The People’s Lawyer: In Conversation with Colin Gonsalves


by Saffi Ullah Ahmad
from http://pulsemedia.org/2010/10/08/the-peoples-lawyer-in-conversation-with-colin-gonsalves/

Colin Gonsalves is a senior advocate of the Supreme Court of India and a pioneer of public interest and human rights law. He has won over 200 mostly precedent setting cases against the Indian government and powerful corporations in favour of poor and marginalized groups. Gonsalves has been described as a champion of the exploited.

In 1989 Colin founded the human rights law network (HRLN), known today as a network of hundreds of lawyers and social activists whose aim has been to further the struggle for human rights and equality through making justice accessible to disadvantaged members of Indian society. Funded mainly through grants from various organisations, his growing army of lawyers regularly litigates on issues of women’s and minority rights, environmental damage, child labour, disability law, land confiscation, sexual harassment, prisoner abuse, human trafficking and the right to nutrition. Giants taken on by the HRLN include the likes of Enron. The HRLN now has a presence in over 20 Indian states where its centres provide pro bono legal services, undertake public interest litigation and run campaigns to spread awareness of human rights. In addition to this organization Gonsalves also heads the Indian People’s Tribunal on Environment and Human Rights (IPT).

In 2001 Gonsalves began work on a case which in the face of ever increasing privitisation and withdrawal of food subsidies, aimed to force the central government to implement several food security schemes across the country. He argued that the Indian constitution’s reference to a ‘right to life’ encompasses the right to food, work and fair wages. Also highlighting that as a result of rampant malnutrition 3-5,000 Indians die every year of starvation, Gonsalves and his team of pro-bono lawyers were able to bring relief to over 300 million people following a series of court orders in their favour. The case won him and the HRLN acclaim from former Irish President and UN High Commissioner for Human Rights, Mary Robinson, among others.

Gonsalves has received honorary degrees and awards for his services from a plethora of educational institutions as well as legal and charitable organizations including the American Bar Association’s International Human Rights Award for his ‘extraordinary contribution to the causes of Human Rights rule of law and promotion of Access to Justice’ in 2004.

Gonsalves was recently in London to receive an honorary doctorate in Law from Middlesex University where I interviewed him.

You originally trained as an engineer, what made you want to become a lawyer?

As an engineer I found I couldn’t be socially relevant; I couldn’t help the social movements in any way. Some of my friends were getting in to appropriate technology (AT) and it was a very indirect and unsatisfactory way of helping peoples’ movements. I was looking for something more direct.

You’ve had quite a remarkable and illustrious career. What would you say was your most memorable moment?

I think the right to food case was probably the most satisfying of all the cases because it impacted on 350million people in some way or another. But I have a sort of memorable moment every week or every day. The people I come in touch with – ordinary working people – strike me as being so extraordinary as compared to the upper middle class and rich who sometimes come to me for their cases. The working people strike me as so compassionate, humane and fair. I think that’s what keeps me going.

What are the greatest struggles that you and the HRLN currently face?

Well the biggest problem is that with the period of globalization a lot of very good young brains have been taken away to the corporate sector and we feel very small in a river flowing against us. We feel very tiny and vulnerable. Support as well, financial and other, is now dwindling. We feel as if we’re fighting an insurmountable battle. Swimming against the tide can be very tiring.

Through your work you have challenged both multinational companies and the Indian government and have often been very critical of the latter’s policies. Whereas proponents of globalization such as Indian Prime Minister Manmohan Singh highlight India’s phenomenal growth rate as evidence in its favour, you remain a great critic of the process. What troubles you about India’s current economic model?

The phenomenal growth rate is possible only if you do two things; 1) take away the properties of the poor and divert them towards the corporate sector; you take their land, you take their water you take their forests, you take their mineral resources. If you do that it will account for a sizeable part of this growth. Then 2) the resources of the state that would normally flow towards the working people, in health, education, food, transportation, and housing- if these resources that the state would normally spend on the poor are taken upwards towards the middle classes it would also fuel GDP growth. GDP growth is premised on the deprivation of the poor. I suppose if you had growth with equity, the GDP growth would be a much lower, 1-2%; it would be better in the long run.

On what are believed to be the biggest Commonwealth games ever to be hosted, India is expected to spend around £5bn. Whereas some feel these games are an important way of putting India in the spotlight, others lament that the government is spending an obscene amount of money on a sporting event while millions of its citizens are lacking basic resources. What are your views?

The majority of people feel that the games are very unethical. I would say 70% of people in this country feel it’s a criminal waste of money. They feel very hostile towards the games, very aggrieved at what’s happening. But the media is controlled by corporations so it’s going gaga over the games. We have 70% of our population, 750million people, below the poverty line in terms of food intake. In terms of percentage, the hungry are more numerous now than they were in British period India. The amount that we’re spending on the games could feed the Indians for a year; hungry mothers and children.

With violence in India’s ‘red corridor’ now being a hot topic in the media, in the face of much adversity you and others including Arundhati Roy have spoken out in favour of the ‘Naxalite’ or ‘Maoist’ rebels. You’ve also gone as far as to say that India is in a state of civil war, and has been for a while. These are strong statements, can you elaborate?

I’m a non-violent person. I stand for non-violence; it’s a very important principle. But if you ask me if I understand why people use violence in this country, I would say of course I can. And if you ask me whether people – very large groups of people – feel that the use of violence as a sort of collective self defense against the violence perpetrated by the state and corporations, is justified, I would say they feel a strong sense of justification. And if that is the situation we’re in, things are certainly moving in the direction of a very wide civil war. It has already engulfed many parts of our country and I see it deepening in the next few years.

Survivors of the Bhopal disaster and campaigners were outraged earlier this year at the two year criminal convictions administered to ex Union Carbide India officials, who were in part responsible for the carnage in 1984, and pushed successfully for a reopening of the case. Do you see the victims ever attaining justice?

The cases haven’t really been reopened. Appeals have been filed by all sides, including the accused persons. I don’t see justice ever being done to the victims of Bhopal. We’re very good at camouflaging things, at covering things up and sweeping them under the carpet so to speak, and pretending to do the right thing, but I don’t think justice will ever be done. I think it’s too late already. Even if they were to make a hectic effort it would help only a small amount of the victims. I don’t think there’s any real interest in getting justice done.

What in your opinion are the biggest problems the Indian justice system faces, and do you see any scope for positive developments on the horizon?

The Indian justice system is in a period of very steep decline. Although there are some very fine judges here and there, things have almost come to an end as far as the poor are concerned. The entire working people, which is to say 70% of the population – Dalits (lower caste Hindus), tribal peoples, women, slum dwellers, unorganized workers and so on – all of them fall outside the justice system; they never get to court. They cannot take their grievances to any legal system, and the only time they get tangled up in the legal system is when they are dragged in to criminal law proceedings. There’s an iron curtain between the people of India and the judiciary, and I don’t see things changing any time in the future.

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In Defence of Afzal

By Colin Gonsalves
Senior Advocate, Supreme Court)
From http://justiceforafzalguru.org/background/gonsalves.html

When I was brought in to defend Afzal Guru in the High Court and I studied the trial court proceedings, it was clear that apart from the appreciation of evidence, his case rested on two gross infirmities.
The first was trial by media, which rendered the doing of justice to Afzal impossible, and the second was that the trial court denied him a lawyer.

Media Trial
Afzal was handcuffed in the office of the Special Cell and before his trial could begin and the police called in the media to broadcast a nationwide ‘confession’ on primetime television. Such a ‘confession’, though inadmissible in evidence had a huge impact in the country and a fair trial thereafter became nigh impossible.

Prior to making such statements, Afzal was not informed that he could consult a lawyer nor was he permitted to do so. He had a right to a lawyer from the moment of arrest. Any lawyer would have advised his client not to speak to the media. As a result of this trial by media, I argued that both the trial court and the Amicus had been biased. Bias is insidious. The subconscious is affected. Trial by media is the anti-thesis of the rule of law and makes a fair trial impossible. ACP Rajbir Singh in the testimony stated, “I allowed media to interview accused Afzal in my office under the consent of my senior officer, namely DCP.”

The High Court dealt with these arguments in detail setting out not only the Indian decisions cited by me but also the judgements of the European Court of Human Rights and also the US Supreme Court.

Though my arguments for a retrial were rejected, the High Court observed, “It has indeed become a disturbing feature that the accused persons are brazenly paraded before the press and are exposed to public glare in cases where test identification parade arise, weakening the impact of identification. What is fundamentally disturbing is the fact that custody is given by the Court. This custody is not to be misused.”

Legal Aid
Afzal was not given a lawyer in the trial court. He wrote to the judge saying that he needed a competent senior advocate and suggested four names. The judge enquired from two of the advocates present in court, who declined, and did not pursue the enquiry any further. He then appointed a lawyer for Afzal. When Afzal empathically said that he did not want this lawyer to represent him and the lawyer himself informed the court that he wished to withdraw, the court appointed the lawyer to assist the court. Assisting the court is one matter. A defence lawyer for the accused is another. Afzal’s trial then proceeded without a defence lawyer.

Since he had no defence lawyer, many prosecution witnesses testifying directly against Afzal were discharged without effective and competent cross-examination. No cross-examination was conducted of many witnesses regarding recoveries, including of the mobile phones and sim cards said to be implicating Afzal. No cross-examination was done of prosecution testimony showing Afzal allegedly identifying the dead terrorists. No cross-examination was done on seizure memos and alleged renting of rooms in Delhi. No cross-examination was done on the manner of the identification of the accused, alleged purchases of chemicals or the pointing out memos. The cross examination in respect of Afzal’s arrest at Srinagar was done contrary to Afzal’s case. On several dates presence of the advocate is not recorded. On some dates opportunity to examine the witness is not recorded. Critical questions regarding the media interview and the recording of the confession were not put to the investigating officer. As a result counsel did not consult with defendant Afzal on critical aspects of the trial, made no objections as to inadmissible evidence, made cursory closing arguments, did not make written submissions, presented no case law and often did only a formal cross examination.

It is inexplicable why the trial court insisted on the advocate continuing with the case once the accused had emphatically said that he did not want to be represented by him. It is unfair both to the accused as well as to the lawyer. No lawyer should be compelled to proceed with a trial, especially in a capital case, against his wishes.

The final arguments on behalf of Afzal in the High Court covers the illegality of the written confession, the illegal way in which the accused was identified by the prosecution witnesses, the non sealing of crucial evidence, the failure of the prosecution to call material witnesses, that testimony about the mobile phones and sim cards was fabricated and unreliable, that Afzal’s fingerprints do not appear on a computer said to be recovered from him and so on.

Death Penalty
The Constitution permits the sentence of death provided there is a law to that effect. This law is to be found in 354 (5) of the Cr.P.C. which permits life to be taken but only by hanging. If this section is struck down by any court as constituting ‘cruel, inhuman or degrading treatment’, then there will be no law by which life can be taken and consequently the sentence of death cannot be imposed. The argument that 354 (5) Cr.P.C was unconstitutional was made several
years ago in Bachan Singh’s case and rejected on the basis that there was no medical evidence then to show that death by hanging was cruel, inhuman and degrading. The challenge to this section was again pleaded in Afzal’s case with a view to having the section declared null and void so that if there is no law allowing for the death sentence, the sentence of death cannot be executed. The striking down of death by hanging and the consequent result of commutation to life has happened in several US states and in other countries as well. No argument was made that a new section ought to be introduced. As long as a statute enabling the taking of life does not exist subsequent to a court pronouncement declaring it void, the result is that even a person sentenced to death cannot be executed.

No argument was made in Afzal’s case that he be given the lethal injection. There is no reference to this in the 250 page final arguments. There is no reference to this in the High Court order. I cannot understand why persons who showed no interest in Afzal’s fate over all these years of trial and appeal, have, at this critical stage, chosen to spread the canard that I asked for his death by lethal injection. It distracts from the presentation that must be made before the President and does disservice to Afzal.

Clemency / Commutation

Afzal’s case before the President must be made on the basis of truth. It needs no embellishments. It certainly needs no falsehoods. The record of the trial court shows undoubtedly that he did not receive a fair trial. The arguments before the President should proceed on the basis of the evidence on record that would shock anyone’s conscience.


Colin Gonsalves: India’s Pioneer of Public Interest Law

 

By NORA BOUSTANY 
The Washington Post, Oct. 24, 2003 
From -- http://www.sikhtimes.com/bios_102403a.html

Colin Gonsalves’s father, an engineer from the southern Indian state of Kerela, shelled out his savings to put his son through a five-year program at the prestigious Indian Institute of Technology. Gonsalves began working as a civil engineer, but little did his parents know that he was also well on his way to becoming a lawyer. Gonsalves was drawn to the law through union work and concerns over labor issues and exploitation. In 1979, he started studying law at night school, reading and studying in the union office and on the train to and from Bombay.

One day Gonsalves was arrested while trying to stop the demolition of a Bombay slum. After a couple of similar incidents, he felt he had to tell his father about switching professions. ‘He was very proud when he saw me win a case,’ he recalled. ‘I am glad I managed to shift,’ said Gonsalves, founder of the India Center for Human Rights and Law, which has built 12 litigation centers in India since 1983. He has represented children in danger, villagers on the brink of starvation, and prisoners rotting in jails without due process.

Before he graduated from law school, the head of his union asked him to file a case on behalf of 5,000 workers locked out of their jobs. ‘It took me three years to get my law degree, but it did not take me three years to go to court,’ he said with a chuckle during an interview here Monday. ‘No one had checked me out. A nasty employer’s lawyer outed me: ‘He is not a lawyer, he is impersonating one.’ Luckily, I had written myself in as a representative in the papers filed in the court.’

The judge in the case asked him to approach the bench. He admitted he was an aspiring lawyer trying to make a difference. ‘All right. Finish this case,’ she snapped tersely, calling him into her chambers. ‘Get your degree quickly,’ she urged sympathetically. Since then, Gonsalves has pioneered public interest law in India by setting up a network of 500 lawyers around the country and is one of its most prominent human rights litigators.

‘He is considered a fighter, and it is important to know that his is a controversial subject. He goes up against big forces and interests, like big estate owners. He is a champion of the exploited,’ said Venkatesh Raghavendra, who has known Gonsalves for four years and is director of South Asia for Ashoka, an organization that identifies ‘social entrepreneurs’ in various fields whose work initiates wide reform or significant change.

Ashoka, which operates in 45 countries, selected Gonsalves in 1999 as one of its fellows, paying him a stipend for three years so he could focus on setting up a strategy, build an organization around it and bring his ideas to fruition. ‘Colin is credited in large part for putting the whole file of public interest law in the forefront. That is how he has changed the system,’ said Carol Grodzins, a managing director for Ashoka.

In response to a petition filed by the Human Rights Law Network, which was founded by Gonsalves, the Supreme Court in New Delhi directed unions and state governments to implement several food security schemes. ‘Article 21 of India’s Constitution enshrines the right to life, which can be broadly interpreted as the right to food, work and fair wages. Children in school get lunch now,’ Gonsalves explained.

‘Even if only one-fourth of the order is implemented, it translates into millions all over India, hopefully 10 million. The case began in 2001, and it is not over,’ he added, explaining that privatization and the withdrawal of subsidies have left large segments of Indian society unable to afford food or health care. ‘We have 3,000 to 5,000 people dying of starvation every year.’

Disability laws, women’s rights, domestic violence, child labor and sexual harassment issues have all been revisited by his growing army of public interest lawyers, who act as a front line or the eyes and ears for the India Center for Human Rights and Law. ‘They serve as the mouthpiece of Colin’s organization and make villagers aware they have human rights,’ Raghavendra said. ‘Exploiters take advantage of the ignorance of these people. They tell the exploiters: Look, we know what you are doing. We have resolved a lot of these situations like this.’

But when such pressure fails, violations are reported to Gonsalves’s litigation centers, which process them and file complaints. ‘Very few in India are doing public interest law, so we have grown as a firm, and 70 percent of our cases are public interest,’ Gonsalves said. ‘There is very little money, and we depend on grants from inside and outside India.’ Gonsalves was honored this week by the International Senior Lawyers Project, based in New York and Washington. The group, in collaboration with Ashoka and Piper Rudnick L.L.P., a law firm, is dedicated to assisting international lawyers.


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