Defence lawyers face an opaque prosecution & an uncooperative probe authority

Defence lawyers face an opaque prosecution & an uncooperative probe authority

New Delhi: In the one year since the north-east Delhi riots last February, while thousands of accused have been arrested based on what courts have called flimsy evidence and in some cases, nonsensical theories, scores of young lawyers have stepped up to represent these accused persons and try and get them some semblance of due process.

Lawyers, representing these accused pro-bono, spoke to Millennium Post about what they thought they were signing up for, what the process of dealing with the Delhi Police and the prosecution has been and the challenges they have faced.

Starting from defence lawyers fighting months-long court battles just to get a copy of a chargesheet against their clients to what they have called intentional opacity on the part of the prosecution and investigative agency — these defence lawyers have said even basic due process has been hard to access for many of their clients. They added that the pandemic had only complicated things further.

Advocate Chandan Goswami, representing two riots accused, claimed that getting access to chargesheets of cases is an arduous task with it taking months to be provided to the counsels after being filed by police.

"One of my clients was accused in a murder case and the road to bail him out was a long one... police had arrested him in a different matter which we weren't aware of, so we had to fight that case too," Goswami, who started practicing in 2015, told Millennium Post.

On the conduct of police, he said: "The investigation is still underway in most cases. Facts differ in each case. There can't be a sweeping generalisation. But many accused, including my client, got bail because the evidence was thin and flimsy against them. In one case chargesheet was filed in June and we still haven't received a copy," he said.

Advocate Abdul Gaffar, originally from Western Uttar Pradesh, has argued more than 100 cases where bail was granted to his clients. He said he preferred taking pro-bono cases as "his clients already have the bare minimum to make ends meet".

"You get to know after talking to these people that they have nothing to give back…as a humanitarian move, I thought I must not take money from them," Gaffar, who hails from West UP, said. "Right after the riots broke out, I was among the few persons who were providing free legal aid to victims and accused persons but now thankfully many NGOs have taken up the mantle and are providing pro bono help."

Defending around four to five accused, Advocate Tara Narula said lawyers aren't given sufficient information as to when their clients will be produced before a particular judge which acts as a "humongous issue" before defence counsels.

"There is a complete lack of transparency on the part of the prosecution in these cases...many of the boys have been accused in multiple cases and information about most of these cases isn't available with their lawyers," Narula said.

Referring to one of her cases pertaining to a riot accused, Narula said that while she was arguing his 4th bail application, she got to know through the police status report that he was accused in another FIR lodged by the police.

30-year-old Anas Tanwir, founder of the Indian Civil Liberties Union (ICLU), acknowledges that there is intimidation of lawyers who have been fighting Delhi riots cases. "The stuff which should be the duty of the state isn't served to us! After a huge delay, we get to know that our clients are implicated in several other cases than what we initially knew," Tanwir claimed. Tanwir said that through ICLU, he and 30 other lawyers have been actively providing legal aid to riot victims and accused persons.

Meanwhile, Advocate Mishika Singh (29), fighting most of the compensation cases of riot victims, listed out the array of problems she faces while getting her clients, most of whom had their livelihoods destroyed after the riots, the due they deserve.

Singh said she is currently working on compensation cases of over 100 victims. "We have approached the Delhi High Court for around 20 of them through different writs," she said.

"Clubbing of FIRs is an issue...SDM offices do not have a clear procedure to be followed after one files a compensation form...there are several cases where police is not converting complaints into FIRs or not taking MLC reports into consideration while registering FIRs," she further alleged, adding that it is important to fight these cases for free as "the people who we are representing don't have anything to start with or have lost whatever little they had during the riots".

Lawyer Tamanna Pankaj (27), representing at least five riots accused, alleged intimidation on the part of police and said that apart from activists, lawyers involved in these cases have been specifically targeted by law enforcement agencies.

"Many lawyers have been interrogated in connection with the cases... one of the officers in the Crime Branch once asked me as to why am I wasting my time on these accused persons despite being well educated... they are concerned about the fact that where are so many lawyers coming from… I think women lawyers have faced most of the flak", she claimed.

26-year-old lawyer Nitika Khaitan, representing around five accused persons, claimed that the COVID-19 pandemic played a huge role in delaying bail hearings on urgent matters. "Courts were closed, so the bail proceedings were deferred which further delayed the whole process," she said. She further pointed to a March 11 letter addressed to the Chief Justice of the Delhi High Court and signed by six lawyers, which highlighted the "arbitrary police actions" in the form of "illegal summoning and detaining" of residents of Northeast Delhi especially in light of the COVID-19 pandemic.

Another lawyer, speaking on the condition of anonymity, said that there is an apparent targeting of poor persons of the minority community which is visible in the conduct of the police. "It is very obvious that innocent Muslim men are being carefully picked and chosen during the investigation," she said.

Advocate Saroj Kumar Jha, representing more than five Hindu accused persons, said that he has helped several of his clients by reducing their bail bonds and apart from professional obligations, he "believes in their innocence". "They are implicated in so many cases so it naturally becomes difficult for them to pay up the money, so I have got them reduced on several occasions," he said.

This is the fifth part in Millennium Post's series on the one year since the north-east Delhi riots

Part 1: Delhi Police say 1,753 held but courts heard over 4,347 bail pleas

Part 2: In 100 bail orders: 'Videos' used for arrest in 44; 32 of these failed court scrutiny

Part 3: Of courts' bugbears, most common 'doubtful' police, public witness statements

Part 4: A Delhi Police-sized roadblock in victims' path to justice — clubbing of irrelevant, unrelated FIRs

Part 6: Interactions with police have led to a complete breakdown of trust for many

Part 7: Pandemic response helped us repair relations with the community, say Delhi Police

Part 8: Over 2.7K compensation pleas pending re-assessment — all scattered & none to blame yet

Part 9: Justice an afterthought for families of most victims still struggling to move on

Part 10: Collateral damage: Tales from jail, of abuse & trauma

Part 11: How, when and where it began & why it is missing from cops' theory

This Millennium Post series reports stories that highlight the nuances of how the north-east district has changed, what level of distrust has been sown into the community, how policing has changed in the area, how or whether the victims are coping, the problems they are facing with the criminal justice system and the problems police, prosecutors and defence lawyers are having to deal with in courts -- One year after the north-east Delhi riots that killed at least 53 people and injured nearly 600 others.

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