This is a guest post from Dr. Sudhir Krishnaswamy, a leading constitutional law scholar and activist who has taught in several Indian law schools and abroad.
KG Kannabiran passed away on 30th December 2010. India will enter the second decade of the 21st century without its leading civil liberties lawyer for the last four decades. It would be contrary to Kannabiran’s iconoclastic and irreverent manner to write a hagiographic sentimental obituary. The greatest tribute that I can pay to his life would be to recognize and celebrate his approach to law and lawyering that should inspire generations of lawyers to follow his path. My qualifications to write this obituary are tenuous: I am not a practicing lawyer by profession nor am I a personal friend or confidante. So I cannot share with you war stories at court nor can I render an alternative account of his life and punctuate it with touching personal anecdotes. I write this as an academic lawyer who has followed his life and work from a distance but with an acute awareness that he embodies an approach to cause-lawyering that exemplifies the best traditions that any lawyer in India should aspire to.
The typical Indian lawyer revels in their anti-intellectual approach to law. They scoff at any attempt to theorize law and insist on the irrelevance of these academic efforts to their everyday practice. Kannabiran was similarly disenchanted with academic theorizing that employed obtuse prose and neologisms that required an academic translator to make such texts intelligible. However, he practiced and refined an ecumenical approach to legal scholarship that would stand the most rigorous academic scrutiny. He engaged with the case law of the courts which he subjected to close reading and critical analysis in his court room practice as well as writing. His essay on the evolution of the law of personal liberty in India after Independence is an excellent illustration of his ability to coherently weave together decisions of the Indian and US Supreme Court, speeches in Parliament and the Constituent Assembly, Pashukanis, Dworkin and Anatole France to expose the misinterpretations of Article 21. Anyone who reads this essay is left in no doubt about the essential continuity of legal practice and legal theory –any good practitioner invariably develops keen theoretical insights into law.
I met Kannabiran for the first time in Bangalore on the sidelines of a Alternative Lawyering Conference in 2001. The Conference traversed varied engagements with law and the legal system that could be characterised as ‘alternative lawyering’. I was struck by the steadfastness with which Kannabiran advocated an old-fashioned engagement with substantive law and the legal system. At a time, when ‘revolutionary commitment’ was assessed by the shrillness of your denunciation of law and the legal system and one’s distance from the practice of law in the courts, Kannabiran stood out as a beacon of rationality and moderation. While he was aware that ‘in a perpetually misgoverned society, any movement for good governance... according to law becomes rebellion’ he did not recklessly conclude that law was irretrievably an oppressive device that should be shunned and disregarded. His exceptional career as a human rights defender for over 5 decades stands testimony to the value of a critical but extensive engagement with law and the courts in India.
A civil liberties law practice in India requires one to grind out many days at the uninspiring and chaotic criminal courts across the country. Successes are few and irregular while failures are plenty. Our post-Independence paramilitary forces compound and accentuate the failings of our colonial police forces making structural change look remote. In this bleak scenario, a civil liberties lawyer needs great fortitude and resolve to stick to this task. Kannabiran’s long innings holds out many lessons for those who will follow in his footsteps. His capacity to carry himself lightly and to avoid drowning under the weight of his political convictions endeared him to all those who came across him. I suspect that his deep engagement with history and literature allowed him to develop a unique perspective to his work that allowed him to celebrate the victories and to bear the losses with equanimity. His draft of a letter to a Judge titled ‘Sanjay Dutt in the First Person’ highlights these sensibilities. The letter begins ‘I am no Gandhi or Tilak or Castro, yet I think I have a right to make a statement. I am not like them, though I am as well known as they were in their days, but I am not as great.’ The letter then sets out a scathing account of the role of the criminal justice system in the 1993 Mumbai riots.
Kannabiran has left us with a rich legacy in the courts and through his writing. Ironically he passed away in the same week that Binayak Sen was convicted of sedition as if to remind us of the enormity of the challenge to make India a reasonably civilized country governed by the rule of law. His response to this court order would not be to condemn the legal system and advocate it’s abolition but to redouble one’s efforts to compel the courts and our legal system to rectitude. Our dedication and efforts to achieve these tasks would be a truly worthwhile tribute to his life and work.