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India: Colin Gonsalves interview - How much more anti-labour can the government be? / At least 30-40% of senior gowns should go to lawyers who work for the people

16 December 2017

Version imprimable de cet article Version imprimable

Bar & Bench, December 2, 2017 and December 9, 2017


by Aditya AK

How much more anti-labour can the government be? Senior Advocate Colin Gonsalves [Part I]

Senior Advocate Colin Gonsalves has been one of the staunchest crusader of human rights in the Supreme Court for a number of years. In recognition of his work in the field, Gonsalves, the founder of Human Rights Law Network (HRLN) was recently conferred the 2017 Right Livelihood award.

In the first part of this interview, Gonsalves talks about his involvement in the labour movement, the efficacy of the PIL in safeguarding the rights of the downtrodden, labour laws in India, and more.

What drew the civil engineer from IIT to do law?

Well, it was the period of the mid-70s. There were all kinds of movements taking place in the country; there was the emergency, a railways strike, a textile strike etc. And students were quite politicized in that period. So, there were a lot of young people like me in IIT who were taken up by the movement. Some of my colleagues tried to break the railways strike by pretending to run the locomotive trains during the strike! Then, Indira Gandhi actually ordered the throwing out of the railway workers from their quarters at midnight. And some of the IIT students, including Praful Bidwai, the famous journalist, were very active in trying to get relief for the railway workers thrown out. It was quite a volatile period.

You had appeared in courts long before you got your law degree.

I argued 100-200 cases before I got my degree in law. That is because I was a representative of the Union, and in labour law, you can represent a Union. So it makes no difference if you are not a lawyer. I must have argued some of my biggest cases during that period – lockout of 4000 workers, strikes of 3000 workers. I had no senior, no guidance, no law books, I had nothing. I learnt on the job.

What inspired the formation of People’s Law Network and HRLN?

I went from engineering into the housing rights movement, where there was an organization in Bombay called the Bombay Slum Dweller’s United Front. And I worked there trying to organize against the eviction of slum dwellers. While doing that work, I lived in a textile workers’ colony in Bombay, in a chawl, which was occupied by textile workers. They used to live eight workers to one room, and they would sleep in shifts as they came in.

Then I actually joined as a mazdoor in the Bombay Port Trust Docks. And I hid my IIT qualification because then they would smell a rat, so to speak! We worked with the idea of starting a union in the docks, which didn’t work out because the union operating over there didn’t like any competition. And, I suspect, also because we were very amateurish in our ways – very revolutionary.

Trade Union leader Datta Samant was Gonsalves’ guru

I went through many phases and finally, I found my guru in life. A most unlikely guru, that was Dr Datta Samant, who was a militant trade unionist. He believed the law was treacherous. And he was right, because the labour courts in those days were taking 7-8 years to give workers a wage increase of 300 rupees. So, he took the law into his own hands and he taught some lessons about social movements and social change, which I thought were invaluable. He taught me that the working class must know to take the law into their own hands, organize and agitate.

Baba Saheb Ambedkar said the same thing: Educate, organize, agitate. And not necessarily go to the law courts and waste your time and do all that kind of nonsense if you can agitate and get your victories on the ground.

Do you still hold those views?

I hold those views even more today, because the situation is so extreme, and the legal system in our country, apart from a few superior courts here and there, is so bad that the working class people have abandoned it. All tribals in the country have abandoned the legal system, although they suffer terrible, terrible injustice. Tribals don’t come to the courts, Dalits never come to the courts – a stray case here and there. Minorities are by and large avoiding the court system.

So the legal system has turned out to be a great engine of oppression. The only fragments of the judiciary that prevail are some of the higher courts and the Supreme Court. It’s a dying light, so to speak, a flickering light, you know. And it stays alive, but we don’t know for how long.

How do you think the PIL has helped the cause of the downtrodden?

See, in a country like India where governance is zero, where the government is so uncaring and cruel to its people, the PIL is like a straw to which you clutch on to. You’re drowning, and you grab a straw. And it’s a system which allows people, with a certain degree of hard work, to achieve some reasonable results. If you look at it overall, in the context of injustice in the country, it’s a small thing in a mighty ocean. But if you look at what you can achieve nevertheless, it’s still something important.

I have faced many skeptics of the PIL system, professors with a long history of skepticism. I have gone abroad to certain universities – which I won’t name for obvious reasons – where professors have asked me this question. And my answer has been a simple answer. When clients come to you, when tribals come to you, when Dalits come to you, when slum-dwellers come to you, when trafficked women come to you, when tortured persons come to you, when families of disappeared persons come to you, what will you tell them? That PIL is just strengthening capitalism? Or that the judiciary is corrupt? They don’t want that, they know that. They are coming to you because they think that you can help them.

JNU campus

These professors – they mess with their minds and they say, ‘It [PIL] only strengthens capitalism, it only strengthens the status quo’

Young students want to do something with their lives as lawyers. And these pundits or professors – they mess with their minds and they say, ‘It only strengthens capitalism, it only strengthens the status quo’. These students are not going to become Che Gueveras or Naxalites. God knows how many generations of these young students have been messed with, with this kind of skepticism. In society today, whatever you can do, you must do. We have no illusion, it’s a capitalist system. We only know that we can, in certain circumstances, win some battles. So we are staying on the battlefield.

Would you agree with the observation that the courts have shifted their stance from being pro-poor to anti-poor over the years?

Yes, this is correct. You don’t see it so much in the Supreme Court and in some of the high courts. For example, the Delhi High Court is still a very remarkable court. But if you go across the country and you look at the attitude of judges to PIL, it’s such a frightening scenario. Even the judiciary doesn’t take account of the kind of backtracking that has happened in the high courts. At times it is hazardous, even in the most meritorious case, to go even near the high court! And judges are imposing costs of Rs. 50 thousand, 1 lakh, they’re scolding the advocates.

What is actually a very revolutionary system compared to legal systems anywhere in the world, has been crushed. And that’s why I feel very sad when courts use the term “publicity interest litigation”. The trend is so bad in the higher courts, that if any court uses this term, you know it strengthens the feeling that we’ve got to crush PILs.

Moving on to some developments in Labour Laws, a nine-judge bench of the Supreme Court is deciding on the definition of the term industry. How significant is this matter?

It’s very significant, and actually I am a little bit upset by the manner in which that review was done. The five-judge bench referral order to a seven-judge bench was very casually written. And the reference from seven to nine was done in a few minutes. I don’t know what will ultimately happen, but I feel the reference is a sign that things of majesty done by the Supreme Court in respect of poor people is now sought to be dismantled. I don’t say that the Supreme Court is trying to dismantle it. I say the advocates who are arguing for the dismantling are making some progress.

In 2014, the Modi government had made some amendments to the Factories Act and the Minimum Wages Act. Three years on, are the ramifications of those changes?

Well, that’s now obsolete because you have three bills being introduced. One is the Labour court on wages, the second is the Labour court on industrial relations and there’s a third Labour court coming in. And they are making sweeping changes in the law. First of all, they are going to dismantle adjudication for labour. Every section of society can go to court. If you are a tenant you can go to court against the landlord, wife against the husband etc. But for labour, when they have disagreements with their employer, there will be no adjudication system.

They’re dismantling the labour courts and the industrial tribunals. How much more anti-labour can the Modi government be? Then they are putting restrictions on trade unions – how trade unions can be formed, who will be its members, who can be its officer bearers. As if trade unions are the biggest enemies of society. But that’s the feeling – many judges have this feeling also – that trade unions are the enemies of society. And I’ve heard very hostile anti-trade union views, anti-labour views being articulated by judges. So what can we say? The Modi government is out to crush the labour movement.

All that I can say is all these things teach labour a very good lesson, which is – that the legislature can’t be trusted, the courts probably can’t be trusted, and what Datta Samant said – which is to get into the streets and start social movements and agitations and uprisings – that may be the correct way forward. But that’s not what any democracy wants. Democracy wants the labour system to be strengthened, law to be strengthened, judges to act as independent persons adjudicating.

Government wants to turn the labourers into terrorists. And it has happened; in different parts of the country, they are burning down factories, and killing people. Why does it happen? Because labourers realize that they don’t have access to courts. The Labour Commisioner’s Offices across the country are cesspools of corruption. These Labour Commissioners make so much of money.

Why do you think India has not ratified the UN Convention on Torture after signing it?

Well, the answer is simple I think. The Convention on Torture will expose India to International scrutiny as to it standards, practices and so on. India is a country where torture is endemic, probably where the highest levels of torture take place in any democracy. So, they don’t care. You write about it in the newspapers, you file cases, the Indian government doesn’t care. But if it comes up abroad that this great perceived bastion of democracy is not genuine, then they don’t want the world to know.

And once you join the UN Convention then you have periodic meetings, periodic reviews. When you make your law – which they say they want to make – together with other countries, they will scold you and say take away this provision, put in this provision. Now, India doesn’t like globalization, really. India likes commercial globalization, it doesn’t like globalization of human rights. So, they have opposed it tooth and nail and we are in the company of China, Saudi Arabia, etc.

You had appeared as Amicus in a related petition filed by Ashwani Kumar in the Supreme Court.

See, Ashwani Kumar’s petition was a good petition, he argued very well in the Supreme Court and all that, but he’s still under the wrong understanding that in order to ratify a Convention you must make a law. The United Nations has a hundred times clarified that it is not a precondition to ratification. In fact, once you ratify it, then the making of your law becomes easier, because there is a global process and you get inputs from other countries.

In 2012, India wanted to come on to the Human Rights Council of United Nations. Now you may find it difficult to come on to that Council if you don’t ratify the Torture Convention. So, India made a solemn pledge to ratify it. India does to the UN what India does to its own people, namely, give them assurances and never implement it.

o o o

[ Part II]

At least 30-40% of senior gowns should go to lawyers who work for the people, Colin Gonsalves [Part II]

In Part II of our interview with Senior Advocate Colin Gonsalves, he talks about human rights cases in the Supreme Court, his most memorable case, what keeps him going, and more.

There are a number of draconian laws that exist on our statue books, including the AFSPA and CSPSA in Chhattisgarh. Do you see these being repealed in the future?

The repeal of these laws is impossible, in fact, more laws like these will come in. And why more laws come in is because the Supreme Court made fatal mistakes in its judgment on AFSPA, which is the Naga People’s Movement for Human Rights case. The Supreme Court takes the approach that when we are looking at a law, we will only look at the letter of the law. As was the case in the judgments upholding TADA and POTA. If I were to take TADA and POTA and give it to an American lawyer, a European lawyer, and ask if its stands Constitutional scrutiny, they would tear into them.

The second major mistake is when the Supreme Court observed – it was an oral observation – that they are not going to look into current misuse and malpractices. They said that they would only look at the piece of paper, as if it is devoid of life. Now that is a very big mistake; you must always interpret the statute in the context of the perceived misuse of the statute everywhere. TADA was misused. The Court said it was perfectly Constitutional. Then, Parliament sat and said no, there is an uprising in the country against it, and repealed it. What a shame. The Court could have taken the initiative.

So, you must always, while interpreting a statute, not treat it like a lifeless piece of paper. The Supreme Court even said that there are blood curling instances of torture in our country during the TADA period. You know how it is – labourers, trade unionists, all those agitating and struggling for justice were caught in under TADA. The police officer will put your fingerprint and he take a confession and courts will uphold it.

And only Justice K Ramaswamy had the courage to say – what a sterling dissent – how can we accept, that a confession to a police officer was constitutionally valid in our country? A dark period I would say. People talk of the Emergency judgment. The TADA judgment stands on the same footing. The POTA judgment stands on the same footing. No difference.

Do you think if we completely overhaul the way our police functions, there won’t be a need for these statutes?

Is there any way that the police will be reformed? I don’t think so. The Court’s judgment on police reform, which is Prakash Singh’s case, is such a mild judgment. It is so far removed from real and meaningful police reform. And even that is not implemented. So, are the police going to change? No chance. Does the political establishment want the police to reformed? No chance. They like a system where the party in power at the Centre or the state uses policemen as bodyguards for VIPs. So the policemen are being reduced in India to that stature. They are the bodyguards of the rich, and the tormentors of the poor. People don’t understand, our democracy is not a democracy – it is a police state.

Moving on to the Rohingya matter in the Supreme Court, the stand of the Centre is that it is a matter of Executive policy.

Well that’s a relatively simple and straightforward kind of argument. I think Fali Nariman answered it very nicely when he said that almost everything is capable of judicial scrutiny now. And to tell a Supreme Court or a High Court that you can’t look at this, you can’t look at that, is quite anachronistic. It might have been said twenty, thirty, forty years ago – I even doubt that. But certainly today, you can’t tell the Court that they can’t look at an issue like the mass deportation of 40,000 Rohingyas.

In the Marital Rape case in the Delhi High Court, in which you appeared, the Centre fears that making it an offence will lead to destabilization of marriages. Your take on that?

My answer would be the Nepal Supreme Court judgment, which criminalized marital rape, I think over a decade ago. The government had made a similar submission, saying it would result in the breakdown of the family and that would result in chaos in society. To this, the judges of the Supreme Court beautifully responded that Hinduism is a very pure religion, and it cannot tolerate inequality and violence within it. If there is violence against the wife, we have to criminalise that violence. Surely it can’t be said that it would cause chaos in our society and in our marital relations and so on.

The Nepal judgement is particularly apt for India, because I think we have a government that prides itself on certain things, and they said almost the same thing that was said to the Nepal Supreme Court, I think, ten-twelve years ago. It’s like a knee jerk reaction without thinking – without thinking seriously about what it is they are saying.

What has been the most memorable case you have argued?

Well, the most memorable case was the Right to Food case, which was not my case actually. It was a case of the Right to Food Campaign, where so many persons participated. Lawyers had a limited role to play. People’s views, fact finding reports, all kinds of inputs were taken from all across the country.

And it was also memorable because at that time, the situation was very bad. Starvation deaths were taking place right across the country. Secondly, the mid-day meal had almost collapsed. Thirdly, the anganwadi system had almost collapsed. And fourthly, and most important, the World Bank and the IMF were pressurizing Manmohan Singh to scrap the PDS system. They said it was such a waste of valuable resources.

We had this guy in the Planning Commission – I’m glad I don’t remember his name because I would be taken for defamation otherwise! – who was particularly horrifying in his views on poor people and poverty and subsidies and so on. So, it was a confluence of the World Bank and IMF and very articulate and powerful people in the Indian political establishment who wanted to completely close down the PDS system. The IMF had closed down the PDS system in Mexico and in many other countries.

The Supreme Court intervened, which was such a surprising thing. Chief Justice BN Kirpal, who wasn’t particularly known for his human rights values or approach, took it up, in a very brave fashion. Then the other judges also gave it a push – Justice YK Sabharwal took it up very well. So, in a sense, judges played a role that I really never expected. I remember telling Kavita Srivastava when the matter was to come up first before Justice Kirpal, ‘Don’t tell anybody that we filed a case – if it gets dismissed, there won’t be such a big setback’.

But Justice Kirpal just looked at his papers – I was a young advocate then, I was quite afraid – and said, ‘This cannot be. Gonsalves, amend your petition, make it for the whole country. We cannot allow this’. And then Justice Arijit Pasayat gave it a huge push. He was a very determined judge in many ways. So, he pushed it, and the anganwadi system went from zero to several lakh anganwadis in the country. The mid-day meal went up like anything. He summoned Chief Secretaries to court, maybe five or six times in those years.

So, I have seen the power of PIL, to do certain things in certain circumstances. As a result of that case, the Right to Food came in 2013.

But yet, the country remains in the same position. The Act was supposed to benefit 350 million people, but things remain the same. 50% people are hungry, 50% women are anemic, 17% children stunted, 50% children going to bed hungry every day, in a country with 7% GDP growth – what an amazing thing. But now, in the judiciary, we can’t see that enthusiasm. I can’t understand it. It’s like a mystery to me. So, what some people say, that the PIL is a double-edged sword, is actually correct.

There seems to be a dearth of quality lawyers doing pro bono and legal aid work. What do you think is the reason for that?

It’s a sign of our times. Globalisation has killed the spirit. When we were young, we all thought we would be Che Gueveras and start a revolution tomorrow. I worked with Dr. Samant with five hundred rupees a month for four years, from eight o’ clock in the morning till midnight. We never worried about food. We never worried about not having a place to stay. I told you, I lived in a chawl. After getting an IIT degree. But we were intoxicated with love for the country and love for social change.

When I go to universities, I can see it, although there are embers of maybe a new growth. So, the first thing about Public Interest Litigation is that you don’t learn from the law, you don’t learn from lawyers. You have to go into social movements. I tell young lawyers who want to work, you have to attach yourselves to social movements, women’s movements, Dalit movements, tribal movements. You have to attach and participate in agitations, get arrested, do dharnas, break the law a little bit here and there. Young people are expected to do all these things, then learn.

It comes from a feeling inside you, it is not a thing you learn from a textbook, it comes spontaneously. The law books only enrich what you already feel inside. They must go the movement first. That is why we try as much as we can to attach our young lawyers to social movements. You have to attach to a movement first. Like the Dalai Lama said, first your heart is to be affected, then your law will come.

A majority of Senior Advocates in India gauge their success in terms of money made, cases won etc. How would you define success? What keeps you fighting the good fight, so to speak?

See it’s very simple. We deal with clients for whom we win cases. We lose many, we win many. We see happiness on the faces of people who come. So, this is like a hospital with an intensive care unit. Like a legal ICU. We get lots of injured people, communities, families, and we try using the law to repair some of it, to get them back to life, try to get them to smile again. What more can a person want than that? That is such a satisfying thing. How many lawyers can go to bed with that feeling?
HRLN, a “legal ICU”

Our lawyers in HRLN are also lawyers outside. There are many lawyers, even outside HRLN who work like this. For example, K Balagopal from Andhra, who would go every weekend to the tribal areas there. He would take down their details meticulously, come back, type it up, and file a case. There’s a great revolutionary tradition among movement lawyers, but they don’t get to be made Senior Advocates. Nobody would give Balagopal a senior gown. He was a master in tribal law, and he moved with the people. So, when they think about giving people the honour, they mustn’t just give it to people in urban areas with big offices. At least thirty-forty percent of your senior gowns, if not half, should go to people who are working with people, and doing cases for them.

On a final note I would like to congratulate you on your Right Livelihood award. So would you like to say something about it?

Well, it was quite a surprise and we’re quite pleased with it. You know, there are at least a thousand more people who deserve it more, and I can think of them on my fingertips. It’s just that they’re not so known. Do they work harder and better? Does their work achieve more? Yes. They don’t get money, the police and the government are harassing them, and they still work.

We take it as a pat on the back of the social movements in this country. Maybe it was recognized that in India there is a great spiritual force of resistance. Under great stress and strain, people are fighting. So, we see ourselves only as a make-do representative of those people.


The above two part interview published by Bar & Bench is reproduced here for educational and non commercial use