Wednesday, January 12, 2011

Guest Post: Mr. Kannabiran's contributions to Human Rights

The following guest post has been contributed by Arvind Narrain, of the Alternative Law Forum, Bangalore. It is based on a presentation delivered at a meeting organised by PUCL Bangalore on January 08, 2010 titled 'Celebrating the Life of Kannabiran'.

Clearly Mr. K.G. Kannabiran was, as Sudhir Krishnaswamy put it in an earlier post, 'the doyen of the human rights movement in India'. Along with Mr. Balagopal, he was one of the two greatest sources of inspiration for human rights movements and struggles in India. Though a large majority of Mr. Kannabiran's work was in the local courts in Andhra Pradesh, in terms of his imagination he was truly global and transcended the limits of Andhra. There really is no one who can fill the void left by such an eminent human rights lawyer with a vision and an imagination which traversed horizons beyond lawyerly thinking, fed as it was by literature and philosophy. We will miss his presence marked as it was by a fierce commitment to the cause of the underprivileged as well as his erudition that was able to master subjects as diverse as the philosophy of Albert Camus to the travails of A.K. Gopalan. It is a loss which we feel deeply as there is no one who comes close to Mr. Kannabiran for the manner in which he combined a deep learning with a fierce commitment and extraordinary skills as a lawyer.

I went back and re-read The Wages of Impunity: Power, Justice and Human Rights, (Orient Longman) which is a collection of some of his writings that reflects the range of his work as well as his intellectual concerns over the years. The book provides an insight into law from the perspective of someone who saw the law as it worked itself out at the grassroots level upon the lives of those the Indian state deemed to be dissenters. To those who have not read his work, it is well worth reading and for those who have read it , it bears re- reading. I have quoted extensively from this work, in order to provide a flavour of some of the ideas and work of Mr. Kannabiran. This is an attempt to share some of the insights, inspirations and ideas we have learnt from his lifetime's work.

First, Mr. Kannabiran was a strong defender of the values and ideals rooted in struggle which in his opinion, animated the Indian Constitution. As he saw it,

A constitution framed after a liberation struggle or a struggle for independence is, like poetry, emotion recollected in tranquility. It is a severance from the past, a termination of imposed suzerainty and the setting up of a political sovereignty of one's own people. It rests on a proclamation of legal discontinuity. (pg. 18)

His arguments in court always referenced the Indian Constitution as embodying values and rights which were something that the Indian people gave unto themselves. For someone with such a strong constitutional grounding, the inevitable question he was asked repeatedly was how he came to defend people who might not subscribe to the basic liberal values of the Indian constitution. This was a question which Mr. Kannabiran faced repeatedly both inside court and outside. The thinking was always that some people by their very conduct had forfeited the right to deserve any human rights. This was a form of thinking which was deeply repugnant to Mr. Kannabiran. As he memorably put it:

The one test of belief in principles is to apply it in cases with which you have no sympathy at all. (p 37)

When asked by a judge why he was defending people who had no faith in the Indian Constitution, his memorable response (which I was privileged to witness) was : "Your honour, what is on trial is not their political beliefs but your political beliefs."

While there is a genuine concern that the scope of constitutional struggles was limited by the framework of the Constitution itself, Mr. Kannabiran's work illustrated its radical potential. He felt that any critique of the scope of constitutional work had to be rooted in a context. In his view,

In a perpetually misgoverned society any movement for good governance and governance according to law becomes rebellion. (p11)

Secondly, in Mr. Kannabiran's opinion, rights were to be understood historically. As he put it:

A constitution is a political document which gives legal content to a set of pre existing rights, secured politically by people's struggles. Rights have always never been acquired, never granted. Freedom was acquired by the people from the British and not granted to us by the Indian Independence Act, 1947. (p.41)

When Mr. Kannabiran described rights as a product of struggle, he meant that the way rights worked in India, they were never there for the asking but accrued through constant and ceaseless effort. In his words,

Of significance here is the assumption that rights do not inhere automatically in citizens. A right becomes available only when, through litigation , a certificate is obtained from the court allowing the citizen to speak, write, assemble and move as an assembly and stating that such activity does not disturb public order or the security of the state. (p.8)

This idea - that rights derived their legitimacy or authority from the fact that they were a product of a people's struggle - formed the very foundation of his work and thought. To contest the Supreme Court's decision in ADM Jabalpur, Mr. Kannabiran drew on this understanding to say that the state had no authority to suspend the right to life as the right to life was not granted by the legal document called the Constitution but merely recognised by it. In this understanding of deriving the legitimacy of rights from struggle, Mr. Kannabiran's view was very close to that of Mr. Balagopal.

Thirdly, it must be emphasised that Mr. Kannabiran's lifelong struggle was against what he called impunity. The fact that the state could, with such ease, become the supreme law breaker or, as he called it, 'the terrorist,' was his abiding concern. His wide experience made for some particularly apposite observations on the Indian criminal justice system. To understand the role the police play in criminal justice, he cites the judgment of Justice A.N.Mulla of the Allahabad High Court(State of Uttar Pradesh v. Mohd. Naim, AIR 1964 SC 703. Ibid. p. 70):

Somehow the police force in general, barring a few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law. At least, the traditions of a hundred years indicate that this is what they believe. If this belief is not rooted out of their minds, there is hardly any chance of improvement... I say it with all sense of responsibility, that there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force.

To recent revelations which show that the police concocted false cases against Muslims with respect to the Mecca Masjid, Malegaon and Samjauta Express blasts, his observations on the way the Indian criminal justice system operates strike a chord:

The history of tackling dissidence and crime shows that torture and confession have been the twin engines of the legal system( Kannabiran, p.106)

The forms of illegal action undertaken by the state, be it torture or forced confessions, had sinister implications as Mr. Kannabiran noted. Quoting Justice Brandies:

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example... If the government becomes the law breaker, it breeds contempt for law; it invites every man to become a law onto himself; it invites anarchy.(p.72)

In Mr. Kannabiran's viewpoint, the deep rooted nature of impunity arose from the state's unwillingness or inability to tolerate dissent. Turning again to his words:

Politics is treated as a crime. The subversion of law begins with the reduction of politics to a crime. After such subversion the law becomes a pretext for violence.(p.10)

Fourthly, Mr. Kannabiran was a strong critic of the fact that colonial rule still continued in post independence India. In his writing, the powerful image he drew upon to make the larger point that we as a nation are bound by the laws, institutions and mindsets of a colonial era, was the trial of A.K Gopalan for hosting a flag and making a speech on Indian Independence day for the offence of sedition against His Majesty, the Emperor! As A.K.Gopalan says

I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth, like Nehru, Gandhi and such leaders, have tried to create enmity against the Emperor's Government. Mahatma Gandhi has been proceeded against under Section 124-A IPC for working towards the same end.....'(p.31)

Of course, in our minds, the situation of Binayak Sen and the innumerable others against whom this law continues to be invoked in independent India bespeaks the nature of the task which still remains.

Fifthly, Mr. Kannabiran articulated what he called the idea of insurgent jurisprudence. That is, he believed that arguments in court were never just a means to achieve a result but that the means were important intrinsically as well. He strongly believed that the courts are a public arena, and arguments in court are a mode of carrying out public education as well as pushing the limits of the law. As such philosophy, history and oral poetry constituted insurgent material which were deployed in the Courts by Mr. Kannabiran. He believed that arguing in court was a way of educating the judges as well, and as such the 'result' was not all that defined what insurgent lawyering was about.

Finally, one should note that Mr. Kannabiran was a person of enormous erudition and was thus enormously well suited to the role of a public intellectual. He spent his lifetime reading widely and voraciously. As he puts it,

'Much of my own understanding and clarity has come from what I have read (voraciously) through the years.(p.x)

In my view, the wide reading in literature, philosophy and law combined with his experience gave Mr. Kannabiran a truly unique perspective. He was able to link up the concrete and local to the global and hence communicate issues with multiple resonances. He quoted Kundera, Camus, Dworkin and Pashukanis and incisively analysed Supreme Court judgments using material from, among other things, the Constituent Assembly debates. This is what makes his perspective global. As activists in India, a country the size of a continent, we sometimes share with the US a perspective, which is inward looking. Mr. Kannabiran was a corrective to any insular vision of human rights with his erudition, empathy and wide perspective.

What would taking forward his legacy mean?

To me, this means a commitment to a practice of law rooted in a concern for the marginalised, and a devotion to a lifetime of reading and work in the broadest sense. It would also mean taking forward a critique of the regimes of colonial continuity (especially in the criminal law) and aspiring to 'define power and thereby make it accountable and enhance rights'.(p. 4) His legacy is life-affirming and in a world which sets up self aggrandizement and self interest as an ideal ,his life provides a powerful counter. In the preface to 'Wages of Impunity' written in 2004 he had noted:

'If they (his writings) provide a single insight or inspiration to anyone who is seeking the tools to fight for a principle, then my labours will not have been in vain.'(p.4)

I think the greatest tribute we can pay him is to say that his work has not been the source of a single insight or inspiration, but has instead unleashed multiple insights and inspirations. The inspirations have flowed from a single chance encounter with Mr. Kannabiran, engagement with his work and of course the fact that we are today privileged to watch the moving historical documentary( The Advocate by Deepa Dhanraj) on the life and times of Mr. Kannabiran. Our challenge is to constantly multiply the insights and inspirations and take forward collectively the legacy of Mr. Kannabiran's work.
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