The Court As A Theatre of Struggle
Article by Arvind Narrain looking at the everyday life of trial lawyering
The Court as a theatre of struggle
The power and majesty of the law manifests itself in its most concentrated form in the Court. Everything about the Court right from the robed judges to the black coated lawyers is about conveying authority, authority which is meant to intimidate, coerce and finally to silence. In the presence of the law , even the most vocal are rendered silent. In such a context one can well imagine the plight of those who not only are rendered silent by the mystical authority of the court , but are also not able to afford legal representation.
The court room gives a false sense of formality with behaviour constrained within well established procedures. The lawyers in their black coats would speak a language which was quite incomprehensible to the people they were representing. The clients would hang on every word that is exchanged between the judge and their lawyer. Some of them are genuinely submissive and afraid of the court while others pretentiously bow their heads, faking submission and respect for the court. Clients are completely at sea as to what exactly is happening in the court as the judge bends over and scribbles furiously on the files. The moment of clarity is arrived only when the judge flings their file to the bench clerk- then they would know it is over for the day.
This over dramatic sequence of events ensures that the courts are not the space where the voice of those at the bottom of the socio-economic strata are usually heard. It remains a forum where the sex worker or the slum dweller in seen but not heard. He or she is , often brought in after a night in custody, after some by now routine harassment by the police and his or her fate is decided by whether there is a competent lawyer to represent him or her. Even if there is a lawyer to represent him or her, if the bail requires sureties which the person is not able to furnish, then the person is doomed to a long period of detention in the other horrific institution in modern India – the prison.
The venality of the court is an hoary Indian tradition. If you are practicing in any court in India , you will be told the price of different things right from getting hold of certified copies, to getting your case posted on the next date to amounts which one might need to pay to Public Prosecutors. The feeling of sleaze and dirt around the court is so palpable that not many would choose to venture in these territories in the quest of justice without simultaneously having the ability and the willingness to grease the wheels of justice.
It is precisely this arena that we decided to intervene is as practicing advocates. If we wanted to in any sense make a difference to marginalized communities , intervening in the court processes would have to be a significant part of our work.
Our litigation work started with the arrest of Sameena ( Accused Cr no 58/2002) on charges of soliciting and moved on to encompass a range of cases involving child labour children accused of committing offences , women who were victims of domestic violence and women wanting to get out of unhappy marriages. Throughout this period the number of sex workers wanting to contest only increased with Savita, Shoba , Ratna , Jayamma and several other women deciding that they too had enough of arbitrary police harassments and deciding that they too wanted to contest.
What was apparent , particularly in the case of women arrested on charges of soliciting is that they moved from a position of being objects of the law to slowly articulating their conviction that they had done no wrong, in response to the judge asking them to enter their plea. The sense of sex workers being treated as cattle within the court does enormous violence to the constitutional philosophy underlying Art 14 namely the idea of equality. There is no equality before the law. Even in the ranks of the oppressed, comprising murderers, thiefs, drug dealers , the lowest of the low positions is occupied by sex workers. Right from when they are produced in court ( at the end of the day after all proceedings are finished) to the way they are treated in the court re-affirms their marginal and stigmatized role in society.
In fact the cattle metaphor is applicable from the very moment of arrest. Nothing exemplified this better than, the incident when over twenty women who were all arrested on charges of soliciting were produced in court. All looking enormously weary, after a night in custody they were in court waiting their turn before the Magistrate. Just as they appear before the Magistrate, before the court closes in the evening, they are ordered to cover their heads and look down. The judge murmurs something which the women cannot comprehend. It seems like it is below the dignity of the judge to look at them straight and speak to them. The bench clerk then asks the women collectively “do you all plead guilty”. And all the women unanimously say “yes”. Their only concern is to get out of the court and join their children who have no clue as to where their mothers have disappeared for the night. Every body right from the sex workers to the police the bench clerks, the pending branch and the judge are in a hurry to finish the matter and retire for the day.
However Ratna had other ideas. In the cacophony of voices all saying ‘Forgive us, we have done wrong’ “We admit we did wrong’ , there was one voice struggling to get heard in asserting her basic right to assert that she had not committed any offence. Everybody right from the police to the women who were arrested with her were annoyed that she wanted to contest her arrest. She was under tremendous pressure and to stand up to the pressure was indeed remarkable. She wanted to make a statement before the Magistrate on violence inflicted on her by the police and we managed to record her statement in the cacophony of voices. To provide the black comedy , suddenly the judge noted that he might have to remand all the women back to judicial custody as the typist had left and there was no one to type the release order. Once again the cacophony of voice moaning about children and old parents and how it was impossible to be in jail for another day arose. Of course our client Ratna was seen to be the cause of the problem as in that Babel of voices in different languages the other women thought that it was her decision to contest that , would result in the rest of them spending another night in jail. However, somehow another typewriter was procured, the women were released and Ratna volunteered to go back to the jail so that she could be sent for medical examination. Ratna was clear that regardless of the inconvenience of another night in the jail, she wanted the police who had beaten and stripped her to be held responsible. Ratna asserted her dignity that day and her need for justice.
The above in some sense communicates the atmosphere of the court. So then how does one intervene in the system of the court ? We tried looking at our experience and trying to understand what does it mean to do alternative law in the court rooms ? We came up with the following broad understandings:
1) Using the ‘power’ of the law
Even while we have used the phrase alternative lawyering it remains clear that our practice did not disavow the power of the law. What we sought to do was demystify the power of the law for our clients while at the same time we were clear that we were using the power of the law on behalf of our clients.
We did go to courts wearing the uniform which gave us power ie the black coats. The coats were what in some sense immunized our clients from harassment in the courts. The coats were what opened doors in the court and enabled you to access basic information. The coats were what were responsible for the police man even letting you know under what provision your client was arrested.
The fetishistic powers which resided in the black coat was what we were trying to channelize towards empowering the marginalized. It worked to the extent that you were part of the process of trying to fulfill a constitutional promise- everybody has the right to legal representation. What was clear is that some sections of the Indian population were (non) citizens when it came to accessing basic rights. Our work in its own miniscule way was really about filling this gap between what was laid down and what was actually there. Of course being conscious of the nature of India’s problems one is fully aware that we will never fill this gap through our limited practice. The solution has to lie in a braver re-imagination of possibilities, so that the broad ideal of justice can encompass a wider range of the dispossessed people of India.
Thus even while we use the ‘power’ of the law one needs to be conscious of the way the ‘power’ works on your client and on yourself bringing about subtle changes in behavior and personality. The fetishistic powers which reside in the Black Coat in particular, can have an impact on clients , silencing and intimidating them. We have been very conscious of this power and have tried to demystify and minimize it.
Of course where there is power, money cannot be far behind and one should not have the impression that the power of law is necessarily linked to the ideal of justice. In its day to day workings out in the lives of the poor , the Black Coat signifies a group of people who will use their influence to extort money and other favours from the poor. In the traditional practice of law the less the client knows the more the lawyer earns. Even though the filing of bail applications in bailable cases is very standard and the formats are available in the court premises for Rs. 5/- the lawyers may charge anywhere between Rs. 1,000/- to Rs.10,000/- depending on the reputation of the lawyer and what the client can afford.
This is a regular feature in the court when desperate arrested persons are produced before the magistrate. Not only does the advocate solicit clients in the corridors but sometimes he takes an advance promising to get them released on bail. When they are produced before the court they find themselves without a lawyer. The lawyer who was supposed to bail them out disappears with the money. The poor are then remanded into judicial custody.
To take another common example, lawyers mystify and make profitable the very process of filing an exemption application on behalf of clients who are unable to appear. While it is the discretion of the Magistrate to accept or not accept the application, the practice in the courts is that exemption are in the nature of a standard form application which is invariably accepted without question. Lawyers often make it seem that exemptions are extremely difficult to procure and use the power of the law to extort as much as possible form the client. We tried to demystify simple court processes like filing exemptions and are in the process of encouraging our clients to file their own bail applications as well. By helping them to understand simple things like case number, the next date of hearing, the client is empowered to handle her own case to the best of her ability.
Further the ‘power’ of the law inherently resides in the distance between the client and the lawyer. The distance is maintained by ensuring that even if you are going to the same court, the lawyer comes by his or her car and the client takes an auto. There is no question of sharing food with the client. When it comes to sex workers the distance is amplified by several degrees. Lawyers never see the sex worker beyond the limited time of the hearing in court. We sensed this distance of which we were a part of and tried to respond to the dynamic of being a lawyer and hence automatically being a part of the social process which creates the distance.
Ratna, Sameena and the others always saw us as both lawyers and ordinary people with both identities playing off each other. In the meetings for sex workers which were initiated by the women themselves we played a secondary role compared to the role we played in the courts. Further, whenever we were invited for tea or lunch after the court hearings ,we always went firstly because we were tired and wanted the tea and also because it was an important act of affirmation that there was a social solidarity which went beyond the lawyer client relationship. This ‘act’ of social solidarity also conveys a strong message to the police that even the sex workers, hijiras, juveniles from the slums or muslims have some form of access to justice.
Using the ‘power’ of the law has remained an inherently contradictory enterprise with the law having the capacity to function as a bulwark against oppression as well as being the very source of the oppression.
2) Changing the culture of the court
The courts are spaces for public performances. It has been identified as an arena which in many ways mirrors the existing societal prejudices, in some ways amplifies prejudice and yet in other ways constructs prejudices of its own. But the courts are also spaces where there is a contestatory politics which plays out. This is because while there is power, the power is not absolute and allows for some amount of critique and hence change in the very culture of the courts.
It has been our limited experience that changing the culture of the courts requires a sustained effort by a team of lawyers who are constantly present in the courts, making interventions and through their efforts bringing about a change in the court room culture. One of the descriptions which come to mind is that of the work of the feminist lawyer, Flavia Agnes. She notes in an interview that through her work in the family courts in Mumbai with a team of committed women lawyers, there has been a remarkable shift in the gender sensitivity of the judges in Mumbai. Similarly the veteran civil liberties lawyer Mr K. G. Kananbiran in a conference organized by the Alternative Law Forum noted the need for a practice of law which he called insurgent jurisprudence. By this we gathered he meant that the courts are spaces in which it is possible and in fact necessary to question dominant values.
Maybe one of the predominant values which we were successful in questioning was the ubiquitous nature of the bribe which had to be paid to every lower court functionary. The first instruction we got from a senior lawyer is that if we wanted to learn the ropes of litigation then we better be part of the system. Being part of the system primarily meant that we had to learn to bribe people. Even as he instructed and his junior whole heartedly agreeing with the look that you have to ‘grow up’ and face the realities of the court life if one aspired to be a ‘good’ lawyer. These lawyers were proud that they were experts in the “art of bribing”. There is a certain maleness associated with the very act of bribing. Although we heard this from many lawyers, we did not start with the premise that we had to bribe everybody to get our work done. If we did not pay then the clerks would ask money for “coffee” which meant a bribe. Initially we had some difficulties as they would make us wait or be extremely rude. Some of the clerks and lawyers could not understand as to why we would waste our education and legal knowledge on such petty cases. They would in fact suggest that we take up other cases like “murder” which is more lucrative than petty cases of police violence.
We never started with the presumption that it was necessary to pay money to get our work done. When we represented sex workers in the courts, that very act of representation seemed to have appealed to a core of idealism in most of the court staff. While reactions ranged form yes there are poor women someone needs to help them to they are criminals you should not be helping them, a larger majority of the court staff including the judges were empathetic to the work we were doing. Gradually they understood the kind of work we did and with the informal discussions about the kind of constituency we represented and the subsidised legal fees we charged our clients. In most of the court halls where we regularly practice the pending clerks are familiar with work and almost never ask for a bribe.
One of the judges in fact commended the very fact of representing sex workers and asked us to work at the policy level to change the law. He further noted that in his day he too was a part of the social revolution.
While one cannot claim that this is a significant change, it points to possibilities of bringing about a more overwhelming change in court culture of everyday bribes if we do indeed have a significant number of people practising in the same courts.
The other issue which had troubled us is whether it is indeed possible to bring about a shift in the way we present cases. Representing the marginalized meant that we use a language in which we were not very comfortable with. Indeed, in a legal argument, facts can be emphasized or omitted, made to appear relevant when they are not, and skewed to make one point or another. The goals are the same–to tell a story by using words as tools to produce a desired reaction.
For example, when we present the cases of women who are arrested on grounds of soliciting very often, the image of the woman is as a victim. She is presented as a poor woman with three kids who would be subject to enormous hardship if she was not released on bail. The question is whether it is indeed possible to change the way we present the image of the woman , moving beyond the rhetoric of victimization.
While what we submit as applications are often not read, what we say gets heard. So changing the very perception of the woman has to be a public court process. In some ways that perception has changed largely due to the very self presentation of the women. They have moved from being victims who look down and mumble saying that yes we have done wrong to vociferously articulating that they have done no wrong. The image of Laxmi who was falsely arrested by the police standing up in court with her arms folded and asserting with great dignity that she had done no wrong , will always remain permanently stamped on our memory as an assertion of an identity which moved beyond the rhetoric of the ‘victim’.
We have used the narrative of the sex worker to tell the story of HIV/AID’s. Due to the National Aids Control Society (NACO) definition , sex workers are seen as high risk group and interventions with the sex worker community are a priority for HIV/AIDs interventions. However the contradictory nature of the Indian state is such that , while there is a policy supporting such intervention, the constant violence against and arrest of sex workers renders difficult the very possibility of such intervention. We have sought to constantly make the point that many of those arrested were HIV/AIDs workers and by arresting them the police were hampering the very work of HIV /AIDs prevention. The women were in fact doing a service to society and they should be allowed to continue working unimpeded. The Court should in fact be used as a space where significant social issues such as HIV/AIDs are discussed and the court process should be used to further such education.
Strangely the very perception of sex workers and those considered even lower in the social hierarchy, ie the hijra community changes based on the fact that they have access to legal representation. The fact that there is a group of advocates willing to intervene on their behalf means that the court system has to be sensitive to the fact that, that the routine violation of their rights and dignity will become matters of justice. There will be interventions to safeguard their rights and hence one the justice delivery system cannot be complicit in the routine violation of their rights. This very recognition brings about a change in the very the court system can afford to treat them.
3) Subsidized legal services
To state that the law is an unequal institution is perhaps to state the obvious. The more critical question is whether it is very possible to right the balance so that those at the bottom too have a broader access to justice.
The role that money plays in ensuring that the poor, never have access to justice is critical. To just take one example, in our interventions with the sex worker community, we have never charged conventional lawyers fees, instead leaving it to client to pay what they are willing and able to. IF we had charged conventional lawyers fees the legal component of the sex worker initiative would have been impossible. To just estimate the minimum legal fees for the over seventeen women we represented would have been in the range of 51,000 at a conservative estimate. The group which has just started a bank account has a grand total of of Rs 2000. Justice would have just been priced out of reach of the entire community if the group had sought to access justice through a conventional lawyer.
The fact that one can provide competent legal services at highly subsidized rates means that even the poor can have a shot at justice. Sometimes one feels that in critiques of the role of law , one should never erase the importance of an intervention which might not even do much beyond just ensuring that the inequality of money is minimized in accessing justice.
4) Performance as politics
Perhaps nothing the courts as political theatre as much as the cross-examination. The cross examination can excite fears and anxieties among all the participants including the police , lawyers and victims. It is a mode of exercise of power and a way in which the powerful can be made accountable for their deeds and misdeeds. It can also function in a way which can completely disempower the already brutalized by further exposing them to the gaze of a prurient public. In our work we witness both these contradictory possibilities of the cross examination.
To take up the first instance, the very fact of sex workers contesting cases means that at some point in time ( the time getting prolonged by constant police inaction) the police have to present themselves in the witness box. The techniques and stratagems adopted by the police to avoid this possibility are many. Invariably every date of hearing , when the police witnesses are supposed to present themselves, they would be absent. In some cases where the Magistrate happened to be conscious of the need to bring the case to a closure, the magistrate may issue a non bailable arrest warrant. If in one case involving Savita for example, though the Constables and the Women Police Constable presented themselves in court and underwent the cross examination, the Inspector refused to come for the cross examination. The logic being that as an Inspector it was completely beneath his dignity to be cross examined in the case of a sex worker who was solicting.
However the Inspector in the case of Sameena, after the Court exercised its authority over him and issued a non bailable warrant finally attended. Since we were able to expose the Inspector’s story as being false and show that he had not been at the scene of the crime, it did send a signal to the police that women could not be dealt with in a totally highhanded and arbitrary fashion. The inspector who had gained notoriety for giving electric shocks, throwing chilli powder in the vagina of a woman and beating sex workers with the police baton was examined in the witness stand. It was very emotional for the sex workers who saw it as some fort of vindication that the inspector was being questioned in the open court. The impact of these cross examinations is that the sex workers see this as a forum where the police have to justify their actions and in most cases they fail to do so. This further inspires the women to contest arbitrary arrests.
Further the very fact of the Inspector being in the witness box and being cross examined in front of Sameena sent out a powerful message to her that their was some sort of public pressure (albeit in the limited context of the court room ) which the Inspector had to face for his actions and that he was accountable for his actions.
However this publicness of the Court room can function in precisely opposite direction as well by further victimizing the already brutalized. During the cross examination of a woman complainant in a case of outraging the modesty of a woman (section 354 IPC) the courtroom was spilling out of its space with male lawyers. The woman testifying was a smart English professor. She was repeatedly harassed by a male colleague (the Accused). She had complained several times to the management but to no avail as the accused had a lot of support in the college. After one such altercation the Accused followed her and in a busy market area pulled her saree and verbally abused her. She registered a police complaint and a criminal case was registered. After three years the case was posted for cross examination of the complainant.
In preparation for hearing some salacious details all the male colleagues of the lecturer had come to observe the women being forced to reveal all the details of the incident. Word had spread through the court room that this matter was coming up and the hall was filled with both lawyer, curious onlookers as well as the men who were her former colleagues. The atmosphere in which the cross examination was to be conducted was thus extremely hostile to the woman. In fact the presence of so many male lawyers we later learnt was a defence tactic to embarrass and intimidate the English Professor. Every question the defence lawyer asked his accomplices would snigger at the complainant. The woman was forced to reveal intimate details of how he had stopped her in the middle of the road, tried to strip her and abused her in the most filthy language. When she asked he judge whether she should say everything the accused had said, the judge responded by saying that if she wanted to see justice done she should. She responded by saying in choking soft terms, ‘He called me a whore your Honour.’
The Honour in question, who was not familiar with the word whore said ‘ore what ore ?’
To which the Public Prosecutor responded by saying She means prostitute your Honour. This point the said Honour duly recorded.
Of course this entire exchange was accompanied by more audible whispers, sniggers and jeering looks. It was free entertainment for the all gathered in the court hall.
This incident which we witnessed was so shameful in the way the public culture functions to reinforce the notion of women as sexual objects who could be degraded anytime by the male gaze. Our sense was that there was a strong need for a more political approach, which was conscious of the power dynamic inherent in the maleness of the court room and consciously tried to reverse it. What clearly needed to be done was to connect the woman with some feminist groups and ensure that at least the atmosphere of the Courts was changed with a strong group of women attending the court hearing and challenging the very maleness of the space and making it more strongly empathetic to the case of women victims of patriarchal attitudes.
5) Legal strategies
Of course everything we have said till now forms a part of a legal strategy. But what we have felt very strongly is that legal strategies should be a part of a wider socio-political strategy. Sometimes litigation might be the solution , yet at other times litigation might need to be supplemented by a non court process. Sometimes before even starting the process of client counseling, one might need to be more clued into the very context of the client.
To take an example, what we have realized about domestic violence cases, is that women go through phrases. At points they are very keen on filing a case of divorce against the husband, in a couple of months, they decide that they don’t want a divorce but want to get back to the man. A few months later violence is inflicted again and the woman wants a divorce. This context of the impact of domestic violence needs to be understood before any strategy can be planned. In cases of clients who have been battered we first send them for counseling so that they are strong enough emotionally to sustain through the litigation process.
The fact that women will express different opinions at different points in time needs to be taken into account in planning strategy. In fact studies of domestic violence have referred to what they call ‘ honeymoon period’ to refer to the complete inability of women to leave the men who are beating and abusing them. So even if a woman who initiates a divorce case wants to withdraw it, it makes good legal strategy to not immediately comply, as the situation in a few months could be totally different. Further in complex situations such as this one might need to go beyond the role of the lawyer, to even playing the role of a counselor. This could mean referring a particular client to a counselor, a shelter or giving them contacts of support groups before we file a case.
Perhaps the key example which we have worked with is how to take forward the issue of sex workers struggle against police violence in a manner in which the community better learns to question violence and hold the police accountable.
We have learnt that it makes sense particularly in the context of a community to initiate a community based process as well. In a spontaneous sense because the women felt the need they started meeting every week to discuss strategies in the context of violence. This process of weekly meetings gave them a sense of courage that there was a group of women behind them who shared their feelings of outrage and humiliation with respect to police conduct and also encouraged them to contest cases as they had legal support. If there was any reason at all that women were willing to contest cases , it had to flow out of the regular meeting process where they were able to interact both with other women who had already contested cases.
Thus what was important was to supplement the legal process as a mode of ensuring that women could feel that they could hold the police accountable. The strength of this approach becomes apparent when we see the fact that, in the past in Bangalore there were never women who contested cases. This was because of there was no social process as well as because there was no legal process. Unless both were there it was impossible for a legal intervention to succeed by itself.
The notion of legal strategies has to be based on a clear understanding of the intricate way in which the legal system works. Understanding the interface between the civil process and criminal process is crucial in any attempt to secure justice. For example, in a civil case involving Muniratnamma a child labourer working in the silk industry in Magadi. She suffered burn injuries in the course of her employment in the silk unit. The employer who is member of the powerful silk employers association denied that he had ever employed her. Fearing legal consequences of the accident the powerful silk lobby tried to hush the entire incident by cheating Muniratnamma’s illiterate mother into signing an agreement that the accident did not take place in the silk unit. Proving her employment which was one of the requirements for the compensation was difficult as he was employing them without giving them any written acknowledgement of payment.
(Beyond the court – what needs to be done). Further, the doctor who was certifying the burn injuries was bribed by the employer. The entire case was prolonged for over three years as the doctor and the employer were stalling the entire court proceedings. When we approached him he was very annoyed with us and told us “it is not as if somebody is murdered that you take this matter up so seriously, it is after all a child labourer”.(triviality of the matter) We then contacted the labour commissioner who them put immense pressure on the health department which brought the doctor to the court.(making the sys work) Further, upon inquiry it transpired that there was a criminal case which was filed against the employer and further investigation at the court revealed that the employer had actually pleaded guilty to criminal negligence in the wiring of his factory and being responsible for her burns. Thus, the criminal records were submitted as evidence in the civil case which was enough to prove that Muniratnamma was burnt in the course of employment.
Legal strategies also have to be contextualized to suit the case of the individual client. Sometimes there could be a conflict between the need to hold the state accountable and the need to ensure the best for the individual client. For example in the case of the arrest of a Nepali watchman at 5 am in the morning, and the illegal detention for three days, it was imperative that to ensure police accountability we needed to file a case of habeas corpus to ensure that the case of illegal detention came to light. However if in response the police filed a false case of theft against the Ramesh Bahadhur Dwal, then he was stuck, only because getting out on bail would mean that he would be required to produce sureties. Considering that his family was from Nepal he would not be in any position to produce sureties and hence invariably condemned to a long period of detention. So in this case , we just kept the pressure on the police and ensured that he was not ill treated by constantly calling the police and going to the police station. However we ended up condoning the illegal detention for two days, only because it was a better alternative than a possible long spell in jail.
Susheelamma was a devastated mother when she walked into our office. Her seventeen year old daughter Manjula was kidnapped by twenty seven year old Ravi. She was inconsolable and desperate to get her daughter back. She was afraid that Ravi would sexually abuse her minor daughter. The jurisdictional police had registered a criminal complaint but were not pursuing the case. Susheelamma promised to pay any amount we wanted as long as we could get her daughter back. There was enormous pressure on us to file a habeas corpus immediately. While drafting the petition the more we inquired into the matter and analysed the letters which Manjula had written the more contradictory and dubious was Susheelamma’s story of the kidnapping. We stalled filing the habeas corpus and it came to light that Susheelamma is an orthodox Brahmin. She strongly opposed Manjula’s relationship with Ravi who is from a lower caste. She had arranged for Manjula to marry a person who was also Brahmin. Manjula then eloped with Ravi.
We refused to file the petition. (politics of caste and law)
So in a sense legal strategies bring to the fore the dilemmas between law and politics, individual people and broader social causes. Choices one makes can have an irrevocable effect on the life of the client, so they need to be well thought through before any form of action is taken.
6) The client as an active subject of the law
While it is true that once one enters within the framework of the law, one is invariably defined by the law, there exist ways in which this ‘power’ of the law can be understood by even poor people and used to defend their interests.
It is important in our practice of the law that the client is empowered through the process rather than the process making them more isolated or weak. This means taking time to explain the court procedure and processes to the client. Often especially in civil cases the clients are quite frustrated in the long delays and adjournments. With numerous interim applications being filed by either party they are confused as to what relief they would be getting and when and for how long. In our practice of law we explain to the client the court process by drawing diagrams and charts to explain the various stages of the case. Not that this leaves them any less frustrated but at least they can plan their life in accordance to the different stages of the litigation. For example, even though the woman would be filing a case of maintenance we ensure that she looks for other employment or give her contacts of organizations that would help her look after her and support her children. Through this her energies are not always concentrated on the case but to also look for other means to support herself and her children.
We always insist that our clients actively engage in the litigation process be it getting the next hearing date or preparing themselves for the accused statement before the Magistrate or getting medical certificate from the government doctors to produce as evidence the injuries they have sustained. When the clients come to us they are quite desperate either because they have gone to other lawyers who have cheated them or they no support system whatsoever or have suffered continuous abuse that they are quite resigned to the fact that there is no other way out. Savitha* a sex worker who is also HIV positive was beaten and arrested while she was having lunch by a WPC (woman police constable) She contested the arrest. In the beginning she was very overwhelmed by the arrest and its implications on her work. She was threatened by the police and the women who stood on the streets with her. Initially we sent Savitha to get dates of her next hearing and constantly sent her to the courts along with another sex worker to find out when the matter would come up for hearing. During this process she was forced to interact with clerks at the pending branch, the police and other court officials. Soon everybody in that court hall were quite acquainted with Savitha’s case. When the matter was posted for the Accused statement (S.313 of the CrPC) she courageously stated before the Magistrate the circumstances of her arrest. The magistrate listened to Savitha’s story which was related devoid of any great legal argument or jargon. Savitha was acquitted and this entire process has been positive in helping her to articulate her story to the court and to be confident in accessing the court the police station and other state agencies.
Similarly, Parveen*, Selma* are no longer afraid of the judicial system. They have each contested three to four arbitrary arrests and to a large extent have conducted their own cases. Although, there have been mix ups with the dates which then results in the court issuing a non bailable arrest warrant (NBW) and this would require an extra effort from us to recall the NBW. Despite this, we have thought it made sense to insist that the women take responsibility for their cases.
However this confidence that the client acquires can itself be a double edged sword. A single good experience can make one look to the court for justice where the court may be quite unable to do so. In the case of Savitha, for example, she was so emboldened by her experience with the court system that when she was being harassed by a client on the street she went to the police station to file a complaint. The police outraged by her ‘audacity’ promptly booked a case of soliciting against her.
7) The court as socialization
The court also functions as a mechanism through which a different social reality is constructed. What in many ways exemplified this was the case of Arul Jyoti. Arul Jyoti was a student of the 10 std doing his SSLC exam.
Arul Jyothi* aged 15 years is from a slum in Bangalore. His mother a domestic worker and his brothers who are construction workers have put all their resources to ensure that Arul completes his board exams. To them he symbolized the aspiration to a world which was different from the world in which they existed. During his exams Arul panicked and ran out of the hall with his answer sheets. The next day he went to the invigilator to give in his papers of the previous exam. The teachers and the head master also panicked as they immediately felt that they would be suspended for dereliction of duty. Instead of making further inquiries with Arul they immediately notified the police. The police arrested Arul. He was detained in the police station and beaten. He was not produced before the magistrate. We telephoned the police several times asking when they would be producing Arul. The police panicked as they did not want the lawyers to be involved. They misled us deliberately with regard to the time of production and released Arul. By the time we traced Arul to the court, the boy was traumatized. He was threatened and beaten by the police not to make any statement to the Magistrate. Once Arul was out on bail our task was to see that he does not get debarred by the examination board and that he works as an apprentice to keep himself occupied until he can write the supplementary exams. In this case apart from representing Arul in the court we were very much involved in ensuring that Arul does not get debarred and is admitted in a training institute.
he had tampered with the answer script which was an offence under the Karnataka Education Act. In the police station he was beaten by the police and later produced before the Magistrate.
The clerk in the Magistrate’s chambers did not allow Arul Jyoti’s mother to enter the chamber with her sandals on. The Magistrate was perfunctory in recording the details and releasing Arul Jyoti. The entire episode can be seen as really the first step in jerking a young person out of the context of the school and thrusting him into the face of the law. The experience is most definitely not pleasant and by treating Arul Jyoti as a criminal, produces him as a criminal. If he becomes familiar with criminality , the courts would in no small measure be responsible for the same. It was no surprise to see that Arul Jyoti’s brother came back to us another day, because Arul Jyoti had been arrested in another case.
1. Courtroom-based lawyering
Based on using the ‘power’ of law
Appeal to idealism
Subsidized legal services
Trying to change culture of court –insurgent jurisprudence ( use of language HIV as an issue , non payment of bribes, move beyond victimization rhetoric )
Criminal/ civil interface
Trying to get the client to represent herself to the maximum extent possible
Interdisciplinary approach – meetings/ collectives to supplement court processes / law not always the solution ../ insights from critical theory
The court room is only one site , one should be clear that the only way in which oppression which is based on societal norms can be questioned is by using the law strategically as a socio-legal tool
 Tarunabh Khaitan, From Activist to Alternative Lawyering in India, on file with ALF
 Conference Report: Alternative Lawyering in India, http://elj.warwick.ac.uk/global/issue/2001-2/alf.html