Sudha Bharadwaj: ‘A lot of democratic space has been lost’

The human rights lawyer and activist says that while in jail, she saw the human cost of a dysfunctional justice system.

Sudha Bharadwaj is one of the 16 people accused in the Bhima Koregaon case. | Photo Credit: EMMANUAL YOGINI

The lawyer and activist, spent three years and three months in jail following her arrest under the Unlawful Activities (Prevention) Act on August 28, 2018. Her book From Phansi Yard isabout her days in Pune’s Yerawada Jail.

As a trade unionist, Bharadwaj has seen police heavy-handedness up close, but she did “not envisage the kind of thing” that happened to her. The charges against Bharadwaj, one of the 16 accused in the Bhima Koregaon case, include a plot to kill Prime Minister Narendra Modi. But the 62-year-old is confident she will be acquitted; her bail conditions disallow her from saying anything more.

WATCH:

The human rights lawyer and activist says that while in jail, she saw the human cost of a dysfunctional justice system. | Video Credit: Interview by Shreevatsa Nevatia, Edited by Sambavi Parthasarathy

Speaking to Frontline in her house in the Mumbai suburb of Borivali, Bharadwaj said her colleagues in Chhattisgarh, which she calls home, often joke and say, “You’ve come out of a smaller jail to a bigger jail.” She is not allowed to leave Mumbai and Thane. “It’s like being an exile. It’s terrible,” she said. After working with organisations like the Chhattisgarh Mukti Morcha (CMM) and the People’s Union for Civil Liberties (PUCL), Bharadwaj founded the Janhit People’s Legal Resource Centre in 2007-08. During the 30 years she spent in Chhattisgarh (1986-2016), Bharadwaj made some “powerful enemies”. At one point, she said, “I was one of the few lawyers in the Chhattisgarh High Court with cases against all the powerful corporates” (Ambuja Cement, Vedanta, Tata, Adani, etc.). Bharadwaj said she was never afraid: “I was with the people. What I was doing was very much legal.”

In jail, Bharadwaj fought hard against the isolation. Shoma Sen, a co-accused, was in the cell next to hers. “I don’t think I would have survived without her and vice versa,” she said. The 76 portraits of women prisoners in her book tell a familiar story—convicts and undertrials with neither state nor family to rely on. These women were Bharadwaj’s subjects and also her inspiration. They taught her “how to survive injustice, how to remain hopeful, how to help one other, and how to continue to live, love, fight and laugh... even behind bars”.

When she was moved to Mumbai’s Byculla Jail, she “started writing applications” for them, but as “Vakeel Aunty” her success rate was “dismal”. “I’m used to failure, but I think it’s important to still fight,” she said. Excerpts from the interview:

You dedicate your book to the “unjustly incarcerated”. How did the three years and three months in jail change or shape your view of justice?

It is not that I was unaware of what I encountered in jail. I knew that poor people have a raw deal, that marginalised communities don’t often get the sympathy of the courts, and access to legal aid is skewed. One knows all those things in theory, particularly with the communities one used to work with—workers, those losing their lands, those who are up against corporates. But when you go [to jail], you see the human cost of a justice system not working; the way women and children are languishing.

I realised that most of the convicts were poor rural women. However unjust or unfair their conviction might have been, they never thought of going to a court to resolve it, because that was not an option. They literally worked themselves out of jail. After seven years, you can opt for work in the fields, then you get remission for that work. One watched them day in and day out—rain, sun, cold—going to the fields to work. Ultimately, that was all they could rely on. Like in their life, they relied on it in prison as well. That really hit [me].

Did your time in a women’s prison make you look the idea of feminism differently?

I met a variety of women. I saw women who had, maybe, murdered the entire family so that they could elope with a lover. Women who were aware of their sexuality and were using it in a particular way, by, say, trying to entrap somebody—things which [constitute] the unpleasant side of women one doesn’t like to think about. But by and large, these remain the exceptions. If you leave out the women in NDPS [Narcotic Drugs and Psychotropic Substances] cases or sex work cases, a lot of them had committed crimes associated with family, crimes of passion. Those who had killed their husband because they had just had enough. Those who had attacked their mothers-in-law. I wouldn’t say they were victims of their circumstances, but a lot of these crimes came from a certain situation, and we’re very far from addressing that situation.

“Trade unionism”, you say, “demanded a life of commitment”. What made you take the plunge? Were you inspired by Shankar Guha Niyogi, the famed labour leader? Or was it that for a worker, the union is everything?

For me, psychologically and philosophically, the second reason is very important. Of course, Niyogi showed me how I could do that. His organisation [Chhattisgarh Mukti Morcha] was not just an economic trade union. It did many things, but the basic learning was that poor people find their identity there. People like us, from middle class backgrounds, are told to achieve, build a career, be ambitious. One forgets that for working people, there is no such thing as individual identity. You don’t exist until you have an organisation. Being a person who believes in collectives, that I thought was really fundamental.

On her way from jail to appear in a special court in Mumbai on December 8, 2021. | Photo Credit: PUNIT PARANJPE/AFP

Shankar Guha Niyogi was once arrested under the National Security Act. Dr Binayak Sen was also imprisoned. Looking back, did you ever stop to think you, too, would suffer a similar fate?

Anybody who is in the trade union movement knows that from the first day you struggle, the police are going to create law and order problems. That’s very well known, and we saw that. We saw attacks on the leaders. We saw Niyogiji’s assassination, we saw police firing. People went to jail for many months. That, one knew, was part of the trade union movement.

Later on, when I went to the High Court, we were up against very powerful corporates, whether it was land acquisition, environmental issues or whatever else. I was one of the few lawyers in the Chhattisgarh High Court with cases against all the powerful corporates. I was aware I was making very powerful enemies, but I didn’t envisage this kind of thing which happened to me. It did take me a little by surprise. Of course, as you rightly said, after Binayak Sen was arrested, I knew a human rights organisation would be targeted. It’s a crown of thorns, but then somebody has to take that responsibility.

While making powerful enemies, were you ever afraid?

I know, for example, that some of these corporate people used to approach my colleagues and associates in the chamber. I know that some of my clients were threatened or terrorised to take back cases. I never directly had that experience but, yes, I was aware my phone was being tapped. It started almost as soon as I became general secretary of the PUCL. People from the local intelligence would turn up to ask, ‘What is happening in this case? Are you planning some kind of a meeting?’ I was always very open with them. For some reason, I didn’t feel afraid. I think that was because I felt I was very much with the people, and what I was doing was very much legal. There was no reason for me to feel afraid.

You describe Chhattisgarh as “home”, but it has been years since you went back there. What impact has this had on your mental and emotional health?

It’s like being an exile. It’s terrible. I was in Chhattisgarh in 1985, then 1986 to 2016, almost continuously. That’s 30-odd years, the major portion of my life. I came to Delhi only in 2017, but I have been away from Chhattisgarh for a long time, nearly six years. I was so rooted there. The Chhattisgarh Mukti Morcha is almost like family to me—all those karyakartas, their families, my associates in the legal practice, my colleagues at the PUCL. In fact, they joke and say, ‘You’ve come out from a smaller jail to a bigger jail.’ I really look forward to the day when I can go there.

The working class people, you say, accept you if they trust your sincerity. Was that also your experience with jail inmates?

Yes, absolutely. I remember when I went to Byculla, women would ask me for help, and I would ask them to show me their charge sheet. They would hesitate and that hesitation is very natural in jail. You make friends there, but it is also a very cruel, gossipy place. So, people actually hide their charge sheets. But after some time, when they realised that I won’t talk about [their] charge sheets and that I would never make fun of them, they literally lined up. Till late at night, I would be writing applications or letters to their lawyers or the court.

At Yerawada, you were lodged in a high-security cell meant for death row prisoners. Having suffered the isolation, do you believe there is an urgent need for the death penalty to be abolished?

The death penalty needs to be abolished for many, many reasons. One of the most important reasons is that our criminal justice system is so flawed. It is inevitable that those who are powerful or wealthy or socially privileged are never going to face the death penalty. We are going to weaponise death penalty against the weak, and that is simply not fair. Many of those [on death row] haven’t had proper legal aid. Many of them were too poor to afford good lawyers.

For a “Constitution-abiding person”, your writing has a strong critique of several laws. You call the UAPA “draconian”, for instance.

There is a difference between the Constitution and the laws. The Constitution was a document that was debated by those who emerged from the freedom struggle. Maybe certain sections were not very well represented. Jaipal Singh was almost the lone Adivasi voice. Very few were really representing Dalits. Very few represented women. But it was still a debate that laid the bedrock of how we visualised the society that was to come. Laws were created later. They all need to be tested against that bedrock. When I say that certain laws are ‘draconian’, I am saying they do not pass the test of constitutionality. That is why the PUCL has always challenged such Acts.

The PUCL challenged TADA, the Armed Forces (Special Powers) Act. It challenged sedition. It challenged 66A. The tendency of the executive to overstep is always there. That is where the Constitution or judiciary has to step in to create a balance. I don’t see a contradiction in this at all because it is the fundamental rights which are primary, the restrictions are secondary. The restrictions can never overwhelm the right itself. You can’t make the restriction so severe that no right remains.

How difficult was it when you came to know that you would not be released soon?

Once the first shock and disbelief of my arrest went away, I realised this was going to be a long haul. I had sort of mentally prepared myself for that, and that is why I just relied on my daughter, my friends, my colleagues in the union. ‘They will do whatever is best for me.’ I deliberately used to be very indifferent to the ups and downs of my case—the bail applications and so on. I decided I’m not going on that roller-coaster ride. I’m just going to wait and see. I was still very lucky to have come out. It’s unfortunate my co-accused remain behind bars.

You write that “courts looked at crimes within the family through a patriarchal lens”. How much does the criminal justice system need to be reformed, for women especially?

Only recently the Chief Justice of India, D.Y. Chandrachud, brought out a booklet about gender stereotypes. Judges don’t drop from the sky. They come from society. Being patriarchal, coming from the upper castes and the majority community, definitely impacts the way they look at crimes and the accused. I’m glad that the need for diversity is gradually being recognised in the judiciary. The other part of it is that we have to give a spirited defence to these people.

It is the interaction between bar and bench which actually makes law. It’s not just the bench. The bar must also be very vocal. It has to represent all these viewpoints. Only then will judgments of [a better] nature start coming. I think if we improve our legal aid system, we will build up better defences—better perspectives of defence—for marginalised and oppressed communities.

With Gautam Navlakha, trade union and civil rights activist, at a meeting organised by the People’s Union for Democratic Rights in New Delhi on July 13, 2018. | Photo Credit: SUSHIL KUMAR VERMA

“Ineffective representation”, you say, “is no representation at all.” How bad is the legal aid system in India? Have things changed after District Legal Aid Defence Counsel system began to be implemented?

There used to be three major problems with legal aid. One was that people were not paid sufficiently. The District Legal Aid Defence Counsel system envisages payment, even for the junior-most lawyers, at, say, Rs.40,000 a month, sometimes more. It’s more than what you get interning. Of course, there is a restriction. You can only do legal aid cases. It’s like a doctor working in a general hospital rather than a private clinic, where you will get exposure.

The second problem was that you could only enter the system after seven years as a lawyer. Usually, by then, most people have lost their idealism. They just want to make money. The third thing, which I think needs to be emphasised, is that legal aid lawyers have to be accountable to their client, that is to the prisoner, not to the system. At the moment, the [new] system is being implemented only in pilot districts. It needs to be implemented everywhere.

You write about how you were repeatedly strip-searched. Do Indian prisons use humiliation as their bedrock?

You are strip-searched wherever you go—court, hospital. After some time, one gets used to it. Some people are ill-treated more than us. I think we were lucky because of our background and other privileges; we were spared a lot of the roughness and crudity that accompanies those strip searches. That is reserved for the poor, beggars, people suspected of hiding something, smuggling in some drug. Those people are dealt with more brutally.

We are told we should call these ‘correctional services’, not ‘prisons’, but for that, you need many staff dedicated to reformation and correction. [Our prisons] are horribly understaffed, and the staff is only on the disciplinary side. But a prison is supposed to have other people. Doctors, psychologists, teachers, social workers, legal aid lawyers. Even the NGOs who come in are sporadic and don’t really see people through to a new life. An emphasis on reformation is needed. Lip service is not enough.

You struggled for the smallest concessions—books, fans, water. Was there any one aspect of your incarceration that you found most difficult?

During COVID, I was in a strange situation. I had tested negative, but I had low fever and diarrhoea for about a month and a half. When our barrack was checked, 13 of the 57 of us tested positive, and many of them were right next to me. That was when we were just stuffed into a ‘Quarantine Barrack’. Nobody came in to help or clean. That was really miserable. There were four toilets and three were choked. The place was filthy. Everybody was sick, everybody was depressed. That was the worst period of the incarceration. Every time you went for a test, your quarantine would be increased by 15 days. When I was released from there and went downstairs, I thought I’d been released on bail. That was also when my medical bail went up to the Supreme Court and was rejected.

Jail authorities would cut out articles and stories about you from newspapers. Was the relationship between hope and the size of the holes in your paper directly proportional?

[Laughs] Absolutely. The bigger the hole, we’d know something was happening. In fact, one day there was a hole, and people started congratulating me on my way to court. This was in Yerawada. I was told I had been permitted by the court to go and attend the last rites of my father. My parents had been separated for a long time, but I was still in touch with him. I didn’t know because they had cut it out. So, yes, we felt very hopeful when we saw those holes; we knew something was happening.

You write, “Even the poorest, most destitute person in this jail prefers the freedom of her release to the security of these stone walls.” Do you think this is a universal response to captivity, or is it because Indian prisons, in particular, are no places for women?

I think it’s universal and very innate to human beings, because equality and freedom are things so basic. Freedom is essential to us. If you look at it in the opposite way, if we have very little freedom, imagine how much force is being brought upon us for us to have given up so much of our freedom. It indicates the seen and unseen coercive atmosphere around us.

Caste, class, and community hierarchies play a crucial role in many of your stories. Women from the upper classes are treated more humanely, while women of Dalit and OBC communities are saddled with sanitation work. Is there any chance this system might change?

I think there are some rumblings of change now. It has been a slow and gradual process, but whether it is the Mandal upheaval or the Dalit assertions which have happened—they have all been reacted to with violent backlash. Violence has increased because the assertion is increasing. Now, with the caste census, you see the invisible slowly being made visible. All this will have an impact. Some of it will be gradual, some will be explosive.

Prison is a mirror. It is a closed society where change is virtually impossible. It’s very tightly controlled and administered, but it reflects changes happening outside. When you bring in more staff from these communities, when social workers and lawyers come with that understanding, prisoners will get more dignity.

Self-organising is almost impossible. I remember, in Byculla, some women couldn’t get their court orders, so I wrote to my lawyer to send the court orders of these other women. I was hauled up for it. I was told I can’t do this. They said, ‘We are here to help prisoners, you don’t have to help anybody!’ So, even helping someone is not allowed, let alone getting together and demanding something. Organising and associating are crimes in the prison manual.

How does religious discrimination manifest itself in prison?

It manifests in two opposite ways. People from the minorities are substantial among the prisoners, much more than their proportion in society. They stay together and assert their collective identity. The prison—and this is probably from British times—adapts to things like roza where a different system needs to be put in place. The kitchen has to be started early and sehri has to be served. Then you are locked up again. You will be surprised at the number of non-Muslims who do roza, but Muslims also participate in Ganpati [celebrations]. Everybody celebrates Christmas. There is an evening out. There is a remarkable camaraderie, and I think people are willing to worship any god if it can get them out of prison. But I must say the gods are also very secular. Whichever community or god, nobody ever gets them out. [Laughs]

In so many cases you mention, women are in jail because of crimes men have committed. How much agency do women prisoners really have?

There are a lot of women who I call ‘legal hostages’. The system has kept them hostage for their absconding husband, son or boyfriend. Their own role in the crime is pitifully little. Sometimes, they are surprised that such a crime was ever committed. No purpose is served by keeping them in jail, but because the offence is grievous, they might not get bail. When you put a woman in jail, you put her children in jail, too—the entire family really.

You once said, “If you try to be safe and be in the middle, you will never succeed.” Do you still stand by that statement?

Yes, of course. It depends on what you call the ‘middle’, though. I feel I need to be on the side of people. That is a choice I have made. I would prefer to be on the side of the workers or the union vis-a-vis the employers. I would be on the side of communities vis-a-vis a big corporate. I would be on the side of the underdog. That is a choice one makes.

I remember in my initial days, when I was very fresh in the High Court, there was a matter and I argued very passionately. The judge must have been a little surprised and also pleased. He asked me, ‘Madam, do you only appear for workers?’ And I said, ‘Yes, Sir!’ When I came out, almost all the lawyers jumped at me and said, ‘That’s not the correct reply to give. It makes you look very biased’. In that sense, I continue to remain biased.

How different was India after three years?

I came out, but in an alien city. I was fortunate to be supported by a lot of people. I’m able to exist and survive and still have a community here. A lot of things happened when we were in jail—the Modi government came in for a second term. New labour codes were brought in and the way has been paved for a repeal of the old labour laws. I see a much more communally polarised society, a society where a lot of space has been lost. A lot of democratic space has been lost, whether in universities or in media. I’m not able to go back to Chhattisgarh where I would be able to see the real changes, but I do feel things have changed.

You rightly point out that it’s not easy for a convict or even an undertrial to get a job, even the most informal one. How did imprisonment affect your own work and career?

I never had a career to speak of. I was first a trade unionist, and then I was a lawyer, but most of the time, I was supported by my trade union organisation. In fact, the first formal job I did was with the National Law University as a visiting professor. Now that I’ve come out, I doubt any university would dare to make me a professor again. But I have done some online lectures, and so on. Fortunately, for me, a lawyer’s profession is an independent one. There have been some remarkable lawyer colleagues here who have really encouraged me to work as a lawyer, so I’m able to do that. And as far as the unions are concerned, they still desperately need lawyers. That is all still there, but I can imagine someone with a more formal job would find it very difficult after coming out of jail in an unknown city, to rebuild their life at the age of 61. It’s not simple. One doesn’t have the same energy as a youngster would have. And of course, one person we lost altogether—Father Stan.

At one point, you ask, “In a Kafkaesque situation what else can one do but laugh?” Do you still feel trapped in a “Kafkaesque” nightmare?

[Laughs] Very much. I do think so.