One World

Guest Post by Kalyani Ramnath

 

Manu Bhagavan’s ‘The Peacemakers: India and the Quest for One World’ provides a compelling account of India’s engagement with international institutions from the 1940s to the 1960s. The title of Wendell Wilkie’s book which Nehru encountered in the early 1940s is used as a means of organising the ideas that were propounded by several political notables during the last days of the British empire in India. It is, according to the narrative in this book, not only the rallying point for India’s international affairs programme, but also for the debates in the Constituent Assembly. One World is about a global community that is free from exploitation and war, and one that recognises and celebrates differences among nations. Set against the backdrop of the World Wars, the Indian political elite, especially Nehru and Gandhi, argued that colonialism in India was incompatible with the global outrage against fascism. One World placed human rights in direct opposition to fascism and colonialism. The narrative ends soon after the Sino-Indian war in 1962, against a world that had not fully grasped the import of Nehru’s “cooperate or perish”. The pace of the writing reflects the urgency of these times – the clamour for an international consensus on universality of human rights, the realpolitik between US and Britain on the colonialism question and Lord Mountbatten’s fasttracking of the British departure from India. The last man standing, in this version of the early years of the Indian republic, is Vijayalakshmi Pandit.

Bhagavan’s incredibly impressive work, which extended over twenty archives all over the world, shows not just what ideas about human dignity migrated, but answers important questions about how and why this “migration” happened. There is admittedly a Nehru-Gandhi narrative at the heart of the book, but the book focuses equally on Vijayalakshmi Pandit, Hansa Mehta and to a lesser extent Kamaladevi Chattopadhyay as key players. They are portrayed as working towards a Nehruvian vision, but with their distinctive clarity of purpose and a consistent negotiation strategy - whether it was Pandit at the United Nations General Assembly or Mehta at the Human Rights Commission. Further, it illuminates Indian constitutionmaking as much as it provides the historical context for international affairs. Even as Nehru spoke in the Constituent Assembly about the need to treat nationals and non-nationals equally, he drew upon India’s successful experience gaining international support for the Ghetto Laws in South Africa. Hansa Mehta’s experience with the Human Rights Commission that drafted the Universal Declaration of Human Rights might have been brought to bear, one may conjecture, on the Fundamental Rights Sub Committee that was entrusted with drafting the Fundamental Rights. Not unlike international developments, the Fundamental Rights Sub Committee votes to split up internationally accepted human rights into the Fundamental Rights and the Directive Principles of State Policy. The former would be enforceable in courts, the latter would not be. Both KM Munshi and Hansa Mehta were members of the Sub Committee and supporters of One World. However, the transcript of the Debates show that it is not merely Nehru who is the strongest proponent of the Directive Principles, but Ambedkar; it is not merely Nehru who suggests that the Directive Principles achieve primacy over Fundamental Rights, but BN Rau.

In addition to providing a fascinating account of the multiple registers on which law and politics engage, Bhagavan provides a historical context for the emergence of several grand debates around the notion of human rights. For instance, if national sovereignty were used to cloak human rights violations, colonialism and apartheid would be the unhappy fallout. Again, although legalisation of notions of human dignity had taken place, through international covenants and national constitutions, it left the question of their legal enforceability unanswered. Both Nehruvian and Gandhian resonances with the ideas in One World rethought the distinction between rights and obligations.

Worth a close read.

Dignity as an Expressive Norm: Neither Vacuous nor a Panacea

In this article published in the recent volume of the Oxford Journal of Legal Studies (unformatted SSRN version available here), I have discussed the role of the concept of dignity in human rights law. This piece is an intervention in a debate where on the one hand the proponents of dignity see it as a useful tool which solves the most important (if not all) of the practical and theoretical problems in human rights law. Arguing against this sympathetic position on the other side of the debate are the sceptics, who have raised troubling questions about dignity’s alleged indeterminacy, as well as about the illiberal role that it has allegedly played in certain contexts. In this article, I argue that designing a defensible and useful conception of dignity which is distinguishable from other values such as equality and autonomy may be possible, but not without addressing some genuine infirmities that the critics have pointed out. If there is indeed such a defensible conception of dignity, it is likely to be ‘expressive’ in character. I therefore argue that the legal ideal of dignity is best understood as an expressive norm: whether an act disrespects someone’s dignity depends on the meaning that such act expresses, rather than its consequences or any other attribute of that act.

SC on India's international obligations

The South Asian Human Rights Documentation Centre has joined issue with the Supreme Court in this recent EPW article. The comment is regarding the Supreme Court's anger at Teesta Setalvad forwarding letters written to the Special Investigation Team on the Gujarat killings to the Office of the UN High Commissioner for Human Rights. The Supreme Court had reportedly said that it will not tolerate 'foreign interference' in the riot cases.

The SAHRDC's rejoinder is welcome. International law obligations have been voluntarily assumed by India, and as a branch of the State, the Supreme Court has an obligation to enforce them. There is a strange touchiness in all organs of the Indian state when an international body takes up any investigative role in a matter relating to human rights. India has refused to sign any optional protocol to human rights conventions (or the Rome Treaty establishing the International Criminal Court) which have international enforcement mechanisms that go beyond mere reporting by the state. Unsurprisingly, a similar touchiness is not visible in trade or intellectual property matters. So the state worries about international enforcement of human rights norms but not trade norms - this cherry-picking makes the postcolonial narrative which highlights the divide between the global North and the global South look like an excuse to avoid human rights scrutiny rather than a principled opposition to an unequal global order. Especially at a time when India is actively seeking greater role in the international order, it must recognise that a position of Indian exceptionalism to international human rights scrutiny will become increasingly untenable.

Tributes: For and by KG Kannabiran

The Hindu recently carried a tribute to KG Kannabiran by Menaka Guruswamy which draws on her personal encounters with the activist lawyer. In her tribute, Guruswamy refers to the passing of K. Balagopal and the work that Mr. Kannabiran and Mr. Balagopal did together in many fora, including the PUCL. When K. Balagopal passed away, Mr. Kannabiran wrote a moving obituary (published in the EPW in November 2009) that also documented many significant milestones in the history of the human rights movement in India. Re-reading Mr. Kannibiran's tribute, strikingly titled "A One in a Century Rights Activist," one finds many examples of how these two activists joined forces to combat the forces that they felt were vehicles of injustice.

Guest Post: Mr. Kannabiran's contributions to Human Rights

The following guest post has been contributed by Arvind Narrain, of the Alternative Law Forum, Bangalore. It is based on a presentation delivered at a meeting organised by PUCL Bangalore on January 08, 2010 titled 'Celebrating the Life of Kannabiran'.

Clearly Mr. K.G. Kannabiran was, as Sudhir Krishnaswamy put it in an earlier post, 'the doyen of the human rights movement in India'. Along with Mr. Balagopal, he was one of the two greatest sources of inspiration for human rights movements and struggles in India. Though a large majority of Mr. Kannabiran's work was in the local courts in Andhra Pradesh, in terms of his imagination he was truly global and transcended the limits of Andhra. There really is no one who can fill the void left by such an eminent human rights lawyer with a vision and an imagination which traversed horizons beyond lawyerly thinking, fed as it was by literature and philosophy. We will miss his presence marked as it was by a fierce commitment to the cause of the underprivileged as well as his erudition that was able to master subjects as diverse as the philosophy of Albert Camus to the travails of A.K. Gopalan. It is a loss which we feel deeply as there is no one who comes close to Mr. Kannabiran for the manner in which he combined a deep learning with a fierce commitment and extraordinary skills as a lawyer.

I went back and re-read The Wages of Impunity: Power, Justice and Human Rights, (Orient Longman) which is a collection of some of his writings that reflects the range of his work as well as his intellectual concerns over the years. The book provides an insight into law from the perspective of someone who saw the law as it worked itself out at the grassroots level upon the lives of those the Indian state deemed to be dissenters. To those who have not read his work, it is well worth reading and for those who have read it , it bears re- reading. I have quoted extensively from this work, in order to provide a flavour of some of the ideas and work of Mr. Kannabiran. This is an attempt to share some of the insights, inspirations and ideas we have learnt from his lifetime's work.

First, Mr. Kannabiran was a strong defender of the values and ideals rooted in struggle which in his opinion, animated the Indian Constitution. As he saw it,

A constitution framed after a liberation struggle or a struggle for independence is, like poetry, emotion recollected in tranquility. It is a severance from the past, a termination of imposed suzerainty and the setting up of a political sovereignty of one's own people. It rests on a proclamation of legal discontinuity. (pg. 18)

His arguments in court always referenced the Indian Constitution as embodying values and rights which were something that the Indian people gave unto themselves. For someone with such a strong constitutional grounding, the inevitable question he was asked repeatedly was how he came to defend people who might not subscribe to the basic liberal values of the Indian constitution. This was a question which Mr. Kannabiran faced repeatedly both inside court and outside. The thinking was always that some people by their very conduct had forfeited the right to deserve any human rights. This was a form of thinking which was deeply repugnant to Mr. Kannabiran. As he memorably put it:

The one test of belief in principles is to apply it in cases with which you have no sympathy at all. (p 37)

When asked by a judge why he was defending people who had no faith in the Indian Constitution, his memorable response (which I was privileged to witness) was : "Your honour, what is on trial is not their political beliefs but your political beliefs."

While there is a genuine concern that the scope of constitutional struggles was limited by the framework of the Constitution itself, Mr. Kannabiran's work illustrated its radical potential. He felt that any critique of the scope of constitutional work had to be rooted in a context. In his view,

In a perpetually misgoverned society any movement for good governance and governance according to law becomes rebellion. (p11)

Secondly, in Mr. Kannabiran's opinion, rights were to be understood historically. As he put it:

A constitution is a political document which gives legal content to a set of pre existing rights, secured politically by people's struggles. Rights have always never been acquired, never granted. Freedom was acquired by the people from the British and not granted to us by the Indian Independence Act, 1947. (p.41)

When Mr. Kannabiran described rights as a product of struggle, he meant that the way rights worked in India, they were never there for the asking but accrued through constant and ceaseless effort. In his words,

Of significance here is the assumption that rights do not inhere automatically in citizens. A right becomes available only when, through litigation , a certificate is obtained from the court allowing the citizen to speak, write, assemble and move as an assembly and stating that such activity does not disturb public order or the security of the state. (p.8)

This idea - that rights derived their legitimacy or authority from the fact that they were a product of a people's struggle - formed the very foundation of his work and thought. To contest the Supreme Court's decision in ADM Jabalpur, Mr. Kannabiran drew on this understanding to say that the state had no authority to suspend the right to life as the right to life was not granted by the legal document called the Constitution but merely recognised by it. In this understanding of deriving the legitimacy of rights from struggle, Mr. Kannabiran's view was very close to that of Mr. Balagopal.

Thirdly, it must be emphasised that Mr. Kannabiran's lifelong struggle was against what he called impunity. The fact that the state could, with such ease, become the supreme law breaker or, as he called it, 'the terrorist,' was his abiding concern. His wide experience made for some particularly apposite observations on the Indian criminal justice system. To understand the role the police play in criminal justice, he cites the judgment of Justice A.N.Mulla of the Allahabad High Court(State of Uttar Pradesh v. Mohd. Naim, AIR 1964 SC 703. Ibid. p. 70):

Somehow the police force in general, barring a few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law. At least, the traditions of a hundred years indicate that this is what they believe. If this belief is not rooted out of their minds, there is hardly any chance of improvement... I say it with all sense of responsibility, that there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force.

To recent revelations which show that the police concocted false cases against Muslims with respect to the Mecca Masjid, Malegaon and Samjauta Express blasts, his observations on the way the Indian criminal justice system operates strike a chord:

The history of tackling dissidence and crime shows that torture and confession have been the twin engines of the legal system( Kannabiran, p.106)

The forms of illegal action undertaken by the state, be it torture or forced confessions, had sinister implications as Mr. Kannabiran noted. Quoting Justice Brandies:

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example... If the government becomes the law breaker, it breeds contempt for law; it invites every man to become a law onto himself; it invites anarchy.(p.72)

In Mr. Kannabiran's viewpoint, the deep rooted nature of impunity arose from the state's unwillingness or inability to tolerate dissent. Turning again to his words:

Politics is treated as a crime. The subversion of law begins with the reduction of politics to a crime. After such subversion the law becomes a pretext for violence.(p.10)

Fourthly, Mr. Kannabiran was a strong critic of the fact that colonial rule still continued in post independence India. In his writing, the powerful image he drew upon to make the larger point that we as a nation are bound by the laws, institutions and mindsets of a colonial era, was the trial of A.K Gopalan for hosting a flag and making a speech on Indian Independence day for the offence of sedition against His Majesty, the Emperor! As A.K.Gopalan says

I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth, like Nehru, Gandhi and such leaders, have tried to create enmity against the Emperor's Government. Mahatma Gandhi has been proceeded against under Section 124-A IPC for working towards the same end.....'(p.31)

Of course, in our minds, the situation of Binayak Sen and the innumerable others against whom this law continues to be invoked in independent India bespeaks the nature of the task which still remains.

Fifthly, Mr. Kannabiran articulated what he called the idea of insurgent jurisprudence. That is, he believed that arguments in court were never just a means to achieve a result but that the means were important intrinsically as well. He strongly believed that the courts are a public arena, and arguments in court are a mode of carrying out public education as well as pushing the limits of the law. As such philosophy, history and oral poetry constituted insurgent material which were deployed in the Courts by Mr. Kannabiran. He believed that arguing in court was a way of educating the judges as well, and as such the 'result' was not all that defined what insurgent lawyering was about.

Finally, one should note that Mr. Kannabiran was a person of enormous erudition and was thus enormously well suited to the role of a public intellectual. He spent his lifetime reading widely and voraciously. As he puts it,

'Much of my own understanding and clarity has come from what I have read (voraciously) through the years.(p.x)

In my view, the wide reading in literature, philosophy and law combined with his experience gave Mr. Kannabiran a truly unique perspective. He was able to link up the concrete and local to the global and hence communicate issues with multiple resonances. He quoted Kundera, Camus, Dworkin and Pashukanis and incisively analysed Supreme Court judgments using material from, among other things, the Constituent Assembly debates. This is what makes his perspective global. As activists in India, a country the size of a continent, we sometimes share with the US a perspective, which is inward looking. Mr. Kannabiran was a corrective to any insular vision of human rights with his erudition, empathy and wide perspective.

What would taking forward his legacy mean?

To me, this means a commitment to a practice of law rooted in a concern for the marginalised, and a devotion to a lifetime of reading and work in the broadest sense. It would also mean taking forward a critique of the regimes of colonial continuity (especially in the criminal law) and aspiring to 'define power and thereby make it accountable and enhance rights'.(p. 4) His legacy is life-affirming and in a world which sets up self aggrandizement and self interest as an ideal ,his life provides a powerful counter. In the preface to 'Wages of Impunity' written in 2004 he had noted:

'If they (his writings) provide a single insight or inspiration to anyone who is seeking the tools to fight for a principle, then my labours will not have been in vain.'(p.4)

I think the greatest tribute we can pay him is to say that his work has not been the source of a single insight or inspiration, but has instead unleashed multiple insights and inspirations. The inspirations have flowed from a single chance encounter with Mr. Kannabiran, engagement with his work and of course the fact that we are today privileged to watch the moving historical documentary( The Advocate by Deepa Dhanraj) on the life and times of Mr. Kannabiran. Our challenge is to constantly multiply the insights and inspirations and take forward collectively the legacy of Mr. Kannabiran's work.

Israel's Policies and India's Attitude to Kashmir

Guest Post: K.P. Nayar

For many years, Israel has been criticised by the UN Human Rights Council, Amnesty International and many national governments for its policies towards the West Bank and Gaza.

A group of Indian journalists who recently visited Israel were told, at least somewhat to their surprise, that India's handling of the Kashmir unrest has been no better, if not worse. K.P. Nayar, the chief diplomatic correspondent of the Telegraph, discusses this issue in an article that he has sent to us. The full article is available here.

Courage Craft and Contention: Human Rights and the Judicial Imagination (Transcript of public lectures by Justice A P Shah and Prof. Baxi

On the 12th of June, the Alternative Law Forum (ALF) celebrated its tenth anniversary with a public lecture by Justice A P Shah and Prof. Upendra Baxi on the topic Courage Craft and Contention: Human Rights and the Judicial Imagination.

We are happy to share the transcript of the lectures here.