By Alok Prasanna Kumar
The United States is fiercely resisting its regime of deplorables: first came the three-million strong Women’s March, and this past weekend hordes of lawyers joined the battle after the #MuslimBan, obtaining injunctions and emergency stay orders for those affected, promising to fight until Trump’s (sad!) executive order is struck down by the courts.
Here at home, many have been asking where India’s version of the American Civil Liberties Union is. Has our legal machinery ever been called in to defend the public interest with such speed and effectiveness – and is it even possible? Good news: it has happened, and we do have more than one counterpart to the ACLU. The complication: none of these bodies are exactly like it, so there’s no easy answer to the question, “Where is India’s ACLU?”
First, a look at (part of) the landscape:
Human Rights Law Network is associated with several grassroots civil rights organisations, and undertakes not only litigation but also activities such as investigation and awareness campaigns aimed at defending civil liberties. In recent years, they’ve been instrumental in approaching the Supreme Court for relief to victims of the Muzaffarnagar riots.
Lawyers’ Collective you already know: they’re currently under fire from the central government on (very flimsy) charges of mis-utilisation of funds: the Bombay High Court just un-froze their domestic accounts last night, in fact. Set up in 1981 and comprised of luminaries including Indira Jaising, they’re involved in a diverse set of campaigns for women’s rights and health policy. They intervened on behalf of patients in last year’s landmark Novartis vs Union Of India case (Short version: Novartis wanted to patent an important and expensive cancer drug which would have blocked Indian pharma firms from making much cheaper generic versions. The Supreme Court ruled against Novartis).
The People’s Union for Civil Liberties was set up in the aftermath of the Emergency by Justice VM Tarkunde, and has filed some of our most important and well-known public interest litigations (PILs) in courts. To name just one recent victory, they’re the reason the government has to follow Supreme Court guidelines when deciding whether or not to wiretap your phone.
In the realm of government accountability, there’s Common Cause, formed in 1980 by the activist HD Shourie, which has a history of using PILs to challenge malfeasance in government, including most notably the 2G spectrum allocation.
Center for Public Interest Litigation, another Justice Tarkunde legacy, also uses PIL to address civil liberties issues and corruption in government. In 2011, they filed a PIL that helped strike down the appointment of PJ Thomas as India’s Central Vigilance Commissioner for having criminal cases pending against him.
There’s also legal activism which focuses on the civil liberties of specific groups: among just a few are Teesta Setalvad’s Sabrang Trust (for religious minorities persecuted by the State); the National Campaign on Dalit Human Rights; the Jagdalpur Legal Action Group (for adivasis in Chhattisgarh’s Naxal-hit districts); Naz Foundation (the HIV-awareness + LGBTQ rights group which challenged Section 377 IPC); and the National Law University, Delhi’s Centre on the Death Penalty (for those on death row).
I Fought The Law
So how is what these organisations do different from the ACLU? For one, they operate in a different environment. Our judicial system is still pretty fragmented: a CPIL cannot hope to swoop down just anywhere in India with Delhi-based lawyers and conduct litigation ignorant of local laws and procedures, which vary a lot.
But, you might ask, why isn’t there a nationwide network of such lawyers? The simple answer: money. Fundraising pools are limited, and frankly, it’s because India’s wealthiest are entangled in the oppressions that civil liberties organisations find themselves fighting: the ACLU doesn’t have to put up with this degree of entrenchment. In India, when the government cancels a lifeline FCRA certificate, which allows foreign donors to fund such organisations, things get much worse very quickly. Also, fund-raising is difficult but there’s some very basic things these organisations could do that they don’t. Many of the ones we’ve listed don’t make it easy for potential donors to find them; the PUCL even appears to cap subscriptions at Rs 2,000.
And The Law Won
That said, you might wonder why we don’t have a string of stunning legal victories against the worst of the current government’s actions. Why haven’t we heard of any real challenge to, say, the creeping tentacles of Aadhaar or the worst effects of demonetisation?
For one, the most effective defenses of civil liberties in India hardly ever make the headlines. Most organisations don’t have slick communication teams – a real reason to envy the ACLU – and your morning paper probably doesn’t pick up these stories.
(Quick aside: going by existing media coverage, it might also be easy to think civil rights litigation is interchangeable with public interest litigation. The two are vastly different, intersecting only occasionally. Sometimes, approaching the Supreme Court or the High Court through a PIL may be entirely counterproductive. As a new book, Courting The People, points out, PILs are not always the best route for safeguarding civil rights.)
Then there are the tactical challenges. Human rights lawyering requires not just passion and commitment, but also extensive research, great advocacy, and – we can’t stress this enough – a coherent litigation strategy. Even if you do everything right, with the perfect litigant, the most carefully thought-out strategy, and killer prep to back you up, there’s no guarantee you’ll win. Courts are fallible in both India and the US; civil rights lawyers here know first-hand that the bigotry they’re opposing may just find a reflection in the court’s own thinking. For example, in 2015, PUCL was involved in the Rajbala case, in which a heart-breaking loss has taken away the democratic rights of huge sections of Haryana’s rural population.
Finally, almost none of the big organisations we’ve talked about take up what is arguably the most urgent civil liberties challenge in India. This is the unglamorous and often dangerous work of turning up in cramped trial courts, against hostile police and local Bar Associations in small-town India, getting bail for someone wrongly accused or unjustly detained. It involves putting in the hard yards in a trial, and slowly but methodically taking apart cooked – up investigations. It involves putting the litigant at the forefront and not the cause.
So if you really want to further civil liberties in India, there’s no single-click solution — but there are ways to get involved. Lawyers can donate their time and expertise to any of these organisations. If you aren’t a lawyer, you can write to them to volunteer for work that doesn’t necessarily need legal input. And almost all of them do allow you to donate money, even if you have to dig through websites from the early 2000s to discover how.
Dharmo rakshati rakshitaha, as they say in the Mahabharata, and also in the motto of the National Law School of India – whoever protects righteousness is also protected by righteousness.
PUCL: Call 011-22750014 and download a membership form here.
HRLN: Call 011-24374501, donate here.
Common Cause: Call 011-26131313, donate or get involved here.
Lawyers’ Collective: Call 011-46805555 in Delhi or 022-43411603/604 in Mumbai, or get in touch here.
This story was first published on Brown Paper Bag.