Editorial

AILAJ has emerged in response to the objective need for an organisation of persons engaged in the legal profession in the face of an all-out assault on the Rule of Law, Constitution and the independence of the judiciary. We have borne witness to such attacks even previously, most notably during the Indira Gandhi imposed emergency era. Yet, most certainly, the current phase of heightened corporate plunder, unmitigated communal aggression and caste oppression, systematic suppression of dissent, is organised, methodical and borne out of an ideology that squarely rejects Constitutional norms and morality.

The judiciary, it is seen, is capitulating to the executive passing judgments that endorse Hindu majoritarianism or by engaging in “judicial evasion” avoiding deciding thorny and time-sensitive questions, like electoral bods, CAA, etc. This refusal of the Courts to decide these matters is infact a decision in favour of the government as the government benefits from the status quo being maintained. The appointment of Retd Chief Justice of India, Ranjan Gagoi to the Rajya Sabha and other such developments all hit at the public perception of lack of an independent judiciary. Perhaps the judiciary has turned a deaf ear to the pleas of J. Khanna’s in his luminous dissent in ADM Jabalpur v. State of Madhya Pradesh where he stated that; ‘Even in an emergency when the state is threatened the courts must speak…’.

The Hindu majoritarian elements within the legal fraternity are organised and dictating the agenda by even passing illegal resolutions prohibiting counsels from representing any accused who in their opinion is anti-national or anti-Hindu. Their role in monitoring inter-faith marriages is well documented, as Hindutva groups, relying upon a network of clerks and lawyers in courts, tehsil offices and marriage registration offices stop inter-faith marriages.

When the overall political climate in the country is reflected in the polarisation within the legal fraternity, ofcourse society’s acute wealth disparity and poverty is reflected in the experiences of majority of lawyers struggling to survive especially due to the pandemic and unplanned lockdown, which have exacerbated the existing disparity within the legal fraternity.

It is in this context that the need and relevance of an all-India association of Advocates striving to safeguard the legacy of the freedom struggle, the Constitution could not be emphasised more. We call on all members of the legal fraternity including law students to join us in this glorious new chapter to further the ideals of our freedom struggle and the Constitution.

The AILAJ blog could not have been launched on a more appropriate day than the birth anniversary of Babasaheb Dr. B. R. Ambedkar, the architect of the Constitution and one of India’s first civil liberties lawyers defending the freedom to speech and assembly, of labor, and due process. Here we draw from the remarkable essay “Lawyering as Politics: The Legal Practice of Dr. Ambedkar, Bar-at-Law”, authored by Rohit De and featuring in “The Radical in Ambedkar – Critical Reflections”, one of the few contemporary works on the legal practice of Dr. B.R. Ambedkar.

Dr. Ambedkar, perhaps more so than any of his peers was the precursor to the committed human rights lawyer of today. He underwent considerable hardship to acquire the law degree and built his law practice without through his sheer commitment and skill without enjoying any patronage whatsoever. What is remarkable is that he conducted his legal practice within a political philosophy unlike the popular understanding that lawyers would take any case that comes to them.

Dr. Ambedkar took a self-conscious decision to train as a lawyer after he had completed several other qualifications and gained employment. He paid for his legal education through funds he raised himself. His reasoning for joining this profession was that the legal profession was the only one in colonial India that allowed one to remain independent of both government and social forces.

Coming from the Dalit community, Dr. Ambedkar faced great challenges in establishing a legal practice compared to his contemporaries who enjoyed family and community networks for work. Ambedkar, on the other hand, was at a grave disadvantage due to the lack of social capital. Even so, while his contemporaries occasionally took on “political cases” or cases in public interest, the bulk of Ambedkar’s practice consisted of this, making him one of the earliest precursors to India’s civil rights lawyers.

This is seen in his defence of Philip Spratt, a British Communist who had been sent by the Comintern and was one of the founders of the Communist Party of India. He was arrested for sedition within months of his arrival in Bombay for writing a pamphlet titled “India and China” which was alleged to bring into hated and incite disaffection against the government of India and acquitted. Ambedkar was as one of the main lawyers for trade union leaders of all strikes. He was a leading figure in the defense team in the Chirner Forest case which rose from the suppression of the forest satyagraha at Panvel which had led to a riot, indiscriminate police firing and the death of four government servants. 47 people were charged with robbery, dacoity, unlawful assembly and murder. Taken together the Trade Dispute and the Chirner Forest case show Ambedkar respected as a lawyer across the political fraternity, at equal ease and in demand for defending Communist or Congress workers and bringing his considerable advocacy skills at parsing distinctions to find freedoms within a repressive legal system.

Ambedkar first prominent case involved the defense of the dalit writers, publishers and printers of the 1926 book “Deshache Dushman” (Enemies of my Country). The Marathi book, authored by Keshav Jedhe was a visceral critique of Brahmanism and described Tilak and Chiplunkar as “enemies of the nation” and “children of asses” for their defence of Brahmin privileges. The book was banned and a local Brahmin lawyer filed defamation charges.

A case in point of how his political activism and legal practice went hand-in-hand is the Mahad satyagraha. In 1927, Dr. Ambedkar led a satyagraha to gain access to water from the Chavdar Tank, exercising a right to public resources maintained by the state. The satyagraha was met by violence and upper caste Hindu’s filed a court case arguing that the tank was private property. The filing of the court case and the restriction of the satyagraha on the grounds that the matter was sub judice ̧ led to Ambedkar’s first public burning of the Manusmriti, obeying the grounds of the secular state while vowing to destroy Brahmanical Hindu law. As a defendant, he was actively involved in the strategy behind the case which was to show that tank was not private property. Ambedkar won at every instance as the cased moved from the local trial court to the Bombay High Court. The trial courts gave the most powerful judgment arguing that merely because the plaintiffs could show a long standing custom of excluding Dalits, it conferred no legal right upon the caste Hindus. However, the protracted nature of this litigation made it clear to Ambedkar that once a dispute became judicial, the parties lost control over the issue and they were prevented from using other strategies due to the question being sub judice. This meant the Chavdar litigation model was not repeated.

Dr. Ambedkar also frequently appeared in cases involving the death penalty where the accused is usually a poor man from a rural area with surnames suggestive of Dalit or OBD communities.

The bulk of Ambedkar’s practice consisted of representing indigent and working class clients. He also only represented the worker is labour disputes which reflected his explicit decision not to represent employers against workmen. Ambedkar gained a reputation as a “poor man’s barrister” and gave legal advice for free or fought cases with nominal or no charges. He was exceptional among his peers for having deliberately chosen to train as a lawyer, because of the independence it would give him from governmental and societal control. He also faced obstacles that none of his peers did, in gaining clients and making money from litigation.

He turned down the position of a District Judge in 1923 with a promised promotion to the High Court in three years, even when he was living in straightened circumstances in a one room chawl, on the grounds that judicial service would curb his independence. He has also turned down what would have been a lucrative offer by the Nizam of Hyderabad to become the Chief Justice of the Hyderabad State.

This political practice of the law is what is required today, both inside and outside the Courts. It is this dream that AILAJ aims to realise so as to stand with the toiling masses and oppression sections of society all the way in the struggle for justice, equality and liberty.