Kuttiyil Kurien Mathew is one who is highly regarded for his erudition and seminal contribution to Constitutional and Administrative Law. Prof Upendra Baxi perceptively observed, “We live in an era of massacre of ancestors which is considered a public virtue and a sign of worldly progress. But collective amnesia of what happened in the past is not an estimable virtue. Without living in the past its recall is important, for, it necessarily presages a future.” It is in this backdrop that we have to recall people like Justice Mathew. Persons like him are, and should be, role models. We remember him to enrich ourselves.
Adapting what Learned Hand said of Cardozo, in a place and age where passion for publicity is a disease and where swarms of foolish, tawdry moths dash with rapture into its consuming fire, it is indeed providential and our rare good fortune that brought to such eminence a man who shunned publicity and was so unassuming and serene.
Mathew was born at Athiramapuzha in Kottayam District on January 3, 1911. He was educated at St. Ephrem's English High School, Mannanam, and at Arts College and Law College, Trivandrum. As an earnest student he had early in life spent long time applying himself in a variety of subjects ranging from literature and history through philosophy which stood him in good stead in later years. He secured the coveted Harvey Memorial Prize in Essay Competition and the Victoria Jubilee Scholarship.
He joined the Bar in 1935 starting in Kottayam. After a couple of years he moved to Trivandrum, the seat of the High Court of the erstwhile Travancore State. He was a junior of A.J. John who was prominent in public life also and was later Chief Minister of Travancore-Cochin and then Governor of Madras State. He was known for his studious habits and almost from the very beginning he devoted his time to serious study- something which continued all through his life - reading classic texts in law as also law reports and journals across jurisdictions. It was what may be called unselfish reading, that is, reading for its own sake, for the acquisition of knowledge, not necessarily for its application or use in some case. That was preparation for a distinguished and lucrative practice that awaited him when he shifted to the newly established Kerala High Court at Ernakulam on reorganization of States in 1956. From then on it was a meteoric rise fuelled by hard work and dedicated scholarship. He was Advocate-General of the State of Kerala from November 1, 1960 to June 4, 1962. He was appointed Additional Judge of the Kerala High Court on June 5, 1962 and as a permanent judge on October 27, 1966. Justice Mathew was elevated as a judge of the Supreme Court on October 4, 1971 and retired on January 2, 1976.
These are the bare rudimentary biographical details of him who is to be counted as one of the most eminent judges; they hardly reveal his distinguished talent, deep scholarship, breadth of vision, perspicacity and judicial creativity, craftsmanship and statesmanship of a very high order.
Chief Justice Chandrachud says in his Foreword to K.K. Mathew on Democracy, Equality and Freedom that “in our present dispensation, a judge cannot, except for honourable exceptions, lay plausible claim to legal scholarship – Justice Mathew belongs to that exceptional class. His writings and speeches and not the least his judgements, reflect the uniqueness of his approach as a man and a judge.” He can easily be ranked with such judges as Cardozo and Hand.
Coming events cast their shadows before and Justice Mathew's earlier days were not without indications.
The heights by great men reached and kept/ Were not attained in sudden flight/ But, they while their companions slept / Were toiling upward in the night.
It is said that Mathew in his younger days as a lawyer was a keen student of Constitutional Law and would be seen as a loner in the Bar room or library devouring books and in deep contemplation. He lost his mother at a very young age and perhaps that too made him more of an introvert and he took to study and contemplation. Even when his brother or any close relatives visited him, he did not spend much time with them. The exchange of pleasantries was over in a few moments and he was back to his study. A contemporary is believed to have remarked to him, 'You will go to Heaven with your Constitutional Law.' The thought of food or rest did not bother him when he was immersed in study. Ordinary people, ignorant of his attainments and inclination, might have failed to recognize his talents and even misunderstood him. He possessed a unique scholarly spirit – humble and detached. He was reticent almost to a fault. But he showed that contrary to common experience, eminence is not an enemy of rectitude.
Clarity of thought and expression is an indispensable requirement of judicial craftsmanship and Justice Mathew had it aplenty. His judgements as well as extra judicial utterances are closely reasoned and tersely written and have 'multiple constituencies'. They have a freshness, profundity and elegance all their own.
One of the most notable opinions is Justice Mathew's learned dissent in the Kerala High Court in Narayanan Nambiar v. E.M.S. Namboodiripad, 1968 KLT 299 (324). He did not go with the majority which held as contemptuous the statement of Chief Minister Namboodiripad regarding judges and their preferences. He did not agree with the views of the respondent but defended his right to hold and articulate them. While he did not share the view that judges in their judgments should express the popular will, he believed that the 'blast of the theory or the deductions therefrom need not jolt the judges out of their moorings at this late hour. Judges must learn to transcend their own convictions, and to leave room for much that they would hold dear to be done away with, short of revolution, by orderly change of law. They must not forget that what seem to them first principles are believed by half their fellowmen to be wrong.' (See: Holmes, Collected Legal Papers, page 295).
Justice Mathew reasoned both at the level of the common law and constitutional law that the statements of the respondent would not amount to contempt of court. He cautioned that the “court by its pronouncement today is interfering with free trade in ideas and their competition in the market and to that extent with democratic process.………. I do not think we are the best judges of the truth of the matter because of the nature of the allegations, the possibility of our bias in the matter, and the summary nature of this proceeding.” He insisted that courts “should not be oversensitive of criticism of themselves” because they “are the guardians of the liberty of citizens in this country.”
It may be stated that though in appeal the Supreme Court also took the view of the majority of the High Court E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015 and the dissenting judgement did not get the consideration it deserved. However, Mathew's views on the law of contempt were virtually accepted without any express reference in Mulgaokar's case, AIR 1978 SC 727.
Another interesting and path breaking judgement is his dissent in V. Punnen Thomas v. State of Kerala, AIR 1969 Ker 81 (86) (FB). 'A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.' This position was expressly adverted to and accepted by the Supreme Court ten years later in Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 and became the law of the land.
His work as a judge of the Supreme Court is very well known. He believed with Justice Frankfurter that the Supreme Court in its own administration of justice must enforce “those rigorous standards of judicial administration which alone will give us the freshness and vigour of thought and spirit that are indispensable for wise decisions in the causes that are legitimately committed to us.”
Justice Mathew, like Chief Justice Harlan Stone of the US Supreme Court, may be called a judge's judge. In his brilliant analysis of the Judge's work Professor Upendra Baxi (in his Introduction to K.K. Mathew on Democracy, Equality and Freedom,) speaks of Justice Mathew's extraordinary attempt to combine judicial self-restraint with juristic activism and the effortless ease and remarkable aptness with which he is able to apply jurisprudential learning and insights to the task of judicial law making. His judgements provide an outline of his approach to the judicial task as well as judicial process in general. 'They also hold some clues to the principal values he held, although a notable feature of his craftsmanship is his reticence in canvassing his personal value commitments. They emerge very sharply, however, in his dissenting and occasionally in the concurring judgements. When juxtaposed with his extra-judicial writings one does get a more rounded view of the judge as a thinker and a human being.'
His judgements which bear the impress of great learning and a human touch cover a wide spectrum. M.L. Sethi v. R.P. Kapur AIR 1972 SC 2379, a classic exposition of 'jurisdiction'; State of Maharashtra v. Salvation Army AIR 1975 SC 846, regarding tax and fee; G.K. Krishnan v. State of Tamil Nadu AIR 1975 SC 583, re: the concept of compensatory tax, Shankaran v. Lakshmi (1975) 3 SCC 351 re: conflict of laws and the very fine points of dissent therein; State of Gujarat v. Shri Ambica Mills AIR 1974 SC 1300, re: under inclusion and judicial review in economic matters are some splendid examples of jurisprudential learning assisting a judge in arriving at a sound decision and of cogent legalistic craftsmanship. Mathew's formulation of the law in all these cases may well be the envy of many other judges. Union of India v. Sri Sarada Mills Ltd. AIR 1973 SC 281 is an illustration of his learning, judicious approach and craftsmanship in the area of private law. It deals with insurance contract. The care and concern which with the judge approaches his task is also seen in the judgement.
No reference to Justice Mathew or an account of his work or influence can be complete without mention of his opinion in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (though a minority one) as also his judgement in the Prime Minister's Election case- Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299: To again quote Professor Baxi: “Indeed I believe that Kesavananda is not merely 'a reported case on some articles of the Indian Constitution' but it is '…… the Indian Constitution of the future.' All opinions bear repeated reading and contemplation. But I was moved to say of Justice Mathew's opinion that it ensures him of the fame of being Cardozo of India. The reason for this spontaneous tribute lies in Justice Mathew's masterly use of contemporary jurisprudential thinking in an attempt to solve the fundamental puzzles of Indian Constitution and polity. His Kesavananda opinion marked by incisive thinking, compelling logic and elegant expression is by itself a mini treatise on jurisprudence and on the uses of jurisprudence in judicial law-making. What is more remarkable is the rich grasp of the subtle and fine points of jurisprudential thought. Indira Gandhi v. Raj Narain, provides a further striking demonstration of Justice Mathew's jurisprudential virtuosity.”
He believed in the relative autonomy of each generation to make fundamental choices in its own time, place and circumstances. To quote what he said in Kesavananda, “The Fundamental Rights themselves have no fixed content. Most of them are mere empty vessels into which each generation must pour its content in the light of its experience.”
Then again in the same case: A judgment seeking to reconcile different conflicting interests in society has to be made by the dominant opinion in the community. For a judge to serve as a communal mentor, as Learned Hand said, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The court is not the organ intended or expected to light the way to a saner world, for, in a democracy, that province is the choice of the political branch-the representatives of the people, striving, however blindly or inarticulately, towards their conception of the Good Life.
Mention must also be made of Justice Mathew's judgements in Bennett Coleman & Co. v. Union of India AIR 1973 SC 106 and St. Xavier's College Society v. State of Gujarat AIR 1974 SC 1389. In his seminal opinion in Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, which lighted a new path he elevates the values of personal liberty and human dignity to a high constitutional status. The right to privacy got a small but secure foothold and came to be recognized as an independent fundamental right which position was ultimately affirmed in K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.
Justice Mathew does not regard the State as a necessary evil nor think that increase in State power is a threat to individual liberty. He has a benign conception of the State. He views it 'mainly as service corporation.' According to him judges ought to start reasoning from the premise that the sole justification for a State to exist is its claim to advance public good and serve the public interest. It may be said that he attempted to restate the notion of the State on “true and genuine democratic foundations” and tried to regain for law, in a pluralist polity, “its moral function.”
He may be regarded as a votary of judicial self-restraint (though he was activist when necessary) and a brilliant exponent of its styles and rationales. A principal tenet of judicial restraint is respect for other branches of government. “In determining the constitutionality of the Act we would construe it in such a manner as to sustain it and every possible presumption will be indulged for that purpose. Our attempt should be to preserve and not to destroy. Respect for a coordinate branch of government… demands it. Our duty of deference to those who have the responsibility of making the law has great relevance in this context.”(Dissenting judgement in State of Punjab v. Khan Chand AIR 1974 SC 543.
Emerson's aphorism that humility raises one to the highest point of sublimity applies equally to the judicial function. “The attitude of judicial humility…… is not an abdication of the judicial function. It is a due observance of its limits………a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.”
All this shows the measure of the man, biographical details about whom are, unfortunately, rather few.
The vital distinction between constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself.[Kesavananda Bharati]
The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever-shifting tangle of human affairs. [Indira Gandhi]
The Constitution was framed on the theory that limitation should exist on the exercise of all power…. It should be so construed as to apply to arbitrary application of power by any centre of power. The governing power wherever located is subject to the fundamental constitutional limitations. [Sukhdev Singh]
These passages from his judgements vividly bring out his clear thinking and firm grasp of the fundamentals expressed in elegant prose.
The Supreme Court Bar made a rare departure from its usual practice and gave Justice Mathew a speaking farewell on his retirement. It was not for nothing that he was accorded that singular honour. The President of the Bar showered praises referring to his multifarious qualities and paid him glowing tributes- so well deserved. He had, to quote Chief Justice Chandrachud, 'endeared himself to the Bar, which is the best judge of judges, with his rugged simplicity, his frank and good humoured sallies, his penetrating analysis and above all his legal scholarship.... I am confident that further generations will find it rewarding to make a dispassionate study of the views so carefully and felicitously expressed by him in a number of celebrated cases. They will find in the judgements of Justice Mathew a most detached and realistic appraisal of the legalistics arising out of events which shook the nation.'
Justice Mathew headed the Enquiry Commission regarding the death of a Union Minister Shri L.N. Mishra in a bomb explosion. His report explored, interalia, the important question of application of the Nuremberg principles to Indian Law. Later, after retirement, he headed the Tenth Law Commission between 1981 and 1985 and thereafter was the Chairman of the Second Press Commission. He delivered a number of lectures including the first Tej Bahadur Sapru Memorial Lecture and Dr. Rajendra Prasad Memorial Lectures and wrote many articles all of which have the touch of a Master.
Two profound observations which he quoted are worth mentioning and bring out his own attitude to life.
“When in any field of human observation, two truths appear to conflict, it is wiser to assume that neither is exclusive and that their contradiction, though hard to bear, is part of the mystery of things.”
“Man is not born to solve the problems of the world but rather to search where the problems begin and to keep within the limits of what can be understood.”
His wife's passing in 1983 left him broken. Justice Mathew answered the final summons of his Maker on May 2, 1992.
In his tribute to Learned Hand, Frankfurter said, “The individual contribution of judges is absorbed in the anonymity of the coral reef by which the judicial process shapes the law. Their name and fame are writ on water. In the course of a century the acclaim of a bare handful survives.” Justice Mathew belongs to that select company of great judges.
In remembering him and saluting his memory on his death anniversary we replenish ourselves.
Author is a Senior Advocate, Supreme Court of India. Views Are Personal.