Justice Krishna Iyer, in whose demise the Indian Bar lost a towering and somewhat mythical figure in the legal profession was a remarkable multifaceted personality, having experienced life from varied angles – as a lawyer practicing for a number of years in a Sub-Court at Tellichery, thereafter, at the High Court of Kerala, then as a Minister of the legendary first Communist Government of Kerala headed by E. M. S. Namboodiripad, as Member of the Law Commission of India, and finally as a judge of the Supreme Court of India. Just short of a century he departed for his heavenly abode on December 5, 2014, without a moment of rest from the overpowering concern about humanity.
The first encounter of one of the authors, Salman Khurshid, with Justice V. R. Krishna Iyer was as a young lecturer at Oxford University in the late 1970s. It was a gloomy and wet autumn morning when a lawyer friend Javed Gaya from Worchester College knocked on his study door and asked whether he would like to meet two eminent judges of the Supreme Court of India. They went down to the Garden of Magdalen College and soon forgot the gloomy weather on meeting Justices V. R. Krishna Iyer and P. N. Bhagwati. Just then Professor H. L. A. Hart came strolling by and he was able to introduce them in what might be described as a fleeting handshake of jurisprudential history! All three have made contribution to our understanding of law and judicial decision-making that cuts across time and space.
At the time of that first meeting he had some idea of the remarkable mind Justice Krishna Iyer possessed not only from his unique judgments but also from Dr. Rajiv Dhawan, who was also at that time teaching in England and with whom Salman Khurshid had fascinating discussions. The Oxford chance meeting led to further contact with the two eminent judges. He was able to persuade them to visit the University again for a seminar on the Judicial Mind at which Professor Hart's inimitable successor to the Chair of Jurisprudence, Professor Ronald Dworkin, had the most enchanting exchanges with them. Professor Dworkin’s work at that time concentrated on the ‘Rights Thesis’ and the two judges had in their judgments articulated a web of rights for the disadvantaged and vulnerable sections of society. But whilst Dworkin’s work was analytical, the approach of Justice Krishna Iyer and Justice Bhagwati was intuitive, emphasizing perhaps the socio-cultural difference between the two Common Law systems as indeed the stage of institutional development of Indian polity and democracy in the aftermath of the Emergency era Habeas Corpus judgment of the Supreme Court, to which Justice Bhagwati was a party.
Justice Krishna Iyer was no ordinary soul, both in terms of his vast experience as an activist for the rights of all human beings as indeed his spirituality. Salman had a rare insight into his soul searching reflections in his private conversations over the years as indeed through a visit on his company to Mentmore Towers, the seat of the World Government of the Age of Enlightenment presided by Maharishi Mahesh Yogi. It was an interesting experience to see how easily someone who was naturally inclined to a scientific view of the world and was clearly influenced by scientific materialism took to people whose pursuit of a fulfilling life was “spiritual”. Meditation, levitation and cogitation were being conducted in different parts of the sprawling Estate as they sat down to a splendid banquet. The Minister for Natural Justice on Salman’s right and the Minister for All Possibilities on the other, Justice Krishna Iyer, at the head of the table, no less in command than when he sat on the Bench of the Supreme Court.
The Mentmore visit was just one curious dimension of the remarkably varied and rich intellectual pursuits of the extraordinary judge: truly one to walk with aplomb amongst giants and greats but equally comfortable and comforting amongst the helpless and meek. If asked to sum up in one sentence the incredible personality of Justice Krishna Iyer one would simply say that he too wrote the Constitution through his judicial pronouncements enriching it immensely and indeed explicating the intent and aspiration of the noble framers, making it truly a living document of our nationhood. To borrow the words of great judge, in the land of the daridra narayana it cannot be a crime to be poor. It took a rich mind and even a richer heart to hear the cry of the poor.
As might touch upon a brief life history of Justice Krishna Iyer, to be found at greater length takes in the book. He was born on 15th November, 1915 in Palakkad, in Malabar region of the then Madras state, presently located in Kerala in southern part of India. His father Mr. V. V. Rama Iyer was a leading criminal lawyer practicing at Thalassery district courts in Kerala. He had his education at the Basel Mission School, Thalassery, Victoria College, Palakkad, Annamalai University and Madras Law College. Upon starting legal practice in 1937 under the guidance of his father in the Thalassery courts, he used to appear for workers and peasants in several agrarian struggle-related cases became a well-known legal practitioner that attracted him ultimately towards politics. For protecting the interests of workers, he was also arrested by the police in 1948 but was released just after spending a month when the police failed to establish any case against him in the court. He is thus the only judge of the Supreme Court who can claim to have been arrested by the police in Independent India and spent time in prison.
Justice Krishna Iyer’s political journey began in 1952 when he became a member of the Madras Legislative Assembly from Thalassery constituency as an independent candidate with the support of left parties and Muslim League. He participated in the proceedings of the Madras Legislative Assembly as an active member of the opposition party. The Assembly was then dominated by the Congress Party having its Government under the benign leadership of C. Rajagopalachari, popularly known as Rajaji, who had been the Governor-General of free India for a brief period.
Krishna Iyer became the member of the first Legislative Assembly of Kerala in 1957 and became the Minister in the E. M. S. Namboodiripad Government holding a number of portfolios such as law, justice, home, irrigation, power, prisons, social welfare and inland navigation. The Namboodiripad Government was the first democratically elected communist Government not only in India but in the entire world. He was instrumental in passing several pieces of people-oriented legislations during his tenure as minister in the Kerala Government. As a Minister of Prisons, he made landmark reforms in that state that were widely appreciated.
The Namboodiripad Government was dismissed by the Central Government under Article 356 of the Constitution just after two years of its formation in 1959, and thereafter Krishna Iyer resumed his practice in the High Court of Kerala. He lost the 1965 Assembly election. On the initiative of Mr. Menon, the then Chief Justice of the Kerala High Court, he was appointed a judge of the Kerala High Court on 2nd July, 1968. He graced the Bench of the High Court for three years and thereafter he was appointed as a Member of the Law Commission from 1971 to 1973. He served the Law Commission under the supervision of Justice P. B. Gajendragadkar and was elevated as a Judge of the Supreme Court on 17th July, 1973, and retired on 14th November, 1980 after an eventful career.
Justice Krishna Iyer’s elevation to the Supreme Court raised eyebrows and scepticism in many legal circles as his name was recommended by Mr. Mohan Kumaramangalam, who was a powerful left oriented politician and a Minister. The time during which Krishna Iyer came to the Supreme Court was also difficult. The then Central Government had superseded three senior judges of the Supreme Court namely Justices Shelat, Grover and Hegde after the Kesavananda Bharati judgment and had appointed their junior Justice A. N. Ray as Chief Justice of India who had decided in favour of the Government in Kesavananda Bharati v. State of Kerala while the three superseded judges had decided against the Government. In such a polarised atmosphere the Government felt the need wanted to pack the Court with judges who were sympathetic to the Government’s philosophy. Justice Krishna Iyer was conspicuous for his social philosophy and of political background that made conventional people wary. Some Supreme Court judges and eminent lawyers such as Soli Sorabjee opposed his appointment saying that he was a leftist and would not be able to detach from politics. But soon doubts proved wrong and Justice Krishna Iyer was widely accepted as an extraordinary judge.
Justice Iyer wielded considerable influence on the thought processes of his colleagues such as Justices P.N. Bhagwati and Chinappa Reddy who also shared his social justice mission. Along with such judges he interpreted Part III and IV of the Constitution liberally. They were articulate, sensitive and had a strong desire to translate the vision of the constitution makers into reality. By 1980, Justice Bhagwati and Justice Krishna Iyer became senior justices and took the Supreme Court in a new direction while evolving radical principles. He carved out a special entrance for the destitute in the somewhat formidable portals of the Supreme Court. He made the Supreme Court peoples’ court.
Justice Krishna Iyer propounded the well-known public interest jurisprudence in the country as a silent revolution under which the old ‘locus standi’ rules were jettisoned, epistolary litigation was encouraged and a strategy was evolved for giving relief to the disadvantaged and underprivileged who were not able to have access to justice. Procedural ‘due process’ was given centre stage, overruling earlier decisions. Consequently this radical transformation gave high international stature and visibility to the Supreme Court. It was an explosive enlargement of the court’s jurisdiction. Carving out a niche in the common citizens’ heart whose respect and adoration for the higher judiciary knew no bounds. He became a voice of the poor and downtrodden in the apex court and his judgments came as boon for millions of people who were not able to approach the courts due to the poverty, illiteracy and other reasons. He propounded what is described as the new poverty jurisprudence in the country.
It is pertinent to mention that over a period of seven years in the Supreme Court Justice Krishna Iyer delivered about seven hundred judgments on a range of issues. Curiously he never delivered a dissenting judgment. He believed that such opinions did not serve any purpose. In this he was in the company of Justice P. B. Gajendragadkar in his consent and approach. He did not strike down any law as unconstitutional. Once he struck down a subordinate legislation in C. B. Muthamma case. But in most of the other cases, he interpreted laws and subordinate legislation so as to make them consistent with the fundamental rights scheme. His prolific judgments, his gentle and disarming demeanor as a judge, his unrivalled grasp of facts and law, his empathy for the disadvantaged, and his courtesy and consideration for the young lawyer appearing before him was a unique blend of judicial virtues. His judgments are strewn with “purple-patches”. He loaded into his judgments a rich mixture of law, politics and commonsense-and also compassion. His judgments are well-known for their language and writing-style for which sometimes he also became the victim of criticism by some eminent jurists and judges.
Justice Krishna Iyer was a fearless judge. Just after two years of his elevation to the Supreme Court, he delivered a bold and historical judgment in 1975 in the Indira Gandhi election case. His interim order of 24th June, 1975 — a day before the Proclamation of Emergency on the night of 25th June, 1975 is noteworthy. Some background to the case would be useful to recall. Smt. Indira Gandhi had won her Lok Sabha election in 1971 from Rae Bareli constituency in Uttar Pradesh by defeating her rival Raj Narain. Raj Narain challenged the validity of her election in the High Court of Allahabad alleging that she had used corrupt practices in her election. Justice Jagmohan Lal Sinha of the Allahabad High Court tried the case. Justice Sinha decided the matter against her for using corrupt electoral practices in her election and disqualified her to contest the election of the Lok Sabha for six years. This judgment understandably shook the nation.
Against the order of the Allahabad High Court, Prime Minister Mrs. Indira Gandhi filed an appeal in the Supreme Court and engaged senior lawyer Nani A. Palkhivala who was well known for his legal acumen. The appeal particularly the stay application matter came up before Justice Krishna Iyer for adjudication when he was sitting as a vacation judge during the summer recess of the Supreme Court. It is reported that before the filing of the appeal the then Law Minister H.R. Gokhale, a good friend of Krishna Iyer, went to meet him at his residence. He politely refused to see him and indicated that the correct way was to file the appeal in the Registry which would be taken up promptly. Mr. Nani Palkhivala requested to the court to grant unconditional stay against the order of the Allahabad High Court while Shanti Bhushan who was representing Raj Narain, strongly opposed the unconditional stay. Justice Krishna Iyer did not grant an unconditional stay and only allowed Smt. Gandhi to function as Prime Minister, attend the House, but without a right to vote following well-settled precedents.
Despite the conditional stay, the protests continued against Prime Minister Smt. Gandhi and prominent opposition leaders such as Morarji Desai and Jai Prakash Narain demanded her resignation. To overcome all these difficulties she decided to impose the National Emergency in 1975 and accordingly made a recommendation to the then President Mr. Fakhruddin Ali Ahmed. Along with the proclamation of Emergency came the suspension of the fundamental rights of the people as per Article 359 of the Constitution. Thousands of people were detained by the police including leading opposition leaders such as Jaiprakash Narayan, Atal Bihari Vajpayee, L.K. Advani, Charan Singh and Morarji Desai under the Maintenance of Internal Security Act.
The 1975 internal Emergency brought huge political challenges for the people of the country. Political scientists and legal spoke of the Emergency a day light robbery of the human rights of the people. Unfortunately even the Supreme Court of India failed to protect the human rights of the people during this period and gave a green signal to the Government to detain people under the MISA. It was only Justice H. R. Khanna who delivered a celebrated dissenting bold judgment and he was superseded by the Central Government in 1977.
As a judge of the Supreme Court, Justice Krishna Iyer delivered hundreds of judgments on different issues. Some of his landmark judgments include the Shamser Singh case which interpreted the powers of the Cabinet vis-à-vis the President, Maneka Gandhi case which gave a new dimension to Article 21, Ratlam Municipality case , Muthamma’s case, Sunil Batra case, Prem Shankar Shukla case, Maru Ram case , etc. He had pushed for reformative theory, in contrast to deterrence theory in the criminal justice system. Thanks to his judgments ‘jail birds’ will no longer have to rot under degrading and inhuman conditions. The horrors of solitary confinement have been banished. No more will the jailer and his minions be the monarchs of all they survey, because prisoners now have rights and remedies to combat prison arbitrariness and assert their human dignity. Justice Krishna Iyer’s portrait should find a prominent place in every penal institution as the benefactor of numerous prison inmates. His opposition to capital punishment, which he regards as official murder, springs essentially from his deep reverence for the dignity and worth of every individual however downtrodden and despised. He has not minced words to express his abhorrence of society snuffing out the life of one of its members on the ground of retributive justice.
After retirement Justice Krishna Iyer took up people’s issues and championed causes of human rights and civil liberties across the nation fearlessly speaking out against the powers that be, whether on repression in Nandigram or on the privation of Taslima Nasrin. In retirement Justice Krishna Iyer sought to be the conscience-keeper of the Indian higher judiciary. His post-retirement life was very busy. He was associated with a number of academic and social organizations and became the part of various commissions and committees of the Government. In 2002, he was part of the citizen’s panel that inquired into the Gujarat riots along with retired justice P.B. Sawant and others. He was conferred with Padma Vibhushan in the 1999. He had unsuccessfully contested to the election of the office of President of India against Congress nominee late R. Venkataraman in 1987. He also headed the Kerala Law Reform Commission in 2009. He had to his credit around 100 books, mostly on law, and several articles in leading newspapers and magazines in the country as well as overseas. After completing almost a century Justice Krishna Iyer left for his heavenly abode on 4th December, 2014.
Soli Sorabjee, a great jurist and an admirer of Justice Krishna Iyer captures some of his multiple achievements in these words: "For a true assessment of Justice Krishna Iyer do not turn to learned authors on constitutional law and carping critics nor to bumptious bureaucrats and insolent administrators who are understandably annoyed by his insistence on the observance of the principles of fairplay in all areas of decision-making. Seek the answer from Jolly George and the tribe of debtors who have been spared the degradation of imprisonment for their genuine inability to satisfy money decrees passed against them because, according to Justice Krishna Iyer's judgment, “to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling, because to be poor in this land of poverty is no crime.”
There are judges who are more erudite than Justice Krishna Iyer, judges who have an excellent memory for Supreme Court and House of Lord citations, judges who can master the record of a case in a few minutes. But the one essential quality that distinguishes him from his judicial brethren and puts him in a class of his own is compassion. He took human suffering seriously and dispensed justice with compassion, which he possessed in abundance.
In Ratlam Municipal Council case, he conceived a larger role for the court as an ombudsman of the behaviour of a municipal body and admonished it for not performing its duties as laid down in the Act. Judicial activism to him did not mean being trigger happy against legislation. Maximum deference to the will of the legislature which represents the people seems to have been the mainstay of his judicial policy. Most of his admonitions were addressed to the executive asking them to do what the laws and the Constitution enjoined it to do. He wrote in a style that has been the envy of not just other jurists but also students of English literature. There was a flow - a natural ease -even if he used words like jejune that needed a dictionary to decode. He coined words too -and powerful ones at that. But that was all natural. His judgments have made him immortal.
Justice Krishna Iyer was on outstanding judge, and a legal philosopher of international repute. He was a connoisseur of ideas of and about justice. As mentioned earlier, almost singlehandedly, he rewrote the theory of crime and punishment in India by delivering historical judgments in Sunil Batra, Charles Sobraj and Premshankar Shukla cases. Along with Justice P. N. Bhagwati (as he then was) His Lordship devised the public interest litigation jurisprudence in the country. Professor Upendra Baxi, himself a doyen of justice, has suggested that Justice Krishna Iyer pioneered, with some other gifted brethren such as Justices Bhagwati, Chinappa Reddy and Desai, the conversion of the Supreme Court of India into a Supreme Court for the people, of India. He measured the distance between colonial and post-colonial law by laying down standards to civilize the administration of justice. He detested the barbarity of total institutions such as the police, prisons and custodial institutions. Even when sparingly administering capital punishment, he inveighed against it and believed in making it very rare as an alternative to its total abolition; he outlawed solitary confinement and putting undertrials or prisoners in manacles.
The most fascinating study of the human mind in action, taking decisions, is perhaps the work that has been done over the decades by scholars on how judges decide cases. In the common law tradition of judicial decision making an important postulate is that the training of a judge introduces an essential buffer between the judge and the human being. Thus personal knowledge is outside the legitimate purview of decision except to the extent that the rules permit taking of judicial notice. Similarly personal ideology or life style preferences are supposedly to be kept aside in the process. Yet Justice Krishna Iyer belonged to an era when the concept of 'committed judiciary' was passionately espoused by the executive of the day. It must be said to the credit of Justice Krishna Iyer that he subscribed to the social and economic vision of the contemporary political establishment but independently and not because of the preferred political articulation. In that Justice Krishna Iyer was an uncompromising socialist and was not the least self conscious about expounding the law within the socialist frame work of thought. Interestingly thus his intellectual empathy for an egalitarian society meshed comfortably with the looming philosophy of the constitution, soon after his tenure on the Bench, to be made explicit in the Amendment to the Constitution. But the same cannot be said of the spirituality that influenced Justice Krishna Iyer's life. Perhaps in that lies an important challenge faced by Indian judges.
Justice Krishna Iyer came to the Supreme Court with vastly more experience of the real world than most judges. His career trajectory as indeed the fact that he was consciously helped to get past the routine seniority concerns is a telling reflection on some of the rules of the game by which the judicial appointments are made in the country with seeming approval of people across the public spectrum. The seniority principle has been made paramount in order to obviate discretionary pick and choose (or supersession as it became known). But with such a principle in place Justice Krishna Iyer would never have come to the Supreme Court. What an enormous loss that would have been to Indian jurisprudence? Over seven years that he was on the Supreme Court Bench, Justice Krishna Iyer, ably supported by the likes of Justice Bhagwati (as His Lordship then was) and Justice Chinappa Reddy and Justice D A Desai laid out a judicial approach that made law a living instrument of justice in real terms to the down trodden and marginalised. Not only did these great judges interpret the law to serve the constitutional goal of justice to all but they opened up the exclusive precincts of the highest Appellate Court to Public Interest Litigation. There has been no looking back since then. Curiously the emphasis on the 'daridranarayan' explored by the Justice Krishna Iyer School of jurisprudence has remained constant with successive generation of judges even if the ambit of the concept has changed somewhat with changes in economic thinking. Perhaps it might not be incorrect to see this as a shift from 'social justice' to 'social welfare', the latter being rooted like the former, in the idea of empowerment; the first, by creating correctives and compensatory assistance to the marginalize and the latter by ensuring that substantive equal opportunity is made available to all irrespective of their historical conditions and disadvantages.We searched the judgments of Justice Krishna Iyer as indeed his extra-judicial writings to cull out definitive analysis of the judge's role and found innumerable references and propositions but the analytical tools that serve such role is not something he seems to have left much literature on. Therefore it is necessary to look closer at his remarkable life and draw conclusions on how the experience of the real world translates into judicial technique. Such an exercise is imperative for developing the model of judicial decision making that can be show-cased as an unique contribution of Indian jurisprudence, taking the laudatory narratives to analytical robustness. More than anything else this understanding will be useful in adding substance to the modern day debate in India on judicial integrity, independence and justice for judges: the collegium versus the national commission alternatives. By its very nature this will not resolve itself in a hurry although some respite might come from timely judicial pronouncements.
Many outstanding judges who leave a deep impact on the legal community yet do not acquire a following in the general public. Although judges undertake a significant public task and in recent times their pronouncements are becoming increasingly a part of the common political discourse of democracy, yet the nature of their office makes them largely restricted to private domain. In the case of Justice Krishna Iyer, in more ways than one, the private became public, once again departing from the conventional wisdom about judges. There is certainly much there for serious scholars and opinion makers to work into their approaches on the role of a judge in a difficult, polarized atmosphere of contemporary democracy, hopefully beyond the confined contours of 'committed judiciary' and 'cloistered virtue' theses. There are sub-themes as well, of the judge as a legislator or at least a deputy legislator; as a philosopher and creator; interpreter of popular morality or as Professor Dworkin would have us, searcher of constitutional or institutional morality. It would be interesting to put oneself on the Rawlsian Original Position in the Indian context and see if Justice Krishna Iyer’s philosophical approach shows up. Be that as it may, the pressing question that subsumes many relevant themes and sub-themes remains about the relationship of elected public representatives and unelected judges. This cannot be answered without an adequate understanding of the very concept of democracy. Many of the unhappy developments that we have suffered in contemporary history may well be described as simplistic perceptions of the role of democracy and judicial decision making in the affairs of human beings.
From the Forthcoming book on Justice V.R Krishna Iyer authored by Salman Khurshid and Lokendra Malik.Salman Khurshid is a former Union Minister of Law and Justice, External Affairs, India and currently a Senior Advocate in the Supreme Court of India.