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Interview with Nandita Haksar is an eminent Supreme Court lawyer, human rights activist and writer

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Nandita Haksar is an eminent Supreme Court lawyer, human rights activist and writer. In keeping with her passion for empowering marginalized sections of society, she has represented workers, women, Adivasis, Burmese activists, and the likes. She has authored several books including Framing Geelani, Hanging Afzal: Patriotism in the Time of Terror and Across the Chicken Neck Travels in Northeast India. She began her political journey as a human rights activist while studying at the Jawaharlal Nehru University. In the early 1980s, she began working full time in the human rights movement. She, along with her husband Sebastian Hongray led the arrest cases against the Indian Armed Forces for committing human rights violations, in the Supreme Court and before the Guwahati High Court. She took up cases of illegal arrests, torture and also unfair compensation for development projects such as the Hundung cement factory. She has also been involved in the Indo-Naga peace process and has represented NSCN leaders internationally, before the UNHCR, Geneva and before the courts in Thailand.

In this interview, she enlightened us about her early influences, the case that shaped her understanding of the law, the surprising difficulty she faced on account of her lineage, the challenges faced by a woman lawyer and her passion for writing. Here is a transcript of the interview.

Trishala: Your childhood has been privy to some landmark watershed moments in the country including the liberation of Bangladesh, the Indo-Soviet treaty, the Green Revolution and many more. What did you make of these events, how did they shape your worldview as just the young daughter of the distinguished Mr P.N. Haksar?

Nandita Haskar: First of all I would like to say I am the daughter of both my parents, P N Haksar and Urmila Haksar and both of them had a big role in shaping my worldview.

I think what shaped my views (and the views of my parents) were two very important historical events, the establishment of the Soviet Union; and second the national liberation movements against colonialism and imperialism.

The Russian Revolution seems like an event of the distant past but remembers my father was born in 1913, a little three years before the October Revolution and my mother was born a year before the establishment of the Soviet Union.

Both my parents, in their different ways were deeply influenced by the ideas and ideals of the Russian Revolution, as were millions of people around the world. It was an event that gave hope to millions of people and here in India, it inspired people from Sheikh Abdullah in Kashmir (In 1948 named Srinagar Chowk  Lal Chowk after Moscow’s Red Square) to the great Tamil poet, Subramania Bharati who wrote an ode to the Russian Revolutionaries called Pudiya Russia.

In concrete terms, how did it influence me? Well first of it was a source of inspiration and also hope because the Soviet Union supported the national liberation movements in Vietnam, Palestine, and the struggle against Apartheid and yes, also the national liberation struggle in what became Bangladesh.

I am a product of the Cold War and I had read books and accounts of the surveillance during the McCarthy. I was deeply moved by accounts of the trials of various communists or people suspected to be communists and how they went to jail, were even executed but did not betray their comrades. The story of the Rosenberg trial is the single most important case that shaped my understanding of laws and the legal system, and I am clear it is (world over) designed to uphold the status quo and cannot deliver justice except in a limited number of cases.

The two most important ideas which shaped my worldview were the idea that ordinary people could if organized shape their own future and exploitation could be abolished. The second idea was the importance of international solidarity.

Perhaps that is why I took up cases of Burmese refugees (and set a precedent in refugee law) and Iraqi refugees – many of these refugees stayed in my parents’ home and later in my home and have become a part of my family. It was that inspiration why I took up cases of oppressed peoples and for the most part, did them pro bono.

Trishala: How was your experience in law school? How much did classroom education enlighten you about the advocacy that you went on to do?

Nandita Haskar: I cannot say the Delhi University law course was inspiring or helped in teaching advocacy.  The only memorable lectures were by Upendra Baxi but those were on jurisprudence and Constitutional law rather than advocacy.

However, while I was still studying law Indira Jaisingh got in touch with me and took me under her wing. She involved me in the Pavement Dwellers case which deeply influenced my ideas of advocacy and lawyering.  And my involvement in the human rights movement and the feminist movement played an equal part in shaping my understanding of the State and legal system.  This understanding helped in evolving strategies and campaigns.

I was asked to give lectures in various colleges in Delhi on women’s rights and that is how I wrote my first book, The Demystification of Law for Women. It was translated into many Indian languages and used by women’s organizations.

My involvement in both the human rights movement and women’s movement showed me the contradictions in the demands and I wrote an essay on the feminist understanding of human rights lawyering which deals with this problem of how often women’s movement articulated demands such as demand for in-camera trial which ultimately lowered human rights standards.

Trishala: Your father Mr P.N. Haksar was famously considered to be the moral compass of the then P.M. Mrs Indira Gandhi? How has his brand of intellect and morality influenced your career as a Human Rights advocate and a voice for the marginalised sections of Indian society?

Nandita Haskar: I have already answered the question. But my father did not have much of influence in my law practice because I took up cases on behalf of Naxalites and Nagas and movements which he would not necessarily agree.

Besides, being his daughter made it very difficult to gain the trust of these clients but I did not disown my father even while I disagreed with his political stands – and he too never interfered in my political stands. This is the core of our relationship. Deep mutual respect.

Trishala: The Constitution of India has been written extensively covering all our pluralistic aspects to ensure the continuation of democracy and secularism. In spite of this, the provisions have been re-interpreted and misinterpreted countless times putting the intentions of those provisions under the grinder time and time again. Is there a straitjacketed method in which the constitution can be interpreted or does it finally boil down to the machinations of a lawyer’s mind?

Nandita Haskar: The careful reading of the debates in the Constituent Assembly Debates shows that there was no agreement on the meaning of democracy or secularism.  These are contested terms.  And that is why the broad framework, or the basic structure, is a given but there is a great deal for varying interpretations of the provisions. And that is the basis of Constitutional law. By reading various provisions of international human rights law the meaning of the fundamental rights have been broadened over the years.

For instance, as you know India is not a signatory to the Refugee Convention and we do not have any refugee protection regime. So when the Manipur Government were going to deport the Burmese refugees I argued that they have the right to non-refoulment under Article 14 and Article 21 (which apply to non-citizens). The principle of non-refoulment stipulates that a person cannot be forced to return to his/her home country from the host country ‘where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm’. And I argued that the deportation of a person would mean a violation of the person’s life and liberty and the right to equal protection under Article 14. And the court accepted this and I was able to save many Burmese refugees from deportment and certain torture, imprisonment and even possible execution.

Trishala: You have said that ‘The most important thing for anyone involved in challenging the state’s policies or social prejudices is to have a good theoretical understanding of the root causes of social, economic and political injustice.’ Ma’am, but in my opinion, the root causes of these injustices usually boil down to corruption, greed and harmful personal biases sourced in powerful leaders. Do you agree with that or are there other factors that lead to injustice?

Nandita Haskar: And what is the cause of corruption, greed and personal bias?  In the final analysis, in a capitalist system, there is uneven development and institutionalized exploitation.  And the law, legal justice system are designed to uphold this institutionalized inequality and injustice in the shape of class exploitation, caste, race and patriarchy oppression.

Let us take a simple case of a woman being detained by her family against her will even though she is above 21 years old. I had such a case; it was a Hindu woman who had married a Muslim man. But her parents were not allowing her to leave their home.  There was no physical restraint being used but my understanding of patriarchy led me to understand how women could be emotionally blackmailed. I filed a Habeaus Corpus petition and said she was being wrongfully restrained. That day the judges laughed at me as did the lawyers in the court and my petition was dismissed. I just went with Saheli volunteers and rescued the woman. But in course of time, the court recognized how the woman was being illegally detained.

The deeper the knowledge of how the system works the better strategies we can evolve to fight our cases in court and campaign outside.

Trishala: Is it said that women are usually the first and the worst casualties in the landscape of national unrest. You have fought vociferously against the ill-treatment and the sexual violence perpetrated on women at the grass-root level. What are some of the lesser-known challenges that you have faced regarding the judicial system in India in dealing with the same?

Nandita Haskar: There are three challenges that a lawyer, especially a woman lawyer faces when taking up cases of sexual violence or patriarchy in various forms:

  1. The prejudice of the judges who are themselves not free from patriarchy. I remember Justice A N Sen asked me in open court if I was Miss Haksar or Mrs Haksar and I replied Ms Haksar. Then he laughed and asked what that meant and I replied “your lordship, from your name I do not know whether you are married or not,”

And he said: “I am married.” Then I explained that was not the point. It was not necessary for him to know whether I or any other female lawyer was a Miss or a Mrs.

That is just one small incident but it took me a lot of courage to speak out in the midst of my case. Another time while arguing for bail in Supreme Court (I know petition for bail is not usually brought before the Supreme Court, but this was an unusual case) a lawyer insinuated that I was having an affair with my client. He had said this during a break but I brought it to the attention of the Judge and said it was impossible for women to practice if such insinuations are made by male colleagues to undermine the case.

  1. The client herself is often reluctant to fight her case. I got many cases when the women wanted me to help her get back into the family which had nearly killed her. Those are the most difficult because as a lawyer I am to represent her wish.
  2. The third is to get the courts to accept arguments based on my understanding of the root cause of oppression. For instance, in Mary Roy case (I was doing a similar case) the court did not rule in favour of Mary Roy on the ground that men and women are unequal and Article 14 should protect them from this inequality. I think it is important not only to get relief but also evolve a new kind of jurisprudence.

Trishala: You have authored over a dozen books covering a variety of crises ranging from the deception by the Indian Military Intelligence to the Kashmir conflict and many more. What is your writing Kryptonite? What was an early experience where you learned that the written word had power?

Nandita Haskar: My first love is writing.  And my experience as a human rights activist and lawyer has enriched my writings even though my writing lacks literary touch because of years of law practice and writing petitions.

My writing as indeed my law practice are tools to intervene in a situation of injustice.  But they have also helped me to clarify my ideas and in the process hopefully helped other people also gain some insight into the problem I have written about.  The Rogue Agent (2009) helped get the release of 34 Arakans who were imprisoned in the Andaman Islands; my book on Flavours helped many people understand the politics of food, and the Many Faces of Kashmiri nationalism opened space for an alternative narrative.  I have also tried to use my writing to document struggles which would otherwise not got written about – for instance, the stories of Naga migrants, histories of communities of the Northeast. I want to give back people their histories, especially those who cannot write their own stories.

Writing is a way I keep sane.

Trishala: In recent years, your alma mater JNU has come under severe scrutiny for its dynamic brand of expressing dissent. Since our sedition laws are loosely defined, could you please articulate that at which juncture does our freedom of expression morph into sedition? Can a seemingly anti-national statement be called seditious if it is in fact, the truth?

Nandita Haskar: I have written a long article on my experience in JNU. While I was a student of JNU I met Naga students and persuaded them to file a case challenging the Armed Forces (Special Powers) Act and also another petition about the disappearance of two men who were picked up by the Indian Army.

When I suggested this the Naga students who were in the process of forming a Naga human rights organization, called the Naga Peoples Movement for Human Rights (NPMHR). The NPMHR members were against going to the Indian Supreme Court because it would mean Nagas were accepting the sovereignty of India.

Ultimately the Nagas did and I won the case which is now known as Sebastian Hongray v Union of India (1984) and it set a precedent in the law of tort.  But more importantly the Nagas for the first time felt they could get justice in India.

But while we were doing this case I was attacked for being anti-national, the Naga student’s room was raided and we faced a lot of intimidation.  But no one noticed that for the first time Nagas were willing to engage with Indians and so I felt I had contributed to the idea of a plural India rather than being anti-national.

JNU provided a space where students and teachers felt they could discuss the most complex and controversial issues. It enlarged the understanding of India for everyone who joined the University. It is absurd to say the students and teachers were anti-nationalists; I believe they were deeply committed to democratic ideals and the students who later joined the civil service (and many did) have proved to be very efficient and sensitive to the needs of people.

Trishala: The COVID-19 enforced lockdown has opened a can of worms as regards the Corporate Social Responsibility system. You have written an article about the lack of accountability of funds, the apathetic politicians and the disenfranchised inter-state migrants who seem to be hit the worst in the pandemic. How do you think the governmental authorities should handle the migrants’ scattered situation?

Nandita Haskar: I have written a very long piece on Migrant as Citizen

There has been an exceptional mobilization of funds in the name of the migrants by the Government, both at the Centre and at the State level; by Corporations, foreign funding and also by individual contribution.  But how much of these funds reached the migrant?

There has been an enormous number of individuals and NGOs who have been providing food to migrants.  But they have not bothered to try and access the government funds.

The reason why the political parties and political leaders have not felt the need to help the migrant workers because the migrants do not for the most part form a vote bank; they are in effect enfranchised.

The kind of prejudice we have seen in all parts of India against migrants, whether the militants attacking them in Kashmir or the attacks on migrants from Northeast being called “Corona” or the hatred towards Muslim migrants and even in a small state like Goa where I live I see a deep-rooted prejudice against migrants.  This is very disturbing.

The migrant crisis showed up all the fissures in the Indian federal system with the conflict between the centre and the States over who is responsible for the migrants.  There is a move by Haryana to have 75 per cent reservation for jobs in which the salary is less than Rs 50,000. Industrial units requiring labour from outside will have to get special permission.  The Chief Minister of UP has also said now any State wanting migrants from his state must go through the State Government.

These moves raise very serious questions about the idea of India. In the absence of any organization to represent the migrant workers, they can find themselves being auctioned or trafficked and no one to help them enforce their rights.

Trishala: You have consistently used your position, privilege and your education to empower the less fortunate to claim their rights. What is the essence of a lawyer regardless of their area of practice?

Nandita Haskar: I really love being a human rights lawyer because I got a ringside view of the working of the Indian state and helped me understand how oppression and injustice are institutionalized.  It also allowed me to make common cause with people’s struggles and movements and gave me meaning and purpose in life.

There are many lawyers all over the country who have been facing so many problems and many have literally put their lives at risk trying to fight injustice.  These are the lawyers who uphold the dignity of our profession. But unfortunately, the Bar Associations seldom take up cudgels on behalf of the poor; they also close their eyes to the improprieties committed by many lawyers some of whom extort huge fees and do not represent their clients well. Many cases of injustice are the direct result of incompetence or greed of lawyers.

How do we evolve a different culture where we as a profession and the Bar Associations feel the need to fight for justice not merely practice law. The lawyer must be synonymous with the idea of justice; just as a doctor should be synonymous with healing. But today greed and unethical practices have taken over the legal institutions and that has long term consequences for the future of Indian democracy.

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