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THIRD WORLD RESURGENCE

A colossus of human rights jurisprudence

On 30 December, KG Kannabiran, one of the giants of the human rights movement in India, died at the age of 82. For four decades he fought fearlessly and tirelessly against state repression and on behalf of dissidents, the oppressed and the marginalised minorities. Two lawyers, V Suresh and D Nagasaila, pay tribute to this genial 'insurgent jurisprudent'.

'MR Judge! Are you prepared to resign your judgeship?'

A stunned TADA court bustling with activities suddenly became quiet. The tension was palpable.

The judge thundered, 'Mr Kannabiran, you risk contempt of court.'

'Contempt is your prerogative - the tyranny with which courts silence those who challenge them. But I point out, sir, it's you who is guilty of violating the Indian Constitution; don't forget, on becoming a judge you took an oath to implement the Constitution. Today, if you say constitutional mandates apply only to the High Courts and not the subordinate courts, then we are within the law to demand that you resign for disregarding the Constitution!'

After ruminating for a short while, the judge turned to Kannabiran and asked him to explain the proposition. Over the next hour, Kannabiran embarked on a panoramic exposition on the relationship between criminal law and constitutional principles and the critical importance of trial judges realising that the working of criminal law had to be tested against fundamental rights and directive principles, particularly the right to life. He was categorical - no court could claim exemption from satisfying constitutional obligations.

No lawyer ordinarily dared to challenge a judge so openly. Yet not only did KG Kannabiran (KGK) challenge him but he was able to persuade the judge to consider his arguments. This was advocacy of a unique order. For us young human rights lawyers, it was a lesson tempered by fire.

It was 1994. We were assisting Kannabiran in the RSS Bomb Blast case before the Terrorist and Disruptive Activities (Prevention) Act (TADA) court in Chennai. All the accused were Muslim youth. The Central Bureau of Investigation (CBI) case rested solely on the confessions of the accused secured by the police. Although in TADA law confessions to police officers were admissible as evidence, Kannabiran challenged the confessions as being coerced and not voluntary. He countered the very basis of the prosecution case, arguing that the conspiracy charge was concocted and manufactured to somehow implicate Muslims, who were being projected as intrinsically anti-national. Expanding on constitutional principles of the right to a fair trial and right to life, he talked of the right to fair investigation and the consequence to the rule of law when this was violated.

In an atmosphere suffused with communal suspicion, distrust and insecurity, however compelling the arguments, the court was reluctant to intervene. The minority accused had to wait another 16 years before they got justice.

On 10 December 2010 the Supreme Court of India declared that the CBI case against the accused could not be believed as there was no independent evidence to prove the case. Pointing out that the case relied solely on confessions given to police officials, the Supreme Court held that these were obtained under duress and coercion and could not be believed. The accused were set free 17 years after their arrest. Kannabiran's arguments of 1994 were finally accepted in 2010, but after tremendous human suffering.

On criminal law, human rights and constitutionalism

It was KGK's constant endeavour to keep reiterating the importance of not looking at human rights violations as mere criminal offences but as an assault on constitutional guarantees by the state and its minions. He pointed to the historical irony of independent India continuing to adopt and follow the same criminal laws evolved by the British to suppress the political struggles against colonial rule, like the Rowlatt Act, the Prevention of Seditious Meetings Act, 1911, the Criminal Law Amendment acts of 1908, 1932 and 1938. Stressing that many of these laws are still in our statute books, he pointed to the consequence of retaining colonial-era institutions after independence without restructuring them with the vision necessary to discharge the trust bestowed on them by the 'people' to interpret the law in consonance with the spirit of the Constitution.

During the agitations and campaigns against TADA (in 1987) and the Prevention of Terrorist Activities Act (POTA 2002) Kannabiran stressed the importance of breaking the 'Rowlatt framework' underlying official thinking of human rights and creating a new jurisprudence. KGK's favourite quote was from a speech of Chittaranjan Das during the presidential address of the Indian National Congress in Gaya in 1922:

'Why are the Indian Criminal Law Amendment Act, 1908 and the Prevention of Seditious Meetings Act, 1911 to be retained in the statute book? .these statutes in themselves constitute a breach of law and order, for law and order is the result of the rule of law; and where you deny the existence of the rule of law, you cannot turn around and say, "it is your duty as law abiding citizens to obey the law"' (Kannabiran 2003: 67).

Writing in the foreword to a book on criminal law, Kannabiran (2000) pointed out that there are two categories of crime. While the law relating to crimes by citizens was well worked out, the arena of crimes committed by the state and its agencies was deficient. He advocated recognition of a new set of offences titled 'offences against the people by the state and its officers and other personnel'. He exhorted young lawyers and activists to rise to not just the challenge of a thorough understanding of the law, but equally, the task of changing it.

In a period spanning 15 years, we had the opportunity to accompany Kannabiran across India, assisting him in court cases as also in meetings of the People's Union for Civil Liberties (PUCL). Kannabiran had an electrifying impact wherever he went. He spoke from the heart. Despite his formidable reputation, erudition and vast knowledge, when relating to ordinary people, Kannabiran connected. Everywhere we went, people - not just lawyers - flocked to hear him. To the listener, Kannabiran put forward not just a deconstruction of the interrelations between human rights, constitutional law and socio-economic and political processes, but a vision of creating a more democratic, just, humane and equitable society which involved the listener and participant in the plan to make it a reality.

'Law defines the offence, the state defines the offender'

One of Kannabiran's formulations which had a profound impact on demystifying the relationship between the state, citizen and law enforcement concerned the centrality of the state in the administration of criminal justice. While it is in the course of crime detection, investigation and apprehension of the accused that human rights violations ordinarily take place, it is in the realm of state violence that the faultlines underlying existing criminal jurisprudence surface. Stressing that there is no permanence about any definition of a crime and criminal law, he pointed to the absolute power accorded to the state to implement the law and the real context of abuse, misuse and vindictive administration of the laws.

We have used this particular dictum in innumerable cases involving political challenges to the state, particularly in major TADA cases involving minorities and dalits. In May 2009 at the height of the war against Tamils in Sri Lanka, a peaceful protest took place in Coimbatore against army convoys suspected to be taking arms and explosives to help the Sri Lankan army. Two PUCL observers were also arrested and charged with sedition! We used Kannabiran's classic definition in arguments inside courts and in public meetings. Citizens at large clearly understood the message. The simplicity of the formulation masked the profundity of its understanding of criminal law.

KGK forever urged us, as also other lawyers, to never take for granted any audience; he exhorted us to address all fora - from the lowest court to a meeting of jurists - as though we were taking a class. In our 17 years of close interaction we never once heard him use an expletive or speak ill of any person. While he was caustic in his comments, he maintained a dignity and decorum in his political and legal criticism. He was by no means a 'soft' person and could be as hard-hitting as anyone when presenting his analysis. But to many of us young activists and lawyers, he offered a different role model - of a person who through personal example became the embodiment of the ethical and political values he advocated.

Kannabiran's contribution to human rights was not only in the field of criminal law. Actually he played a very direct, proactive and catalytic role on many issues of major social and political import. From social justice issues to environmental rights, from issues of election rights to the right of sexual minorities, there were no taboo issues for Kannabiran.

Kannabiran's understanding of the Constitution was sheer poetry in prose. He wrote:

'The Constitution is like poetry recollected in tranquility at the end of the freedom struggle. What is recollected and crystallised into a handful of philosophical principles are our struggles against colonialism, against our own horrendous tradition imposed by the caste system and its ugly practice and a large mass of people whom we hold in bondage for productive purposes at low wages. The values were arranged to restructure Indian society into an equitable society where quite large populations that were non-persons became persons and citizens. This unfortunately appears to be a dream for every institution under the Constitution is firmly rooted in continuing the status quo even after six decades of its working' (Kannabiran, March 2010).

Go back to the Directive Principles!

 Whatever the issue we were working on, Kannabiran would insist we keep re-examining the Directive Principles (DP) of State Policy in the Constitution. A long-time admirer of BR Ambedkar, Kannabiran would go back repeatedly to the Constituent Assembly debates. Expressing concern over the widening economic and social disparity and poverty, and the ceaseless plundering taking place in all spheres of economic activity, he asked us to challenge state policies against the vision embodied in Articles 38 and 39 of the Constitution.

In a fascinating article on the DP, Kannabiran (April 2010) pointed out that the Directive Principles are the economics of the Constitution. Between themselves, Articles 38 and 39 constitute crucial principles for dismantling the exploitative order and to reconstitute Indian society around ideals of social justice, fairness, equity and democracy. Stressing that the mandate of Article 39 was to ensure that the operation of the economic system did not result in concentration of wealth and means of production to common detriment and that ownership and control of material resources of the community was so distributed as to subserve the common good, he raised a query: what are the citizens to do when the state has abdicated its constitutional obligations?

Kannabiran used this argument to challenge the demand for Arundhati Roy's arrest for sedition following her visit to the Maoist-affected areas and her article in Outlook. He countered by stressing that under Article 51A(b) of the Constitution Roy was only fulfilling her constitutional duty to 'cherish and follow the noble ideals which inspired our national struggle for freedom'. Relying on the judgment of Hegde and Mulherjea in the Keshavananda Bharathi case that 'Any government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and its commitment', he argued that by highlighting the injustice and deprivation suffered due to unconstitutional governance, Roy had only sent a timely warning and that cannot be sedition (April 2010, personal communication)!

Right to insurrect

Expanding on the argument of the consequence of failed governance or constitutional misgovernance, Kannabiran put forward the proposition that the citizen had an inherent 'right to insurrect' against the state. The DP are the rights of the collectivities demanding that state policies fulfil constitutional mandates. The right to restructure governments was the basis of the right to vote. Once this right was conceded, then in a context where the state had abdicated its constitutional obligations, the citizen had no option but to assert his 'political right to insurrect'.

In support of his formulation, Kannabiran pointed to John Locke's theory of contractarian politics which expounds on the right to resist bad governance and the right to revolt. He pointed to Harold Laski who had written that where there was a flagrant violation of constitutional guarantees it gave a right of insurrection to those deprived of their benefits. Kannabiran relied on the 2009 report of the Planning Commission's expert group to state:

'It is not necessary to set down any more details from the report excepting to say that they have pointed out that the ruling party in their governance have scrupulously avoided being Constitutional! The state cannot make laws hostile to the purposes of society. The power entrusted to the state is to enforce the obligations to make citizens' lives better and not to enrich some and perpetuate deprivation in the rest and that is the guarantee which is being flagrantly violated and such violations give rise to a right to insurrection in the people' (Kannabiran 2009).

Insurgent jurisprudence

Kannabiran was the epitome of the 'insurgent lawyer' who used the law like a shield to protect people's rights and like a sword to expand their rights. He was non-iconoclastic and unafraid to experiment with new concepts. He kept telling us the rot is so widespread and the degeneration of ethics so complete that 'we need a Hercules to clean the Augean stables'.

Seventeen years ago when we were planning to set up a legal collective he bluntly asked us, 'Do you have the emotional maturity to handle intense competitiveness and ego battles? Don't forget the legal profession is highly egocentric and not based on mutuality and solidarity. It's better to part as friends than as embittered professionals.' He was equally unsparing of human rights lawyers - 'You are the only hopes of the poor to seek protection; you have no excuse but to be better than the best of the lawyers of the corporates and the elite. For they have nothing to lose; but the poor lose out completely if you are incompetent.' Kannabiran did not suffer sloppiness or lack of dedication amongst those who professed to be lawyers for the poor. He could be brusque, scathing and harsh in his response. But at the same time, the intensity of his personality and the deep sense of caring and humaneness he embodied made people reach out to him.

Kannabiran was a voracious reader. From the most profound to the prosaic, no literature escaped his eyes. He had an enviable ability to come out with appropriate quotes from a huge range of literature; he had an even more awesome ability to reproduce with tremendous accuracy quotes, verses, poetry and statements.

The 'genial giant' of the Indian human rights movement was a gentle, caring person. Very simple in his habits, he told us, 'Quite early on, I undertook a vow of austerity. I promised myself I would earn only that much which my family and I needed to live a reasonably comfortable existence. The rest of my time, energies, knowledge are dedicated to the poor people of the country.'

We can never forget the question he then sprang on us: 'Do the two of you have the courage of conviction to live by what you profess, to accept for yourself the vow of austerity?'

'Never say die'

Kannabiran was a prolific writer. Even when he was unwell, he diligently worked, typing with one finger. Even when physically unwell, his mind was as sharp as ever. He wrote to us when one of us was appointed by the Ministry of Environment and Forests as a member in a committee to enquire into a controversial steel plant. He stressed the importance of studying the issue of environmental degradation, industrialisation and compromised governance against the backdrop of the Directive Principles and the constitutional scheme. He asked us to examine Justice Sudarshan Reddy's judgment in the Reliance Natural Resources Ltd vs Reliance Industries Limited case (May 2010) which points out that by no stretch of imagination are we a resource-poor country, yet the greater incidence of unrest is in states and regions that have plenty of natural wealth and paradoxically suffer from low levels of human development:

'The problem arises because exploitation of those resources occurs without appropriate supervision by the State as to the rates of exploitation, equitable distribution of the wealth it generates, collusions between the extractive industry and some agents of the State and the consequent evisceration of the moral authority of the institutions of the State.'

Pointing out that the judgment had converted the DP into a judicial principle, Kannabiran told us:

'Courts do not generally expound what is set out in the Directives unless they reiterate them in the form of a principle to convert into a "principle in rem". If it is transformed into a principle in rem it has its own career. It gets liberated from the thralldom of non-enforceability. I do not think we should permit courts to write tomes and tomes of general principles that are of no use. Think seriously of giving life to these observations. Never say die.'

Kannabiran is no longer with us; however, he remains with us. His life is an inspiration and the huge corpus of his writings nourishes our imagination. Thinking about him we are reminded of Mark Antony's description of Julius Caesar:

His life was gentle, and the elements

So mixed in him that Nature might stand up

And say to all the world, 'This was a man!'                                        

V Suresh and D Nagasaila are advocates in Chennai, India and also with the People's Union for Civil Liberties. This article is reproduced from the Economic & Political Weekly (Vol. XLVI, No. 4, January 22-28, 2011).

References

Kannabiran, KG (2000): 'Foreword' in V Suresh and D Nagasaila (2000), PSA Pillai on Criminal Law, 9th edition (New Delhi: Butterworths - Tripathi).

- (2003): The Wages of Impunity: Power, Justice and Human Rights (Hyderabad: Orient Longman).

- (2009): 'Development Challenges in Extremist Affected Areas: A Note' (mimeo).

- (2010): 'The Apex Court Moving Away from the Constitution' (mimeo), March.

- (2010): 'Understanding the Directive of State Policy' (mimeo), April.

Planning Commission (2009): 'Report of Expert Group to Study the Development Issues Dealing with the Causes of Discontent, Unrest and Extremism'.

Supreme Court (2010): Judgement in Reliance Natural Resources Ltd vs Reliance Industries Limited, (2010) 7 SCC 1.

*Third World Resurgence No. 247, March 2011, pp 38-41


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