The Chhattisgarh Diaries: Part I – Senior Advocate Kanak Tiwari

A flex banner of Chhattisgarh Chief Minister Raman Singh and Prime Minister Narendra Modi launching a development scheme in the state’s upcoming new capital welcomes me to Raipur Airport.

It is a state where vast changes are taking place; one in which words like “development” and “smart cities” are being thrown around. The fact that this development is coming at a cost doesn’t seem to deter the march of the machines. The voices of the oppressed and those fighting for the oppressed seem to be drowned out by the crank of the engines that promise to usher in “progress”.

The Adivasi population, in particular, is caught between a rock and a hard place, with the insurgents on one side and an oppressive police force on the other. Apart from this, there is the displacement and arbitrary detention of tribals, and of late, the persecution of activists, journalists and lawyers.

So what do the lawyers in the state have to say about these issues? Whether it is Senior Advocate Kanak Tiwari, activist and advocate Sudha Bharadwaj, or the members of the Jagdalpur Legal Aid Group (JagLAG), there seems to be a consensus that something is rotten in the state of Chhattisgarh.

In the first part of this series, we feature Kanak Tiwari, Senior Advocate of the Chhattisgarh High Court.

“I am doing a favour to the High Court judges by not appearing in court”.

Kanak Tiwari, a self-described iconoclast, replies in jest when he is asked why he doesn’t appear in the Chhattisgarh High Court at Bilaspur anymore. As much as the judges may be happy to see the back of this cantankerous senior, the fact is that he has been advised by his doctor to stay away from court.

The septuagenarian is well past the point of taking pains to be politically correct. Nothing is sacred or beyond reproach.

Kanak Tiwari has been a sort of wayfarer and it is easy to see that he is a very well-read man; even his formal education was, well and truly, holistic. After completing a B.Sc. in Physics, he decided to do a Master’s in English, and went on to teach the subject at various colleges in Madhya Pradesh. He only decided to study law after finding it difficult to make ends meet as a teacher.

“The year I graduated was the last year of the two years’ course. I started practice as a district court lawyer, where I practiced for 20 years. Then, I shifted my practice to the High Court at Jabalpur in what was the then undivided state of Madhya Pradesh. I practiced there for two years.”

Then, politics beckoned. The erstwhile Chief Minister, and Rajiv Gandhi, he says, developed a fancy for him and offered him posts in the Congress party.

“The Chief Minister appointed me the Chairperson of the Small Scale Industries division. Later, I was made head of the Housing Board. Prior to that, Rajiv Gandhi had appointed me General Secretary of the Madhya Pradesh Congress Committee.”

Once the state of Chhattisgarh was carved out from Madhya Pradesh in 2000, Kanak Tiwari decided to focus on law, resuming practice on the day the newly formed High Court came into being.

“The initial period in the Chhattisgarh High Court was a good period. There were some very good Chief Justices, especially Justice AK Patnaik, who later went on to become a Supreme Court judge, Justice Dattu who became Chief Justice of India, and Justice Venkatachala Moorthy from the Madras High Court.

At that time, I was very active in the High Court. I filed two PILs against TATA and Essar to prevent them from establishing steel plants in Bastar. I also struggled to bring prohibition to the state in gradual phases. The government had started a medical college in Bilaspur run through the University. The government was selling 50% of the seats as part of management quota. So I filed a PIL through my junior and we succeeded in that.”

In fact, news of his competence at the Bar spread far and wide, reaching the pioneer of the concept of PIL, Justice PN Bhagwati.

“Justice Bhagwati was a champion of the people’s cause. I used to quote his judgments copiously when I argued. I was invited to give a speech at a function organised by the Ramakrishna Mission at Vadodara, which was also attended by Justice Bhagwati.

After hearing my speeches at similar other functions, he enquired about me and told me, ‘You ought to have come and practiced in the Supreme Court!’”

While he showers praise on judges of yore, he is not quite as appreciative of the current high court judges. Far from it.

“I am hyper-critical of things, and I have written in many books and articles that the judiciary is in a very bad shape. It is not that it is a bad institution. I don’t agree with the elevation of members of the Bar to the Bench at the High Court level without any written test or any objective system of assessment of merit.”

And why does he feel so? An understanding of the language, the former English teacher says, is one factor.

“The language in High Courts is English and the language of the law is English, but a lot of judges in Hindi-speaking areas do not have a command over the language. They don’t understand the difference between Victorian English and Modern English. Those who wrote the Indian Constitution were educated in England primarily, so they have written it in Victorian English.

Because of this, they don’t understand the subtle nuances of the law, and they keep on disposing of things. At the High Court level, we mostly get disposal of cases and hardly any decisions. That is a tragedy. I am prepared to debate with any judge at any level on this.”

There is an air of defiance about this man (“I am not from a coward race”), something he may have derived from his father, a freedom fighter with Subhash Chandra Bose’s Forward Bloc. He constantly reiterates that he doesn’t care if his comments are construed as contemptible. He even agrees with Prashant Bhushan’s controversial statements alleging that some former judges were corrupt.

“But that is not to say there are no good judges. Some of them are very good and it is because of them justice is being delivered. I remember former Chief Justice of India SP Bharucha had said in a function held 15-20 years ago that at least 20% of High Court judges were not up to the mark or corrupt. When a Chief Justice of India is saying that, surely there is some merit in it.”

So what are his suggestions on improving the state of things?

“There should be a selection process and an annual appraisal in which the views of the Senior Advocates should also be taken. One good thing that came out of the NJAC Act was that the views of Seniors should be taken while elevating members of the Bar to judgeship.”

Though he concurs with the Supreme Court’s decision to strike down the Act, he feels the creation of a middle ground is the need of the hour.

“The NJAC Act was defective; I am in full agreement with Mr. Nariman’s arguments. I am totally against the government controlling the judiciary, but there should be something in between. The judiciary should not have a monopoly of discretion, but they should have an upper hand.”

Our benevolent senior is far from done.

Having been involved in most of the important cases of the state, he has first-hand experience of what has been happening over the years. The picture he paints is not very pretty.

“We have a bad police system, and generally speaking, not against any particular government, there is a corrupt governance throughout the country. Tribals are being looted and exploited; they are bound in good number in this state, especially in Bastar. To add to this, the Naxals are also there.”

When asked about the persecution of activists and journalists by state authorities, he is not too sympathetic, save towards the “genuine activists”.

“There are some human rights activists who believe in a 5-star culture. Not all of them are down to earth, they are hypocrites. Genuine activists are being troubled, Soni Sori for example. She has been subjected to all kinds of harassment and torture.

The press in general does not rise to the occasion. Most media persons are not sufficiently educated in social sciences, law, governance and political administration. They just print whatever is released by the government departments and the police.”

Having represented firebrand trade union leader Shankar Guha Niyogi, who was murdered, and Dr. Binayak Sen and Nandini Sundar in the Salwa Judum case, Kanak Tiwari has been in the thick of it all.

“In the Salwa Judum case, Nandini Sundar, who filed the case in the Supreme Court, initially asked me to file it in the High Court. But I told her that the condition in the High Court is so bad that it will be pending for years.”

There are around 4 Commission of Enquiry on fake encounters pending; for years together no decision has been made. If some genuine lawyers and activists try to fight, they are troubled. The police is allowed to go scot-free, there is no control over them.”

Binayak Sen’s case, he says is a prime example.

“There was no case; any prudent or mature judge would have felt the same. He is a doctor doing service to anyone and everyone. He was also the General Secretary of PUCL and raised his voice against certain government acts and orders, as well as police misdeeds. He never had any connections with the Naxals, contrary to the allegations levied against him.

Certain books were found from his place. The same books can be found with me also! These publications of certain communist organisations, are registered by the Registrar of Newspapers and can be bought in book stores. There is no definition of ‘Naxal literature’ or ‘Maoist literature’. You can’t possibly connect the possession of such books with the possibility of waging war against the state.

Unfortunately, I was unsuccessful in getting bail, so he went to the Supreme Court, where he failed. Then he came to the High Court again and failed again. The fourth time, the matter came before Justice Markandey Katju in the Supreme Court, where he was finally granted bail. Justice Katju read the whole thing and didn’t allow the government lawyer to argue.”

He is also critical of the Chhattisgarh State Public Security Act (CSPSA), under which Sen was booked. The controversial Act confers broad powers on the state’s police in a bid to deal with the threat posed by the Naxals. The implementation of the Act, he says, has been arbitrary.

“All these laws are draconian – the CSPSA, AFSPA and others; they need to be reviewed. It is a different matter that infiltrators and terrorists are there, but the laws are being misused by the state and police administration. The government is unable to catch the real terrorists. So they take revenge on other people on the basis of suspicion. Recently, some tailors were caught for having relations with the Naxals, for stitching their clothes.

I don’t believe that these laws shouldn’t exist, but if there is an effective administration implementing the softer laws in right way, then we wouldn’t need the stricter laws.”

Having criticised the judiciary to no end, it is relevant to ask Kanak Tiwari why he himself didn’t become a judge. He replies that he treasures his freedom of speech too much.

“Had I been a judge, would I have been allowed to say what I am saying?”

At this point, Kanak Tiwari reveals another side, that of a scholar. When not bashing the system, he spends his time writing books. He has even written two books on the Constitution in Hindi.

“I deliberately wrote in Hindi because Hindi-reading people do not have much of an analytical understanding of what the Constitution is. I am a Gandhian in my approach to life, including law. I have written the book in the way Gandhi would have interpreted the Constitution, and how he was ignored in the entire narrative of the Constitution, although he was the creator of the idea.”

A third book, titled Vivekananda and the Constitution, which deals with how the present Constitution can be interpreted with Swami Vivekananda’s teachings, is also in the pipeline.

And it is this erudition in varied fields that Kanak Tiwari feels should be pursued by young lawyers.

“We must be jack of all trades. If you know religion, philosophy, science, mathematics, you will be a better lawyer.”

Having studied multiple subjects, it seems that he finally found his calling in the legal profession.

“In no other profession will you find three equally qualified persons – the judge and two lawyers – fighting it out at the same time. They are all pulling the strings from their side without knowing the final outcome. They are all trying to analyse the law from their own perspective to benefit their side. For a doctor, performing surgery on the heart may be practically the same every time but for a lawyer every case is different.”

Image of Binayak Sen taken from here.

Bar & Bench would like to thank Mohit Singh for his assistance in arranging this interview.