12 Dec 2020 2:12 PM GMT
[This lecture was delivered on 7 December 2020 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, his work and its futures]. [Abstract: Justice K. Chandru, recalling his association with KG Kannabiran, speaks on the importance of trial courts, advocates' strikes, violence...
[This lecture was delivered on 7 December 2020 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, his work and its futures].
[Abstract: Justice K. Chandru, recalling his association with KG Kannabiran, speaks on the importance of trial courts, advocates' strikes, violence against civil liberties campaigners and advocates, Emergency, encounter killings by the police and the incident of police violence against human rights defenders in which Justice VM Tarkunde and KG Kannabiran were injured and detained in a police station in Madurai. He reflects on their work together in the campaign for the impeachment of Justice V. Ramaswami, the Sri Lankan peace accord and the campaign for the repeal of POTA].
The last day of July 2006 was when I was sworn in as a Judge of the Madras High Court. It is customary for the Advocate General to welcome the newly inducted Judges. In turn Judges in reply used to thank all. I know many of my friends, trade unionists, and left party leaders did not greatly appreciate my accepting judgeship. This includes Comrade K.G.Kannabiran.
In my reply speech, I said:
"When my metamorphosis from Senior Lawyer to Judge or its probability became known, many of my friends and well-wishers were puzzled and some were even scandalized. I was asked: why did you? Did you, really? I did not give any clear reply. Life is a rugged journey with its sharp and strange turns. It is an odd adventure where the exciting forenoons are followed by the mellow afternoons.
Viewed in this humanist, nationalist perspective, there is no inconsistency or discontinuity in my wearing the judicial robes. And after all, I am convinced that supreme national service can be rendered as a Judge of the High Court also.
I shall endeavour, in a humble measure to treat my career ahead as a fresh call to service in the cause of the rule of law, which not merely keeps the executive within bounds but insists upon the basic and equal right of every individual to really free and good life."
Looking back, I always wonder how I came to know KGK. There is no distinction between a friend and a comrade when it comes to Kannabiran. Some of us called him KGK, some of us called him Kanna. When somebody calls him Kanna, in Tamil, it is a name for Krishna, but in Tamil it also means 'darling'. The very surprising thing about Kannabiran was that lawyers who were four decades younger to him would call him 'Kanna' and he never minded it. We called him KGK. Kannabiran and I were known to each other for at least four decades but we never had occasion to appear together in any matter although we worked parallelly in some areas, and worked closely in other areas. Of course we had our own differences. When I became a judge, he didn't like it at all. I felt differently. Justice Krishna Iyer told me when it is offered you should not say no. Although he used to visit Chennai often during my judgeship, he avoided meeting me. It was his policy not to make contact in private with sitting judges. After some time, I knew that Kannabiran changed his views. During February 2009, there was a huge clash between police and the Madras High Court lawyers. The situation became tense and courts were also closed for a few days. I was part of the full bench which gave orders to government for treatment of the injured lawyers. Shortly before his demise, KGK called me — I was very surprised — and asked how I was. He wrote a letter saying that I am doing good work and he is getting reports from his friends. That was a very great certificate I earned.
Emergency and State Repression
During the days of emergency (1975-77) both us were fighting against the atrocities committed by the state and were defending the citizens to establish their fundamental rights guaranteed by the Constitution. In Tamil Nadu, in the first phase of Emergency in 1975, the DMK party was in power and it opposed Emergency and Tamil Nadu became a little safer than other states. This continued till January 1976. There were attempts to form civil liberties groups all over and the initial efforts to form civil liberties groups in Tamil Nadu. That was the time I read in the papers that Kannabiran had filed a case challenging the promulgation of Emergency. Normally as trained lawyers we always think of a forum. When it comes to higher constitutional issues we always think of the High Court and thereafter Supreme Court; and we think about what kind of results it might produce – whether it will be productive or counter-productive. This was a very interesting case. Kannabiran not only challenged the illegal detention of a civil liberties leader in Andhra Pradesh, he also challenged the Emergency. He was the first to file a writ petition in AP High Court challenging the emergency and the detention of P. Venkateswarlu (an advocate and Secretary, Defence Committee formed in 1972 to defend perons under Maintenance of Internal Security Act (MISA) (P. Venkataseshamma vs. State of Andhra Pradesh & Ors. AIR 1976 AP 1).
He wrote in his book:
"These political cases, especially during the Emergency, made a big difference to my life. In order to preserve freedom and democracy, one has to fight within the institution" (Wages of Impunity, p. 339).
This was also my thinking and in line with my participation in human rights activities. Day in and day out we found in the courts that even judges were hesitant to entertain matters which have a political bearing, although they sometimes used to issue notices in matters of habeas corpus. But all that stopped when all cases in courts across the country were transferred to the Supreme Court at the instance of the central government. The initial team of people working in various states almost came to a standstill — what came out of this was the infamous ADM Jabalpur judgment, which was a big setback.
During Emergency, after Karunanidhi's dismissal from power and during the short period of the Governor's rule in Tamil Nadu, the bureaucracy really got strengthened and bureaucrats became advisors to governor who for the most part acted on the dictates of the central government till the parliamentary elections were held. After the elections, DMK split and MGR came to power. The situation became worse. It was the officers who were taking decisions. There was a coordination between the Tamil Nadu officers and Andhra Pradesh officers, in their attempts to suppress people through torture, illegal arrests and detention.
The areas bordering Tamil Nadu and Andhra Pradesh became crucial areas where there was a virtual manhunt for 'politically radical elements.' This was happening in areas which were not known to be 'political' earlier. The theory that was spread here was that Naxalites from Andhra Pradesh were 'infiltrating.' It was not true. These were mostly areas which were not very well-developed, so these kinds of protests were bound to happen. The youth was really active in mobilizing poor peasants and marginalized labour. This happened in districts like Vellore, which is closer to Chittoor, Tirupattur, close to Andhra Pradesh. Some local lawyers like Comrade PV Bhaktavatsalam, an advocate from Tirupattur were sending information that police atrocities are increasing. The Vellore range under which these incidents were happening had a DIG by the name Dewaram, a notorious trigger-happy cop. Silently people were incarcerated and sometimes killed also.
When these reports came, the efforts of constituting a fact-finding mission started for the first time in Tamil Nadu in 1977. Previously this happened at a very small level. But now an organised attempt was made. Till then we were not very aware of the role an NGO can play in these matters. This fact finding team which comprised of lawyers, retired judges -- Justice Tarkunde was there, and of course Kannabiran was there, there were some college lecturers, journalists — all of them went to Tirupattur. As students of constitutional law we know that we can go anywhere we want — Article 19 gives us the guarantee. This is never the case in practice.
When this team went to Tirupattur and stayed in a lodge, gathering information, they were all attacked. We knew by their appearance that they were police personnel -- very close haircut and wearing half trousers, which are police uniform. They entered the lodge and threw out the baggages. It was very shocking to realise that the citizens of India cannot even know what is happening around them. Tirupattur is around 200 kilometres from Chennai. Kannabiran and Tarkunde were known widely as champions of civil liberties. And still this was possible.
In the early 1980s, the government headed by MG Ramachandran let the police loose in the border districts of Tamil Nadu in the name of combating the naxals. Many poor peasants and youths were subjected to torture and killing by the police under the direct supervision of the police.
In 1982, the late Justice VM Tarkunde, retired high court judge, senior Supreme Court lawyer and renowned human rights campaigner, led a fact-finding team of journalists, teachers and lawyers to investigate the "encounter" killings of 23 youth between 1980-82, of which twelve were Dalits. KGK was part of the team which went to Tirupattur (North Arcot District). What happened during their visit was an eye-opener to the human rights activists. They were attacked by the police goons and were thrown out of the small town.
A recent report on the custodial killing of Jeyaraj and Fennix in Thoothukudi recalls this incident:
"A few hours after our meeting with the police, we were retiring for the night, when raucous shouts made us run to the window. Outside was a drunken mob demanding that PV Bhaktavatsalam, the human rights lawyer who had been fighting the police's "encounter" policy, be handed over to them. Charged with sedition, Bhaktavatsalam had just a month earlier been released on bail by the Supreme Court. Some faces in the mob seemed familiar; we realized we had seen them earlier at the police station. Now they were in plain clothes. The shouts were followed by stones; we could hear footsteps running up to our rooms.
What could we do but call the police? They told us that victims of Naxalite violence had gathered outside our lodge. Such was their wrath at us for wanting to investigate the deaths that if we didn't pack up and leave immediately, the police couldn't guarantee our safety. Our humiliation was complete when after an agonizing wait, uniformed cops "rescued" us, ensuring of course that as we ran into their vehicle, the "mob" got to break Claude Alvares' spectacles and give Mohan Ram a black eye."
After this episode, KGK and I became even closer.
Taking the Constitution to Trial Courts
When some of the issues relating to prisoners were brought to the court, we realized how much hostility we faced. Not that we are preaching left extremism, we were only asking for the guarantees in the Constitution, and the CrPC. But we could see for ourselves a hostile court and a hostile government. This strengthened our determination. We realized that the institution is not value free -- it is also loaded and our job is more difficult.
For the first time KGK told us 'don't think of higher courts. Start teaching the lower courts the basic, rudimentary things about the constitution. Criminal courts are not only for cases pertaining to IPC and CrPC. You should also take the Constitution to the trial courts.'
When TADA was enacted in 1987, there were not many arrests in Tamil Nadu, but we used to read that it was widely used in other states. In Tamil Nadu it was used in very selective fashion. The word 'terrorism' prefixed to the law, put off people. Supposing no lawyer is available for appearing in TADA matters, who could appear? Lawyers like us who never had much criminal practice?. What about the judges? As soon as the case was called, we could see the judges' reactions. More often it was very condescending, making it appear as if to ask us why were were getting involved in these matters. Or that all those appearing in these matters were supporters of terrorism.
Even for lawyers who are otherwise well known, the stigma attached to appearing in these civil liberties matters was a main lesson. We used to ask Kannabiran — how do you face these issues in AP courts? He used to tell us 'when terrorist laws or any repressive law for that matter comes before a court, don't think that the judges of the higher judiciary will be very sympathetic to you. Their thought process and the thought process of the law-makers will be on the same wavelength — so it is difficult to push these issues to them. Therefore you should start on a clean slate -- when I say clean slate, I mean a trial judge, who is amenable to listen to you, who is willing to see the law, who is eager to read the constitution, who is willing to see reason. Start working there. Then you may not get immediate results, because of the pressure, but one day you will realise that at least a substantial section of the subordinate judiciary will be well aware and you may get reliefs which may be marginal, but more than enough for people who are working for larger political resolution.'
Then he used to say, 'suppose you challenge a terrorist act in the High Court, it may be dismissed in half an hour. You go to the Supreme Court, SLP will be dismissed in three minutes. But if you start arguing these cases before a trial court, saying that there is no terrorist offence, he will give you two days or three days' time to argue. Sometimes if you succeed, the state may go on appeal; but at least you would have legitimately established in a taluk court that these are all false cases'.
This is something which we learnt from KGK — that the fight for the basic civil rights has to start from the first available trial court and not the top court. We know that the terrorist act was upheld by the Supreme Court; on the question of confession, they said it is the superintendent of police who records confession. Justice Ramaswamy's dissenting opinion -- that a superintendent of police may not be a value-free man because in his district he may want to put down crime and may want to show that he is able to be a real super cop and therefore he may record confession not in accordance with law to suit the convenience of the state — is an important one. We saw this for ourselves in every TADA crime where the confession statement brought in was not voluntary. There were people who suffered incarceration because of the manipulations by the investigation agency with the connivance of the state in putting down a political opponent.
The Campaign for Repeal of TADA and POTA
The fight for the rights of the TADA prisoners did not end with its repeal as immediately the Prevention of Terrorism Act (POTA), 2002 was enacted on similar lines. These two apparently anti-terrorist laws had devastating effect against social activists and human right defenders which kept both me in T.N. and KGK in A.P. all time busy. In March 2004, the People's Tribunal on the Prevention of Terrorist Act (POTA) and Other Security Legislations was conducted in New Delhi to go into the atrocities committed by the abuse of POTA by various governments. KGK was one of the members of the Eight Member Panel.
I deposed before the Tribunal and listed out my experience in dealing with the POTA cases in Tamil Nadu which was indiscriminately used by Chief Minister Jayalalitha government After my deposition, the panelists had a Q & A session. KGK made these remarks:
"We were arrested and beaten by the police in Madurai. It is the Q Branch that came to know, because we were made to stand before the police writers' table. Mr. Tarkunde and I were both accused, and the Q Branch realized that they had beaten up and arrested a Judge of the High Court. So they tried to convince Mr. Tarkunde to leave. He would not move out so he was literally dragged and pushed into a bus."
Commenting on my deposition KGK also observed:
"Mr. Chandru, a senior lawyer from Chennai, made his presentation on behalf of Nedumaran, who has been, as part of the bail order, prohibited from speaking at any public meeting. A Court exercises its discretion abrogating free speech and expression as a price of liberty. This is illustrative of the current Rule of Law tradition in this country. Mr. Chandru attacked Section 18 (POTA) and the Schedule listing the organizations that have been banned under that Section. The Parliament has obtained these names from the Intelligence agencies. There is a general unwillingness to question the listing of any of these organisations. Nobody would like to invite suspicion. The possibility of others being linked to these organisations cannot be ruled out. How does an Indian Muslim rebut the accusation that he is linked to one of the various organisations referred to in the Schedule? Section 18(1) declares that the organisations listed in the schedule are terrorist organisations. It is declaratory and judgmental. It targets mainly the Muslim minorities."
The People's Tribunal recommended the repeal of POTA. The report had a good impact on the law makers. The BJP government was forced to repeal the POTA in December 2004. After the amendments (2004, 2008 & 2013) made to Unlawful Activities Prevention Act,1967 (UAPA), we have another draconian legislation back in action. The Bhima Koregaon prisoners are still languishing for a year under the UAPA, but we have no KGK with us to fight for them.
We became part of the editorial board of the Lawyers Collective, the magazine edited by Indira Jaising. The magazine was the first to publish an article of mine pointing out the financial irregularities committed during the tenure of Chief Justice of Punjab & Haryana High Court (Justice V Ramaswami). When I organized a public meeting at Chennai on this issue, KGK participated along with Indira Jaising, NT Vanamamalai and R. Vaigai. That meeting was the first to pass a resolution calling for the impeachment of Justice V Ramaswami.
My article on this issue was referred to in a statement made to the Bar, by the Chief Justice of India (Justice Sabyasachi Mukherjee) dated 20 July 1990: "On 1st May, 1990. I had received a communication from the editor of a magazine enclosing therewith a copy of April 90 issue of the magazine The Lawyers (Collective), stating that it contained the full text of the audit report of the Chandigarh Administration".
KGK had no hesitation to join any campaign in public interest. He was convinced that only the establishment of a judicial commission will have a desired effect. In the aftermath of V. Ramaswami's impeachment motion failing in the Parliament, he wrote:
"Justice V. Ramaswamy sat on the bench despite an enquiry against him. There were advocates who supported and championed his cause. In fact, the impeachment proceedings turned out to be partisan and politically contentious, so it failed. The Ramaswamy affair was beset with litigiousness, which has been the hallmark of our subverted adversarial system.
Even before the impeachment proceedings against him failed, he secured for judges a right to judicial review of the very parliamentary process by which impeachment might succeed. This power to review was traced to the constitutional scheme (Sarojini Ramaswamy Vs. Union of India, AIR 1992 SC 2219). It was described as a blend of the political and judicial processes. Thus was born a neo-Brahminical class"
…[T]he Supreme Court's views on impeachment proceedings in Sarojini Ramaswamy is a dissertation on how to judge Parliament judging judges. In view of these decisions, any suggested constitutional amendment is subject to judicial review, as also any action initiated under it. In short, how does one shake up the Hobbesian absolutism that is presiding over the judiciary? It is comparatively easier to unseat the political executive. The rule of law is incompatible with absolutism in the judiciary.
…[T]he power of judicial review of the stage before impeachment, and potentially to annul the impeachment, subverts the constitutional scheme itself. It is a disingenuous exercise to deny equality to the legislature, which is the basis of the theory of separation of powers" (Wages of Impunity, pp. 222-23).
The Madras lawyers are known for their work stoppages, otherwise called "court boycott" due to frequent clashes between them and the police. This non-cooperation vitally affected the functioning of the courts all over Tamil Nadu. It was my sincere opinion that the lawyers have no right to lock up the courts, which are meant for the litigants to seek their rights.
Madras High Court Advocates Association moved a writ petition before us seeking a mechanism to resolve the disputes between the police and lawyers. In my order I traced the history of lawyer boycotts in Tamil Nadu and formed a high-power committee, to go into any complaint and suggest remedies. In my judgment, I remembered that KG Kannabiran had a different view on the lawyers' strike. He had one chapter on Andhra Pradesh Lawyers strike in his book The Wages of Impunity (2004). I wrote in my judgment:
"16. There seems to be certain ideological justification also made by some leading Advocates and well-known human rights activists. Mr. K.G. Kannabiran (leading Senior Advocate and Human Rights Activist, in his book) has given certain ideological orientation to the strike by lawyers and it is interesting to extract some portions from that book found in pages 238-240:
'A subordinated judicial system will only lend legitimacy to arbitrariness and brutality. It is this inchoate perception of things to come that is driving lawyers to collective action such as strikes. It is the overwhelming and overpowering presence of young lawyers, who are not yet sold on the laissez faire philosophy that makes these collective actions successful.
It does cause inconvenience, and litigants are perhaps harassed. In fact, the striking advocates may not even have public support or sympathy. But this is true of all strikes. It is equally true that lawyers as a body keep away from protests by others, and do not raise their voice of protest against injustice outside their profession. This fragmentation and insularity are not peculiar to advocates.
When judicial remedies, the continued existence of which alone will ensure us a democratic polity, are suffering gradual eclipse and ultimate extinction, any talk about the responsibility of lawyers under the Constitution to counter collective action by lawyers sounds hollow.
Lawyers, being part of the judiciary, which is one of the basic institutions under the Constitution, do have a constitutional obligation to intercede and prevent erosion of this institution. This institution is an instrumentality of the people. We owe it to the people and do posterity to preserve it as such. Thus, collective legal action is perhaps a healthy sign, an attempt by a professional group to transform itself into a socially useful entity.'" [Madras High Court Advocates Association vs. State of TN, 2007 (2) MLJ 1 (Madras High Court DB)]
The Indo-Sri Lankan Accord
In the aftermath of the Indo-Sri Lankan accord, there was ethnic conflict in Sri Lanka and it saw many Tamil refugees entering out country. After the murder of Rajiv Gandhi, the Liberation Tigers of Tami Eelam (LTTE) was proscribed by the government. When some persons belonging to that organization were arrested in the international waters near AP along with their ship, by the Indian Navy, KGK appeared for them before the AP High Court in cases registered under Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) (1993 (2) ALT 291).
Many parleys were held for bringing peace to northern Sri Lanka and on the scope of autonomy the Sri Lankan Tamils will get, in case of truce between them and the Colombo government materializes. In one such consultation held in Hong Kong (1991) organized under the aegis of Asian Seminar on Peace, leading human rights activists were invited to attend. Justice V R Krishna Iyer, George Fernandes (former Central Minister), K G Kannabiran were some of them. As I was also an invitee, I had the opportunity of seeing the scholarship and wisdom of KGK who suggested a legal framework for resolving the dispute and bringing in permanent peace.
Who is an Ideal Lawyer?
Kannabiran's visits to Chennai became more frequent. Even if he did not have a brief to appear, he used to come and meet all of us in the high court campus and very surprisingly, many young lawyers were very attracted to speak to him, to know more about these issues. Some of us who had entered practice earlier, and had heavy workloads were also interested in knowing how far we can involve ourselves. We used to talk from morning to evening; we used to sit in the canteen, in the bar room; sit outside the court hall; and this would continue. Not once did I see Kannabiran tired of speaking to people usually in groups. There was never a communication gap between him and young lawyers. There was a circle of young lawyers who always surrounded him. He used to tell us how to take up these cases, which could not be taken up by the normal criminal side lawyers. In fact, I was not in the criminal side at all. I was in the labour side. But these are the issues which make us look into the criminal side and also once in a while appear in the criminal side for these matters. Slowly we learnt our criminal law in practice through these matters. There was never an opportunity earlier. We had never intended to become criminal side lawyers, and no criminal side lawyer would take up such cases. In fact, when Bhaktavatsalam was arrested, there was nobody to appear to even move for bail. He was a lawyer who was also appearing in the High Court.
We felt we should not leave the bar association to status quo elements. We should also intervene and raise these issues in the bar associations. We were successful because I became an office bearer in the High Court Advocates Association; then I became a member of the Tamil Nadu Bar Council. Hitherto, the discussion in these bodies was more focussed on professional interests, how lawyers can be benefited by the profession, and so on. But never was there a focus on issues concerning civil liberties.
In 1989, I was invited by K. Balagopal to join a group of human rights activists to submit a memorandum to the then Chief Minister of AP (NT Rama Rao). I visited KGK in his home at Marredpally. We spent a whole day discussing many issues. He insisted on my active involvement in investigating human rights violations. I was always curious. If you are a civil liberties lawyer, and there is a confrontation, you are basically a lawyer and you are also helping civil liberties issues, and these issues also involve a political stand, what do you do? If there is individual violence by private groups, how do you answer others? Because your credibility is also an issue where people ask you how you justify this violence. These are questions that always intrigue civil liberties fighters and Kannabiran always had an answer. He said, 'basically we are committed to law and we go to the court only to enforce the law. We are not begging them for any charity. If the question is one of state violence against private parties, we are against state violence. Not that we support private violence. It does not mean you have to stand up every day and say I don't support private violence.'
But you will always be identified by not only the members of the bar or by judges but even state propaganda -- that makes you a 'naxalite lawyer' or a terrorist lawyer. He would say 'just ignore this. How long will they go on?' This was very important advice. Most of the time we feel depressed. People shy away from you the moment you take up an unpopular case. Slowly from service, labour, education, we switched over to criminal law for no reason other than that there were no lawyers willing to appear for POTA cases.
Jayalalitha was using POTA left, right and centre. In one case, two boys were arrested. I wondered how boys can be arrested in POTA cases. Then I realised one boy's name is Prabakaran (name of the leader of LTTE), the other boy's name is Bhagat Singh -- so the police thought these two are dangerous elements. We went to court and said that they can't be tried under POTA. There is the juvenile justice act. We fought and finally succeeded (Prabakaran vs State Of Tamilnadu dated 18 March 2003, Madras High Court). We learnt in the process of how much the state is committed to enforcing its own laws. To what extent are judges willing to take a stand that is unbiased or at least true to their oath of office. This is different from other branches where you might win one case and lose another. In these cases, the social hostility that you face -- people ask you in the bar room, in verandahs, in front of court building, 'why saar, why do you go for these kinds of cases?' But this work has its rewards. We were able to prove that all these terrorist laws were used against innocent people against whom not even a shred of evidence was there. Evidence was fabricated just to justify the filing of such cases.
As I got elected to the Tamil Nadu Bar Council in 1983, KGK also got elected as a Member of the AP Bar Council. His frequent trips to Chennai energized me and many young lawyers (P.Rathinam, Sankarasubbu, V. Prakash, T M Vasudevan, PVS Giridhar, Priya, Anne Marie, Nagasaila were some of them). His interventions in human right violations in AP inspired us. I started appearing before Madras High Court in many of those cases. In 1988 my association with the CPI(M) came to an end, which enabled me to appear for different political groups.
Who is an ideal lawyer? This question always intrigued us. In 1925 when the first time the Bar Councils were formed, the permission to enroll and to represent the profession was with the judges. The British judges had their own idea of how to keep the bar down, and submissive. It was not an independent profession. But what was important was, coupled with the fact of Gandhi's non-cooperation, the elite of the bar went with Gandhi to politics and away from the profession. It is the number twos who took over -- it may have been nephews, nieces, sons and daughters of existing lawyers, or it could partners. But the profession moved from a political to a purely professional angle. The goal was to be top in the profession -- what kind of money can one make, and so on?
If you see the biographies of most of the old lawyers, they say 'he had a lucrative practice.' What is a 'lucrative practice'? That we make tons of money? Or sometimes they would say, he is a chip of the old block, which means his father or uncle was a lawyer. When you see the tons of pages which have been published praising lawyers, retired judges, you will always see these two elements. For others, there was no entry at all. For people who come from the scheduled castes, women, there is no place at all in this profession. Therefore, the profession became a mercenary dream. If you see the first Bar Council rules, the first thing it states is 'a lawyer shall not stipulate a fee less than commensurate with his standing.' Then, 'a lawyer shall not foment litigation.' These are the two aspects that work against lawyers who are working for the common people. Take the case of a worker or a poor person cannot afford a fee. My standing in the profession may be different. There was never any provision of public interest litigation. We were all working in legal aid in the initial days when there was no official legal aid (when that came, we were part of that too). We organised a programme on legal awareness. If you see the Bar Council rules, there is no place for any legal awareness.
When I became a Bar Council member, I asserted that these rules should be changed in tune with the present trends where poor people are coming to court; the fee charged is not a matter that the Bar Council should be concerned with. All of us who were inspired by Kannabiran's discussions on who was an ideal lawyer. And we all knew. There are some indicators. I come from a firm where my seniors and their seniors were all trained in Britain and, inspired by the national movement they came here and worked for the poor. So we realised that a true lawyer is a person who fights fearlessly unmindful of the consequences, who will call a spade a spade, and is not bothered about the fee that they receive. In fact, there was a small pouch that was stitched on the back of your professional gown — people used to say in those days that lawyers should not even look at the fee which is paid to them — it is just put in the pouch at the back. But then, those are all old stories. Today money is everything. In this atmosphere, if there is a lawyer who is not bothered about money, who is not worried about the judges' anger, who is not worried about the state's anger, he is a good lawyer.
KGK's name was suggested for appointment as a Special Senior Counsel to conduct the remanded murder trial, in a case where an elected panchayat dalit leader was killed which was tried under the SC/ST (Prevention of Atrocities) Act, 1989. Advocate P. Rathinam, a human rights activist (an admirer of KGK) filed a petition for the appointment of KG Kannabiran. He submitted that the state prosecution has failed to book the culprits and it requires a person like KGK to conduct the trial. The court however refused the request (Karuppiah vs State of Tamil Nadu dated 17 April 2004, Madras High Court). During the hearing, an irritated Bench headed by Justice P. Sathasivam asked the petitioner, "Don't you have a lawyer from TN to suggest?" The answer was "Milords, we have none."
I was once invited by the Bar Council to address new lawyers. I told them that the old theory of having lucrative practice or not fomenting litigation is not anymore a standard. These are standards that belong to the colonial days. In 1961, when the new act came, the new rules that were framed simply carried them along. We should now go back to the days when the lawyer was a fighter for a cause, not for his own pecuniary benefit — a fighter for the cause of the betterment of the people. It could be civil liberties, a small employment issue, or a small land issue. Who does he fight against? He fights against the state, against oppressive authority, sometimes even against the judge who stands for a different value. In 2010, when my Chief Justice asked me to write a chapter in our annual book about leading lawyers, contrary to past practice, I put all the lawyers who appear for the people like VG Row, A. Ramachandran, K.V. Sankaran, N.T. Vanamamalai, K.T. Palpandian, P.V. Bhaktavasalam and so on. I feel you should have a model in this profession. And KGK was a model.
Ten years have gone by since the demise of Kannabiran. With the ever-increasing atrocities and multiplying human right violations, the need for Kannabirans is ever felt more now than before.
His work over more than four decades of fruitful public life still energizes some of us. We drew inspiration from the last passage of his book:
"I seldom allow the disgust to overwhelm me. Because then I have to become inactive and fall back on our old traditions like the Sundarakanda, Mahabharata, Bhagavata Gita, and all that. It is too late for me to go back to that now. When people turn sixty, they retire, turn to the scriptures, go out only to attend religious gatherings and then return home. There are no problems or tensions that way. But when you have chosen my kind of life, it is very difficult to retire. I keep thinking of retiring, but I am not able to. I do a lot of writing which I never used to find the time for. I sit at the computer and type up my articles using one finger. I do everything the difficult way; that is my style" (Wages of Impunity, p. 348).
[Justice K. Chandru is former judge of Madras High Court widely respected as a 'people's judge' in Tamil Nadu]
This is the fifth lecture of K G Kannabiran memorial lecture series.
First Lecture by Justice B Sudershan Reddy, former Supreme Court Judge -Death Of Democratic Institutions: The Inevitable Logic of Neo-Liberal Political Economy & Abandonment of Directive Principles of State Policy.