Defending dissent and democracy
Menaka Guruswamy IN THE HINDU
A tribute to K.G. Kannabiran, 1929-2010.
With the passing of K.G. Kannabiran, India has lost a great lawyer, defender of the Constitution and conscience-keeper. When this writer last met him some months ago, he was sitting in his office in West Marredapally in Secunderabad, having a drink, his eyes twinkling. He had given away most of his beloved law books. He said he had had a rich life and there were no regrets. He was right. Kannabiran enriched all those who came his way, he spoke for those who could not tell their own stories, he defended dissenters, and most importantly, practised law gloriously. And by doing so, he illuminated the path for younger lawyers.
He was born in 1929. As a student of economics and then law, perhaps Kannabiran learnt well from the insights that these subjects can provide of the structural causes of the human condition. His own book, appropriately titled Wages of Impunity, highlights the lack of change that has marked this nation as it moved from the colonial phase to the post-colonial phase. But, while doing so, he was not making a case for either Capitalism or Communism: perhaps he was prodding us to have a better appreciation of the devaluation of life that has remained consistent through the pre-Independence and post-Independence eras.
However, it was not just the ‘human rights activist’ in him that captured my imagination as a 19-year-old when I went to intern with this venerable Senior Counsel and past president of the People’s Union for Civil Liberties (PUCL). It was the fearless yet gracious lawyer who matched a vivid knowledge of the law with a love for literature, and his wit and zest for life, that enthralled. On my first day as an intern, I straggled along, hanging on to the train that is the flowing gown, and the line of eager juniors and interns that trails a Senior Counsel. As I followed him into the Andhra Pradesh High Court, I could not but help notice the curious eyes that followed him, and a palpable air of excitement that soon filled the courtroom. Soon the cause for this anticipation was clear.
With a commanding voice that filled the courtroom, a rigour and craft that unravelled the case of the opposition, a patient temperament that took the judge along and a legal acumen that refused to countenance that a police bullet through the head was anything but execution by the state without trial, he was the lawyer’s lawyer. And he epitomised for that young law student everything that her craft should be.
Kanna, as he was affectionately called, identified himself with the institution that is most essential to challenging state impunity through the system of courts — that of defence counsel. In an interview he gave Frontline in 2009, he said: “A major part of my professional life has been spent as counsel for the defence owing to the trust placed in me by the countless people whose freedom I found myself defending.” It is this guiding legal philosophy that has lessons for the younger members of the bar. Though most of them might not want to dedicate all their work-time to the causes that may be best categorised as “rights-oriented,” many challenges of our time might well be highlighted through aggressive litigation. Such litigation, even if it is engaged in sporadically, utilises the craft, enhances the substantive knowledge of the legal discipline, and most importantly connects us to the issues and people that constitute our communities. And this can be done while maintaining an eclectic legal practice that would be an enduring source of professional fulfilment.
A series of cases
Kannabiran himself had a marvellous treasure trove of cases that he litigated, and a varied selection of interviews and writings on issues that implicate our understanding of the constitutional rights of fellow-citizens. He refused to confuse legality with constitutionality, as when he denounced the draconian Armed Forces (Special Powers) Act as being shielded by the “fig-leaf of legality” while it goes against the constitutional commitment of the right to life. The ‘encounter’ case titled K.G. Kannabiran v Chief Secretary, Government of Andhra Pradesh, in which he was the petitioner, is a classic. He bought to the notice of the Andhra Pradesh High Court the disappearance of a trade union leader, after an ‘encounter’ within the jurisdiction of the Mushirabad police. The wife of the trade unionist believed that the police had executed him, allegedly because he was a Naxalite, and that his body was lying in a hospital. The court allowed the wife, along with Kannabiran, to identify the body. And after perusing the papers filed by the State police justifying such killing, and hearing Kannabiran’s arguments, the court ordered an inquiry by the Central Bureau of Investigation.
Kannabiran was not puritanical or static in his understanding of human self-determination. Shortly after the Naz Foundation decision by the Delhi High Court that essentially legalised consensual same-sex relations between adults, he wrote an article welcoming the judgment, agreeing with the court and its understanding of the concept of equality under the Constitution. In an elegant review of the judgment he located his appreciation in the prosecution of Oscar Wilde for the offence of practising “the love that dare not speak its name.” But he also recognised that the law did not have the power to change the cultural attitudes of the “over-40-year olds” much like attitudes towards violence against women and Dalits that continued to lag behind a change in the legal regime.
With the passing of Kannabiran, soon after the death of K. Balagopal, and the more recent, legally untenable conviction of its general secretary Binayak Sen, the PUCL suffered many a blow in 2010. In democracies it is imperative to have a steady stream of those who dissent, and those who defend those who dissent. Without such critics and their defenders, a culture of constitutionalism is rendered perilous. The essential tribute that could be paid to defenders like Kannabiran is for lawyers (who practise all variations and subsets of the legal discipline, from commercial to constitutional to other hues), law teachers and judges to ask those whom they mentor: why are you a lawyer? It is also the time for younger lawyers, especially those from the matrix of law schools that have flourished over the last few years, to ask themselves the same question.
Kannabiran’s life might well illuminate that answer — to advocate for those who cannot tell their own stories, to defend those whose freedom is in peril, to prod a nation to ask of itself: for whom am I, and for what was I created?
( The author practises law in the Supreme Court of India.)