Noor Ejaz Chaudhry
Say yes to freedom, peace, dignity and respect for all. Say no to terror and repression against all living beings. In the beginning was freedom.
Jolly Kanjappu, The Berlin Wall 1990
This quote sets the tone for K.G. Kannabiran’s acclaimed book, The Wages of Impunity, as he revisits human rights violations occurring as a result of the postcolonial Indian state’s struggles to retain power and suppress people’s resistance in realising their fundamental rights. He offers a personal account entwined with an analysis of how the legal system, in conjunction with the judiciary, executive and military, has validated atrocities committed with impunity. He insists that this link between power, law and brutality is a colonial framework perpetually embedded in India’s legal system. Essentially, India continues to utilise the same system even after its independence from British Raj, ensuring continuity between the colonial and postcolonial state through an internalisation of colonial politics of law and violence.
Defining the ‘state’ to be institutions forming it, i.e. the police, judiciary, legislature and executive, Kannabiran’s key argument is that the postcolonial nation has played a central role in enforcing brutality against its people. In this context, he considers the interrelation between state institutions and how each validates the other in justifying collective state power. Even the watershed achievement of the development of the Indian Constitution, 1950, promising transition of individuals from being subjects to citizens, could not help realise the dream of freedom.
This is precisely because the state machinery not only validated existing repressive colonial laws but has also enacted modern legislation leading to the suspension of individual liberty. The idea of suspension of rights, for instance, enumerated in Chapter III of the Indian Constitution through states of emergencies, has been used as an instrument to undertake citizens’ brutalisation. This, however, is a grave violation of the Constitution which is essentially a hard-earned document of people for their struggle for independence. Thus, it cannot take away fundamental rights on the pretext of maintaining public order. Kannabiran, however, also recognises that the Constitution itself validates the derogation of human rights via Articles 22, 352 and 353, enacted for maintenance of security and order, eventually creating a paradox.
Kannabiran uses preventive detention legislation, encounter killings, anti-terrorism legislation and emergency powers to exhibit how the Indian state has committed atrocities against its people, and how the judiciary has validated this through jurisprudence. He argues that courts have frequently necessitated this brutality on grounds of national security and public order, stating that these are broad and generic terms validating carnage by the state. However, he concludes in each of his chapters that this form of brutality has found it utility only only in repressing political opposition and political movements. In Chapters 1, 3 and 4, he links this phenomenon to the colonial exercise of state power, giving examples of the Rowlatt Acts, 1919 and the Meerut conspiracy case where emergency powers were used to suppress political dissent.
For anyone aspiring to become a human rights advocate in a South Asian legal system that has adopted repressive colonial laws, Kannabiran’s book serves as an account that one can empathise with and a code that one draws inspiration from. He asserts the need to break from colonialism’s shackles and expresses the desire for an aspirational Constitution, serving civilians’ individual liberties. Throughout the volume, while criticising the judiciary for validating actions that have curtailed human rights in India, he aptly discusses how this is, in fact, caused by the adoption of a colonial structure in the post-colonial state.
We, however, cannot ignore that Kannabiran wrote his bookin 2004, in the fresh aftermath of 9/11, when the leftist movement in South Asia faced the paradox of recognising the existing structurally biased system or perceiving it as an opportunity for a liberated human rights framework. The recognition of an oppressive legal system was omnipresent, but reliance on it was important for lawyers representing those aggrieved by legislation imposed in a state of emergency.
Although Kannabiran has not drawn from the concept, one can critique that his bookis both a rejection and acceptance of Fanon’s ideas of decolonisation and national culture. While he argues that India’s current culture is a creation of the people’s resistance against their colonisers, he also agrees with the need for armed resistance, against the state, seeking total decolonisation and the departure of Indian state from the colonial continuity haunting it. However, he digresses with Fanon’s idea of resistance by returning to ‘the barbaric culture’ pre-colonial nations ascribed to. In fact, Kannabiran tries to convince readers to imbibe democratic values as opposed to despotism for the achievement of people’s rights in India.
It is important to note that Kannabiran places the Indian Constitution at the epicentre of his book. Therefore, every argument made against the state hinges on the document, making it a summary of the will of the people. Yet, Kannabiran’s reliance on the Constitution for human rights implementation is almost too idealistic. He relies on it as the guiding frameworks for human rights and civilian freedoms in India but ignores provisos such as the circumstances constituting derogations from rights in exceptional circumstances. Therefore, the argument that these freedoms must be implemented fully in their matter is an idealistic expectation to be kept from an oppressive state. The shift from human rights in a time of crisis is a universally recognised phenomenon borrowed from colonial legacies. It is perhaps the fact that this expectation comes from a communist advocate, who simultaneously recognises the problematic structure of formal law, is what confuses the reader.
Furthermore, Kannabiran places too much emphasis on the concept of individual liberties and the will of the people. He states that the oppressive state can only be questioned through public opposition, and its accountability can only be undertaken by the people. He recognises the supremacy of civilian will and states that ‘modern’ India is constructed by the people’s desires. This argument, however, can be critiqued in terms of Michel Foucault’s governmentality. Governmentality supposes that the state in modern times imposes a form of governance that informs people’s behaviour, how they govern themselves and how they are meant to be governed. Kannabiran’s book seems to be an implied rejection of this idea, arguing that free will continues to exist, that people recognise that violence imposed through the law is a curtailment of their freedoms and that civilians have upheld resistance against all such forms of government.
The argument, however, may seem incomplete in light of governmentality as states, through the imposition of violent power, are still able to instil a sense of fear in the population against retributive justice, thus enabling self-governance. Simultaneously, the state is able to inculcate trust within the same population on the touchstone of state necessity. In idealising free will and individual liberty, Kannabiran ignores that advocates of state necessity continue to exist outside the formal structure and many validate executive brutality against dissidents for their protection. Therefore, while his argument for civil power and supremacy in light of resistance may be true, it is simply incomplete to assume this as the only realm of civilian governance.
In conclusion, despite its limitations Kannabiran’s book provides a much-needed perspective by a lawyer regarding the impact of colonial laws legitimising state power and human rights violations. His assessment of specific legislative provisions, used by the postcolonial nation to suppress civilian dissent, provides a nuanced analysis of how colonialism has left India in turmoil. This struggle lies between balancing sovereignty and breaking the colonial chain, but also using the same legacies to curtail dissent reared against the nation. Kannabiran not only poses as an advocate of the law but also as its critic, reminding readers that while law may be oppressive and colonial in some forms, the fundamental freedoms embedded in it allow civilians to find recourse for the brutality the state arbitrarily uses against them. As a lawyer who has used the same legislation which posits arbitrary punishment against clients for their very protection, I am able to understand Kannabiran’s position. It may be unfair to rely on a liberal human rights framework, but it is perhaps the only aspiration lawyers in a postcolonial era can trust for the implementation of the rights of individuals who are oppressed for dissenting against the state.
The Wages of Impunity: Power, Justice and Human Rights
Orient Longman, Limited, 2004
Noor Ejaz Chaudhry is a lawyer and a teacher of human rights. She has completed her LLM from SOAS, University of London, as a Chevening Scholar in 2018.