Q. You have filed many petitions to uphold the rights of prisoners, both undertrials and convicts. Could you talk about some of these pleas? We can start with your plea in Delhi HC seeking that the Sentence Review Board should convene more often.
Let me give you a background into this first. The National Human Rights Commission (NHRC), at one point of time, was burdened with several representations that were such in nature that those who were life convicts or were undergoing incarceration for some period, they were not released as per norms. Eg, suppose a life convict was to be released in eight or nine years in Haryana, in Punjab after 10 years, UP six years, whatever, different states were adopting different parameters. So then the Justice Mulla committee was formed subsequent to which section 433A of CrPC came into force. It says at least 14 years is the qualification for when to consider life convicts for release. You can’t release life convicts before 14 years at least and all states are bound by it.
Even thereafter, states were releasing life convicts after 14 years or 16 years or 18 years. So NHRC was burdened with several such representations and thus laid down certain guidelines. The guidelines say for convicts to be released, certain parameters are required to be fulfilled — her/his socio-economic background, her/his conduct in jail, whether potential of committing crime is pending or is it lost completely by judging her/his behaviour for the last 14 years, whether s/he committed a crime when s/he went out of jail on bail or parole or furlough, whether co-accused are still active outside, whether her/his family is willing to accept her/him. So there are many such factors on the basis of which it is to be judged whether a person will now be able to mingle with society or not. So NHRC laid out the guidelines and ultimately those guidelines were incorporated by all states.
In Delhi, particularly, the guidelines say that the Sentence Review Board (SRB) is to convened every quarter. But interestingly in the last one year it convened only once. So now there are people who deserve to be out of jail because of their good behaviour, and SRB is not convening for whatever reason, so such people are being deprived from consideration to be released for their good behaviour.
Our theory of law is a reformative theory, not a retributive theory. So this objective gets defeated if the SRB does not meet regularly and takes decisions on the prisoners’ release.
Q. Another petition filed by you said every jail should have a law officer instead of one law officer for all jails. You have said that rules of the Delhi Prisons Act are not enforced properly. What are the implications of these rules not being followed?
The Delhi Prisons Act came into force in 2000. The Act has been made on the basis of huge research. Section 6 provides that every jail must have a superintendent, a deputy-superintendent, medical officer, social welfare officer and law officer. But since its inception, there’s a single law officer. There are 16 jails now in Delhi. There are some intervals when they have ad-hoc law officer. But now, even with the strength of jails getting increased day by day, they have a single law officer for 16 jails. It’s practically impossible for a single law officer to timely process all applications by prisoners for various purposes.
I do feel if law officers are there in every jail, the judicial system will be more efficient as far as prisoners are concerned.
Q. Pending court cases and overcrowding of prisons are problems faced by our country’s justice system. Do you think when these rules are not followed it adds on to these problems?
Regarding pendency of cases there was a beautiful recommendation by the UPA government in 2010, the National Litigation Policy. This policy was formulated by the then UPA government and they wanted it to be implemented immediately but 10 years down the line it hasn’t seen the light of day. It was basically introduced with the main reason that the government is the biggest litigant and the government unnecessarily files litigation.
Eg, if there’s a dispute concerning an employee’s salary of Rs 10,000, the government files litigation. Or say there’s a service matter, government files litigation and keeps on dragging it. So, I think majority of the cases are where the government is the litigant. In order to reduce that, government counsels should not take adjournments and in petty offences government shouldn’t file appeals. They should try and reach a compromise. So that policy was there but it has not been implemented.
Q. You also filed a plea seeking conjugal rights for prisoners.
Conjugal rights are given to prisoners in a lot of countries. When I filed this plea, a lot of people told me that it wasn’t right to give conjugal rights to prisoners because what was the point of being in jail then. But I feel that when one is in prison for whatever crime, along with the prisoners their partners who are outside jail also suffer. Why should these partners suffer for no fault of theirs? All prisoners are not granted parole or furlough. This is a very debatable issue.
Q. What motivates you to take up prisoners’ rights?
As I said earlier, our theory of law is a reformative theory, not a retributive theory. In the case of many prisoners, there are false implications also. Even if it’s not a false implication, not all prisoners can afford good lawyers. So prisoners from underprivileged socio-economic backgrounds do not get justice as fast as people who have the money to pay to good lawyers.
Jail is a very tough place to live in because liberty is the biggest thing in life. One realises the value of liberty only when it’s taken away, otherwise you take it for granted. The same as oxygen.
Q. You filed a petition that the road closure in Shaheen Bagh due to the anti-CAA and anti-NRC protests was causing a lot of traffic jams. Were you personally affected by the problem?
Not personally, but indirectly I was affected. Our office is in GK-III and Ashram is nearby, so the entire area got clogged in the evenings due to heavy traffic because of the road closure. Many lawyers have offices in that area and many friends live there. They were not able to commute during office hours and most of them were not able to go to office in the evenings from the high court or Supreme Court for two months because of the traffic mess. They had no choice but to manage from their chambers in the courts.
Q. In the plea said there is no doubt that people have a right to protest but there have to be constitutional restrictions. But the protestors said they were blocking the road because if they din’t cause inconvenience to people, no one would listen to them. Like at Jantar Mantar people keep protesting for years and no one listens to them. How do we maintain a balance?
The court has to strike a balance here. There’s a conflict of interest of rights. One is the right of protestors. Yes, they undoubtedly have a right to protest. But if your protest is creating problems for others, then it loses the character of a peaceful protest. The moment it comes out of the purview of a peaceful protest and causes inconvenience to others, it takes away the rights of other people. So in this case people have a right to way, and you (protestors) are disturbing that.
Last year, there was a Supreme Court judgement about people having loudspeakers at Jantar Mantar. Residents of that area had raised objections that the protestors were generating noise due to use of loudspeakers and it was causing disturbance to them. They all approached the National Green Tribunal (NGT) which passed directions that something has to be done about it. Then section 144 of CrPC was imposed. That matter was ultimately taken to the Supreme Court which intervened saying that reasonable restrictions are required to be imposed and that there’s a need to strike a balance between the rights of two groups — one who is protesting and one who is not protesting but is getting affected.
So the important question is that if you as protestors don’t make hue and cry nobody pays attention. That’s right. But it’s not the right of protestors that this is the place where we’ll choose to protest. Because then there will be anarchy. The rule of law has to prevail. This kind of road blockade cannot be allowed to be continued for an indefinite period. Otherwise there will be total failure of the system.
Even the residents of that area protested against road closure due to the anti-CAA protest because it was causing them a lot of inconvenience. So what about these people’s protest, against the anti-CAA protest that blocked the road?
Q. Do you think it was the courts’ or the government’s duty to do something about this issue?
This is a very sensitive issue, especially because women had taken charge and children were also present. Police cant use force against women and children.
The protestors at Shaheen Bagh were not creating any law and order problem, except that they were violating the rights of others — the right to way. They were also creating pollution due to the traffic jams and wastage of fuel.
I’m neither supporting CAA nor am I against CAA. I’m only saying that the inconvenience caused to the public at large should be stopped.
Q. You have approached the court with PILs on many other issues. What motivated you to file pleas in the public interest to start with?
The first petition that I filed was a very very petty subject, which was that in Patiala House and Tis Hazari courts, ACs were installed in the chambers of judges but not in courtrooms. Ultimately, judges were not even sitting as much in their chambers, but were mostly sitting in court rooms. Other district courts such as the Rohini court were relatively new so they had ACs. I filed a petition, and the ACs were installed after that.
Then I filed another petition specifically related to the Tiz Hazari court complex, where every judicial officer’s chamber was not connected with a toilet. It was causing a lot of problems to women officers, especially if any of them were pregnant. Men don’t hesitate to share toilets with others but women do, considering that because of the biological differences between men and women, there are more chances of women getting infection from common toilets than men.
One female officer had shared this with me and I realised that this was a common sense issue. So I filed a plea seeking that toilets must be installed beginning with female officers’ chambers, and the issue was resolved.
I was getting appreciated by the courts in such petty matters. And they were not taking a lot of the court’s time. Both these matters were resolved in two hearings each. I felt good.
The I filed a bulky petition in HC. We had filed RTI in all (Delhi district) courts asking whether orders are getting updated online daily or not, whether cause list is timely prepared or not, case status is being updated or not, which judges are on leave was being updated online or not. These were all updated irregularly especially in trial courts.
This PIL was circulated by the Delhi HC to all judicial officers stating the grievance. The entire petition was placed before a computer committee of the high court instead of taking it on the judicial side. And then the system (of updating information online) was improved.
I also filed a plea against the tax imposed by the government, on the interest given for delayed compensation to victims of road accidents by Motor Vehicle tribunals. The delay in giving compensation is not due to the victims’ fault, so why should they be taxed for the interest for such delay in getting compensation? Some of these accident survivors are incapacitated and can’t work. They get compensation sometimes after 3 years or 4 years during which they might have borrowed money for treatment or to provide for their families.
Q. What are your learning experiences from litigating in the public interest?
You file a plea for the greater good because you rationally believe in the cause. Even if a plea is not decided in your favour, it’s a learning experience. At least you are satisfied that you tried.
But there is a negative associated with this, that sometimes some judges might feel that you are filing such PILs for publicity.
Q. You think judicial intervention on social issues makes a big difference?
Of course it does. Most of the times judicial intervention is quite powerful and helpful. Court’s directions are taken seriously by every authority.
Q. What kind of a PIL can we expect next?
I’m working on the National Litigation Policy.
Q. How would describe your journey as a lawyer till now. You’re a first generation lawyer.
My father was clerk to an advocate in Sirsa (Haryana), my hometown. He encouraged me to become a lawyer. I was preparing for engineering entrance examinations but somehow realised that science wasn’t my cup of tea. So I got admission in Law Faculty, DU. I completed by LLB in 2007.
Then I joined Mr N K Jaggi, advocate, and worked under him for one year. After that I started my own practice. I first took up matters for Total TV, then Manjinder Singh Sirsa and Mr Chautala. I did a lot of free work in my initial days as a lawyer because I didn’t need a lot of money to sustain myself in my youth.
Q. What is your message for law students and young lawyers.
Every lawyer should do something for public good, whichever field they’re in. Be it tax matters or commercial issues, everywhere there’s space for some contributions. A lot of people suffer unnecessarily because they can’t afford to hire good lawyers.
Amit Sahni is an advocate and social activist based in New Delhi and practicing mainly in the Delhi High Court and the Supreme Court. His clientele includes politicians such as Manjinder Singh Sirsa and O P Chautala, as well as high-profile convicts such as Manu Sharma (Jessica Lal murder case) and Sushil Sharma (Naina Sahni murder case). Mr Sahni also regularly takes up litigation in the larger public interest.