights in the Constitution is not the yardstick to asses democracy’

“In a secular democracy it is important to see that how far the majority community takes care of the rights given to the minority communities. The rights available in the constitution of India for Minorities are not the yardstick to assess the functioning of democracy. The functioning of a sound democracy could be judged by the attitude of the majority community towards minorities that how far it volunteer in the implementation of the rights given to the minorities in the constitution.” These were the thoughts of Dr. Faizan Mustafa vice chancellor of National Academy of Legal Studies and Research (NALSAR).

Dr. Mustafa was speaking on the occasion of Justice Mohammed Rafiuddin Ahmed Ansari fifth annual Memorial Lecture organized by the Justice Mohammed Rafiuddin Ahmed Ansari Memorial Trust in the Administrative Staff College of India Hyderabad.

In his brief speech Dr. Faizan Mustafa said, “The guarantee of rights to the minorities has been ensured in the constitution of India. Article 29 and 30 provides protection of the certain rights of the minorities in India, however in the script of the constitution there is no separate article guaranteeing protection of the Rights of minorities. But in a general context it is given in the constitution of India that if there is any discrimination meted out to a citizen on the basis of language, religion, culture, caste, or race guarantee is given to protect his rights. So in this way, citizens including citizens from minority community cannot be deprived of their rights in any field on the basis of race, caste or language.”

“Implementation of individual rights is not enough because many individuals get their rights independently but as a member of their community they often do not get their rights. There is a need to give equal rights to a group which have been guaranteed in the constitution.” Dr. Mustafa observed.

The topic of the memorial lecture was ‘Minorities and National integration’. The lecture was presided over by Justice V. Eshwarayya, Judge of A.P. High Court; the key speech in the memorial lecture was given by Justice M.N. Rao, Chairman of National Commission of Backward classes and former Chief Justice of Himachal Pradesh High Court.

Ms. Fareeda Hussain secretary of the Justice M. R. A. Ansari Memorial Trust welcomed the speakers, guest speaker and the audience. Speaking on the communal riots and particularly on Gujarat pogrom of Muslims Dr. Faizan Mustafa said, “Political motives are the major factors behind all the communal riots which occur in this country,”

He termed Gujarat riots as unique compare to the other communal riots in India, “Gujarat riot is unique because introspection is being done and intention to provide justice can be seen as the culprits are being punished. A former minister has been put behind the bars, and all those who are fighting this legal battle to get justice for the Muslims are the people mainly from majority community. This communal riot, the subsequent events and providing due justice to the victims highlights the secular character of this country.”

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Lawyers for change

To recognize the importance of safeguarding and extending the rights of the vulnerable.

A three-day meet brought together 80 young lawyers from across the country to recognize the importance of safeguarding and extending the rights of the vulnerable.

The Centre for Social Justice & National Dalit Movement for Justice, a socio-legal NGO, organized a National Meet of Social Justice Lawyers as part of its “Lawyers for Change” Fellowships programme at New Delhi from the 28-30 April, 2012 at Navinta, Okhla-New Delhi.

It comprised of sessions where eminent personalities shared experiences on use of law as a tool of social change, human rights interventions, court room practice and public interest litigations.

The opening speech was made by Mr. Gagan Sethi, Vice Chairperson of Centre for Social Justice, who spoke about the Centre’s journey of engaging with lawyers. The Lawyers for Change Program had been a dream of Gagan and is the first systematic effort of bringing young lawyers from across the country for social justice lawyering.

Ms. Farah Naqvi from the National Advisory Council, in her inaugural speech spoke powerfully about the need for an army of social justice lawyers both inside and outside the courtroom. She articulated the worry she faces in doing her work on changing public policy, because of the stream of new laws being passed by Parliament, but the abysmal lack of implementation its existing laws. She urged the young lawyers to challenge the system through their lawyering, and appealed to them to humanize the legal system, and dignify every victim who approaches them.

Professor Babu Matthew in his keynote address congratulated Mr. Gagan Sethi for creating a space for young law graduates to involve in social sector. Using the labour law sector as an example, Prof Matthew directed attention to the unique, old model of development existing in India, which was rights-based, and which was destroyed with the advent of neo-libralism. According to him, to advance in the field of social justice lawyering, is to return to the old model of development. He ended by emphasizing the importance of a community of Lawyers for Change in this journey.

Mr. Tridip Pais, advocate from New Delhi, speaking on the topic of “Sensitive Lawyering – Integrating response to human rights within mainstream practice” began by sharing how he devoted 75% of his time to mainstream cases and 25% to what he broadly categorized as “free cases” – social action litigation. In his opinion, a lawyer has a responsibility, in his free cases, to represent clients who don’t have the option of another lawyer.

Maneka Guruswamy, who practices in the Supreme Court echoed the importance to have access to a decent standard of living as well as do interesting work and simultaneously making a difference and bring craft and quality lawyering to the courtroom, as well as maintaining a level of professional detachment. She also voiced her concern about the extraordinary gap between the world of legal scholarship – reading, writing and critical thinking – and actual legal practice, and the need to bridge the same.

In the Post-lunch session Ms. Geeta Ramaseshan, Senior Lawyer, Madras High Court speaking on “Experiences from the Civil Liberty Movement.” shared her experiences from the 1980s. She spoke about the different kinds of strategies used on behalf of victims of oppression to get them justice. And stated how she found Public Interest Litigations to be very risky. This is because with the dismissal of the case, the court washes its hands off it, making the political process around it much more challenging. So use PILs cautiously and as a last resort. She also shared her misgivings about the use of media for litigation. And ended by asking the young lawyers present to rise to the occasion and practice social justice and build a constant repository of knowledge in the process.

Ms. Vrinda Grover, a Human Rights Advocate from New Delhi talked about the inextricable linkage of law with politics and her experiences regarding communal violence and Kashmir. She stressed on the need for every lawyer to work bottom-up, from the lower-most courts as those were the actual arenas of human rights work. However, lawyering in her opinion needs to be done both within the courtroom and outside it, and research and writing are as important an aspect of human rights lawyering as practice. Moving on to ethics, Ms. Grover expressed her problem with the second-rate lawyering done in free cases of public interest, and the express accountability of lawyers to each and every client they represent.

Mr. Prasad Sirivella and Mr. Paul Divakar from NCDHR took the last session on Dalit Rights. Mr. Sirivella presented a statistical analysis of atrocities taking place on Dalits across the country, and how they are affected not only by non-implementation of the SC/ST Prevention of Atrocities Act but also by other social welfare legislations. Mr. Divakar, apart from caste-based violence, spoke about gender-based violence and drew parallels between the two. He concluded by speaking about the transformation taking place within the legal system, and the hope for better legislations and implementation in the future.

The second day started with the Joint Registrar (Law) of the National Human Rights Commission Mr. A. K. Parashar. He spoke about role of lawyers in ensuring Human rights. He talked about NHRC, its role, powers and functions and its association with 40 young lawyers. He emphasized that all human rights are connected with dignity and as lawyers we have the responsibility to preserve them. He also shared some gross violations of Human Rights in different states and the interventions done by the NHRC. The NHRC provides platform to young lawyers in the form of internships, funding individual proposals for awareness programmes, sensitization programs etc. He also talked about having started the “Open hearing” concept which is going to take place at different states including Gujarat, Ahmedabad on the 14th May, 2012.

Ms. Sudha Bhardwaj from Raipur/Chhattisgarh talked about “The legal face of corporate land grab”. She shared her experiences of working with the trade Unions and fighting cases for them. She talked about the Janhit’s model which was providing legal aid to “Sangathan’s” and not individuals as we can reach out to a mass of people, which creates a snowball effect. She emphasized the importance of ground work and getting it linked with the court room lawyering. Ground and court work together as two legs. She said that as young lawyers it’s our responsibility to help people to go to the right forums with right legal sharpness to decide where and where to intervene for justice.

Ms. Shruti Pandey, Programme Officer, Ford Foundation, talked about Policy Formulation – Challenges and Learning. He spoke about using law as a tool for social justice and not the end in itself. Some major challenges in implementation are related to financial resources, human resources, knowledge, grip and lack of mechanisms of accountability. She advised that if we are Social Justice Lawyers, we have to understand policy from start to the end process with a political understanding.

Ms. Kajalbhardwaj, spoke on “Intellectual Property Regime and its impact on the vulnerable”. She suggested that as lawyers and advocates we can bring up HIV patients etc. into patents office, give legal training and empower them, approach courts on right to health, intervene in cases where companies sue government to remove health safeguards etc. and discussed some landmark cases.

Justice S. Murlidhar talked about “Practical Legal Strategies for Ensuring Human Rights”. He started with his journey of being a student of law. He urged the young lawyers not to start a special practice but be a generalized lawyer initially and see how courts function. He said, people see law as negative and a tool for oppression. It is our responsibility to change this perception. He highlighted the art of listening, honesty to the clients and lawyers towards each other, the importance of written communications, the quality and the importance of a good drafting, and last but not the least the importance of reading and hard work for a lawyer. He raised his concern over slum dwellers and suggested interventions by doing survey’s about the people there, their problem relating to health, education, work etc. and then argue for their rights, seeing an issue holistically. He ended up saying our efforts and advocacy should be such as to make the bench listen to you.

The first person of the 3rd day was Abusaleh Shariff, Executive Director, US India Policy Institute. He said in the actual practice the citizenship rights have not reached to all people and therefore as Lawyers you have to reach out and change the system and utilize the Constitutional rights to ensure justice to all the citizens of the country.

Ms Veena Gawda a practicing Feminist Advocate in the Bombay High Court spoke on the challenges in her experience of lawyering as feminist. She wants to ensure any rights for women whatever they are by use of law all through. To be a lawyer is a very challenging choice of profession in a cosmopolitan city in our Indian society today and so she urges the young lawyers to take up as the challenge for the cause of justice for the people especially women.

Mr. Amitabh Behar Executive Director, National Foundation for India said, it is very important for the advocates to understand and take part in the grassroot level right from the village gram sabhas to the district level and then bring impact to the approach paper in front of the planning commission of India. As in the process of decentralize planning it could of immense help.

Mr. Arvind Narrain, Founder of Alternative Law Forum spoke on the Rights of Sexual minorities and to fight for injustice in the communities as group of social lawyers for change. The provision of law needs political intervention. The notion of morality is constitutional morality.

Wajahat Habibullah Chairperson, National Commission for Minorities India said, “When the justice is denied to the vulnerable there is where lawyers are to be there and fight in groups as lawyers for justice.” The question whether the muslims in Gujarat enjoy the right to life? Many lives were taken away in the name of the religion. He asked, Can a country like India have within the whole community internal disparities? Kashmiri Pandits internally displaced, the Christians of Kandhamal did not get back to their homes deprived from schools, hospitals, and jobs etc.

The 3 day meet closed with a fire in the hearts of young lawyers now ready to take up social justice lawyering.

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