[The author traces the fearless and inspiring journeys of K.G. Kannabiran and K Balagopal as members of the Andhra Pradesh civil liberties movement and as human rights lawyers.]
In the late 1960s, Andhra Pradesh witnessed a Naxalbari influenced armed struggle of the peasants to reclaim tribal lands. Expectedly, this struggle resulted in state repression in form of arrests, extra judicial killings, et al. In this period, KG Kannabiran started to provide legal representation to maoists and fought hard to highlight the extra judicial killings done by the state. While he fought as a civil liberties advocate, Kannabiran was also keen on ending the cycle of violence. Thus, even when peace talks were held between the Andhra Pradesh state government and Naxals in October 2004, Kannabiran was seen as a ‘broker of peace’. Around the same time, yet another lawyer and a committed civil liberties activist, K Balagopal was actively involved in fighting against the extra-judicial killings in Andhra Pradesh. In this backdrop, Deepa Dhanraj’s two documentaries – The Advocate, 2007 and Democracy Dialogues – A Tribute to Balagopal, 2002 & 2004 – trace the fearless and inspiring journeys of Kannabiran and Balagopal as members of the Andhra Pradesh civil liberties movement and as human rights lawyers.
The films highlight the link between law, violence, and power. On one hand, we see the violence of the state through the instrument of law. On the other hand, the films compel us to examine the violence inherent in the societal hierarchies as well as the response to the state violence by people involved in and influenced by the Naxalbari movement. Inherent in this contestation are the issues of structured inequalities that govern this perpetuation of brutality. Balagopal states that where there is structured inequality, there is a problem of rights. The assertion of rights however manifests itself in different forms – while the Naxalbari movement believed in social transformation through armed struggle, the civil liberties groups engaged within the legal framework to assert and expand the meaning of rights.
The two documentaries highlight the engagement of civil liberties lawyers in bringing about social transformation. While they use means of courts, there is also an understanding that rights by themselves do not lead to social transformation. As Kannabiran notes, we need to understand rights in the context of state power and social domination in hierarchical societies like ours. In this essay, I shall engage with the constraining and expanding power of legal rights discourse in movements of social transformation.
Politics of rights
Why does Kannabiran suggest that rights by themselves do not lead to social change? Why do we need to understand rights in the context of social dominations and state power? Rights discourse within the liberal legal framework assumes a ‘neutral’ and ‘apolitical’ potential of rights. The positivisation of rights leads to decontextualising political claims. Rights are unable to address systemic and structural oppressions given their individualistic and formalistic character. But why is the rights discourse considered to be limiting? Does it have anything to do with where the discourse originated?
The emancipatory potential of rights is questioned further given its origin in liberal legalism. Trubek, while engaging on Max Weber’s theory on law and capitalism, shows how capitalism and legalism are intimately related. He further argues that legalism legitimises capitalism and class domination. A liberal legal framework therefore does not provide sufficient scope for asserting socio-economic rights – as struggles over economic inequality would challenge legal relations essential to capitalism. Liberal democracy which accepts disparity in power/class is bound to further the cause of protecting individual rights over socio-economic rights. While this, among others, is a significant limitation of the human rights discourse, liberal rights are essential for a democratic society. Acknowledging the said limitation would only help expand the scope of the human rights corpus. While law (and legal rights) in its constitutive role supports existing social relations, it also provides a way to challenge those relationships and use the constraints of law, subversively, to negotiate and assert for social transformation.
Civil liberties discourse – negotiating with the tyranny of law
Whether it is issues of custodial violence, mass encounters, arbitrary arrests, which highlight the direct violence committed by the state, or the use of laws like preventive detention, TADA, UAPA which highlight the constituent violence of law – the violent nature of the state and the instrumentality of law is apparent. Engaging with this violence does not necessarily imply retaliation through violent revolution. The acknowledgment of this brutality is however necessary to question the moral legitimacy of law. The civil liberties discourse and the human rights discourse often question this very moral legitimacy of law despite acknowledging the authority of law. Balagopal in the documentary states how the human rights movement is a moral concern since it asserts values beyond the framework of power, domination, and oppression.
As we see in the documentaries, the Srikakulam peasant uprising against the landlords to reclaim the tribal land was an organised tribal attack influenced by the Naxalbari movement. The state attempted to thwart what it saw as a ‘law and order’ problem. The state enacted the AP Preventive Detention Act of 1970 to crush the movement which essentially stemmed from the social inequalities. So a ‘political move’ by the Srikakulam peasants to respond to a ‘social problem’ was met with ‘legal action’ by the state. The state further deployed paramilitary forces to crush the movement. Rampant extrajudicial encounters, arrests, and imposition of conspiracy charges by the state against those who were part of the movement or those who supported the movement were the state’s modus operandi. We thus see that the state laws put an end to politics by handling political movements with the violence of the law. The state deploys force as a substitute to political engagement since political solutions would require engagement with deep-rooted social and political inequalities inherent in the society as well as the state.
In critiquing the abuse of the law by the state, Balagopal states that ‘crimes’ which are a result of political acts, must be handled by the state through a political lens. The work done by Balagopal and Kannabiran as part of APCLC and other human rights organisations, essentially, at least initially, highlights this brutality of state and impunity of state violence through law. Their work exposes how the state continues to act beyond the limits of the law with complete impunity. Whether through litigation, fact findings, or rights advocacy, they show how civil liberties discourse has the potential of strengthening democratic structures by acting as ‘watchdogs’ to the state excesses. By arguing for civil liberties, within and without the courtrooms, Kannabiran points out how Preventive Detention takes away all the basic rights, while Balagopal shows how conspiracy cases are an assault on political faith rather than on a crime. Using the constitutive power of ‘rights’, the civil liberties discourse empowers the citizens on one hand and puts constraints over the arbitrariness of the state on the other.
Law, as a tool of the state, claims to empower the citizens while simultaneously disempowering them. For all its limitations, the language of rights empowers citizens to assert and claim dignity and equality. Till the aspired social transformation is achieved – both the legal rights assertion and social movements need to inform each other. The two documentaries show how Kannabiran and Balagopal have led the way through their critical engagement with law and social movements.
However, in the current political scenario, human rights defenders are increasingly facing the brunt of the law. While one draws inspiration from the fearless commitment of these lawyers and activists, the persistent attacks on them raise severe questions about the liberatory promise of the law. We are thus left with the question posed by Audre Lorde – ‘Whether the master’s tools can be used to dismantle the master’s house?’ If the state perpetuates a hegemonic conception of rights which tends to protect the social hierarchies, do we abandon the rights? Or – If legal constructs shape our imagination of social possibilities, can we use rights to restructure social relations?
Saranga Ugalmugle is a lawyer with a socio-political interest in law. She recently completed her LLM from Azim Premji University (2020-2021). The author would like to thank Shrimoyee Ghosh for her input on the piece.