V.R. Krishna Iyer – The Super Judge [First VRK Memorial Lecture by Fali Nariman]
Inaugural Lecture of V.R. Krishna Iyer Memorial Lecture Series – Organised by the Sarada-Krishna-Satgamaya Foundation for Law and Justice, Delhi Chapter on Wednesday, 26th October, 2016, at the Main Auditorium, Indian Society of International Law, Bhagwan Dass Road, New Delhi
The title to this Lecture – is an adaptation of the title of Bernard Schwartz’s biography of US Chief Justice Warren. Schwartz called it THE SUPER CHIEF – simply because one of the Associate Judges of the Warren Court had once said that for those who served with him, Earl Warren would always be the SUPER CHIEF.
I reckon that for the Judges who served with him, and for those advocates (like myself) who appeared before him, Krishna Iyer will always remain THE SUPERJUDGE.
Kerala’s legendary Chief Justice M.S. Menon – who is still fondly remembered today by many senior lawyers and retired judges from Kerala was the man who picked then practising lawyer Krishna Iyer to be a Judge in July 1968.
Unlike any Judge before or after him Krishna Iyer was a man with a past – he had a criminal past, a quasi-criminal past and also a political past.
Way back, in 1948, as lawyer he had protested against physical acts of torture by the Kerala police; it was then an acknowledged method of custodial interrogation: for this he was charge-sheeted – the charge being “giving legal assistance to communists!” He was found guilty and imprisoned for a month on this wholly fabricated charge.
His quasi-criminal past was when soon after retirement he was hauled up for criminal contempt by his own Kerala High Court for remarks such as
“our whole judicial approach has a certain independence from all civilised behaviour….”
Only a Krishna Iyer could say this and only a Krishna Iyer could have been exonerated as he was.
In the judgment of the Kerala High Court it was said that “comments made by him are not of a person who is vituperative or who wants to bring into disrepute the judicial system of this country but only of one who was exhorting the people for revolutionary change in the outlook concerning problems of the judiciary”.
And his political past began when he was elected to the Madras Legislative Assembly in 1952, from Thalassery as a non-party, independent candidate – In the first communist government in Kerala headed by E.M.S. Namboodiripad –elected to office in 1957; he was appointed minister of law, justice, home, irrigation, power, prisons, social welfare and inland navigation (quite a breath-taking combination).
But only a few know how Krishna Iyer started his professional career in the High Court.
You will not find the story even in his last book – A Centenary Miscellany at Law.
He told me the story himself when I visited him in Cochin in February 2012.
So let me relate it to you.
After the Government of Kerala, of which he was a Minister was dismissed by the Centre, way back in the late nineteen fifties, Krishna Iyer took-up the practice of law in the Kerala High Court.
He paid his life-subscription, was enrolled by the then Secretary of the Bar – Mr.C.K.Sivasankara Panicker, (later Kerala’s Advocate General); he was father of Justice K. S. Radhakrishan whom you just heard.
But when Krishna Iyer’s name went up to the Bar Committee for approval, the Committee of the Kerala High Court Bar Association thought it fit to reject him since the newly enrolled Member was (as they put it) “an avowed communist.”
Krishna Iyer then told me, the sequel – his bright eyes – always bright till the end – now glistening:
“I said I would sue them all since they had second thoughts about refusing to enrol a communist after accepting this communist’s life subscription. I told them that my threats are as serious as the one who has uttered them.”
And the threat worked!
The Committee backed down.
This is how Krishna Iyer got enrolled and remained enrolled as member of the Kerala Bar Association!
This fire-cracker commencement of a legal career, in the High Court is something of a record- coming close to it is a book published last year by retired Justice John Paul Stevens of the U.S. Supreme Court. Retiring from the Court at age 92, he published at age 96 his now-latest book on the US Constitution titled “Six Amendments – why and when we should change the Constitution “.
Krishna Iyer beat him to it – his “Miscellany” was published and released when he was past 99!
Old men around the world, Chief Justice are extremely active these days – even into their late-nineties: which makes the Constitutional age of retirement of Supreme Court judges (at 65) look so absurdly outdated!
Krishna Iyer’s memory was elephantine even in his old age – In his musings released in Cochin when he was 99 Justice Krishna Iyer remembered a grave wrong (of long years ago) – done to Senior Advocate Madhav Reddy of Andhra Pradesh. After his career as a Judge including a couple of years as Chief Justice of Bombay, Madhav Reddy after retirement, argued a case before the Supreme Court of India, and I now quote from the “Musings.”
Listen carefully to this – it is Krishna Iyer’s indictment of two Chief Justices of India – (both eminent). Only a Krishna Iyer could pull it off without fear of contradiction or condemnation.
These are his own words and I quote them:
“There was once a case between a private citizen and the Maharashtra Government; A retired judge of the Supreme Court, who was otherwise a great Chief Justice, gave a opinion to the private citizen and received a large sum of money as fees for his opinion – an opinion against the Maharashtra Government.
In the case between the private citizen and the Maharashtra Government the High Court then appointed as arbitrator the same great Chief Justice who accepted the appointment without disclosing that he had earlier given an opinion to private party, an opinion that was against the Maharashtra Government!
That person, the same judge, who had earlier given an opinion repeated the opinion as his award and claimed another set of fees.”
The verdict of the High Court was against the Maharashtra Government and the Maharashtra Government then appealed to the Supreme Court.
The then Chief Justice who heard the case in the Supreme Court, was also great. But he rebuked the advocate for the Maharashtra Government Madhav Reddy for criticizing the person who gave the private opinion – the judge who obviously committed misconduct and insult by giving a private opinion and accepting the role of arbitrator in the same matter having taken by now a double set of fees.
The Government advocate Sri Madhav Reddy an eminent lawyer, withdrew from the case and the arbitrator’s verdict became final, although the conduct of the arbitrator in having participated earlier in the same case was clearly a grave misconduct. The judge who heard the case was Chief Justice of the Supreme Court, who wrongly admonished the Government lawyer Madhav Reddy, but being a judge his folly escaped being called a delinquency. Such cases, do occur when even an arbitration does not secure justice.” (un quote)
Only a Krishna Iyer could be so critical of not one but two Chief Justices of India – one sitting and the other retired but both prominent Chief Justices in their own right.
This true story shows that for Krishna Iyer – a wrong was a wrong, was a wrong and it had to be exposed – whoever were the personalities involved, and he alone chose to expose it at age 99!
Post-retirement as Judge (after November 1980) Krishna Iyer had become increasingly involved in public affairs (never private affairs): in fact he became the conscience of his judicial brethren past and present: when anything went wrong in the Judiciary: especially the Higher Judiciary – the somewhat faltering but stern voice of rectitude from far-off Kerala – was heard by one and all. It reverberated throughout the country.
This was because after retirement he was the uncrowned Chief Justice of the Peoples Court of India – a title he proudly held with distinction till he passed on in December 2014.
This title was never officially conferred on him. He earned it by popular acclaim – He was the Country’s Super-Judge, even after he had retired.
As Judge, he had two superlative qualities – closely akin to his English counter-part Lord Denning – an original and innovative mind and a compassionate heart. If ever innovative judgments are permitted to be patented Lord Denning in England and Krishna Iyer in India would be the judges holding the largest number (of such patents).
Let me first mention Lord Denning – like Krishna Iyer he too reached hundred.
Like Krishna Iyer – he too was a great Judge.
Like Krishna Iyer he too was a Judge with compassion: a quality best exemplified in the case of a small man by the name of Stephen Ballog. Listen to the story as simply – and so effectively – told by Denning in his reported judgment.
Ballog was a solicitor’s clerk – a casual hand employed at £ 5 a day by solicitors for the defence in a case before the Crown Court.
The case dragged on and on (as cases tend to do!).
Ballog got exceedingly bored.
He made a plan to liven it up.
He knew something about a gas called nitrous oxide N2O – it gives an exhilarating effect when it is inhaled. It is called laughing gas. He had learned all about it when he was at school.
So during the trial, he took a half cylinder of it from a hospital nearly and carried it about with him in his briefcase.
His plan was to put the cylinder at the inlet to the ventilating system, in the trial Court, and release the gas in Court.
It would emerge from the outlets which were just in front of counsel’s row. So the gas, he hoped, would liven up the addresses of Counsel.
One night, when it was dark, he got on to the roof of the court house.
He found the ventilating duct, and decided where to put the cylinder.
Next morning, soon after the court sat at 11.15, he took his brief case (with the cylinder in it) to Court, waiting for the moment when he could slip up to the roof without anyone seeing him.
But the moment never came.
He had been seen on the night before.
The officers of the Court had watched him go up to the roof.
So, in the morning they kept an eye on him and arrested him.
They opened his briefcase and took out the cylinder.
They charged him with stealing a bottle of nitrous oxide.
He admitted it.
They kept him in custody and reported the matter to the presiding Judge – a person without any sense of humour – Justice Melford Stevenson.
The Judge had Ballog brought before him. It was a summary trial. The police inspector gave evidence. Ballog admitted it was all true.
He said he meant it as a joke – a practical joke. But the Judge thought differently. He was not amused. To him this was no laughing matter. It was a very serious contempt of Court. The Judge sentenced him to prison for six months.
At hearing this sentence Ballog exploded. He told the Judge: “You are a humourless automaton – why don’t you self-destruct”.
The wretched man was forcibly taken away to serve his sentence!
He languished in jail for a week and wrote a pleading letter to the Judge – but the humourless Judge was not moved.
Bollog appealed and the matter came up before the Court of Appeal – fortunately for Ballog, before Lord Denning.
Denning was all sympathy for the poor wretch.
He had already suffered in jail for seven days by then.
One can see how the great man’s mind worked – “there must be some way found to get this man out”, Denning said to himself, and only a Denning could find a way. And Denning found it.
This is what he said (in his judgment) – “Well”, “Ballog had merely prepared to commit contempt of court. He had not even attempted to commit it, because nothing was let into the ducts; mere preparation for committing contempt even with intent is not contempt”. And besides Ballog had apologised – “that is enough to purge his contempt, if contempt it was”.
The case ended. The judgment of the trial Court was set aside.
As for the Judge who sentenced Ballog he was disposed off in a few short sharp sentences. This is what Denning wrote:
“The judge, below acted with a firmness which became him. As it happened, he went wrong because he went too far. That is no reproach to him. It only shows the wisdom of having a Court of Appeal!!”
Simply and most effectively put.
We in India were fortunate to have had another Judge like Denning – though his style of writing judgments was entirely different. But his heart like Denning’s was in the right place.
And like Lord Denning he was with us till age 100!
Justice Krishan Iyer’s humanising influence on the law was first expressed in a case – of little apparent public importance.
But it is one of the judgments of his I like best: a case of a small time businessman of Kerala who went by the rollicking name of Jolly George Verghese (fancy having a name like Jolly George Verghese).
Let me tell you this story.
Like many others of his kind this individual was in debt and could not afford to pay his debts – even judgment debts. And so like many other hundreds of persons at the time (and many thousands before him) the poor fellow was marched off to the civil prison.
Rightly, Courts in Kerala had said, relying on the provisions of Section 51 of the Code of Civil Procedure 1908 – one of the modes of execution of a money decree is imprisonment of the debtor in Civil Jail.
But Jolly George Verghese was more fortunate than his other debt ridden brethren.
He appealed to the Supreme Court of India.
And happily for him and for the law, the case came before a Bench presided over by Justice Krishna Iyer.
The judgment is a treat. I advise all who are enthusiasts about LAW (in capital letters) and those interested in social justice to read it and absorb its meaning.
It is simply written – but not without fine literary flourishes.
Always a man (of vast and varied reading) Krishna Iyer in his judgment in the case first quotes Shakespeare:
“Imprisonment is not to be ordered merely because, like Shylock the creditor says, I crave the law, the penalty and forfeit of my bond.” (a famous quote from the ‘Merchant of Venice’)
The Judge then quotes from a book more ancient than Shakespeare – the Bible – the Old Testament:
“Mercy is reasonable in the time of affliction as clouds of rain in the time of drought.”
(What beautiful imagery)
When the case first came before him Krishna Iyer looked into the law and found that the enacted law gave him no choice but to uphold the judgment of the Kerala High Court. But then like the good Judge he was he looked elsewhere and he read the UN International Covenants. He found that they did not match with Section 51 of the CPC.
He found Article 11 of the International Covenant on Civil and Political Rights 1969 – (ICCPR) One of the major United Nation’s Covenants: India was a party to it. Article 11 of the ICCPR says:
“No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”
This post Second World War provision was in the teeth of the pre-First World War Section 51 of the CPC – and then Krishna Iyer figured out how best he could reconcile the two in the interest of this small miserable man with such a jolly name.
The ICCPR though not part of Indian law – is certainly part of International Law recognised in India. So Krishna Iyer reasoned.
He also reasoned that International law must have some influence on the interpretation of our own national law especially when our national law pre-dates India’s ratification of the UN Covenant by more than 60 years.
So by a clever process of judicial interpretation, in the light of Article 11 of the ICCPR, Krishna Iyer concludes as follows:
“(i) That if a debtor once had the means but now he has not the means to pay, or
(ii) If he has the money now on which there are other legitimate and pressing claims, then
(iii) it would be violative of the spirit of Article 11 which is part of international law to arrest and confine him in jail so as to coerce him into payment”;
(iv) And this is how, says Krishna Iyer, Section 51 of the CPC is to be understood and applied.
And so it has been ever since.
Simple default to discharge a debt even a judgment–debt is not enough to march off a person to jail because personal liberty is a fundamental right; there must be some element of bad faith beyond mere indifference to pay. Some deliberate disposition not to pay despite the means to pay.
Do read the judgment – it is a treat.
It is a landmark case on the humanising influence of International law on a pre-First World War statutory provision in India
This judgment not only reflects the Judge’s clarity of thought.
It is also a tribute to judicial research (for which judges have little time these days) – it is also a tribute to highly innovative thinking: which inheres only in a person possessed with a fertile mind.
Then there is that other case – again, an old case. Lord Denning always used to say that old cases like old words are best, and old words when short, are best of all. This is Krishna Iyer’s now famous judgment in the Ratlam Municipality case.
It is gem of a judgment authored by Krishna Iyer sitting along with another of our fine Judges of old. Justice Chinnappa Reddy – who was always enthused with a fine turn of phrase [You will all recall with what ringing words Chinnappa Reddy ended his own judgment in the Jehovah Witness Case (1986). He ends with these ringing words:
Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.” (an admonition that has alas fallen on deaf ears)]
The case of the Ratlam Municipality is a typical instance where the Court had no more to go on than a mundane statutory directive in Section 133 of the Criminal Procedure Code (a provision empowering a magistrate to pass a conditional order for removal of a nuisance.
The section empowers the Magistrate on receiving a Report of the Police Officer or other information to order the removal from any public place or from any river or channel any unlawful obstruction or nuisance.
But Krishna Iyer looked for and found something new in the Section – which other judges had not seen so far, or even since! Witness how this Judge gets enthused with an otherwise prosaic section in the criminal law (and I quote)
“9. So the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. ‘All power is a trust – we are accountable for its exercise – it all springs, from the people for the people. Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise.”
The Sub-Divisional Magistrate of Ratlam had been moved to take action by an application that the Municipality be ordered to construct suitable drain pipes with sufficient flow of water to wash the filth, stop the stench and to provide sanitation facilities in Ratlam.
The Magistrate finding that “nuisance” was established, gave detailed directions as to how the nuisance should be abated.
But the Ratlam Municipality challenged this order first in the High Court, and then in appeal to the Supreme Court, and the question which the Court had to answer was whether in an application under Section 133 of the Criminal Procedure Code a Court could, apart from imposing punishment, compel a statutory body to carry out its duties to the public by undertaking construction of sanitation facilities at considerable cost, and on a time bound basis: and that too in a criminal case. Why not? said Krishna Iyer.
Speaking for the Court he said:
“At issue is the coming of age of that branch of public law bearing on community actions and the Court’s power to force public bodies to implement specific plans in response to public grievances.”
These are golden words; words with which the new era of genuine (not fake) PILs got initiated.
Justice Krishna Iyer’s Court spent some time on this case particularly because of the attitude (of what the Court called) “the callous public bodies habituated to deleterious inaction”: words that have a familiar ring in these times, when till only a week or two ago this capital city of India remained choked with serious but neglected cases of Dengue and Chickengunya.
One of the legal pleas to absolve the municipality from the Magistrate’s specific direction under Section 133 was that the municipality had no funds to comply with the directions.
Krishna Iyer negated this plea on principle, in these ringing words:
“The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 133 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be. [“That cannot be” is a Shakespearean phrase – uttered by Portia in merchant of Venice when the Jew tells the Duke that he must have his pound of flesh from poor Antonio with Portia the lawyer pleading for him].
Coming back to Ratlam Municipality. The Krishna Iyer Court allowed the municipality to frame a scheme commensurate with the costs involved which the municipality could well-afford with help of loans from the State Government then approved and monitored for the future. This was on the principle set out in Article 47 of the Constitution – a directive principle of State policy – viz. that the improvement of public health is amongst the primary duties of the State.
The Court revised the Magistrate’s order into what was called a “workable formula” the implementation of which would be “watch-dogged by the Court”.
In this decision in the case of Ratlam Municipality we see the beginning of two things –
One, public interest litigation when the executive branch or its agencies fail to perform their executive duties. [The decision stands out as an effective answer to those who complain that Courts needlessly interfere with executive functions. The case shows that – that they do so, not needlessly, but when they have to]
Second, the expression “watch-dogged by the Courts” was a work-a-day expression used by Krishna Iyer since it could be understood by one and all.
It was the precursor of what CJ Verma described much later in Vineet-Narain (1998 1 SCC 226) – in strictly legal terms – where that great Judge spoke of a continuing mandamus: the origin of Verma’s continuing mandamus is in Krishna Iyer’s “workable formula watch-dogged by the Court”.
The judgment in the case of Ratlam Municipality is also written in a simple language, easy to understand. Yet it is an epitome in judicial craftsmen-ship.
It has now for years spurred into action many High Courts throughout the country whenever their Writ Jurisdiction has been invoked.
It is a leading case frequently followed – clamouring to be followed even more frequently. Do read this innovative judgment authored by Justice Krishna Iyer. It is reported in AIR 1980 SC 1622 (the year 1980 was the last – golden year of the Krishna Iyer Court).
In this case incidentally Krishna Iyer also invented a new litigative strategy increasingly practised today – viz. negotiating with parties whilst at the same time judging their cases.
The Court negotiated with and induced the State Government in that case to grant a loan to the impecunious Ratlam Municipality so that it could successfully abate a long-standing nuisance. This technique is now increasingly recommended all around the world – and has been described “as the wave of the future”. It is Krishna Iyer who is responsible for innovating in India this wave of the future.
Gender Equality was yet another of Krishna Iyer’s clarion calls. He got it established before anyone else did in the now celebrated case.
His judgment in the case of Miss C.B. Muthamma, I.F.S. vs. Union of India and others: (1979) 4 SCC 260: begins with the following words.
“This Writ Petition by Miss Muthamma, a senior member of the Indian Foreign Service, bespeaks a story which makes one wonder whether Articles 14 and 16 belong to myth or to reality. ….”
A beginning, like he is telling a story – like the commencement of many judgments of his English counterpart, the great Lord Denning.
And Krishna Iyer sees to it that the story he unfolds has a happy ending.
Muthamma’s complaint was that as a result of the Foreign Service Rules she had been denied promotion to Grade-I in the Indian Foreign Service – a Grade which entitled her to be appointed India’s Ambassador to foreign-nations abroad.
Krishna Iyer said that “there was ‘transparent discrimination’ against women in the foreign service rules. And he expressed judicial indignation.
He characterised in a typical Krishna Iyerism the male bureaucrats attitude – he called it the male’s ‘die-hard allergy to gender parity’. And he allowed the writ petition. Miss Muthamma ultimately got her promotion only because of this brave and far sighted Judge. And she distinguished herself as India’s Ambassador serving in several countries abroad.
But there is more in Muthamma’s case than her own success. Krishna Iyer expresses in words the grievances of a whole succession of government servants about the most used phrase in Service Law ‘seniority’ – he says (and I quote):
“In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. ….. The sense of injustice rankles and must be obliterated so that every servant in strategic position gives his or her best to the country.”
And Krishna Iyer then ends the judgment with these ringing words:
“What we do wish to impress upon Governments is the need overhaul all service rules to remove the stain of sex discrimination without waiting for ad hoc inspiration from Writ Petitions or gender charity.”
It is because one Judge out of so many – a SUPERJUDGE – chose to step out of the crease and give back Muthamma her constitutional rights that thanks to Krishna Iyer we have gender equality in the Foreign Service and (on parity of reasoning) in other services of government and governmental agencies.
After a few years on the Bench of the Supreme Court it was acknowledged that Justice V. R. Krishna Iyer, had all the abiding qualities of a great Judge – he was innovative, he was for the under-dog, he was compassionate.
But to be a SUPER-JUDGE one needed another superlative quality: true independence.
Was he? Judge for yourself.
He had the singular good fortune to have his judicial independence put to the litmus test when he was the notified Vacation Judge during the Court’s Summer Vacation of 1975 – this Court Summer Vacation of 1975 is long remembered.
On June 12, 1975 Mrs. Indira Gandhi’s Election to the 5th Lok Sabha was set aside by the Allahabad High Court in the election petition filed against her by Mr. Raj Narain.
The High Court Judge had ruled that she had forfeited her seat in the Lok Sabha on account of proven corrupt practice.
Mrs.Gandhi engaged the eminent Nani Palkhivala, who sought an absolute stay of the judgment and order. Her legal advisers encouraged Mrs.Gandhi to believe that it was her right as PM to obtain an absolute stay.
The Supreme Court was then in vacation. Vacation Judge Krishna Iyer could have passed the buck – posting the case for the re-opening of the Court granting a temporary absolute stay in the meanwhile. But he did not pass the buck.
He heard it for an entire day-carefully noting all the precedents.
After hearing Palkhiwala’s eloquent arguments, and noting, but discounting, that great lawyer’s threat of what the people of the country might do if an absolute stay was not granted, this Vacation Judge said he was not convinced with the arguments of Palkhiwala.
And on the very next day – he dictated in Court his order, giving reasons why he granted not an absolute stay but only a conditional stay – following a long line of time honoured precedents.
I had the privilege of taking some liberties with the Great Judge after his retirement.
And he good – naturedly humoured me. Quite often I pulled his leg to tell him that it was his order in Raj Narain’s case in the Summer Vacation of the Court that brought about the Internal Emergency of June 1975. It is you (I said) – not Mrs.Gandhi who was responsible for the Internal Emergency of June 1975! He only smiled, a little tickled by my impertinent left-handed compliment!
But the complement paid by India’s constitutional historian H.M. Seervai (otherwise very critical of Justice Krishna Iyer and many of his judgments) was not all left-handed it was much more thoughtful and to the point.
Let me quote in full from Seervai’s great book 4th Edition Vol. II (2006):
“…..the historian will say that the Supreme Court moved towards its finest hour, a day before the Proclamation of Emergency, when on 24th June, 1975, Krishna Iyer J., following judicial precedents, rejected an application made by Mrs. Gandhi that the Allahabad High Court’s Order, finding her guilty of corrupt election practices and disqualifying her for six years, should be totally suspended. In the best traditions of the judiciary, Krishna Iyer J., granted a conditional stay of the Order under Appeal – although he had been reminded by her eminent Counsel Mr. N. A. Palkhivala, “that the nation was solidly behind her as Prime Minister” and that “there were momentous consequences, disastrous to the country, if anything less than the total suspension of the order under appeal were made”. (Unquote)
Great praise indeed. But then Krishna Iyer always did what he thought was right, and never bothered about the consequences.
He retired from the Court in 1980. It is said that when Justice William Douglas retired from the Supreme Court of the United States, after a tenure spread over three decades, a widely read magazine described him as:
“The Court’s grandest maverick, a rugged liberal with a shock of white hair, piercing eyes and a luminous regard for the First Amendment.”
When Krishna Iyer retired from the Court in 1980 – he was the Court’s grandest maverick a rugged liberal with a shock of white hair and piercing eyes – and a luminous regard (not for the First Amendment but) for the poor and needy.
This brings me near to the end of this First Krishna Iyer Memorial Lecture. A few more words and I have done.
An assessment of Krishna Iyer’s contribution to the law by reference to his prolific judgments – more than seven hundred – delivered during the seven years that he sat on the Bench of the country’s highest Court – would not (I feel) do him adequate justice – It would only help to gather together a wide range of judicial opinions on a whole variety of subjects.
I believe his signal contribution to Indian jurisprudence has been much greater. With his pronouncements on the Bench Justice Krishna Iyer, more than any other Judge on the Bench (past or present) had taught other Judges to think! His influence on his brethren was profound. Few know and fewer today remember that there were in the nineteen eighties and nineteen nineties adherents to what was then popularly known as the Krishna Iyer School of Law.
This is his real contribution.
Through his judgments, he showed that the Anglo-Saxon system of jurisprudence India adopted (and adapted) can work if only we know how to make it work: which is to decide (as one must) according to law, but never to forget that law without justice is like an egg without its yolk, and much of its salt!
In the Supreme Court building opposite you will find there are hanging in Court Room No.1 where our Chief Justice sits portraits of India’s first Chief Justice Sir Harilal Kania and (on the opposite side of the room) the portrait of Justice Bijan Kumar Mukherjea the fourth CJI (a great and a most courageous Judge) [Rightly, a most courageous judge. It is reliably said that when PM Nehru called him one evening and told him that he (Mukherjea) would be appointed CJI when Patanjali Sastri retired in a few weeks and that Mehr Chand Mahajan senior to Mukherjea would be overlooked (Panditji didn’t like Mahajan because of his political past). Well when Panditji told him this Mukherjea promptly told his PM that if in order of seniority Mahajan was not appointed CJI he and most of his colleagues would resign in protest at this breach of convention].
In Court Room No. 2 there is a portrait of Justice Venkatarama Aiyyar (not Justice Venkataramiah from Karnataka from whom we all learnt and whom we all knew and loved) but another Justice Venkatarama Aiyyar from Madras of long long ago (who sat in the Supreme Court in the mid-nineteen fifties. His talents in music almost surpassed his exquisite legal acumen – he had taught Subbulakshmi how to sing.
Then some 30 years later because of his judgment in a now-celebrated case, and at the insistence of the Bar, the great Justice H.R. Khanna’s portrait was unveiled in Court No. 2. There have been no other portraits since then – not of any of the other nearly 200 odd Judges that have sat in the Supreme Court of India since 1950.
I refuse to accept that no one of them deserve a portrait. I make bold to ask you Chief Justice how will the majority of the lawyers now practising in the Supreme Court of India who had never appeared before or even seen this SUPER JUDGE, ever recall that a man of the calibre of Krishna Iyer sat to administer justice in the building opposite?
There is a stanza from a poem with which I must conclude – not my own poem but from the pen of a renowned First-World-War poet (Laurence Binyon):
“He shall grow not old as we that are left grow old;
Age shall not weary him, nor the years condemn –
At the going down of the sun and in the morning
We will remember him.”
Chief Justice we will remember him the better only when his portrait adorns one or another of the Court-rooms of this Great Court.
I respectfully suggest that with the consent of your distinguished colleagues you take the opportunity to unveil the portrait of this SUPER JUDGE before the year is out.