In Conversation with senior counsel Mihir Desai

He is a cheeky man, is Mihir Desai, never too far from making a joke here or an off the cuff remark there. And a remarkably relaxed one too, given the high-pressure matters that he frequently argues. In 1987, Colin Gonsalves, Gayatri Singh and Desai formed the Human Rights Law Network, in response to the need for a coherent approach towards human rights and the law..Over the years, HRLN has become one of the most prominent names in the field of rights lawyering, representing some of the most marginalised sections of our society. And although he is no longer part of HRLN, Desai continues to fight for the oppressed..In this interview with Bar & Bench’s Anuj Agrawal, Desai opens up about his choice of education, the politics of human rights lawyering, and much more..Bar & Bench: What was the logic behind starting Human Rights Law Network?.Mihir Desai: After I completed my law, I worked with Indira Jaising for about two years. After that, in 1987, two of my friends who were also working there, Colin Gonsalves and Gayatri Singh – we decided to start an independent office. This was in 1987. Later, in 1989, we formed the Human Rights Law Network..We felt that although there were a lot of lawyers across the country doing work for marginalised sections, we felt that there was no coherent approach. It was necessary to connect with each other. We also felt that there was no organisation focusing on law and human rights in the country. That is how we started Human Rights Law Network..Bar & Bench: Do you think it would have been easier to form HRLN now?.Mihir Desai: Not at all, in fact now it is far more difficult. I mean now, the question does not arise. At that time, obstacles were more to do with financials and not political which I feel you will face today..Bar & Bench: So how did you overcome the financial obstacles?.Mihir Desai: We were lucky in the sense that each one of us had a practice before we started HRLN. Each one of us had a social segment with which we were connected be it trade unions, pavement dwellers etc. We started getting cases from them..And it was not that people could not afford to pay. Barring the poorest of the poor, most people can afford to pay. They may not pay what a corporate firm would expect but we were somehow able to find a balance..Bar & Bench: What kept all three of you going?.Mihir Desai: When we founded HRLN, our idea was two-fold. One was obviously litigation, but in addition to litigation we also wanted to do what is known as fact findings, setting up tribunals presided by judges, having sensitisation meetings across the country..So we would travel extensively talking about human rights issues, conduct meetings, file PILs etc. And before HRLN, I was a founder trustee of Lawyers Collective with Indira Jaising. At HRLN, we started Combat Law in the mid-90’s of which I was the co-editor..Bar & Bench: At any point were you sure that this was what you wanted to do?.Mihir Desai: There was no particular “moment of revelation” I guess. But when I started doing law in a serious way, I knew this was what I wanted to do. I studied my law from New Law College. I mean I wouldn’t say I “studied” law, I attended a few lectures over a period of three years (chuckles).Bar & Bench: Did you seek help from your uncle’s solicitors firm help in Bombay?.Mihir Desai: Not really. He asked me if I wanted him to send some briefs, but at that time I said no, I wanted to make it on my own. I told him that I would ask for his help when I needed it. Looking back, perhaps this was due to a severe lack of confidence which I thought I could overcome only by staying and living independently, and by having my own practice which I had developed. That is the only answer I can give..Bar & Bench: Were you one of the few people who were doing human rights lawyering back then?.Mihir Desai: Well that depends on how you define human rights lawyering. We had certain principles that we followed. It was a political decision, and not just about human rights lawyering..When I say political decision, I mean I traditionally come from a Marxist thinking ok? I would see human rights violations as structural violations. I would see, say for instance violence against woman, as part of patriarchal violence and not individual violence. I would see violence against workers as structural violence of one class by another class..We had decided not to take up any cases involving men against women in matrimonial matters, or for employers against employees. So those kind of decisions were also made. It was not about just doing human rights. It was more of a political decision. All of us belonged to a particular school of thought..Bar & Bench: In one of your talks on Binayak Sen way back in 2011, you said that no one knows know how sedition law will be used in the future. You have also repeatedly said that Section 124A of the IPC needs to go..Mihir Desai: The point is no one is interested in convicting anybody. These laws are not meant for conviction. They are meant to have a chilling effect. You put an accused in jail for 15-20 days and usually everybody around him will get scared. Conviction, no conviction – kisi ko farak nahi padta hai (It does not matter to anyone).This law has no business in a democracy ok? I mean what is the Government worried about? Making provocative statements and inciting violence? For that, there are other laws. The Indian Penal Code has enough provisions to stop you from doing so..I have the same view on the death penalty – it should be done away with..Bar & Bench: In one of your talks on sedition, you took the example of Asim Trivedi. When he was arrested, the very next day the then Chief Justice of Bombay took up the matter and granted bail. Were you surprised that the Delhi High Court or the Supreme Court did not do the same in the Kanhaiya matter?.Mihir Desai: I was surprised it happened in the Bombay High Court (laughs) Let me put it that way. No, I was not surprised it did not happen. My expectations from the higher judiciary have changed over time..I personally feel that human rights violations will increase in the future..Bar & Bench: Why? .Mihir Desai: Because of what I see as one, a neo-liberal method of economics policies and two, an extremely communal agenda of the present political class. It is a combination of the two..I don’t think Congress, in terms of human rights violations, is any better than the BJP. So I don’t want to make those kind of binaries, but the BJP’s communal agenda is an added facet to the human rights violations. Be it the beef ban, or having to prove yourself as a nationalist. Who are they to ask me?.There are major human rights violations in rural areas be it in the mining industry, or the corporatization of the rural area which leads to displacement of millions of people. And the State helping the corporate sector by using its law and order machinery to ensure people don’t protest..So, on one hand you’re being displaced and on the other hand if you protest you are put behind bars. So these kind of human right violations, at both levels, I feel, will just increase over time..Bar & Bench: So what can lawyers do?.Mihir Desai: Well, you fight. You represent these people. Of course, all of us compromise. I have also comprised at some level in the sense that ideally I would have practiced in the lower courts. Good lawyers are needed much more in the lower courts than in the higher courts..Bar & Bench: Why?.Mihir Desai: A lot of things don’t even reach the High Courts or the Supreme Court. Out of hundred cases, one will reach the High Court. Which is why I admired the Jagdalpur Legal Aid Group – they were providing good lawyering at the trial court level. And they were virtually hounded out of the state..See, 70-80% of the people subjected to these violations are poor and if the law cannot help them, it is meaningless being a lawyer. It is alright to win this tax evasion case here or some great case there. But as a lawyer, you have to devote some time for human rights issues. There is nothing stopping lawyers from doing it. And some of them do it..Bar & Bench: Do you think it is a matter of education in the sense that legal education does not really encourage that kind of work?.Mihir Desai: There are two things according to me: one people are driven by money and two, I’m not too sure if professional ethics is even compulsory anymore. (laughs).You see, these National Law Schools are an expensive business. It is just like medical and engineering – the first thing you think of after graduating is how to recover the money you have spent..And therefore, subsidising legal education, among others, is a must. Unless you subsidise legal education, it is not possible to hope that lawyers will come in [human rights law].I am aware that the National Law Schools have these compulsory 1-month internship with an NGO kind of thing. So yes, they do try and expose people to this side. But I personally feel that more should be done..Bar & Bench: Do you see a lot of change in jurisprudence, say in terms of labor law?.Mihir Desai: I personally feel that in the last 15-20 years, the Supreme Court has overturned a lot of the good labour jurisprudence. So now, the pendency in labor courts is not as high. But that is because workers don’t go to court. And the organized working class is virtually sinking. Even journalists for that matter. Earlier, all my friends who were journalists were all employees. Now they are all contractual workers. And not of their choice. I mean when newspapers think advertisements are more important, this will happen..I personally feel that there is a lot of regressive jurisprudence by the Supreme Court in the last 15-20 years on labor law especially. Also to some extent in criminal law i.e. there are a number of established principles of criminal law which have been overturned in the late 90’s and the decade thereafter..You also had a lot of “repressive” laws being upheld by the Supreme Court from time to time. So I think there has been a marked change in this regard..Bar & Bench: Are you a cynic?.Mihir Desai: I am an optimist. I believe things will change over the period of years. I personally feel things have changed, and courts have played a positive role. This is one institution in which people still have some amount of faith..Bar & Bench: After working nearly 30 years, you applied for a senior designation..Mihir Desai: A lot of people were telling me it was time to apply. For one, I was told it carries certain weight. Not so much in the High Court where you practice because there you are known but when you go to other courts, it does. I still go to Gujarat for the 2002 riots hearings and various other tribunals where judges may not know me..Bar & Bench: In one of your cases, the Bombay High Court ordered 20 Lakhs as compensation for someone who died in custody..Mihir Desai: Yes, I argued for both, compensation and prosecution. Four of the officers are being prosecuted and ten are not. We have filed the appeal in the Supreme Court and it’s coming up within the next one or two months..Bar & Bench: Aren’t you scared?.Mihir Desai: I don’t know. Very frankly, I would love to say that I have been threatened and still I continue (laughs) It would boost my ego quite a bit. But neither have I been threatened up till now, nor have I been offered a bribe. So what do I say?.Bar & Bench: You are also appearing in a petition seeking CCTVs in police stations..Mihir Desai: There is no other way to stop this problem of custodial torture. How do you stop it? It is something which is engrained in the Indian police, that you beat up people either to extract confession or just for the sake of showing your power. There are other possible solutions that are being examined..Possibly, custodial deaths have reduced in Maharashtra but it still continues to be the highest in the country. And there is no reason [for this statistic]. I can understand if it is the highest in Chhattisgarh or Kashmir, but why in Maharashtra?.I don’t believe all police are bad or all are good. I do feel that there is a complete absence of training to apply scientific technique. Two there is a lot of political pressure to solve case. I was appearing in Himayat Beg’s matter. See what happened. The court found that he was not guilty of planting any of the bombs, he was not guilty of murder..This happens so often in terror cases and in other cases. There is a pressure on the police to solve a case. So you catch somebody, sometimes it’s the right person and sometimes it’s the wrong person. And then you beat the hell out of these people so that they confess. Then you show them on TV and that is that..You do have training in human rights for police officers, but this is done after they have become police officers. You are already ossified by that time. All this training is important in the training schools. Lastly, accountability is also very important. If you feel that you can get away with anything, you will end up breaking the law. It is just like political corruption in that sense..Bar & Bench: There are quite a few cases in the High Court regarding internal displacement. They don’t seem to make the headlines. .Mihir Desai: Its like the TRP’s na? Would you get the TRP’s if Arnab Goswami talks about adivasis? No..It is something that is being taken so much as part and parcel of life now. Demolition of slums happens everywhere. How many times are you going to report it?.But a murder by a mother by a daughter is unique, so you report it everyday?