NEW DELHI — Abdul Gaffar, a 40-year-old criminal lawyer, is defending close to 50 cases related to the Delhi riots in February, almost half of them for free, but there is another communal riot from seven years ago that he cannot forget.
“The village sarpanch, who is Hindu, rushed over and moved my family to his house before the mob arrived. But my uncle said, ‘I’m 75-years-old, who will beat me? I have raised all these boys.’ He said, ‘You go and I will stay here.’ The mob entered the house, and hacked him into four or five pieces,” said Gaffar, his voice low and matter-of-fact.
His uncle’s grandson, Gaffar said, is a soldier in the Indian army.
“When you are in the legal field, people expect you to get things done,” Gaffar said. “I called everyone I could think of to inform them of the murder and ask his body be removed, but no one responded. I cannot explain to you how helpless I felt that day.”
In a conversation with HuffPost India at the Karkardooma court, Gaffar, a father to three children, who studied law at DAV College in Muzaffarnagar, said that if the death of his maternal uncle stays with him till today, so do the actions of the Hindu village chief who saved his family from the mob. If most of his clients are Muslim, half the junior lawyers working with him are Hindu.
As a criminal lawyer, he said, he is happy to take on Hindu clients, but a communal riot erodes trust. The families of two Hindu men accused in the riots who had approached him in March, and whose vakalatnama (power of attorney) he obtained, later dispensed of his services.
“I was interested in their case but I did not get the right response from them. I felt they did not trust me,” said Gaffar.
For Gaffar, the Delhi Police’s investigation into the February riots marks a line in the sand.
“The role of the investigating agency is limited to collecting and producing evidence before the court,” Gaffar said. “For the first time, I’m seeing the investigating agency giving its own hypothesis, giving a personal opinion, making assumptions, and trying to set a narrative.”
The chargesheets, Gaffar said, suggest the police was leading with an anti-Muslim narrative that linked the February riots to the preceding months of largely peaceful protests by those opposed the controversial Citizenship Amendment Act. The CAA, its critics say, alters the secular nature of the Indian constitution by making religion the basis for granting citizenship to asylum seekers.
The police have arrested several activists and students who opposed the CAA, while representatives of the ruling Bharatiya Janata Party (BJP) who incited crowds and policemen filmed assaulting protestors and destroying property on camera are yet to be brought to account – lending credence to the impression that the police is using the riots as a pretext to target those opposed to Prime Minister Narendra Modi’s authoritarian government.
“For the first time, I’m seeing the investigating agency giving its own hypothesis...”
A bribe at a hospital
The Delhi riots left 53 people dead and over 200 injured.
In February, Gaffar said, he visited a government hospital and met a Muslim man who told him that his brother was killed in the riots and the hospital staff were asking for a bribe to release his body to him.
Gaffar suggested the man pay the bribe if he could afford it.
The man’s response tore him up.
“I told them that Rs 4,000 or 5,000 is not a big amount, just give it. That man started crying. He said, ‘Sir, my house and shop was torched. I only have these clothes. I ran for my life. I only have Rs. 200 to 300 in my pocket,’ Gaffar said. “I felt very strange at that moment. I arranged for the money. I felt at that moment that I have a role to play in society and there are some things that are more important than money.”
Narrative before evidence
As a criminal lawyer, Gaffar says that he is not easily rattled, but the tragic case of Dilbar Negi, a 20-year-old man from Uttarakhand who was mutilated and then burnt during the riots, has shaken him.
Gaffar is representing two men accused of committing the crime.
Gaffar said the Delhi Police allege they have CCTV footage of his one of his clients in a mob that had gathered close to the scene of the crime several hours before the crime but not close to 9:00 PM on the night the crime occurred.
“So if this man was alive at 9:00 pm, how are you connecting the men in CCTV footage collected at 4:00 pm with his death,” he said. “Direct evidence would have been footage of 9:00 pm and the mobile phone locations of the accused.”
In a bail hearing on 8 July for his second client in the Dilbar Negi case, the Public Prosecutor said that he would produce a “location chart,” based on the mobile phone location of the accused, at the next hearing on 14 July.
The second thing that he noticed in the chargesheet, Gaffar said, was the “narrative” linking the riots to the anti-CAA protests in Delhi.
This, he said, is repeated in dozens of chargesheets pertaining to the Delhi riots.
“What is surprising is that in the chargesheets for the starting 20 to 25 cases, a narrative was set. The story starts from 15 December — this happened in Jamia, and then that happened, and slowly ends with the riots,” he said, referring to the street march led by Jamia Millia Islamia University students on 15 December, which descended in chaos and violence, and the Delhi Police eventually storming the campus.
“50% of the chargesheet is this narrative. When it comes to a particular incident, there is no direct evidence,” he said. “I feel the focus of the investigating agency has been to set a narrative that the people who organised the (anti-CAA protests) are behind the protests.”
“I feel the reason we are still having communal riots in the 21st century is a low conviction rate. And behind the low conviction rate, is an unfair and improper investigation,” said Gaffar. “If you give the real perpetrators immunity, then this will never end.”
“Behind the low conviction rate, is an unfair and improper investigation”
Many clients and bail
Gaffar said that of the 50 Delhi riot cases he is defending, 40% of them are pro bono (free). The families of two accused for whom he had obtained bail in March, Gaffar said, were yet to pay the surety of Rs 20,000.
“What fees can I expect from them?” he said. ”I’m trying to do what I believe is right even though I may have no control over the outcome.”
Gaffar says he has applied for bail for 100 clients and got bail in over 90% of them. The gravest crimes for which he has received bail is one attempt to murder case and setting on fire a residential place — none for murder.
Gaffar, who is appearing before 15 judges, said he hasn’t felt they are applying a more stringent standard when it comes to giving bail in the riot cases. He does, however, feel that judges in the Indian judiciary have a lot of discretionary powers.
“A lot depends on the judicial officer who is hearing the case matters a lot. Each individual has a different mindset and a different way of understanding a situation,” he said. “We have practiced enough to know that a certain judicial officer has a certain thinking so it would be better to file bail here rather than there.”
Since he has managed to get bail for most of his clients, while other lawyers are struggling with online hearings, has meant more people seeking him out. 50% of his clients, Gaffar says, have been referred to him by his fellow lawyers. While they get a fee, and he gets a percentage of that fee.
“Whether the client is referred or comes on his own, whether he is paying a fee or it is pro-bono, I treat them the same,” he said. “A life is a life.”
“I’m trying to do what I believe is right even though I may have no control over the outcome.”
Fighting cases from home
While his chamber in Karkardooma Court is like a second home to Gaffar, after the coronavirus pandemic Gaffar is hardly ever there. The day that HuffPost India met him in his chamber, Gaffar had laughed and said, “Well, you have to come and collect the fees.”
Online hearings have meant lawyers need to type out their own submissions instead of relying on the stenographers in court, making PDF files and emailing them, and trying to learn the basics of video conferencing like locating the mute and unmute buttons.
Gaffar said that many lawyers he knows are at sea, but he is not one of them.
But even though he taught himself how to make PDF files, learnt how to make submissions online, and even enjoys the comfort of occasionally wearing half pants below a suit while attending online hearings, Gaffar misses court.
“At home, you have everything in front of you on a laptop, but you are missing the energy you feel when you are in court. In court, body language and facial expressions are so important. You know the judge, other lawyers and the public are watching you. It is a different feeling,” he said.
“At home, you have everything in front of you on a laptop, but you are missing the energy you feel when you are in court.”
Errors in submissions
Gaffar feels online hearings are to blame for errors that he has noticed in the court recording of his submissions.
In one instance, Gaffar said that he had submitted that his client had not appeared in any CCTV footage and the police did not know his mobile location. But what was recorded as his submission in the final order denying bail to his client was the exact opposite, he said.
Now, Gaffar says he has to file an application for rectification in the same court or challenge it in the High Court. While getting an order rectified in the same court sounds logical, Gaffar says it’s not easy.
“If a judicial officer makes a mistake and I contest and highlight it too much, I have to appear tomorrow as well, and the day after that. I need to maintain my image a little bit as well. Image is also important, right?” he said.
“On the personal front, I’ve just come out of depression,” said Gaffar, while speaking about working long hours from home .
Before the lockdown, Gaffar said that he would wake up early, exercise and then leave for court, where he spent the next 10 hours running for hearings, meeting with clients and drafting submissions. His family, he said, would complain that he did not spend time with them.
“Then, came the lockdown. For a person, who is always busy outside the house, the lockdown was incredibly difficult. How much can you read? One day, two days, three days, four days. My routine went for a toss. I would stay awake at night and sleep in the morning,” he said.
When the online bail hearings for the riot cases started in April, he locked himself in one room.
Then, his wife and children fell sick.
Even though they tested negative for Covid-19, waiting for the results was stressful. While his family members were locked up in different rooms, Gaffar said he was running between the stove and his laptop.
“I had never entered a kitchen in my life,” he said.
After Delhi took a turn for the worse and he sent his family away, Gaffar thought he had the freedom to work day and night, but after eight days, he found himself slipping into depression. He then decided to move in with his parents.
“I think there is a limit to which you can work and not beyond it,” he said. “Now, I’m feeling better.”