(At a discussion marking the first national conference of the All India Lawyers For Justice – AILAJ on 28th and 29th May, 2022 at Bengaluru, Advocate Mihir Desai known for three decades of work as a workers’ and human rights lawyer in Mumbai, delivered a lecture on the role of the legal community in countering the fascist assault. Below is the text of his lecture, somewhat edited for readers of Liberation.)

I will begin with a broad summary of the human rights lawyering that has happened in this country in the last 70 years, to outline in what ways the challenges we face today are different from challenges we faced in earlier times. Human rights lawyering has existed from the day the Constitution came in. In the pre 1978 era, right from 1950 onwards, there were basically four or five issues around which human rights lawyering happened. One of the issues was labour laws, in part because immediately after independence you had a plethora of labour legislations being enacted. Some of the lawyers of the human rights movement started their careers as labour lawyers. Mr. Kannabiran for instance started by representing mine workers. Ms. Indira Jaising was a labour lawyer. I am glad Mr. Subbarao is here, who himself has been a labour lawyer for so many decades.

The other aspect on which human rights lawyering happened at that time was on freedom of speech and expression. It initially started from Romesh Thapar’s case in 1950, one of the first constitutional cases immediately after the Constitution came in. Then you had the cases involving big media houses: the Bennett Coleman case, the Indian Express case, the Sakal Newspaper case arguing whether the issue of freedom of press was included in the freedom of speech and expression, whether raising of newsprint prices had an indirect impact on freedom of speech; and whether commercial speech is part of freedom of speech and expression.

The third line of cases were basically on rights of property. Again, at that time the right of property as a fundamental right was canvassed essentially by the rich people, by the zamindars challenging the Zamindari Abolition Acts, the loss of privy purses.

And of course, the fourth issue was the criminal law, which the people were always facing. It began right from 1951 with Gopalan’s case - preventive detention - and then  the V.G. Row case. In the pre 1978 period, the main issues concerning Dalit rights that were argued in the higher courts concerned reservation in jobs as well as education: Balaji’s case, Devadason’s case, etc.

After 1978 we saw a dramatic change. On the one hand you had Maneka Gandhi’s judgement which outlined the interlinkages between the fundamental rights. You had certain Supreme Court judges - Justices Krishna Iyer, Chinnapa Reddy, Bhagawati, Desai who took up a very very active role in human rights jurisprudence, including the issues of prisoners’ rights, bonded labour, legal aid. And then you had a whole range of issues concerning environmental law, women’s rights, children’s rights, etc. And remember, this was happening not only because of judges who were progressive but because of the climate created by a large number of mass movements - the big trade union movements happening across the country, you had the women's movement which was gathering a new fervour at that point of time. You had democratic rights organisations starting across the country, whether it be PUCL, APCLC, APDR, CPDR, various civil liberties organisations. Post 1978 human rights jurisprudence in this backdrop of people’s struggles led to many many new laws, including the Prevention of Atrocities Act, Domestic Violence Act, Right to Information Act, Disabilities Act, Juvenile Justice Act and so on.

We also saw an increase in repressive laws (TADA, POTA, amended UAPA, NSA and so on). But you did not have what we see today - targeted attacks on those who espouse human rights, those who espouse issues concerning marginalised communities. Before 2014 also we saw authoritarian governments, instances of atrocities and injustices and no accountability. But now there is a threefold objective which the present establishment follows. The first is the establishment of the Hindu Rashtra, which by definition can only mean a highly patriarchal, communal, and casteist state. Second thing, it is a highly centralised state. A quasi-federal state like ours, constitutionally, is being sought to be converted into a much more centralised state. The third thing they need is a strong security state. In order to achieve a Hindu Rashtra you need a state with a security apparatus which is extremely strong and answerable only to the central government. An instance of centralisation and securitisation is the use of NIA. Ordinarily, law and order is a state subject - so the state police takes action when there is a law and order problem. CBI is a central agency which can investigate into state crimes also, provided the state government gives its consent to have an investigation carried out by the CBI. NIA is the only agency which can carry out investigation irrespective of whether the state is consenting to it or not. NIA, like the UAPA amendments were Chidambaram’s brainchild. There is a famous sentence in Shakespeare’s Merchant of Venice. Shylock, who is a Jew, tells his Christian interlocutor, “the villainy you teach me, I will execute - and it shall go hard but I will better the instruction.” The BJP seems to be telling the Congress that. That’s what seems to be happening. Now, in order to achieve these goals of Hindu Rashtra, a centralised and securitised state, they introduce laws and policies that marginalise religious minorities: CAA NRC,  beef ban laws, anti-conversion laws, the hijab ban in Karnataka, abrogation of Article 370. Then you have laws and policies which vest increasing powers in the centre: GST, NIA, the PNLA Act which is being used much more, greater use of the Enforcement Directorate, the farm bills. The third is, which is very important for us, is the quelling of dissent. In order to quell dissent, they need a surveillance state because you need to find out who is dissenting and when and how someone is objecting to something. So they target civil society activists, NGOs, you let loose the FCRA regime on them and cancel their FCRA registration and funding. Activists are targeted. If you’re a Muslim, you’re called an Islamist. If you’re a non-Muslim, you’ll be called an urban naxal. You target independent bureaucrats, and independent academicians, using the existing laws but also introducing newer laws such as the UID Aadhar, which was towards surveillance, diluting the RTI Act, the Information Technology Rules which came in recently, the new order which requires every accused in every offence to give their photographs, fingerprints, all kinds of biological indicators. And the fourth and the last, what this government does in order to achieve its objectives is hollowing out the institutions of accountability. Whatever institutions of accountability are there are hollowed out. They hollow out the parliament by passing any law they want as a money bill by bypassing the Rajya Sabha. They do away, effectively, with the position of the leader of opposition. They stop sending bills to Standing Committees where opposition parties are also there and there is some kind of hearing. They hollow out the parliamentary process. They hollow out institutions such as the NHRC by amending the law to put your men in place there, Justice Arun Mishra, who otherwise could not have been the chairperson because the law required that only a retired chief justice of the Supreme Court could be a head of the NHRC so you amend the law to make it any judge of the Supreme Court. Similarly, major attacks on all independent tribunals. You have hollowing out of even the CAG, the RBI, the Election Commission.

And, of course, they try to influence, in different ways, the judiciary. Now remember one thing, when we talk about the judiciary being influenced by what is happening, by the home ministry, by the PMO, one is not talking necessarily about the home minister picking up the phone and talking to the judge, that’s not how it works. There are various reasons why the judiciary gets influenced. Whenever there is an overwhelming majority of any party in the parliament, the judiciary has swung towards and has always given credence to the central government. Some of the judges have internalised the actual agenda of the party in power. In higher courts especially, the career opportunities post retirement are much more now and those career opportunities are not decided by the collegium of the Supreme Court but decided by the central government or the state government. So they are dependent on being in the good books of the central government or the state government, depending on where they are. And the lower judiciary for its continuation, for its promotion, for various things is dependent on the government.

So for a variety of reasons we see a marked swing towards the Central Government, especially in the Supreme Courts and High Courts today. There is no reason otherwise why cases challenging the abrogation of Article 370, Electoral Bonds, CAA and NRC, the hijab ban should stay pending till they become a fait accompli.

No matter the regime, they always need to use laws and policies in order to implement what they want to achieve. Hitler’s Germany did not just come one day and say start killing Jews. It happened through a process of various legislations which took over a period of 7-8 years where first Jews were stripped of citizenship, then they were asked to wear a star, and then their houses were marked, then they were removed from government employment, and so on. But all this was done through laws. Apartheid in South Africa worked through laws - because all the authorities and regimes require predictability. And that’s where lawyers come in. Because they operate through constitutions and laws, lawyers would always have a scope to go to courts and to argue matters. And this has happened even in Nazi Germany. The lawyers were standing up to the regime.

For the progressive lawyers in India, it's very important now to look at how lawyers in countries such as South Africa when it was an Aparthied regime, countries such as Chile when Pinochet was ruling, countries such as Israel now, countries such as Iran even now, how lawyers have operated in these countries. There was a famous judge in Iran in 1978 named Shirin Ebadi. She was removed as a judge because once the Khomeini came to power, it was decided that women cannot be judges. So she started practising. Outside her chamber, she put up a board that read: “Due to the current inhospitable circumstances of the courts, I will no longer be accepting clients and can only offer legal advice.” She said, “It is meaningless going to courts, I’m not going to do that.” After a she year she realised it was not really achieving anything so she started going back to the court. She got a Nobel Prize, her husband was arrested and threatened with shooting, her sister was arrested, she herself was nearly arrested, and finally she had to leave the country. In occupied Palestine and various other places where Palestinians live, there was a time when the lawyers came to the conclusion that going to court is meaningless and some of them decided, “Let’s just boycott courts.” But then, the affected persons, the victims said, “I’m sorry you cannot do this, you have to approach the court, you have to go to court, you have to fight.” And you have a series of lawyers - Michael Sfard, Felicia Langer, Leah Tsemel, these are are Jewish lawyers in Israel who have spent their entire life in fight causes of Palestinian occupied people.

Similarly, Navi Pillay was a judge of the Natal Province of the Supreme Court. When she started her practice in the 50s, she was the first woman lawyer, then the first woman judge. A woman of colour of Indian origin, she continued to use the courts eve during the apartheid times. So even in extremely authoritarian regimes, lawyers need to use the courts.

In India there are two situations where lawyers come in. One is somebody is put in jail, somebody is about to be put in jail, and you say, “Okay, how do I best get you out of jail?” The other is in issues where you use the courts in order to further certain rights, to challenge certain legislations, to challenge certain administrative actions. Now it is true that one has to be ready for a lot more defeats than successes in the present times because as I told you, the judiciary is not itself necessarily operating in a manner very responsive to the civil society. Ultimately, for human rights lawyers, for lawyers who are fighting for these causes, it becomes very very important not to lose heart. Again, as Michael Sfard the Israeli lawyer says, “Success and victory are two different things.” I may succeed or lose in a case. That doesn’t mean I have lost the cause. The cause gets advanced by various things. The Supreme Court orders on the issue of sedition, for instance, even if not ideal, are a result of campaigns inside and outside courts.

It is important for the lawyers at the current times not to be purely lawyers, but to engage with the civil society, with the movements which are happening outside because you’re not just representing an individual, you’re representing a cause. The legal profession is a very egotistical profession in the sense that we always feel like we know what’s best for the client, which is normally not the case. Therefore, it is very important, especially in the present time, especially when you’re representing a cause or a movement or civil society organisation etc. to see what they want.

Is the present government likely to overhaul the entire constitution in order to bring about the changes it wants? Are they likely to scrap the constitution? My answer would be a very cautious no. I feel they don’t require to do that. Please remember, in the last ten years, they’ve brought in only four substantial amendments to the constitution: NJSC which was struck down by the Supreme Court; GST; 10% reservation for EBC (economically backward category) and abrogation of Article 370. For everything else - CAA NRC, anti-conversion laws, new Labour Codes - they did not need to amend the Constitution. Ultimately the interpretation of the constitution depends on what the Supreme Court says. And till that time that they feel that the Supreme Court is not really going to strike down laws introduced by the Central Government, they are not really going to change the constitution especially because right now they need the Dalits’ votes and any major change in the constitution would be seen as doing away with Ambedkar’s legacy. But that situation can change if tomorrow, if the Supreme Court interprets the constitution in its true spirit and strikes down certain laws.

As progressive lawyers, we should all take up all available opportunities, try to expand them as much as possible, use the constitution, argue on the basis of constitution in the court, argue on the basis of human rights jurisprudence in court. Ultimately, we need legitimacy for what we argue, so argue on the basis of international law. Much more of international law will need to be used, international instruments will need to be used while arguing. Of course, the challenges are very harsh. But I am an eternal optimist because I think we all are capable of taking up those challenges. We are dealing with a fascist state which does not believe in the Rule of Law. At the same time, it is difficult for them to do away with the constitution, to do away with at least the facade of democracy. And till such time as the facade of democracy remains, we have to use it to the extent possible in order to ensure that we are able to agitate the rights of people in the courts.