Defending Human Rights, Challenging State Impunity : Henri Tiphagne's Talk At Kannabiran Lecture

Abstract: Kanna advanced the argument that there should not be any form of prior sanction for prosecuting a policeman in a Human Rights Court. The fact that there is the establishment of a Human Rights Court at the district level under the protection of Human Rights Act is by itself a statutory sanction.   No separate sanction is required. He was one of the fiercest opponents of the constitution of the NHRC in India. It was his view that criminal courts in the country need to be strengthened, and violations fought through the courts. Any other form of dealing with human rights would not, in his view, help in the promotion of a human rights culture in the long term.

Mr. K.G. Kannabiran had a lot in common with the city I work in. Kanna, as we affectionately called him, was born in the city of Madurai and very interestingly in the Central Jail of Madurai because his father Mr. Kandala Gopalaswamy Iyengar, worked as a jail doctor here. He, therefore, had a very special affection for Madurai – the people of Madurai, the streets of Madurai. My association with Kanna started when I was a law student (not yet a lawyer) who worked with the PUCL, building a unit of the PUCL in the city of Madurai guided by Dr. Venkatraman from American College as its President. My greatest privilege was that from the beginning, I became a student of human rights lawyering mentored by somebody as great as Kanna. I studied in the Madurai Law College and initiated the Madurai unit of the PUCL. My first case in the PUCL for a fact-finding also happened in the year 1982.

In February 1982, Mr. Nallakaman, an Army veteran was tortured by the police of Vadipatti Police Station in Madurai District. He was tied by a leading chain and was dragged in public before the bus stand of Vadipatti Police Station. His wife, a school teacher, was also abused in the police station, was tortured along with his son, kept in custody, remanded in a false criminal case that was registered. I always used to refer to Kanna for guidance and one thing he told us, "Never allow a single police officer who engages in illegal detentions, torture, killings etc to go scot free. The PUCL has to ensure that you follow them up from the first case because if you don't do that, these are the people who will take law into their own hands." And this is exactly what happened in the Nallakaman case.

Mr. Premkumar (the perpetrator in Nallakaman's case who was then suspended as Sub Inspector) inspite of all our efforts, continued in service as a DSP through direct recruitment. Although his recruitment was temporary, he managed to wink at everybody up there in power, became an ASP and then a Superintendent of Police (SP). If you look at his career from 1982 onwards, this man made sure that the trial in this case continued for almost 20 years. He was extremely clever in ensuring that there were several warrants over a period from 1995 to almost 2001 against him so that the trial never took place. He was involved in a series of cases – for instance the John Joseph case in 1997 in Kanyakumari district, where he tortured John Joseph, he molested two Catholic nuns - abuses to the core are on his record. In 2004 he did the same, once again to me, and several other colleagues in Cuddalore, when he was SP and ensured that we were implicated in a false criminal case, which we got over only in 2017. We pursued the Nallakaman case meticulously so that in 2006, finally, he was dismissed from service.

Before that however, Kanna appeared in the Madurai bench of the Madras High Court in the appeal that was filed to ensure that this man was convicted. From 1982 till almost 2004, Kanna at different stages guided and finally appeared before the Madurai bench of the Madras High Court for two long days arguing this case. Finally in 2006, he was removed from service. This was the beginning of my PUCL cum lawyering work that followed.

My very close encounter with Kanna happened to be in the month of June 1993. I had the privilege of participating in the Second World Conference on Human Rights in Vienna. Kanna was there. I had the privilege of assisting Kanna throughout those days both in the NGO Conference that preceded the World Conference and at the formal Conference with participants from over 177 countries from around the globe with over 800 registered NGOs and almost 700-800 media personnel. We were a big group. It was the first International Conference experience for me but by assisting Kannabiran I was able to learn from him from close quarters what interventions are to be made.

I remember the conference was very special to us because it was the foundation for the formation in 1993 of the Office of the High Commissioner of Human Rights in Geneva which did not exist before.

The whole discourse of the universality of human rights took place in Vienna. The UN Decade for Human Rights Education with which I happened to be associated later, was something that was born out of Vienna. The National Plan of Action for Human Rights which several countries thereafter followed had its beginning there. India is yet to start its first National Action Plan which it passed on to the NHRC, while other countries have gone to their third National Action Plans. The first Global Tribunal on Violence Against Women took place in the same World Conference which led to the slogan "Women's Rights are Human Rights". We were witness to all these events that took place in Vienna.

I remember Kanna participating in the plenary session. When resolutions were being passed in the NGO Forum on State Violence, there were some remarks being made about India and he was nor being heard. He was sitting next to me. In a second, I saw him standing on a chair talking at the top of his voice on what the Indian Constitution meant and how state killings by police and law enforcement officials could not be tolerated, and therefore he would not allow that resolution to be passed. He participated very actively in the workshops that were held in the sidelines. At that time there was much discussion on Sri Lanka. I was witness to Kanna's anger at the violations of human rights that took place in Sri Lanka.

The next major case we worked together on was the case of the Special Task Force (STF). This was a case where Kanna was involved sometimes from far and sometimes very close to us. The STF happened to be constituted jointly by the Governments of Tamil Nadu and Karnataka largely to ensure that they were able to capture Veerappan whom they were looking to capture somewhere in the border areas of Tamil Nadu and Karnataka. In April 1997, by which time People's Watch was formed and for all of you who need to know the connection - it was the Vienna Conference and my being mentored by Kanna at that conference that was responsible for me coming back, recalling many things that my mentor had built within me. I decided then that I could not continue to work in the same way; I needed to monitor human rights at close quarters, and make the state accountable for the violations I was witnessing. At the same time, I had to ensure that we contributed to building a culture of human rights.

People's Watch, born in December 1995, received a letter from the Mysore Central Prison from one Aruldass in April 1997. This was a postcard that listed out the violations that were taking place in the border areas of Tamil Nadu and Karnataka. We did not ever come to know, through our news media, that these events were actually taking place in the border areas. I want to recall the services of Advocate John Vincent who practices today at the Madurai Bench of the Madras High Court, and has been also the President of the Bar Association of the Advocates of Madurai Bench of the Madras High Court. He went immediately to the Mysore Central Jail and met people. He came back with shocking news that made us resolve to undertake a fact finding into the issue. The factfinding that followed in 1997 and continued into 1998 with great difficulty in the interior-most border areas of Tamil Nadu and Karnataka in Salem, Erode and Coimbatore districts revealed to us the illegal detentions, not of days, weeks, or months – in some cases people were kept in custody for – custodial torture of various forms, custodial violence against women of the most gruesome forms. The police personnel responsible were at every level, right upto the ranks of Mr. Devaram himself – the former DGP of the Government of Tamilnadu who was heading the Joint STF in those days.

There were two types of action that we were therefore engaged in – first, appearing on behalf of the accused in four sessions cases; second, relating to the Ramapura Police station where six policemen were alleged to have been killed in one case and five policemen were alleged to have been killed in another case. Thereafter we took up two other sessions cases relating to the MM hills where in one case, 6 policemen were alleged to have been killed along with seven others who were injured and an eight-member Veerappan gang also killed; and in the second case, an explosion killing 21 members of the Tamilnadu jungle party. These were the four sessions cases that were pending. The accused were kept in the Mysore Central Prison. There were about 121 accused totally, many of them were kept under illegal detention for long periods, tortured, raped, all sorts of sexual abuse before other members who had been taken into custody, men and women – men performing in front of women, women performing in front of men - you cannot name it, it was so gruesome. But there was no trial. The trial was yet to start and therefore in the year 1999, we approached Mr. Kannabiran as a lawyer who was then the President of the National PUCL. He willingly agreed and approved a draft writ petition (Writ petition no. 130-169 of 1999) prepared by Advocate V. Suresh. Kanna came to Bangalore in the month of August 1999 stayed till September/October and ensured that the High Court heard us on fast tracking the trials in those TADA cases which were all pending before the TADA court in Mysore. The trials commenced even as the cases were being argued in Bangalore and the writ petitions were finally concluded.

In August 2001, the final arguments were to take place in the four sessions cases. Although the trial was conducted by Advocate John Vincent guided by Advocate Gopalakrishnan Lakshmana Raja (affectionately known as GK) from Madurai, Kanna came for the briefing and did the final arguments in the case in August 2001 in Mysore.

Kanna was not only a civil liberties activist but our lawyer in the STF engagements. On 29 September 2001, the judgement was delivered in this case, where out of the 121 accused, 14 were convicted and 107 were acquitted as there was no case made out against them. Of the 14 convicted, 7 had life imprisonments, and 7 others had shorter periods which they had already undergone and so were free. We prepared appeals before the Supreme Court; the appeals were cleared by Mr. Kannabiran and on the 28th of January 2002, these appeals were admitted before the Supreme Court. In September 2003, after Kanna had argued these matters, the judgment was given where four people in one case alone were convicted. In that one case the Supreme Court enhanced the punishment from life imprisonment to capital punishment for Simon, Bilavendran, Gnanaprakasam and Meesai Madhayan. In the other three cases all were acquitted.

This was a long period of engagement that we had with Kanna witnessing, at very close quarters, his legal acumen in the High Court in Karnataka, in the TADA court in Mysore, right up to the Supreme Court in arguing these matters. He was like a father to us but no nonsense when the bundles were being prepared, when the case was being prepared or when he asked questions and we were not prepared. He always used to remind us that it is not important only to do civil liberties and human rights work out of court, and that as lawyers we had a very important role in ensuring that we were the topmost practitioners – so that the Court's attention would always be on what we said and how we said it.

Another very close acquaintance with Kanna goes back to 1982. In 1982, after the Nallakaman case, I decided as the Secretary of the Madurai PUCL along with the entire unit that we would observe two weeks to condemn police violence in the State. From the 16 to 31 October 1982, there were events through the day – meetings, exhibitions, screening of movies, public meetings, all forms of performances – all focused only on police violence. I was a law student learning more law on the streets of Madurai than in the classrooms of the Madurai Law College with the PUCL actually moulding me. These two weeks were to culminate on the 31 October with a hall meeting which was to be preceded by a silent procession with black ribbons on our mounts from the Kattabomman statue as we used to call it, located between the Periyar Bus Stand and the Railway Station in Madurai. Justice Tarkunde, the then President of the PUCL had been invited. Kanna was also there. We were hardly 25 of us. There were almost 300-400 armed policemen posted just near the place where we were assembled. A number of people, including those who held positions in the PUCL at the State level, were hesitant to come and join the procession. The police decided to lathi-charge and before the procession started, they arrested those they could. They of course were looking for me. I was in my final year of law and my exams were to take place in another one month. I had a number of papers to complete. I was married then and could not afford to get caught by the police. Had they caught me that day, that would have been the end of my life! I ran for my life and ensured that I was protected. Unfortunately, Kannabiran, Justice Tarkunde and 15 others were arrested by the police and taken to the then B4 Police Station. The policemen asked about what happened to Henri; but Henri was not there. Kanna was beaten in that lathi-charge. Later that day I had an occasion to meet him underground because I had still not surrendered. The police were after me, but I could not allow Kanna to leave Madurai without seeing him. We had a clandestine night meeting at the Tamilnadu Theological Seminary headed by Dr. Dyanchand Carr, a good friend of Kanna's. That was when Kanna realised after a good hot water bath, that there were a lot of injuries on his head and different parts of the body. I apologised to him and he told me, this is part of the game but you escaped from all this.

Justice Tarkunde happened to be the counsel for the State of Tamil Nadu and therefore the case was withdrawn in a few weeks. Kanna was safely transported back. We were all released on bail, I surrendered and then we were quite happy thereafter that the cases were withdrawn. But that was my initiation into human rights work. The two weeks of awareness building on police atrocities that had taken place had to end with the police led by none other than Mohammed Ali who was then the DSP of that jurisdiction giving us this kind of a treatment. Kanna was A2, Tarkunde was A1 and my colleague Sathiamoorthy was A3 in that case. Many of those who were accused in that case are no more today – Tarkunde, Kanna, Yetharthrajan, Xavier Arockiasamy, TSV Hari and many others.

I think it is important to also recall Kanna's contribution particularly to the establishment of Human Rights Courts in Tamilnadu. This was a very major contribution and we as People's Watch had the privilege of appearing in court in that particular matter to ensure we were assisting the court. This was a very interesting case that originated in the state of Tamilnadu in the district of Erode. Mr V P Gunasekaran from the Tribal People's Association preferred a complaint to the Chief Judicial Magistrate of Erode where he raised the issues of the violence by the Special Task Force (which I had referred to earlier) against the adivasis in the Talawadi hills. His counsel was Advocate Balamurugan who later also became the Secretary of the Tamilnadu unit of PUCL. We were all enthused by the Protection of Human Rights Act, 1993 and Section 30 of the Act which permitted the constitution of a Human Rights Court. Sessions Courts were designated as Human Rights Courts. But the Chief Judicial Magistrate Court returned the complaint with a few questions regarding the jurisdiction of the Sessions Court to try offences of human rights violations. Balamurugan was not a lawyer to keep quiet. Trained in the PUCL, he forwarded this petition that was returned by the CJM to several people -- one of whom was Justice V R Krishna Iyer, asking for his intervention; the second to Justice Ranganath Mishra, then chair of the National Human Rights Commission; and third to Kanna as the National President of the PUCL and to Justice V M Tarkunde. Justice V R Krishna Iyer on 11 November 1996 forwarded this letter with his own covering letter to Justice K A Swamy, the then Chief Justice of the Madras High Court, who communicated with the then Joint Secretary of the Tamilnadu PUCL, Advocate Suresh. He received detailed communications from them and set in motion a Criminal Revision case under Article 227 of the Constitution in a bench comprising Justice Janarthanan and Justice Karpaga Vinayagam. Several lawyers were involved – Sudha Ramalingam, Suresh, Nagasaila, P V Bhaktavatsalam, among others. The Bar Association and the National Human Rights Commission were represented. PUCL requested People's Watch which had just established a Documentation Centre to provide the lawyers and through them the Court, with all the reading materials on Human Rights Courts in existence globally. I still remember meticulously working on this documentation and mentored by none other than Kanna. Every page had to be seen and approved by him. We were able to engage in good secondary research for this material. Kanna was then on his feet for almost a week arguing this matter before Justice Janarthanan and Justice Karpaga Vinayagam. We were able to obtain the final verdict before the Madras High Court where all the modalities of District Human Rights Courts were set out including how proceedings could be initiated in a Court of Sessions with original jurisdiction. Kanna argued in that case that there should not be any form of prior sanction for prosecuting a policeman in a Human Rights Court. I remember his arguments where he tried to impress upon the judges the fact that the establishment of a Human Rights Court at the district level under the Protection of Human Rights Act is by itself a statutory sanction. In every case where allegations are made against police officials therefore, separate sanction was not required. However, this very important argument put forth by Kanna was not accepted by the two-member division bench.

I had greater opportunity of working with him in looking at institutions like the National Human Rights Commission (NHRC). In that context I still remember how critical Kanna was when NHRC was constituted in the year 1993. Kanna was one of its fiercest opponents. And even though he saw some benefits that were coming out in terms of the NHRC many years thereafter, his fierce opposition to its constitution continued. He said that as long as we do not strengthen our criminal courts in the country and fight violations of human rights through the courts, through private complaints that we may undertake; as long as we do not follow up cases meticulously with good legal representation before courts and ensure that policemen who violate the law are punished under criminal law and are made to pay compensation from their own pockets, any other form of dealing with human rights will not help promote a long-lasting human rights culture. Today when you see what is happening to the NHRC 25 years later, Kanna is not here to hear me say that in 1993 Kanna was right. He foresaw what would happen to this institution. He urged us to always have a third eye on this institution. Today we are able to see that several functionaries from the Ministry of Home Affairs to the National Human Rights Commission not only direct postings from the Ministry of Home Affairs into the NHRC but you also have RAW officers posted in very vital positions in the NHRC. I would not like to say more.

It is because of this grooming that we received from Kanna that I was able to constitute and later build in 2010 almost during his last few days the All India Network of Individuals and NGOs working with National and State Human Rights Institutions (AINNI) (https://ainnimembers.wordpress.com/) only with a purpose of monitoring these institutions. This was the result of Kanna's foresight. He was categorical - no tribunals, no commissions. It is courts of law alone that should be of prime importance in this country. I would like to emphasise this point at this juncture. The second was with the United Nations. He himself was not directly involved with the United Nations because he did not have time but always encouraged us to intervene in various Special Procedures of the United Nations. This was a way of making sure that every violation of human rights that takes place in the grassroots is taken up in different fora not only in the lower trial courts, the High Court and Supreme Court but also in the NHRC and in the UN.

In the year 1998, after the Declaration on Human Rights Defenders (https://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx) had come up, I remember he submitted a very long, very detailed memorandum to the NHRC on Human Rights Defenders and the role of the NHRC. He not only gave that representation to the NHRC but he also ensured that it was meticulously followed. He sent reminders to the NHRC to ensure that his memorandum was taken up. He was always present before the NHRC when the occasion permitted to remind them of their role in the protection of Human Rights Defenders within and outside the country.

And therefore, he continues to remain a father figure to us activists, and we will never forget that for us he was always a teacher. There were a number of other occasions relating to Sri Lanka, relating to various other issues that we worked with him on in the city of Madurai. His message for us was to always subvert the system from within. He insisted that we had to be the best among lawyers which involved reading, preparing well for cases, ensuring that we are able to tilt the law in favour of our clients who are usually the victims of gross human rights violations, and making the judge listen to us because we have some contributions to make.

For him, a human rights lawyer could never be a third-grade lawyer -- they always had to be the best lawyers possible. I may not have had the opportunity to do human rights lawyering the way Kanna wanted because of the choices I had made, but now when I am back in court, and Kanna is not there, these words of his guide me through every petition that I take up before the High Court.

We lawyers weave together our public life and our professional life. Our public life with the human rights movement has to be woven into our lawyering and that is precisely what we have continually been doing.

I will not forget our lighter moments with Kanna. My office in those days was in the building adjoining the American College opposite the Mudaliyar Idli Kadai. Whenever he came in the night for dinner, he would want to eat only at the Mudaliyar Idli Kadai where you had to sit on the pavement. He would enjoy idlis and dosais with all the different varieties of chutneys that the night life of Madurai provided. He would never want to dine anywhere else. That was Kanna.

He left a deep impression on all of us, one so strong that it continues – you see him (in the picture) behind me here ensuring that I speak the truth. Wherever we are, wherever we speak, we acknowledge publicly that we were mentored by Kanna himself.

Henri Tiphagne, an Advocate in the Madurai Bench of Madras High Court, is a human rights lawyer, educator and child rights advocate - founder and executive director of Madurai-based human rights organisation People's Watch. In 2018, he was selected under the individuals category for the Nani A. Palkhiwala Award for Civil Liberties; and was the first Indian to receive the 8th Human Rights Award by Amnesty International, Germany.

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