Justice at heart
When Justice Krishna Iyer passed away on December 4, 2014, after celebrating his 100th birthday on November 15, a grateful nation looked back at some of the milestones in his long and distinguished life, which were indistinguishable form some of the milestones in India’s political and judicial history. Called to the Bar way back in 1938, Justice Krishna Iyer sprang to lawyerly life with great elan and to a lucrative practice as a junior in the chambers of his father, V.V. Rama Aiyar, a leading member of the Tellicherry Bar. As he put it, young in age, but with propitious opportunities to cross swords with vintage wonders of the Malabar Bar and beyond, it fell to him to spend his vernal years in a versatile professional life.
Busy from the beginning, both at the Bar and in public life, Justice Krishna Iyer had a head start. Driven by idealism and socialist sympathies, he soon engaged himself with peasant struggles, and litigation gravitated towards him. Recalling those years, he wrote: “Gently, I became a public figure of sorts without party affiliation.” Yet, as a lawyer, he often represented the communists, arrested in violent incidents, and this landed him in controversies. As George H. Gadbois Jr observes in his recent book, Judges of the Supreme Court of India, 1950-1989, “although he was opposed to violence, because he represented many of the arrested leaders, he acquired the label of being a dangerous leftist”. In May 1948, Justice Krishna Iyer was accused of actively helping the communists in their violent activities and providing hideouts for them, and was arrested. The Madras government, however, could not justify his arrest in court, and consequently, he was released but only after he had spent a month in jail. He is perhaps the only judge of the Supreme Court to have been jailed by the Indian government after Independence. As Gadbois observes, with his first-hand experience of jail conditions and the inhuman treatment of prisoners began his lifetime passion for prison reforms and the treatment of prisoners as human beings. Justice Krishna Iyer describes his experience in jail as follows: “A brief spell in distressing preventive detention, lonely behind bars, steeled my soul and broadened my bosom.”
In 1952, he was elected to the Madras Legislative Assembly from Malabar (Tellicherry) as an independent with leftist leanings. In 1957, after the reorganisation of States, he was elected to the Kerala Legislative Assembly, as an independent with support from the Left. The Assembly elections in Kerala that year led to the formation of the first communist-led government in an Indian State. Justice Krishna Iyer was sworn in as a Minister in the E.M.S. Namboodiripad Cabinet. The Jawaharlal Nehru government at the Centre dismissed the Communist government in 1959. During the two years the party was in power, Justice Krishna Iyer was in charge of portfolios as varied as home, law, justice, irrigation, inland navigation, power, prisons, social welfare, agriculture and cooperatives. About this phase of his life, he wrote: “My intrepid mind and spotless conscience were a humane asset and education in experiential compassion. I humanised prisons and prisoners and used habitative strategies. The common people loomed large in my vision of Minister’s obligations.”
Between 1959 and 1968, Justice Krishna Iyer flirted with electoral politics even while practising at the Bar. His political leanings did not disqualify him from being considered for appointment as a judge of the Kerala High Court on July 12, 1968. Justice Krishna Iyer recalled those early years as a judge as follows: “A sharply different social philosophy marked me out as an unorthodox socialistic, people-oriented jurisprudent, unbound by obsolete precedents and fossil forensic praxis, innovating pragmatic processes and sensitising legal justice with substantive values. The Constitution, to me, ceased to be an idle Preamble and printed prolixity, but became a lodestar imparting living light to litigative law. I tried out odd experiments, which solaced my spirit and gave relief to victims.”
Thanks to his friendship with the then Union Minister for Steel and Mines, Mohan Kumaramangalam, Justice Krishna Iyer’s progressive capabilities were recognised by the Centre. He was appointed a Member of the Law Commission in September 1971 and a judge of the Supreme Court on July 17, 1973. He retired from the Supreme Court in November 1980.
As a judge, Justice Krishna Iyer was known for his non-conformity. He readily agreed to give lectures in support of people’s causes and professional enlightenment. But he was always careful not to prejudice the finer freedom and sacred neutrality of his high office as a judge. On the contrary, as he was to claim later, he gained a larger constituency to serve. He was criticised by jurists and advocates for his “unconventional views” and “unjudicial unenglish” (the love of the long word or odd mintage, which he confessed as his guilt). But he was incorrigible. “The style is the man and I survive,” he said about himself later.
On his appointment to the Supreme Court, Justice Krishna Iyer was greeted by a letter inThe Times of India written by a large number of “hostile” lawyers describing him as a dangerous man on the bench. He kept his cool and his conscience. Eventually, suspicion died down. He had no enemies at the Bar, so far as he knew, and his friends generally appreciated his stance, so he assumed. The eminent advocate Soli Sorabjee was one such convert, who admitted his transformation from being his adversary to an admirer.
Justice Krishna Iyer imparted a literary touch to the writing of judgments, ignoring the traditional pattern. He tried to democratise judicial remedies and brought into vogue public interest litigation (PIL) and “epistolary” jurisdiction—a letter complaining of injury being received as a petition. He believed that procedural lissomness and informality were aspects of access to justice in a poor country. He paid tribute to human rights by introducing the values of international covenants into Indian law by hermeneutic humanism. He tried, with some measure of success, to liberalise prisons, to sensitise sentencing correctionally, to enliven liberties and to pragmatise gender justice and Dalit equality. Life, especially the right to life, claimed his judicial reverence, and so he gave life-saving parameters high-priority judicial sanction, which made capital punishment the rarest of rare verdicts from his bench.
He was touched when Lord Leslie George Scarman, the great English judge, wrote to him saying he was moved by his passionate pleas in Ediga Anamma vs State of Andhra Pradesh (1974) and Rajendra Prasad vs State of Uttar Pradesh (1979).
In Ediga Anamma, Justice Krishna Iyer laid down the principles that ought to govern commutation of the death sentence to life imprisonment: “Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being, under S[ection] 302 read with S[ection] 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime.” In this case, the appellant, a rural woman, was convicted and sentenced to death for killing another woman and her child. The deceased happened to be the paramour of the appellant’s lover. In his judgment, Justice Krishna Iyer commuted the death sentence to life imprisonment, citing the above grounds.
In Rajendra Prasad, too, Justice Krishna Iyer reasoned that “if the murderous operation of a diehard criminal jeopardises social security in a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are—never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore, social justice projected by Article 38 colours the concept of reasonableness in Article 19 and non-arbitrariness in Article 14.”
Justice Krishna Iyer was to acknowledge later that these two decisions, setting aside the death sentences, gave much solace to his soul. Criminal jurisprudence, he said, would fulfil its functional trust when life and liberty were saved for even the least of humanity.
Progenitor of PIL
At a time when judges tend to view PILs with suspicion and distrust, Justice Krishna Iyer was proud of being its progenitor. He wrote: “I strove to humanise conceptually the narrow locus standi notion, whereby the people had a larger chance of access to justice. This open sesame has come to stay.”
Despite his unique judicial philosophy, Justice Krishna Iyer hardly dissented from his brother judges while on the bench. Even in the split judgments of the court, he was always on the side of the majority, trying to harmonise his decision with the majority and express his dissent in a nuanced manner, so as to contribute to the evolution of the law through concurring judgments. This unique quality, perhaps, stemmed from his belief that law develops through diverse views and that flashes of collision bring out the truth and justice.
His judicial vocabulary was, to borrow his own words, more vivid than hackneyed, less voguish than dull, drab verbalism. But his unique style of judgment writing was in no way an impediment to his urge for consensus among brother judges. As he explained, a single judge’s singular opinion may be an opinionated verdict prone to error. So, he realised, “the joint judgment of three is worth much more than three times the judgment of one, unless he is a genius” (attributed by Justice Krishna Iyer to Justice Learned Hand, an American judicial philosopher who served on the United States Court of Appeals for the Second Circuit. Like Justice Krishna Iyer, Hand possessed a gift for the English language, but unlike Justice Krishna Iyer, he missed a promotion to the U.S. Supreme Court although his judicial opinions were relied upon by that court in several cases.)
Justice Krishna Iyer regarded his ruling delivered as the single vacation judge in June 1975 in Indira Gandhi vs Raj Narain as the most sensational case of his career. While refusing Prime Minister Indira Gandhi’s plea for an absolute stay on the Allahabad High Court’s order setting aside her election on the grounds that she had violated the election law, he ruled that she had lost her status and privileges as a Member of Parliament but could retain her position as Prime Minister. His ruling in the case was hailed by the legal scholar H.M. Seervai as the finest hour of the Supreme Court.
The eminent legal academic Upendra Baxi wrote on the occasion of his centenary: “Krishna, along with some other gifted legal brethren, pioneered the conversion of the Supreme Court of India into a Supreme Court for the people of India.”