[This lecture was delivered on November 16 as part of the KG Kannabiran Lectures on Law, Justice and Human Rights – organised by the family of KG Kannabiran (1929-2010) to celebrate his life, work and its futures].
THE DAILY PRACTICE OF LAWYERING: VIGNETTES FROM SENIOR'S OFFICE
I am happy to give this talk in remembrance of my beloved Senior Mr. K.G.Kannabiran. In this talk I will refer to him as 'Senior.' Popularly known as KGK to his friends and legal fraternity, Senior was a multifaceted personality. I wish to give an insight into his attributes as a lawyer focusing on the enormous work done by him in defending civil rights as well as the versatile cases he conducted in branches other than civil rights.
Senior was a person of great intellect and integrity coupled with high principles. Because of his affable nature, high professional caliber, and helping nature, he was very popular among the members of the bar. He was widely known in the then combined State of Andhra Pradesh and outside the state. Whenever he visited a District Court, young lawyers used to gather around him just to see him and to listen to him.
It was the principle of Senior not to campaign for any position in life. True to his principle without any campaign he was elected President of then AP High Court Advocates Association and a member of the then AP Bar Council for two terms of five years each. This bears testimony not only to his popularity but also to the good professional work he did in various fields.
For Senior, the cause came first and reward for his professional services last. He was in the forefront in fighting state repression. In his professional career he had filed hundred of Writ Petitions to vindicate fundamental freedoms of activists who were subjected to state repression for their anti-governmental work. The relevance of this work today is very evident to us all.
Senior defended the accused in the Secunderabad Conspiracy Case. The accused included revolutionary writer Varavara Rao and poet (late) Bhaskar Reddy popularly known as Cherabanda Raju. The charge against the accused was that they entered into a conspiracy to commit gruesome offences like murder and arson to create terror and to bring about an armed revolution to overthrow the popularly elected government. This case was registered in 1975 and the trial went on for 15 years. I joined his office while this case was in progress and had the opportunity to observe his approach to law of conspiracy and his legal strategies from close quarters. Senior was the only Advocate who defended the accused from day one till they were acquitted in1989. He cross-examined about 200 witnesses and advanced arguments in defence for over 3 months. He did not charge any professional fee for the stupendous work. He used to say he spent one-third of his professional life in defending the accused in Secunderabad Conspiracy Case. Similarly, he defended the accused in Ramnagar Conspiracy Case and the old Bangalore Conspiracy Cases which also lasted for long durations. These were the cases that were conducted in Sessions Courts in Hyderabad. In these cases as well, in securing acquittals of all the accused, and in conducting the criminal trials, Senior demonstrated concrete methods in challenging state impunity. This was educative for judges and for lawyers.
Designated Senior Advocate of the combined High Court of Andhra Pradesh, Senior was popularly known as a lawyer who specialized in Civil Rights and Criminal Law. But the truth is he was a versatile lawyer who practiced with ease in all jurisdictions from the court of Munsif Magistrate to Supreme Court and in all branches of law. He practiced actively in constitutional law, human rights, labour laws, criminal and civil laws, property laws, company law, Admiralty law, rent control law etc. Senior in a single day could defend an accused in a criminal case before the Munsif Magistrate and prosecute a civil suit in the District Court in the forenoon, and reach High Court by post lunch session to argue a big case involving interpretation of complex questions of constitutional law. He never showed any tension or felt any pressure when he had to argue different cases in a single day. In between cases he had time to travel on fact finding missions wherever there were human rights violations, participate in peace processes and engage in many other public activities.
Looking at law as an instrument to serve public good, he always attempted to interpret law in a way that would serve the public interest but not individuals including his clients. To illustrate the versatile practice of the Senior I will deal with a few cases conducted by him in different fields of law.
As a civil rights lawyer, he opposed police encounters of political activists' right from the early 1970s, but especially during and after the Emergency. After killing political activists in alleged encounters, the police claimed it as a measure of self-defence and closed the cases without even registering a First Information Report. Senior used to say that local police lacked skills to shoot a running target. Therefore, he said, the police first capture the target and then shoot. All encounter deaths, in his view, were culpable homicides amounting to murder.
One Mr. Madhusudhanraj was killed at Hyderabad in the intervening night of 26/27th July, 1997 but the police proclaimed that an unidentified member of Peoples War Group (PWG) was shot dead. This was reported in Indian Express dated 27 July 1997. In a first of its kind Senior on the basis of the newspaper report made an oral application to the bench of the Chief Justice (Prabha Shankar Mishra, J) who treated it as a Writ Petition showing Senior as the Petitioner and passed a series of interim orders, among others, to preserve evidence. The principal contention at the hearing was that the defence of the police that they had justification to fire at Madhusudhanraj which resulted in his killing, is a matter to be tested at the trial by the criminal court. The bench of Chief Justice accepting that contention entrusted the investigation to Central Bureau of Investigation. This case was reported in 1997 (4) Andhra Law Times, Page 541 under the title K.G. Kannabiran vs. The Chief Secretary.
This issue again came up in a group of cases under the title of AP Civil Liberties Committee vs Government of AP (reported in 2009 (2) Andhra Legal Decisions Page 1). This case was decided by a larger bench of 5 judges. The issue was referred to larger bench for reconsideration of law laid down by an earlier Full Bench. The Full Bench held that an independent FIR shall be registered only on a specific complaint made alleging that any identified individual had caused death on account of bullet injuries in an encounter with the police and in the absence of such a specific complaint the police had to follow the procedure under Section 176 of the Code of Criminal Procedure without prejudice to investigation. Senior explained the legal provisions and contended that registration of First Information Report was mandatory whether offender was identified or not as otherwise it would violate fundamental rights and give a free hand to the police. He argued for a reconsideration of the Full Bench decision. The larger bench, inter alia, on a critical analysis of provisions of Criminal Procedure Code held that where a police officer causes death of a person acting or purporting to act in discharge of his official duties or in self-defence, as the case may be, First Information Report shall be recorded and investigated and the defence of the accused police officer had to be decided only during trial before a Criminal Court but not during investigation. Significantly the court held that First Information Report had to be recorded whether an alleged perpetrator is named or not. Thus, the larger bench overruled the earlier law laid down by Full Bench. To make the narration complete I may also mention that the AP Police Officers Association filed a SLP against the judgment of the larger bench (AP Police Officers Association vs. AP Civil Liberties Committee (2019) SCC Online SC 1600) which was disposed of in terms of an earlier judgment of the Supreme Court, in the case of PUCL vs State of Maharashtra (reported in (2014) 10 SCC 635) where it was, among others, held that when an encounter takes place by use of firearms by a police party resulting in death, a First Information Report had to be registered. The arguments he set out in the cases he fought on challenging state impunity in criminal courts and constitutional courts have very far reaching and continuing impact on jurisprudence till the present time. He used to spend a great deal of time and effort to educate judges and sensitize the courts on issues of constitutional rights especially pertaining to right to life and personal liberty.
The second case is a very different one that I will narrate briefly, involves the loss of livelihood faced by small traders mostly belonging to minority community on account of road-widening near Charminar in Hyderabad (unreported). Senior adopted a novel method to secure livelihood while accepting that road-widening was necessary and acceptable. In this matter, small traders who were mostly tenants were sought to be displaced from their shops for road-widening by the local Urban Development Authority. Senior filed a Writ Petition challenging the displacement of traders for road-widening. At the hearing, Senior made elaborate submissions that the State cannot deprive livelihood of small traders for road-widening without providing an alternative place for eking out livelihood. He contended that such a deprivation would infringe the fundamental right guaranteed under Article 21 of the Constitution of India. After sufficiently persuading the bench, and after ensuring that the court was with him, he proposed that the local Urban Development Authority provide shops to such traders at alternative locations subject to conditions. The local Urban Development Authority was persuaded to accept that proposal. Finally, under the supervision of the High Court, alternative shops were provided to the traders. This was the real succour to the traders instead of paltry compensation that would have been paid in the case of acquisition of land for a public purpose. On conclusion of the matter, the traders came in a large bus to our office to express their gratitude. In this way, Senior solved one human problem. This also gave us immense professional satisfaction. More importantly, through this small case, he set out a different parameter for understanding eminent domain and land acquisition for public purpose – where inevitably it is poor and marginalized communities that are at the receiving end.
The third case concerns property matters, which he would with ease. One such case was that of Ritz Hotel of Hyderabad (unreported). Kapoors of Bombay were running this hotel under a lease with the State Government for several decades. The lease deed provided for a renewal of lease but the clause was not clear. Nonetheless Senior filed a suit for specific performance of renewal clause in the lease deed. At the hearing which lasted several weeks Senior cited a number of authorities in support of his contention that the court has to interpret the renewal clause keeping in mind the intention of the parties which was to renew the lease. The civil court accepting Senior's contention directed renewal of lease against which the Government filed an appeal before the High Court but was unsuccessful. At this stage, Government terminated the lease by exercising the power under A.P. Government Lands and Buildings (Termination of Leases) Act 1986 to set at naught the judgment of the High Court affirming the renewal of lease. The Government proposed to develop Ritz Hotel site as a heritage hotel but presently the property is under lock and key. The Government neither allowed the Kapoors to run the Hotel nor put it to use for over 25 years. However, his innovative approach to cases big and small focused on justice and equity – this was the most important learning for us on an everyday basis.
The fourth case was that of Andhra Bank Ltd., a premier private bank that was nationalised by an Act of Parliament passed in 1980. Under the Act, the share holders were to be paid compensation in lieu of nationalization of the bank towards the value of the shares. However, Board of Directors of Andhra Bank Ltd., like KLN Prasad and others who had controlling interest, wanted to start another company by investing the compensation amount. Shareholders represented by Senior filed Company Petitions before the then combined High Court of Andhra Pradesh for winding up of Andhra Bank Ltd., and distribution of compensation amount to shareholders. At the trial Senior cross-examined KLN. Prasad elaborately, during which he extracted valuable admissions. However, a Single Judge of the High Court dismissed the Company Petitions. Senior preferred Company Appeals before a Division Bench of Chief Justice Alladi Kuppuswami and another. Incidentally the father of the Chief Justice, Sri Alladi Krishnaswami Iyer settled the Memorandum and Articles of Association of Andhra Bank Ltd. At the hearing, Senior made elaborate submissions on innumerable facts and many principles of law very rarely referring to the law books. He contended that only banking business was being conducted by Andhra Bank Ltd., and hence by virtue of nationalization the banking business could not be carried on and hence the substratum of the company was lost. He requested the Court to pass an order of winding up of Andhra Bank Ltd., on just and equitable ground. The Bench of Chief Justice taking note of the fact that the name itself was Andhra Bank which could no longer carry on the business of banking by virtue of nationalization and it did not carry on any business other than banking and Board of Directors could not disclose the exact business which they intended to carry on with the compensation, ordered winding up on just and equitable ground. This case was reported in 1983 (53) Company Cases 73 under the title Nagavarapu Krishna Prasad Vs Andhra Bank Ltd. It is a different point that the matter was taken up in appeal to Supreme Court where the shareholders who filed Company Petitions for winding up of Andhra Bank Ltd., compromised with the Board of Directors.
To speak briefly about the way Senior trained his juniors to stand in court and argue cases: In his chamber if any junior was ready with any case, he would give him an opportunity to argue before the court. He was truly benevolent.
I started working in the Chambers of Senior in 1981. It was a real pleasure working with him because he gave full freedom to the juniors to prepare cases in their own way but he was ready to step in to correct and guide them when required.
Senior was a voracious reader of not only law books but general books on different subjects. On a given court working day he used to be in his Chambers by 07-7.30 am doing research for the cases of the day. Very often he used to stand before the bookshelves in the Chambers and do the research himself instead of calling for the books. He had a phenomenal memory and could recall authorities which were decided decades ago. He used to read a brief however voluminous it was, only once and remember the facts for years together before it came up for final hearing.
He used to inspire his juniors by his in-depth preparation, lucid and authoritative presentation of facts and law before courts and espousal of public causes. He advised his juniors to remember that behind every brief, there was human suffering, and as a lawyer the very best in the case should be brought out. His advice to his juniors was to close the brief once it was completely read and think about it constantly to formulate what questions of facts and law would arise; how to present them and how to meet the possible contentions of the other side. If it was a trial matter, at the stage of evidence, to think about the questions to be put in the cross-examination, possible answers and further questions to be put. He used to say that the legal profession is the only profession where one would get a chance to deal with different subjects and provides an opportunity to fight for human rights, and various freedoms given under the Constitution.
To illustrate his encouragement of his juniors, I refer to an incident of 1985. When Senior was arguing a matter before a Division Bench, a Civil Appeal of Kerala Transport Company reached for hearing before another Division Bench. When I asked him for instructions as to what I should do, he asked me whether I was ready. I told him I was ready, thinking that he would take over after the case that he was arguing concluded. He instructed me to start the case. The matter was part heard and it got adjourned to next day for continuation. That evening after the routine work was over about 9 pm, I went to Senior to brief him about Kerala Transport Company case and that he should appear in that case the next day. Even before I said anything further, he simply said he will not take over a case which his junior started. He instructed me to go ahead with the case without worrying about the result.
This case was of importance because the principle decided in this case would have a bearing on the thousands of the tenants in the State. The Civil Appeal was filed against an eviction decree passed by Civil Court, against Kerala Transport Company, from a tenanted building. During the pendency of Civil Appeal the Supreme Court struck down a provision in the AP Rent Control Act which exempted buildings fetching a rent of more than Rs.1000/- per month from the purview of Rent Control Law (Motor General Traders vs. State of AP, AIR 1984 AP 121). It was our contention that because of striking down of exemption provision, the Civil Court decree was a nullity and a fresh decree of eviction has to be sought under the AP Rent Control Act.
I was worried for two reasons. First, if I made any mistake it would affect thousands of tenants in the State. Second, Senior would be blamed. So I went to madam Vasanth Kannabiran about 10 pm when madam was at the dining table. I wanted to appeal to her to prevail upon Senior to take over the case the next day. Even before I formulated my appeal, Madam shot down my incomplete appeal in 10 seconds, and said go and do the case as desired by Senior. Left with no option, I reluctantly continued. It was heard over 7 afternoons and finally, we succeeded (reported in Kerala Transport Co., Hyderabad & Ors. vs. Atul Kumar Agarwal & Ors. AIR 1986 AP 306). This is not all. After the verdict came in our favour, Senior instructed Kerala Transport Company to pay me Rs.2,000/- towards professional fee. I was paid the fee which was a big amount those days for a raw junior like me. That is the encouragement Senior gave to his juniors at his risk. However, I must confess that this judgment was overruled on the principle that a cause has to be decided on the basis of law that was prevalent on the date of institution of the proceeding and any subsequent change of law would have no bearing.
Senior was very serious when in action in court but not without wit and humour. I end with two incidents in court which I was witness to.
A Public Interest Litigation was filed in 2004 by a third party to declare the strike by Junior Doctors in Hyderabad as illegal (reported in S. Raju v. Govt of AP & Ors. 2004 (2) Andhra Law Times 2). In that case, Senior represented Junior Doctors who opposed the Writ Petition. At the hearing, the Advocate for Petitioner contended that the strike was illegal and Junior Doctors be directed to resume work. After the Advocate for the Petitioner completed his arguments, the Government Pleader was called upon to argue. The Government Pleader was struggling to find words as everything that the Advocate for the petitioner said suited the Government. At this stage, Senior got up and quipped, 'What will the Government Pleader say My Lords. The petitioner is none other than the ventriloquist of the government.' The whole court including judges burst into laughter.
In another case in 1981, Senior filed a Habeas Corpus Writ Petition challenging the preventive detention of one Kotha Das who was reputed to be a notorious criminal (unreported). At the hearing, Chief Justice (Alladi Kuppuswami, J) queried, 'What Mr. Kannabiran! You are appearing for Kotha Das!' Senior retorted, 'I do not know, My Lords, whether I am appearing for Kotha Das or the future Chief Minister.'
I thank Kalpana Kannabiran for giving me this opportunity.
[Advocate B. Nalin Kumar has been practicing law in Andhra Pradesh since 1981. Starting his career in law in the office of Advocate Lalit Chari in Mumbai in 1980, he moved to Hyderabad and joined the office of KG Kannabiran in 1981. He set up an independent office in 1991, and continued to work closely with KG Kannabiran on a daily basis till 2010].
(This is the second lecture of the Kannabiran memorial lecture series. The first lecture was delivered by Justice B Sudershan Reddy, former Supreme Court judge, which may be read here).
The video link to the lecture: