K G Kannabiran: The Practitioner of Insurgent Constitutionalism | Book Review Of 'The Speaking Constitution'
Md Zeeshan Ahmad
15 April 2023 3:44 PM GMT
The character of the Indian state and politics has transformed drastically over the last few years. Mob lynchings, hate speech against minorities, criminalisation of dissent, weaponisation of extant laws against critics, and evisceration of civil liberties, among others, have largely come to constitute the everydayness of India. This transformation, notes Madhav Khosla and Milan Vaishnav in The Three Faces of The Indian State (2021), manifests "the ethnic state, the absolute state, and the opaque state". This description, however, stands in sharp contrast with what the Preamble to the Constitution of India set out, that is, establishing a "…secular democratic…" state.
Against this backdrop, it is instructive to read the memoir of K.G. Kannabiran (1929-2010), the doyen of human rights in India and a lifelong constitutionalist. The life and philosophy of K.G. Kannabiran is a repository from which, hope, inspiration, and, above all, strategies could possibly be drawn to reclaim constitutionalism in the face of a political system exhibiting the "quintessential hallmark of tyranny".
The Speaking Constitution: A Sisyphean Life in Law is an English translation of K.G. Kannabiran's 2009 memoir in Telugu titled 24 Gantalu: Atmakadhatmaka Samajika Chitram (24 Hours: A Personalized Social History). The memoir, along with his tome, The Wages of Impunity: Power, Justice and Human Rights (2004) and the documentary The Advocate (2007) made by Deepa Dhanraj and Navroz Contractor, together form part of the project to achieve K.G. Kannabiran's commitment to the cause of civil liberties.
Some of the memoir's chapters are the revised and extended versions of the chapters from The Wages of Impunity.
The word Sisyphean in the memoir's subtitle is exciting and vital. It sheds light on the indomitable spirit of Kannabiran in the face of challenges or the grit to imagine an alternative. In The Myth of Sisyphus, Albert Camus engages with the philosophy of absurdity and suggests revolt as a mechanism against the same, as an antidote. Through the analogy of Sisyphus, who has been condemned by the gods to the task of rolling a large rock, up a mountain, only to watch the rock, roll back down, and to repeat the task for eternity, Camus writes, it is "revolt, freedom, and passion" which would make him stronger than the punishment intended to crush him. Similarly, in the face of absurdity induced by law, Kannabiran writes, "... mine has been the struggle for a better world and the struggle is its own reward. (p xvii) with the caveat that "...I have been spared of the futile struggle with which Sisyphus was condemned".
K. G. Kannabiran, through his memoir, presents a radical critique of state violence, police atrocities, and constitutional abdication, occasioned on multitudes whose stories have got lost in the official documents by narrating and chronicling their struggle with a sympathetic constitutional empathy. The memoir has been translated from Telugu to English by prominent sociologist and activist Kalpana Kannabiran, daughter of the author. It has eighteen chapters consisting of themes that have shaped the constitutional and political history of the Republic since its inception, till 2010. These themes have contemporary relevance and go to the root of some of the vexing constitutional problems facing India today.
An incisive introduction by Kalpana Kannabiran does a beneficial job by contextualising the nature and scope of work, especially in the field of civil liberties, which K.G. Kannabiran passionately did. Taking 'idea of justice' as a register, through the work of K.G. Kannabiran, which traversed "cases in courts, tribunals and commissions of a different jurisdiction, mostly in the composite state of Andhra Pradesh, but elsewhere as well", an appraisal is made of its trajectory in the last seven decades. The 'insurgent' fashion of reading the constitution and the internalisation of its fundamental philosophy by K.G. Kannabiran, writes Kalpana Kannabiran, helped him "recognise the inherent transformative imperative the Constitution of India signals, and the fact that unless courts were explicitly counter-hegemonic, justice could never be done" (p. xxii).
Early Life and its Role in the Evolution of Kannabiran
K.G. Kannabiran was born in Nellore in a well-to-do family in 1929. His father, Dr K.G. Iyengar, was an ophthalmologist at the King Edward Memorial Hospital in Secunderabad. However, K.G. Kannabiran's formative years were not that seamless. K.G. Kannabiran writes, ".... as bigamy was not prohibited among Hindus, he [Dr. K.G. Iyengar] married a second time..[and]... this marriage was preceded by tremendous domestic violence on my mother, his first wife, who was a defiant woman who refused to submit to his wishes" (p.2). Growing up with this, after completing his school at Nellore, Kannabiran moved to Madras to do his Intermediate.
Kannabiran's stay at Madras played a critical role in shaping his ideas and future trajectories. The people he came in contact with and the political and social churning he witnessed exposed him to the reality and challenges of the real world. The Cabinet Mission, which had placed the proposal for the transfer of power, visited Pachaiyappa College, where Kannabiran was studying at that time. His college was also the bastion of the Dravidian movement headed by Periyar with the twin objectives of self-respect and anti-Brahminism. According to Kannabiran, the Dravidian movement "...was a movement based on a deep faith in, and aspiration for, a different world….as a matter of faith, movement anchored in the values of a different order that resurrected the Tamil people". (p. 3) This observation provides a sort of conduit to understanding, even before Kannabiran started his legal career, how important people, identity, social justice and, above all, the imagination of an alternate world divorced from the dominant norm in Kannabiran's scheme of things. It is this pro-people attitude, sensibility, and understanding of the society, politics, and, above all, the Constitution, which would get congealed through the act of lawyering, court-craft, and activism, to which I shall come shortly, enabling Kannabiran to come up with the 'idea of insurgent jurisprudence'.
The preoccupation with "What are the liberating energies fostered by an argumentative, insurgent Constitution?" and how this could be percolated to the society's crevices while animating the citizens' life defined K.G. Kannabiran's long legal practice and activism. If one closely looks at some of the cases that K.G. Kannabiran fought, it demonstrates how the above question informed his legal approach and attitude.
The idea of 'insurgent jurisprudence' is so essential in K.G. Kannabiran's legal engagement and oeuvre that it merits some engagement before moving forward. The best exposition of 'insurgent jurisprudence' by Kalpana Kannabiran is in his Tool of Justice: Non- discrimination and the Indian Constitution (2012). While critiquing the narrow understanding of discrimination with the limited stipulation mentioned in Art 15, Kalpana Kannabiran notes that "the idea of insurgent jurisprudence [is] to institutionalise non-discrimination and the right to liberty, in the process re-imagining democratic citizenship and re-inventing the state". For, philosophically speaking, Kalpana Kannabiran writes, "The Indian Constitution gives voice to counter-hegemonic imaginations of justice, rooted in the resistance movements and argumentative traditions that have blossomed in the region at different points in history".
The Constitutionalist at Work
One of the early cases in which K.G. Kannabiran exhibited his acumen and tenacity as a lawyer was Ansari Begum, a Tamilian Muslim woman who had migrated to Pakistan during the partition and was declared a refugee when she came back to India. Before the chief presidency court, Kannabiran argued, "it is ridiculous that she is declared a Pakistani citizen when she does not understand what partition means. She migrated only in search of livelihood, with no intention of settling there permanently." "The court accepted the arguments and struck down the deportation order served on Ansari Begum". Though this case is from 1958, it still has contemporary relevance, for it directly speaks to the new citizenship regime, introducing religion as a criterion for determination- that the incumbent government has put up. Commenting upon the newly enacted Citizenship Act 1955, which Kannabiran read closely for Begum's case, he writes, "defining citizenship in this manner, the Indian government made a mockery of the basic tenets of democracy. The self-respect and dignity that vested in people's membership of a society was totally eroded". Contextually observing the Begum case in view of partition and the transpiring violence, Kannabiran notes, "the focus on looking at cases like this cannot be on jurisprudence. It must be on human rights. By virtue of being members of a society, people have inherent rights". The jurisprudential understanding of the citizenship of Kannabiran was not just tied to the Constitution, but it even had the gloss of ethical responsiveness.
After shifting to Hyderabad, Kannabiran got associated with civil rights movements besides his legal practice. In the late 1960s, facing state repression under the guise of fight against the Naxalites, a meeting was organised by Advocate Ravi Subbai Rao, despite being affiliated with the C.P.I., to garner the support of lawyers at Haridwar Hotel, Hyderabad. This event is important because, as Kannabiran recalls, "it was one of the earliest attempts at building a civil rights movement in the state". Further, at this meeting, he notes, "I resolved to devote my energies to the defence of movement activists unlawfully placed under detention by the state" (p. 36).
Consequently, Kannabiran represented the accused in the Parvathipuram conspiracy and the Secunderabad conspiracy cases, among others. In these matters, he emphatically argued, trying to explain to the court that there is a distinction between political crime/criminal and ordinary crime/criminal. Though Kannabiran secured an acquittal in both cases, poignantly, he wrote apropos of the Secunderabad conspiracy case in The Wages of Impunity (2004), "these acquittal really obscures the abuse of power and the law. They also obscure the violence employed using the law as a shield".
The decades of the 1980s and 1990s performed appallingly low on the human rights register in the state of the then combined Andhra Pradesh as it witnessed a spate of encounter killings. One such encounter killing was of Madhusudan Raj Yadav, whose marriage was presided over by K.G. Kannabiran. The police had shot Yadav dead on 26 July 1995, claiming he was a Naxalite from the People's War Group. On being informed about Yadav's killing and the underway plan to dispose off his body by the police in the court by his colleague, K.G. Kannabiran, "informed the court that I would file a writ petition on the grounds that this was a fake encounter". This case shed light on the humane aspect of K.G. Kannabiran besides being an 'insurgent jurisprudent' for he became the petitioner- K.G. Kannabiran vs Chief Secretary, Government of Andhra Pradesh (1995). The judgment, in this case, was both landmark and telling. Landmark, for the fact that the court held the encounter of Yadav as murder and directed the police officers to be tried under the relevant provisions; and telling, in a sense, as K.G. Kannabiran notes, "The Andhra Pradesh High Court bench, in this case, repeated what I had argued before the Bhargava Commission [which was instituted to inquire into the staged killing of 300 alleged Naxalites]".
One of the cases that K.G. Kannabiran argued before a trial court in Delhi was that of Shaukat Hussain Guru, one of the co-accused in the 2001 Parliament attack incident along with Afzal Guru, Afshan Guru, and S.A.R. Gilani. The trial court convicted all the accused under POTA, but the Supreme Court upheld the death sentence awarded to Afzal Guru. As K.G. Kannabiran was deeply invested in this case, thus he watched the unfolding of the case from close quarters, including that of Afzal Guru. That it was a case related to the Parliament attack made it a sensation in which the print and electronic media played an enabling role. This, according to K.G. Kannabiran, "prevented any disinterested endeavour to understand the case and assess the evidence for and against the accused… [which] foreclosed any just conduct" leaving the realisation of justice contingent only on the procedure. (p. 150) Even on this count, the trial of Afzal Guru was wanted, for he did not get the kind of legal representation which under the Constitution could be termed a fair trial. Owing to this, Kannabiran saw Afzal Guru's “conviction as a travesty of justice".
The site for forging insurgent jurisprudence was not just confined to the courtroom in K.G. Kannabiran's scheme of things. In his distinguished life, K.G. Kannabiran served as the Andhra Pradesh Civil Liberties Union president for fifteen long years and, subsequently, the National President of the People Union for Civil Liberties. In these roles of leading from the front, through advocacy, fact-finding, and being part of inquiry commissions, Kannabiran played an indispensable role in documenting the atrocities committed by the state, which also served an educative purpose. Working on the ground with people immensely supplemented Kannabiran's legal practice as it allowed him to have theoretical, practical, and organic experience of the working of law and the legal system.
All the cases highlighted above, and some others, along with human rights activism, enabled K.G. Kannabiran to forge an insurgent jurisprudence.
The trajectory of the 'idea of justice' and the rule of law, which K.G. Kannabiran believed, was crucial for just constitutional order, has remained chequered in the history of the Republic. Consider the approach of the apex court in the murder case of intrepid union leader Shankar Guha Niyogi. Instead of examining and providing the reasoning of the Madhya Pradesh High Court acquitting the accused, the Supreme Court took it at face value and upheld the high court ruling. This instance recalls the words of Robert Cover, "legal interpretation takes place in a field of pain and death"; and the violence a legal interpretive act leaves in its wake is not to be ignored. Law is as much a tool of redemption as a site of violence.
What is the reason behind the above legal, constitutional, and political problems? In The Wages of Impunity (2004), K.G. Kannabiran reflects on it. In popular consciousness, the coming of the Constitution announced a break from the colonial past and heralded a new constitutional order. However, in K.G. Kannabiran's reading, this is not a break but rather a 'transfer of power'. He writes, "our legal struggle retained with total composure the entire legal system which had been effectively used against the freedom struggle at various stages". The irony of preferring order over freedom, one of the defining features of India's constitutional design, is a sad commentary on constitutionalism in India.
As a consequence of such design, Uday S. Mehta observes in the essay, “Constitutionalism”, "freedom is recessed, and the tendency for political power to operate without limits deeply ingrained". This, then, provides the propitious ground for authoritarian forces to grow, which we saw in 1975 as Indira Gandhi declared Emergency, and the one unfolding since 2014. Against this, the endeavour of K.G. Kannabiran's life, work, and philosophy was a Sisyphean struggle to give meaning to the provision of the Constitutions by reading it in an insurgent fashion informed by the ideas and ideals of freedom struggle and social history in order to make it a talisman for the Indians.
The quest to find insurgent possibilities in courtrooms, Constitution, and peoples’ movements, and subsequently, to use the same to replenish constitutionalism, made K.G. Kannabiran a constitutionalist of a radical variety. Kannabiran's toolkit of "micro-practices of insurgent constitutional practice, especially against state arbitrariness, but also in relation to larger political processes in a deliberative, dialogic democracy" should be popularised in order to contain the degeneration of constitutionalism being witnessed in India. The Speaking Constitution is not just a compulsory read but a manifesto for the authoritarian times in which we live.
Md Zeeshan Ahmad is Pursuing L.L.M. at Azim Premji University. He may be reached at [email protected]