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An Ominous Couple of Weeks for Advocates and Advocacy in India

Will the judiciary nip the new trend of attacking advocates physically or with threats cloaked in the form of ‘affidavits’ for the mere reason of representing those who have dissenting opinions against the ruling government in the bud or will it wait for a bitter crop?

Last Friday, mobs in Imphal vandalised the residences and chambers of two lawyers for the simple crime of representing a client in a court case.

The two lawyers, Soraisham Chittaranjan and Victor Khaba, happen to be Meitei and they were representing a Kuki academic Dr Kham Khan Suan Hausing. 

Dr Hausing has been charged under Sections 153A,  200, 295A, 298, 505(1) and 120B of the Indian Penal Code, 1860 (IPC) for giving an interview on violence-hit Manipur to The Wire.

Reportedly, the vandalising Meitei mob was angry at why one of their ‘own’ would represent a person of the ‘other’ community.

If your first thought is that this is just a reflection of something that is happening in a peripheral region where a raging conflict has consumed hundreds of lives already since May this year, think again.

Pleading for restoration of Article 370 is deshdroh

On Monday, the fifteenth day of the hearings In re Article 370, intervenor ‘Roots in Kashmir’, a Kashmiri Pandit organisation, filed an affidavit before the five-judge Constitution Bench led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.

The affidavit alleged that lead petitioner Mohd. Akbar Lone, represented by senior advocate Kapil Sibal, had chanted ‘Pakistan zindabad’ slogans in the Jammu and Kashmir (J&K) legislative assembly in 2018.

Advocate Bimal Roy Jad, for the intervenor, the Solicitor General of India Tushar Mehta and the Attorney General of India R. Venkataramani urged the Bench— and urge is a gross understatement here— to ask Lone to file an affidavit affirming his “allegiance to India”.

At one point, Mehta even said, “Your Lordships must look into it [the issue of Lone’s purported transgressions] to understand who is pressing for the continuation of Article 370.”

During the heated debate, Sibal kept imploring everyone to keep the discussion to the constitutional issues at hand and not bring political questions into it.

This whole thing is being televised, he kept repeating.

You want me to say things that I should not in a court of law,” he told Mehta in a half-cautionary, half-beseeching tone.

But as the respondents kept pressing the issue, he offered his version of the events.

He said when Lone “allegedly” made the ‘Pakistan zindabad’ comment, the assembly had a Bharatiya Janata Party (BJP) speaker who, along with other BJP members of legislative assembly (MLAs), was hounding Lone and “asking him to say things and chant slogans which others ask people in the streets of this country.”

The next day, the final one of the hearings, the intervenor filed another affidavit enumerating even more of Lone’s alleged “anti-State” statements, and renewing their obstreperous demand that Lone apologise to the court and file an affidavit proving his loyalty to India.

In the midst of the ruckus, senior advocate Gopal Sankaranarayanan, clearly miffed with the contents of the affidavit, got up to raise an objection.

He pointed out that the affidavit cites the petition filed by Lone and National Conference leader and member of Lok Sabha from the Anantnag constituency Hasnain Masoodi for restoration of Article 370 as an example of Lone pushing “separatist agenda”.

(Interestingly, Masoodi is a former J&K High Court judge and had ruled in 2015 that the special status guaranteed to J&K under Article 370 had attained a permanent character.)

Affidavit Sajad Lone

Are all of us, by pleading a case before this court, pushing a separatist agenda?” Sankaranarayanan asked the Bench.

The CJI did intervene and clarify, “I think this is unfortunate… Anyone who accesses justice under Article 32 cannot be turned out on the grounds that you are following this or that agenda.”

Which makes the question he put to Sibal later, asking him if his client was going to file an affidavit, perplexing.

The issue came up again at the end of the proceedings that day, by which time the affidavit had been duly filed.

Mehta raised objections on the inadequacy of the statement made in the affidavit, but the CJI put a lid on the matter by informing him that “the court was going to examine the contents of the affidavit”.

Submissions on behalf of SC-appointed committee are attempts to spread panic

Déjà vu on Wednesday, when the Supreme Court perused an affidavit by the government giving the court an update on the availability of essential items in Manipur and the progress in relief work.

Appearing before the three-judge Bench of the CJI and Justices J.B. Pardiwala and Manoj Misra, senior advocate Meenakshi Arora expressed her dismay at and objections to the affidavit.

She told the court that the affidavit attacked her personally for the submissions she had made on behalf of a three-member expert committee the Supreme Court had appointed on August 7.

The affidavit says the “claims” made in her submissions about shortage of rations and spread of certain contagious diseases in relief camps in Manipur were “false” and had “created panic” in the state.

The affidavit also said that such claims should have been confirmed with the administration before being submitted in the court of law.

Note that the expert committee has been mandated to work independently of the government, to oversee administrative action— including relief, rehabilitation and compensation— for those impacted by the violence. The government has been directed to assist the committee by the Supreme Court earlier.

Again, the CJI had to jump in and clarify, “Any reference made to the counsel in the affidavit shall not be construed as any comment on the counsel… The counsel appearing in the court do so as officers of the court.”

(Judicial) process will result in punishment

Are these signs of a sinister pattern? Only time will tell.

A couple of weeks ago, Kashmiri scholar, educator and advocate Zahoor Ahmad Bhat, was suspended from government service after he had appeared as a petitioner-in-person in the Article 370 matter.

On the eleventh day of the hearings, Sibal brought his suspension to the court’s notice, which asked Mehta to look into the matter of Bhat’s “suspension in close proximity to his appearance in the court”.

Bhat’s suspension was subsequently revoked.

This is a worrying trend. If the right to judicial remedy is under a barrage of attacks in the highest court of the land, it can only have a chilling effect down the chain of judiciary.

The live broadcast of court proceedings is bringing the courts face-to-face with the court of public opinion which has been suffused with saffron and put on a steady flame of hatred for many, many years.

It is a tightrope.

Perhaps the judiciary will step into the breach and view the recent onslaught as an opportunity to put an end to some of the nonsense once and for all.

Failure to do so will be akin to asking advocates to wear an extra gown of courage.

After all, in the new Bharat, audi alteram partem may well be an Italian maxim.

Arif Ayaz Parrey is Editor, The Leaflet.

Courtesy: The Leaflet

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