The struggle to secure rights is never a finished project; it is incessant and necessary at all times: Kalpana Kannabiran

Kalpana Kannabiran, a sociologist and legal scholar based in Hyderabad, focuses on the intersection of constitutional studies, human rights, gender studies, civil liberties movements, law and literature.

Her most recent book The Speaking Constitution: A Sisyphean Life in Law captures the stark realities of the social movements prevalent in India since the 1970s. The book is a translated version of a Telugu memoir written by Kalpana's father, the renowned human rights activist and lawyer KG Kannabiran.

In this interview with Bar & Bench's Jelsyna Chacko, Kalpana talks about what it was like growing up in a home that was constantly under state surveillance, the political climate prevalent since the 1970s, how her father was instrumental in uprooting many injustices and more.

The Constitution, for KG Kannabiran, was always a “Speaking Constitution” that affirmed a shared social order with guarantees of dignity, life, liberty and equality to all its citizens. It affirmed the right to dissent, to interrogate arbitrary state practice, and to question dominance and exploitation. It confirmed special protections - through reservation, against untouchability, through the demarcation of scheduled areas, and guarantees on the freedom of faith and conscience. The Constitution spoke to the people directly and vested in them the power to question arbitrariness in the interpretation of its basic tenets by state and courts equally.

He never used the phrase “Speaking Constitution”. He made it speak in familiar and unorthodox ways, aware of its limitations and crafting possibilities of interpretation that challenged the limits infinitely in the cases he argued. And the more I thought about his work and reflected on it and immersed myself in his arguments and his notes, the more I realised that what I was trying to understand was indeed “the Speaking Constitution” – not just a black letter text, but one that was guided by the most expansive idea of justice in the here and now, from case to case, in every court and with every government.

We didn’t really think about it very much. We just went about living our lives. We knew we were surveilled. Our mail and phone calls were intercepted throughout our growing years. But it wasn’t a big deal, really.  We did not restrain ourselves or allow it to bother us – and it was talked about quite openly at home. It was not that we thought it was okay. It was infuriating and all of us would vent at different points. But more often than that, we laughed it off. My father was appearing for many others, challenging their surveillance. But his own surveillance went unaddressed and barely acknowledged. And he himself was rather indifferent to it. That was the person he was. We stood together. All of us.

Civil liberties activism has never been my calling. I grew into consciousness with questions of civil liberties and the Constitution circulating around me.  My work centered on law, the Constitution, sociology and feminism. As a human rights columnist, I focused on civil liberties and rights questions. I was an outlier in the civil liberties movement – committed to its work, supportive in more ways than one, but never a full member. This was a conscious decision all of us took in our individual ways. 

My mother Vasanth has written about this in her memoir Taken at the Flood: Memoir of a Political Life (2020). How do you stay at the center of the movement and not get reduced to being Kannabiran’s wife or daughter or son? We have all dealt with being talked down to, because we were seen as not measuring up to him. Even staying outside it, and charting a completely different course in my work, for instance, I haven’t escaped this attitude.

However, this did not affect the way we related to each other. He and I knew that I occupied a more complex position. I watched him wage his battles and heard him think through his ruminations over decades as a sociologist, legal ethnographer, sometimes as a collaborator and co-author, at other times his editor, at all times in my adulthood his sounding board and straddling it all as his daughter trying to make sense of this intimate familial world that I inhabited with him. A world which contributed in no small measure to his enormous output “out there”, just as his presence helped us make sense of the world we lived in.

As a young lawyer who was working entirely on his own and trying to make sense of the profession, its protocols and its methods, he recognised early on that he could only be a lawyer if he focused on building the entire range of skills and knowledge he required of law and the institutions of justice. One aspect of this was that he refused to specialise in any single branch of law.

Another example is his decision to join the office of the government pleader, which, if you approach purposively, could offer you deep insights into state practice in relation to the rule of law and courts. This experience, I believe, was vital in developing his understanding of the state within the constitutional scheme, just as, on a different register, the Ansari Begum case was. His activism and his legal defence of civil liberties was immersed in experiences like these, which were never merely experiences slotted in silos, but were experiences that cascaded into a stunning repertoire of insurgent constitutionalism.

Without doubt. He always challenged the climate of impunity, and was never deterred by it. He was never worried about his own safety. These were risks we understood as accompanying the work he did, and we were all on the same page. It was not a risk he alone took. There were so many who had dedicated their lives to confronting state impunity – at the cost of their own lives. He lost so many dear friends and co-travelers in the course of his long struggle. He speaks of some of these people in The Speaking Constitution.

There is a derailment of the basic tenets of the Constitution underway now that is quite unprecedented. The institutional collapse, the climate of capitulation, mob violence on the streets and criminal intimidation is so overpowering and real that it requires enormous collective courage and commitment to turn the tide. There was an undermining of constitutional values in the past as well; this is not the first time. The Speaking Constitution has several instances of state violence and arbitrariness. But there was the space to organise and resist. The Sisyphean return was possible. It was possible to secure release and bail in the case of political dissenters, which reassured us somewhat that all was not lost. 

What Kannabiran did succeed in – and that is his lasting contribution -- was in shifting significantly the parameters of public and judicial discourse on justice and the Constitution. He didn’t succeed in securing relief in all of the cases he fought. He had a deep understanding of how one might approach the Constitution and make it work by extrapolating its essence, its basic principles and applying them to unlikely locales. He was able to do this because he had studied the workings of state power, its basis in the Constitution and the mechanisms of interpretation that could challenge this power. The book is replete with examples of how he approached constitutional questions and accomplished the turning of the tide in so many cases.

He opens out to view his understanding of the underlying causes in each instance – political, jurisprudential, social, ideological – reflecting on why he might have failed. And failure to convince courts  and governments, or secure reliefs was for him not reason enough to give up. He persisted in cutting new pathways to these basic principles and premises, because what was at stake in every case spoken about in The Speaking Constitution was life and liberty, and fundamental freedoms of citizens in varying degrees of vulnerability. His work on encounters has been subject of parliamentary debate and National Human Rights Commissions (NHRC) interventions. The most enduring lesson I have learnt is that the struggle to secure rights is never a finished project. It is ongoing, incessant and necessary at all times.  

I get very nostalgic about the 1970s courts, especially in the composite State of Andhra Pradesh. We simply don’t witness that judicial fervor to protect dissent within courtrooms anymore. There is much judicial prevarication. Outside courts, we may all be on the same page. Within courts, on the other hand, even bail for political dissenters and opponents has slowly but surely been corralled within the ‘rarest of the rare’ – and hate speech is not prosecuted. That is an inversion of unfathomable magnitude and has grave consequences for our collective futures.

I would say with no hesitation that much more could have been done, more ought to have been done. But the rise in the theocratic framework in constitutional jurisprudence under the current political regime and the steady normalisation of Hindu majoritarianism in the Bar and Bench, as Professor Mohan Gopal pointed out in a recent lecture, is particularly cause for concern. And when it is accompanied by state power that pushes towards the establishment of a Hindu rashtra, the touchstone of constitutionalism fades from view. It is not only the case of the higher judiciary. I think one of the key points Kannabiran makes in The Speaking Constitution is that courts of every jurisdiction have acted both to enforce the Constitution and to undermine it. 

The Bar too likewise has acted in stellar ways and in partisan ways even in the past. He speaks of the boycott of the Parliament attack accused for instance. Even so, the bias is far more strident today than it was twelve years ago, when he died, and we get the constant feeling of the Constitution (and our lives) being held in a chokehold. Courts are among the institutions citizens must re-school into constitutionalism when necessary – this was then and it is now and in the future. It is citizens who must bring back robust constitutional consciousness to courts at times like these.

Again, I get pretty nostalgic about the 1970s to the 1990s, when debates did happen. We can look at it through concrete examples that I have cited in my introduction to The Speaking Constitution. On the debate around the health and well-being of jailed naxalite leader Nagabhushan Patnaik, for instance. Eighty parliamentarians across party lines signed an appeal to Prime Minister Indira Gandhi and the President for Patnaik’s release. This was recalled in Parliament with a sense of pride in ‘progressive forces which are at the core of this’. The complexity of ‘disaffection’ animated parliamentary debate. 

Witness in contrast the obstruction of debate on carceral rules during the COVID-19 pandemic, especially the custodial death of Stan Swamy, where the National Investigation Agency (NIA) counsel chided a High Court judge for his oral tribute to Swamy in court. Deaths in encounters and custodial violence were debated at length in 1977 in the Lok Sabha. Likewise, with The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and with the Panchayats (Extension to Scheduled Areas) Act, 1996.  

Witness the sharp contrast in the pattern of parliamentary deliberations on the issue of civil rights for the LGBTQIA community, which shows a sharp downward turn, where citizen disentitlement is firmly entrenched through parliamentary obscurantism and the banality of parliamentary politics today. This is evident also in the abrogation of Article 370, the breaking up of the state of Jammu & Kashmir into union territories, the Citizenship Amendment Act, 2019, the enactment of the Farm Laws (and their withdrawal). All of these issues that belong to the present have one thing in common: no parliamentary debate.

The focus on civil rights that calls for the fulfilment of state obligations is obscured today by Presidential and Prime Ministerial sermons on the primacy of duties over rights where citizens are concerned. This insidiously inverts the rights-duties connection to one where the majoritarian state at once asserts its ‘right’ to force citizens to perform their ‘duties’, and abandons its obligations to govern under the Constitution – morphing the citizen into a subject in the process, a trend Kannabiran untiringly red-flagged.

If we speak of religious minorities, illustrations of the precarity of minorities in India today are legion. The Supreme Court is now hearing the matter of the remission of the convicts in Bilkis Bano’s case. We have seen the acquittal of those accused of murderous attacks on Muslims in Gujarat in 2002 – Maya Kodnani and others. And we have witnessed with horror the murders by the state on the streets of Uttar Pradesh, the hijab petitions. The lives of Muslims is rendered increasingly precarious and at risk every single day, in their homes, on the streets, in schools and colleges, and certainly in institutions of the state – and we are being reduced to passive bystanders. Maulana Azad, the Mughals and Darwin’s theory of evolution have disappeared from textbooks.

We are wading through perilous waters. Looking at minorities more broadly, the state’s position on LGBTQIA communities especially in the matter of judicial appointments, and on the question of gender equality in marriage is extremely worrying. Umar Khalid, Gulfisha Fatima, Sharjeel Imam and so many others continue to be held indefinitely in custody with no justification. We know the experience of journalist Siddique Kappan.

I would like to believe that all is not lost. We are wading through perilous waters. The resistance is there for all to see.  Like my father used to say, “we have to stem the rot” and do everything it takes to do that.

States have always only conceded to demands haltingly and reluctantly, and have resorted to physical violence with impunity. Rights struggles have always worked in hostile environments, and struggles are always Sisyphean. The refusal to comply is not new. We saw it with the Bhargava Commission on encounter killings in 1978, and with the Hyderabad Disha encounters case in 2019.  Also, encounters, conspiracy, sedition, the disabling of judicial commissions of inquiry - these are of 1970s provenance. 

Yet there is an important difference: Brazen attempts to overawe courts have reached a new peak. Article 352 is the method of the government now. Governments can refuse to comply with orders by courts to produce documents. Governments can refuse to clear judicial appointments. Governments can publicly spar with courts. Without doubt, this is the most difficult struggle of all – for the petitioners, the Bar and the Bench.

It only brings home to us the truth of Kannabiran’s lines that ‘the struggle is its own reward’ – no victory is ever done and dusted. The struggle for a humane, just world – a struggle to protect the Constitution and the social order mandated by the Constitution - that must keep communities-in-struggle going. 

In 1971, Nikhileshwar, Jwalamukhi and Cherabanda Raju – the Digambara poets - were arrested under the Andhra Pradesh Preventive Detention Act, 1970. Then State Home Minister J Vengal Rao declared in the Assembly that these poets are dangerous because they are ‘verbal Naxalites.’ Arguing in their defence, Kannabiran persuaded the court to witness the performance of revolutionary poetry:

"The hearing was totally uninhibited and free. The courtroom was packed and our request to permit the poets to read out the poems impugned by the detention orders was acceded to… [T]he best was Cherabandaraju’s reading. It was a fine satire on Indira Gandhi’s socialism set to rhythm and tune. This device demonstrated the untenability of the detentionorders against these three poets." (KGK, Wages of Impunity, p. 300).

Coursing through Kannabiran’s work is an inimitable and irrepressible sense of humour that is by all accounts one of the most memorable aspects of his court appearances. He was a captivating performer. Dense arguments interlaced with humour held courts in rapt attention. While it is impossible to dwell on this at any length, for those who knew him and had seen him at work in court, this is an image that endures. Even in this, he ruptured the staid and stiff construction of ‘appropriate lawyerly conduct’ making him utterly accessible to all. Since we are speaking about state practice, I will recount a well-known and oft-repeated instance:

"This is a case of a police officer Alfred, who took the witness stand as the investigating officer in the (Naxalite) Secunderabad conspiracy case. Mr. Alfred, during cross-examination by Kannabiran, held forth in great detail on the extensive research he had done and libraries he had visited to prepare the voluminous First Information Report (FIR), being led on by the defence counsel. No sooner had he finished, Kannabiran said to him loudly and for all to hear, ‘Thank you Dr. Alfred.’ Whereupon, Mr. Alfred responded spontaneously, ‘I am not a doctor. Why are you calling me ‘doctor?’. [I always winced at this point in his multiple re-tellings of this story, because anyone who knew Kannabiran knew that Alfred had bitten the bait]. Kannabiran then turned dramatically towards him and said with a flourish of his hands (a detail I know from his theatrical re-tellings): ‘I am conferring a doctorate on you. What you have written is a PhD thesis, not an FIR.’"

“During one of my trips to Delhi around this time, Arun Shourie and I went to Connaught Place for lunch. On reaching there, we found Naxalite leader Satyanarayan Singh waiting for us. He was a Naxalbari-era leader from Bihar who had founded a new party after differences with Charu Mazumdar…This was the first time I met him and at the time I think he may still have been underground. As soon as Arun Shourie introduced him to me, he rose, held my hand and said, ‘Kannabiran, Prosecutor of Prosecutors’.” (The Speaking Constitution, pp. 55-56)