The thoughts of Balagopal, Kannabiran and Justice Sachar
Every country has its own trajectory when it comes to how an international declaration such as the Universal Declaration of Human Rights ( UDHR) becomes relevant at a national level. In India the UDHR took roots through the text of the Indian Constitution Chapter on Fundamental Rights which reflected some of the principles of the UDHR. It also took roots through courageous human rights activism. In this section we have extracts from three people who influenced the way we think of human rights in India, namely K. Balagopal, K.G. Kannabiran and Justice Rajindar Sachar.
Balagopal was the founder of the Human Rights Forum and one of the few people who was both a human rights activist who participated in numerous human rights fact findings , a lawyer as well as someone who wrote incisively on human rights practice and theory.
K.G. Kannabiran was an eminent human rights lawyer whose contribution to the legal practice of human rights right from the emergency onwards was incalculable. He was the President of the PUCL and the author of two important books on human rights namely, The Speaking Constitution and The Wages of Impunity.
Justice Rajinder Sachar was a President of the PUCL and the former Chief Justice of the Delhi High Court. He had a lifelong passion for human rights and we extract below an open letter written by his father during the emergency to Indira Gandhi criticising the Emergency for which his farther was imprisoned when he was eighty two years old ! Justice Sachar’s career in law, the judiciary and human rights activism was undoubtedly inspired by his father, to whom along with his mother and wife he dedicates his autobiography.
- Balagopal
“Various sections of the populace acquire their rights through movements. In history these movements need not always be organized political movements. They are the characteristics of the modern age. In the past they took place as bhakti movements, as unorganized struggles, as just ‘anarchic’ ones and in many other forms. On the whole without some struggle or agitation rights do not accrue. A right takes shape in some people’s minds, in their thoughts. Then it spreads into the social consciousness. It gets recognized in the political practice. At a particular phase it registers victory, politically. That means the law, the constitution, the traditions, the culture all these recognize it as a right. They will institutionalize it in one form or other.
The story does not end there. There will be many loop holes in that institutionalization. Limitations will be there. After that in its implementations there will be many lacunas. The agreed to right is trampled upon everyday. As the crisis in society goes on increasing efforts will be made to get rid of it totally, to remove it. The duty of the civil rights movements lies herein. Efforts must be made to remove the shortcomings in the method of institutionalization of a right that has been achieved ty the people through struggles. It should strive hard to safeguard that the rights are not by passed in their implementation. It should remind the people everyday the people’s struggles behind those rights. It should keep them live. The rights that are to be achieved in future, even if they are only in their initial stages now, must be propagated.”
Interview with Janam Saxi, www.balagopal.org
“The idea that governance should take place within the framework of fair norms and reasonable principles is a civilisational heritage resulting from a history of struggle, questioning and progress . The inviolability of rights is a principle of public morality that indexes the degree of progress achieved in the organisation of human affairs. It is this alone that can explain the imperative tone of one’s protest at the trampling upon anybody’s rights by the Executive.”
Balagopal, Civil liberties movement: A philosophical retrospect (https://balagopal.org/the-civil-liberties-movement-a-philosophical-retrospect/)
“The denial of democratic rights such as for instance the rights of free speech and assembly to any individual or group in society does not only destroy the chances of that individual or group to grow and dominate society. It simultaneously destroys the values expressed by the rights denied, and the institutions responsible for guaranteeing those rights. These values and institutions may be termed ‘bourgeois’ if their historical origin and philosophical expression is traced to the anti-feudal democratic revolutions of Europe which resulted in the domination of capital over society. For the reason of that historical origin the specific meaning and institutional form of the rights do also carry bourgeois limitations. Nevertheless each such right expresses a value that is as much a lasting resource of human civilisation as the steam engine that Marx was immensely impressed by, and each of the institutions evolved by bourgeois society for the implementation of the rights (a professional and independent judiciary, for instance) embodies principles that need to be carried forward while the structural and conceptual limitations of the institutions (such as the equation of total alienation from society with judicial impartiality) are criticised and overcome. Every contemporary civil liberties struggle must strive and does strive not only to protect a given right in a given context (the right of a prisoner against torture, or of slumdwellers against eviction) but also the democratic values and institutional principles relating to that right, while critically overcoming the bourgeois expression of the notions and forms in which the principles are embodied, and the institutions in which their realisation is enshrined.”
Balagopal, Democracy and the fight against Communalism, EPW Jan 7, 1995)
2. K.G. Kannabiran
“A constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquillity. 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 the proclamation of legal discontinuity, the transition of a people from the status of subjects to that of citizens of a nation whose sovereignty is located in the people. This announcement of discontinuity we find in the Declaration preceding the Preamble to the Indian Constitution. We resolved to constitute India into a sovereign, democratic socialist republic and thereafter set out the goals which this republic had to achieve. We moulded our struggle on liberal values and the rule of law. We rejected imperial domination but not the parliamentary system, which animated the politics and history of Britain and the British people’s struggles against absolute monarchy.”
K.G. Kannabiran, The Wages of Impunity, p.18.
“In June, 1975, Emergency was declared. It was no longer possible to organise on any issue. So the only course left to us was the legal battle on the death penalty. The case was posted before the bench consisting of Justice K. Mahdava Reddy and Justice Madhusudhan Rao. By then I had to limit my arguments to legal and technical/procedural issues. I argued that their offence must be considered as arising from their political beliefs if we were to do justice in this case. I argued for a whole day that it was unreasonable to execute them as a way of delegitimizing their political struggle. Justice Madhava Reddy was a judge who always patiently listened to the arguments of advocates. Justice Madhusudhan Rao was a very good man… In the course of arguments he asked me, ‘Why should Naxalites who do not believe in the Constitution take shelter under it?’ I replied, ‘When such issues come before the court, it is your values and not their values that are on trial. It is the values enshrined in the Constitution and the values of the state that are under test.’”
K.G. Kannabiran, The Speaking Constitution, p.139)
3. Rajinder Sachar
“Apart from your political supporters, the common people of Delhi now talk in hushed tones as they do in communist societies; they do not discuss politics in the coffee house or at the bus stand and look over their shoulders before expressing any opinion. An atmosphere of fear and political repression prevails and politically conscious citizens differing from your viewpoint, prefer to observe a discrete silence, with some of them afraid of the mid-night knock on their door. […]
Must the monster of fear devour us again, the monster for the annihilation of which our beloved Pandit Jawaharlal Nehru had sacrificed all his riches, his comforts […] It is well to seek inspiration from his memorable words […]
The greatest gift for an individual or a nation, so we had been told in our ancient books, was abhaya (fearlessness), not merely bodily courage but the absence of fear from the mind […] But the dominant impulse in India under British rule was that of fear – pervasive, oppressing, strangling fear; fear of the army, the police, the widespread secret service; fear of law meant to suppress it. It was against this all pervading fear that Gandhi’s quiet and determined voice was raised: “Be not afraid”.’
The present situation looks every citizen in the face and the old surviving freedom fighters in particular. We must respond to the call. Accordingly, we propose, with effect from August 9, 1975 and regardless of consequences to ourselves, to advocate openly the right of public speech and public association and freedom of the Press for discussing the merits and demerits of the Government arming itself with extraordinary powers.”
Extract from the Open letter written by Bhimsen Sachar (the father of Justice Sachar) to Indira Gandhi during the emergency cited from Justice Rajindar Sachar, In Pursuit of Justice, p. 118. The letter was also extracted in the Shah Commission Report on the emergency of 1975-77.