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V R Krishna Iyer – The Super Judge – lecture delivered by Fali S Nariman

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This is a reproduction of the speech delivered by Fali Nariman at the inaugural lecture of the VR Krishna Iyer Memorial Lecture Series – organised by the Sarada-Krishna-Satgamaya Foundation for Law and Justice, Delhi Chapter on Wednesday, October 26, 2016.

The title to this lecture is an adaptation of the title of Bernard Schwartz’s biography of U.S. 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 Super Judge.

Kerala’s legendary Chief Justice MS 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 a 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 EMS Namboodiripad. 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 – CK Sivasankara Panicker, (later Kerala’s Advocate General); he was father of Justice KS 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 enroll 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 U.S. 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 justices 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!

Chief Justice of the Peoples Court of India

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 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.”

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.

India’s Lord Denning

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 the counsel’s row. So the gas, he hoped, would liven up the addresses of the 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 briefcase (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.

Ballog 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, 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!

The Jolly George Verghese Case

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 of the law 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 (Merchant of Venice):

Imprisonment is not to be ordered merely because, like Shylock the creditor says, I crave the law, the penalty and forfeit of my bond.”

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 fulfill 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.

Read more at: http://www.bloombergquint.com/opinion/2016/11/01/vr-krishna-iyer-the-super-judge