Kamini Jaiswal, 70, is one of the strongest advocates of human rights in terror-related cases in India. Jaiswal has represented the accused in dozens of high profile terror cases including the Parliament attack, Red Fort attack, Akshardham blast, in which she secured many innocent people get acquitted in the long legal battles.
Jaiswal is a member of the Committee on Judicial Accountability which is a group of eminent lawyers of India who work to improve the accountability of judges. In July, the veteran lawyer spoke with Maktoob’s Shaheen Abdulla about the depleting trust among law fraternity to access justice.
How did you get involved in terror-related cases?
Kamini Jaiswal: The first case with TADA (Terrorist and Disruptive Activities (Prevention) Act) was some Punjab matter, during the Punjab riots. This is in the late 80s. In fact, there I was not appearing for the accused, Union Territory of Chandigarh has engaged me for Bimal Kalsa for the prosecution. I was in my late 20s or something and I just began my profession.
Then slowly word goes around. A lot of times I had people calling from jail because there was some client who was there and who may have got some favourable order or whatever he was satisfied with the services rendered. So that’s how I got into these matters. Then basically being a defence counsel, these matters started coming and mostly I had a lot of matters from Gujarat.
But then, and we were getting some relief because the courts were more liberal regarding liberty matters. I remember the judges, at times, saying ‘we know your client is guilty, but the law is in your favour,” and they would release, at least from detention matters. The trial will go on but you can’t just use these kinds of matters to detain people.
Were there efforts to challenge terror laws in the past?
Kamini Jaiswal: TADA was challenged but politics started playing up in the courts also. They were too worried to set aside a law like TADA so they would read down certain provisions in the sense you know, they keep both sides happy.
TADA actually never was struck down by the court. It lapsed by virtue of law because a provision like TADA can’t be permanently invoked. It will be for two years, then they’ll extend it, then they’ll extend it… Then finally TADA was done and then they used POTA. They would just redress the whole thing and convert it into POTA, then they, again repressed it and converted it into UAPA.
In these matters, it’s a cat and mouse game. TADA came and went and then POTA came then POTA went and then UAPA came. The Gujarat government, right from the 90s, most heavily abused it. They’ve made a mockery out of these laws in Gujarat.
When TADA was challenged, it was a whole lot of people challenging it. I don’t think the general public is favouring the terrorists. But when you are abusing the law, and you at your whims and fancies label social workers or other people as terrorists, then the public outcry will rise. I think the public outcry against this law is more because of the abuse.
How do you see the death of Father Stan Swamy and other political prisoners?
Kamini Jaiswal: The State is a murderer here. It is State terrorism. Even the courts have not done their job. Because why is it necessary that every time court you have to go to the court for remand? Because you expect courts will be objective. They will oversee what the police is doing. But today, the courts just blindly reject all bail orders, bail applications, or remand matters or whatever, they don’t even use their sensitivity.
My heart bleeds when I think about Bhima Koregaon. These people don’t have to be there. A lot of families or people from those families will naturally resist their father, mother from doing anything of the kind. It will restrain them from doing good acts, social activism. If the person has a small child, yes, they will think twice. If the courts acted the way they are supposed to act, upholding liberty and human rights… but they didn’t. Stan Swamy wanted a sipper, it should have been granted by the superintendent of the jail.
Many people are inside who don’t need to be inside even for a day. At every level, every court has rejected their bail applications, in spite of reports saying evidence has fidgeted. That is something that should be taken so seriously.
Do you think marginalised groups are overwhelmingly targeted?
Kamini Jaiswal: Absolutely. They (terror laws) are used against Muslims and minorities. Very openly, I can say they (terror laws) were abused against them. I mean, how many people? Just imagine if a man is inside for 20 years, 30 years and then ultimately the court very reluctantly acquit him, but the man lost his life. He lost everything by the time he comes out.
I remember very distinctly, I moved an application for a person Abdul Ghani. He wanted bail to visit his ailing mother. I came to Supreme Court for interim bail citing his mother was dying. They kept it pending for six months, eight months ultimately rejected it. The mother died, the father died. I mean, it’s so senseless and the man had been inside for 18 years already. What do you want? The man in his twenties goes inside comes and out after 20 years. It’s not just that person whose life is over, his entire family is shattered.
In a blast case, in the same incident, same evidence, they start a case in Goa, a case in Karnataka, Hyderabad. Goa, they got discharged, Hyderabad they got acquitted, then Karnataka, there were three appeals before the High Court to appeal they got acquitted in two but gets convicted in one. So 17,18 men will remain in jail for 23 years.
Minorities go inside for twenty-thirty years. In the Akshardham blast case, they came out after 21 years. They also filed a writ petition for damages. Nothing is done. they’re not paid a penny. They’re not paid the legal expenses in our country. In any other place for malicious prosecution, there will be huge penalties. These kinds of penalties should be imposed. Instead, on the contrary, police officers who apprehended them will get awards.
What do you think about backlash from the governments?
Kamini Jaiswal: The honourable law minister (former) may his soul rest in peace, said to me ‘Kamini you’re a terrorist yourself.’ It was when I was working on the Parliament attack case. I don’t care. If I really bothered about what people had to say, I wouldn’t be doing a lot of things that I do. I get threatening calls, but my attitude is what has to happen will happen, I will continue my job.
I was going against the State, but the State wasn’t as vindictive as it is today. They let professionals carry on their profession, objectively. And we also didn’t take on the system, we only fought for law and were very professional.
There are points that you just want to do the most outrageous things. Throw your files on the judges and do whatever. But ultimately you’re very hurt. It causes lots of agony and pain, not only when it’s my matter. I keep wondering about the family, the children, maybe I just getting too over-involved. But when I think of all that, it’s outrageous. I feel very distressed.
Do you think terror laws were abused by the BJP regime alone?
Kamini Jaiswal: Each one of them used it. The Congress and the BJP. Now between the two of them, BJP uses it very proactively. Congress is indifferent to it. They are worried about public opinion. That you know, the government is helping terrorists or the government is but they would ignore this thing because of that. BJP government goes out and do it. They care a damn.
In court, the prosecutor has to come and say, 200 people died, 20 people died, 10 people died. They will not even look at the facts of the case. All you’re asking is grant bail. Bail is granted, the man is not going to run away. I think the courts have to take human rights and liberties more seriously. Everybody feels that. Even judges behave so insensitive and inhuman or more loyal than the Kings.
What do you think is the solution?
Kamini Jaiswal: Our courts, politicians and executives are not conscious of their duties. I think unless these people start making the police officers accountable for malicious prosecution or wrongfully charging somebody, this will continue. I don’t think police reforms is the only way. The police will be the same. But even if it’s an independent police, I don’t know what kind of training they get? What time kind of human beings they are? They also have families. How can you be so careless, with utter disregard to the evidence?
What do you look forward to in your career?
I have practically given up. I can’t take it anymore. I think my core distinct sensibilities now can’t really take all this. But there are all these are some matters which are pending, which I had filed 10, 15 years ago and still waiting to be heard. I will do them whatever it is work.
I go to court because there’s no other choice. I never proactively file a plea. Today, I have no faith in the judiciary. But at least if a man is inside, I have no choice but to go to the court. If I don’t, somebody else will do it. They have no choice they have to go to court. Nothing is going to happen to this country and this system. It goes on, in spite of everything. I can’t see any light at the end of the tunnel. I’m sorry to sound such a pessimist. But, I am a great pessimist. Because, earlier, I used to feel It would be better if this Chief Justice goes or someone else come. But now as the graph is going lower and lower. Sub-zero. It has become with the last Chief Justice and Gogoi before him.