[WSMDiscuss] A Conversation with Prof. Kalpana Kannabiran

Mon May 21 13:49:32 CEST 2018

Dear Friends 

Greetings! On thelink given below and also pasted here you will find a conversation with Prof.Kalpana Kannabiran. 

Do pass it on toothers in your circle/network. 

With Regards 

Umakant, Ph. D 

New Delhi 

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Weunderestimate the power of casteand majoritarian dominance: Kalpana Kannabiran

Varun Chirumamilla May20, 2018Interviews, Law& Policy interviews 

https://barandbench.com/conversation-kalpana-kannabiran/

Kalpana Kannabiran is a sociologist,author and lawyer. She has taught at the National Academy for Legal Studies andResearch (NALSAR), and currently serves as Director of the Council for SocialDevelopment, Hyderabad.

In this interviewwith Bar& Bench, she speaks fearlessly on issues ranging from the deathof Judge Loya, to the Supreme Court’s recent judgments on Section 498-A of theIndian Penal Code (IPC) and the SC/ST Prevention of Atrocities Act.

Severallaws have been enacted to protect the rights of women, children and weakersections of society in this country. Why does their implementation fall short?

Wehave not even begun to understand what the annihilation of discriminationmeans, and I am enlarging Dr. Ambedkar’s idea of the annihilation of caste hereto discrimination. The representation of those that belong to the mostmarginalised sections in institutional structures is abysmal.

In the case of women,look at every rung of the social ladder: where do you find them? To begin with,you don’t find them in the Supreme Court, and I believe this is directlyreflected in the judgments of the Supreme Court from time to time.

Why doyou say that?

Lookat the 498-A judgment. The norm and the normative is always set on the maleexperience – for judges as much as for laypersons.

I wasgoing to come to 498A a bit later but now that you mentioned it, the order saysdon’t arrest people until you have investigated the complaint, because the lawis at times being misused. What is wrong with that?

It’sthe same thing they said about the Prevention of Atrocities Act (POA Act). Infact, when the 498A judgment came, several of us (human rights and women’srights defenders) said that this was going to set a trend for future judgments.What is the empirical basis on which the Court has accepted the argument ofmisuse?

It is one thing forthe men who have had complaints registered against them (I am not even saying‘false’ complaints), to allege a malicious complaint in their own defence.

Petitioners facingprosecution can make the wildest allegations, and we saw that in the Preventionof Atrocities case as well, without any basis. But how can the Court acceptpublic morality over Constitutional morality, that too without an empiricaljustification? This easy acceptance of dominant norms points to the possibilitythat judges are trapped within a dominant, hegemonic worldview and mindset.

I have studiedjudgments on rape from the 1950s till the present. It is shocking to see thekind of language that the judiciary uses to describe rape, with a few minorexceptions. Even the revered Justice Krishna Iyer, who wasagainst the death penalty, and took celebrated stands on a number of rightsissues, called rape an “adolescent exercise” in one of his judgments. But thatpales into insignificance when we compare it to some others. There is a deeplyentrenched complicity in dominance that destabilises the most progressivelegislation – destabilises even the Constitution.

Whenyou say “forces of dominance” can I take it to mean those in the highest echelonsof the three pillars of the State?

Imean the ways in which state power is bolstered by social and political poweron the ground – by a social compact, that sanctions violence against themarginalised. Courts are often complicit in this.

Look at the SureshKumar Koushal judgment or the Kerala High Court judgment in the Hadiyacase. Kerala is touted to be one of the most progressive states inthe country, touted to have found the magic potion to make women equal. Look atthe mess the state has made in Jisha’s case and in Hadiya’s case.

The perilous momentis one where there is no separation of powers. We see that increasingly today.Right from state authorities to the police to the judiciary – they areindistinguishable from each other.

Judge Loya is a casein point. For me, it is a case about the marginalised and the course ofjustice. Judge Loya was hearing a case pertaining to a victim who was beinghunted for being from a particular community. It was an extrajudicial killing,a targeted assault, and Judge Loya was targeted for daring to adhere tojudicial procedure and the rule of law.

The Supreme Court’sdeclaration that the four High Court Judges who made statements on Judge Loya’sdeath are beyond reproach, that the bonafides of the petitioners are suspect,and that asking for a full and fair investigation is an attack on the judiciary—  is a clear illustration of social compact which includes buyinginto politics of a certain kind.

Thepetitioners in the Loya case never presented any hard evidence of there havingbeen a crime committed or any other sort of wrongdoing. All they said that itwas suspicious, and most of the petitions were based on a media report. What doyou have to say about that?

Ifit is suspicious then it needs to be investigated. By the time the case came tothe Supreme Court, a number of loopholes and discrepancies surrounding JudgeLoya’s death had come to light. Did they even look at what was placed beforethem?  All they did was question the bonafides of the petitioners.This has become the easy way out at a time when a right-wing majoritariangovernment sets the parameters for justice — question the bonafides of anyonewho dissents and celebrate those who kill those who dissent with impunity.

Isn’tit premature to say that Judge Loya was killed in the first place? 

Well,we – as citizens and human rights defenders – are putting the onus on you. Youshow us that he was not killed.  I really think this is a citizenmoment, where one has to turn it around and say, we are charging you on thebasis of what we believe is evidence, or pointing you towards the big holes inyour story. You demonstrate to us, on what basis we are wrong in ourallegation. I am not willing to accept that just because you are a judge whatyou say is right. This is the civil liberties method – fact-finding. Thepetitions were painstakingly put together after having gone through severalaccounts of the incident and related reports. How is it that you did not botherto look at any of that?

Coming back to thequestion of marginality and the rule of law, Justice Basu and I were part of ateam that did several sessions with 300 judicial officers in undivided AndhraPradesh between 2004 and 2006. Repeatedly, the account that we heard fromserving officers was that the CrPC has enough and more provisions that offereffective protection to complainants, witnesses, accused, investigators. But ifyou don’t allow judicial officers to function as they should, what is the useof having a good CrPC or special legislations where you have expanded thedefinition of caste atrocity and rape?

Whenyou say “you” don’t allow the judiciary to function, who are you referring to?

Ispeak of interference from those in political power, who are aligned with andoften belong to the dominant castes, the majoritarian community, and inevitablymale.

Thismay happen in the lower judiciary, but do you think the higher judiciary can beinfluenced as well?

I think it wasProfessor Upendra Baxi who observed that the descriptors “lower” and “higher”judiciary do not make sense. It’s just a matter of different jurisdictions.There are courts with original jurisdiction and those with appellate jurisdiction;and there are different branches of judicial institutions presided over byjudicial officers/judges, as the case may be.  By saying “lower” and“higher” you are creating a hierarchy and naturalising the attributes in thathierarchy – i.e. the higher is more meritorious than the lower. The good oldgraded inequality, to invoke Dr. Ambedkar yet again.

This is not true. Thereality, in fact, is quite mixed. The issues before us today don’t concern themagistracy. All of them concern what you call the “higher” judiciary. The fourjudges who held a press conference in January did not express views against the“lower” judiciary.  Judge Loya on the other hand, was part of the“lower judiciary”. We can multiply examples, but I rest my case.

Comingto special legislation like the POA Act and Section 498-A. Let us set theempirical basis for misuse aside for a moment. These were legislations wherethe arrest was mandated without investigation of complaints. Given that fact,do you think some good came out of these orders?

No,absolutely not. The reason why such legislation mandates arrest prior toinvestigation is precisely because of the way in which these atrocities happen.I have lived through the times of the Chunduru and Karamchedu massacres and anynumber of others. Countless cases of domestic violence, murder of wivesand cruelty for reasons of dowry.

It is impossible fora complainant to proceed with the complaint if the accused is at large. It isimpossible not only for fear of intimidation, but there is a real danger tolife. A lot of times we totally underestimate the power of caste andmajoritarian dominance.

These are violentpeople who have an utter disregard for the law and are asking to be treatedoutside the framework of the law – which means don’t arrest even if the lawmandates it.

If you look at theSupreme Court’s decision on the POA Act, what I found striking was that the useof words like “malicious complaint,” “malicious prosecution,” “maliciouscomplainant”, “instrument of blackmail” “personal vengeance” and settle scoresarising from “personal vendetta”, by “scheming, unscrupulouscomplainant” – all of the accusatory terms target the SC or STcomplainant; “unsuspecting,” “innocent” etc. by default only fall on the non-SCor non-ST.

As a judge, you knowwhen you are making these statements that complainants under the POA Act canonly be SC or ST. Is that not targetted abuse of an SC person? You are doing itwillfully and with full knowledge in the written text of the judgment, usingyour power as a judge to make demeaning statements against a certain class ofpeople. The use of power to target an SC person and verbal abuse specificallytargeting persons belonging to Scheduled castes are both covered under thedefinition of “atrocity” under the Act.

Ironically, at nopoint in the entire order does the Bench link the POA Act to Article 17 of theConstitution. The POA Act is not merely another special legislation. It is aspecial legislation that flows from the Constitutional Protections in Part IIIagainst untouchability and caste discrimination. How was it possible that thetwo were not linked by the Court in its interpretation in thiscase?  Dr. Ambedkar was misquoted – the selective and distorted useof his words was deeply troubling.

I am really worried.Our Constitution is no longer in the hands of those who instill any confidencethat they will protect it. Justice HR Khanna wasresurrected and celebrated in the right to privacy judgment, andousted from judicial memory in the more recent ones we have spoken about.

Whatprompted you to study law? Can you tell us about how your father influenced/inspiredyou to do the kind of work you do?

Myprimary discipline is Sociology. My encounter with the law happened much beforeI studied it. I did go on to study it and get myself a teaching degree but thatwas much later.

I grew up in a homewhere fact-finding missions, encounter deaths, illegal detention of teachersand students, torture by the police during the Emergency were discussed in ourdrawing room, at our dining table and with friends whovisited.  Rameeza Bee who was raped in police custody and her husbandkilled in custody was around my age and I watched my father piece together theevidence to present before the Muktadar Commission. The witnesses to tortureand encounter deaths during the Emergency stayed at our home before being producedbefore the Bhargava Commission.

And my father knew nofear. My mother didn’t either. And both of them always discussed their work inour presence. So we children imbibed the law – the Constitution – in oureveryday life at home. But beyond that, my father was my teacher and my bestfriend. In fact, he is to date my only teacher – the only one who has impartedlearning and who learnt from me, and my questions.

I watched him speakfirmly, gently and persuasively with his clients; I sat in on his discussions;  Ifollowed his gaze at his bookshelf, to see which book he was obsessing about;followed his markings in texts, and tried to understand why he had underlinedwhat he did and read his written arguments to understand how one might build areasoned argument.  On any issue. I learnt the ethics of workfrom him.

Therehas been a crackdown on dissent across campuses in the country. Your views onwhy this is happening and how the trend can be bucked?

What is happening on campuses is partof what is happening in our country today.  The rise of a newimperialism and colonisation in the name of religion – and all other forces arealigned with this.  

Seventy years afterindependence, I would say we need a second freedom struggle to liberateourselves from the capture of our country and collective conscience byobscurantist, violent politics and governance. We need a deep reinstatement ofour Constitution. It is a challenge for citizens and courts alike. 

And students andcampus communities across the country must continue to be at the forefront ofthis resistance because universities and higher education are major targets ofthis colonisation. 

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My final words of advice to you are educate, agitate and organize; have faith in yourself. With justice on our side I do not see how we can lose our battle. The battle to me is a matter of joy. The battle is in the fullest sense spiritual. There is nothing material or social in it. For ours is a battle not for wealth or for power. It is battle for freedom. It is the battle of reclamation of human personality. 
B.R.Ambedkar
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