Judging a genius

PUBLIC interest litigation (PIL) and social action litigation (SAL) in India are not immune to criticism. A prominent “legal” argument against the PIL jurisdiction is that with the advent of social and socialist activism the judiciary started to behave like a “political institution”. According to critics, PIL courts are even tempted by populist compulsions, instead of sticking to the conventional “discipline” of “pure law”.

Justice V.R. Krishna Iyer’s relevance can only be properly assessed when one addresses the plea against the judicial radicalism of the 1970s and 1980s which he and his colleagues inaugurated and demonstrated. There would be no PIL movement in India without Justice Krishna Iyer, and the defence of PIL is, therefore, in essence a defence of his jurisprudence as well.

Those who see “politics” in PIL judgments in general and in “Krishna Iyer verdicts” in particular perceive the judiciary as otherwise apolitical. They tend to forget that J.A.G. Griffith historically proved in his classic work The Politics of the Judiciary (1977) that the judiciary could not act neutrally and that it always acted politically. The politics of the judiciary is constitutionally legitimised only if it adheres to its socialist content. In the post-Justice Krishna Iyer era, one sees high-profile litigation to materialise multi-crore projects. Often, developmental activities are preceded by the massive eviction of farmers, agricultural labourers or fishermen, as the case may be. The superior courts in India have, by and large, endorsed all such projects. This new juridical philosophy, which is writ large in episodes ranging from the Narmada dam to the Kudankulam nuclear project, illustrates a different brand of politics, which, however, is not exposed.

It is an irony that what Griffith said in 1977 was said much earlier by the late Marxist leader E.M.S. Namboodiripad for which he faced contempt proceedings that resulted in a conviction ( E.M. Sankaran Namboodiripad vs T. Narayanan Nambiar , All India Reporter 1970 SC 2015).

V.R. Krishna Iyer: Neethiyude Porali (Warrior of Justice) is a biography written in Malayalam by the veteran journalist Ravi Kuttikad. It describes the kaleidoscopic personality of the great humanist. More importantly, in the guise of a biography, it illustrates the politics of the judiciary in the Indian context. Interestingly, in the opening chapters, one finds an account of Justice Krishna Iyer’s association with E.M.S., who in turn shaped the characteristics of his public life, which formed the foundation of his school of legal thought as well. The book explores Justice Krishna Iyer as a jurist, politician, writer and philosopher. His social, legal, linguistic and spiritual creativity was always energised by a deep sense of compassion and social commitment. He focussed on the “public” component in the republic.

Ravi’s book also describes Justice Krishna Iyer’s early years as a lawyer at the Thalassery Bar, his election to the Malabar Legislative Assembly and his tenure as a Minister in the E.M.S. government, where he handled seven portfolios. The Kerala Land Reforms Act is an example of his legislative activism. His designs for police and prison reforms are also significant. His defence of the leftist government during the Congress-led agitation against it (1958-59) had a solid democratic foundation. His service as a member of the Law Commission is also explained. The author rightly suggests that Justice Krishna Iyer was at his best during his career as a judge of the Supreme Court.

His post-retirement life was as eventful as his working life. The author gives an account of Justice Krishna Iyer’s contributions off the bench, which were a free service to the government and the people, up to the Law Reforms Committee report (2009). The report suggested a series of laws that the state should promulgate and another set of statutes that needed to be abolished as they were obsolete. Justice Krishna Iyer did no profit-oriented post-retirement work, which he opposed. He wrote: “The judges formally retire but manage to occupy membership of strange commissions, doing recommendations which are often ignored by government. We have even a superannuated judge for goonda commission and women’s commission, consumer commission… benefiting none but depleting the public exchequer” ( Law & Life , Universal, 2008).

The author gives a vivid account of the landmark judgments authored by Justice Krishna Iyer, the most creative genius in Indian courts. An impressive collection of his selected judgments is available in English in the book Speaking for the Bench , (Oxford University Press, 2012).

However, Ravi’s survey of judgments reveals the correlation between Justice Krishna Iyer’s judicial and political lives. For example, the judgment in Sunil Batra-1 (1978) exposed the agonies of solitary confinement and in Sunil Batra-2 (1979) underlined the prisoner’s right against bureaucratic torture. Beyond the luminous language in these verdicts, Ravi sees Justice Krishna Iyer’s prison days in Malabar in the early innings of his political life. Many of his judgments had an empirical foundation, which legal commentators seldom realise.

Ambedkar

It is important to read B.R. Ambedkar and Justice Krishna Iyer together to understand the historical relevance of the latter’s juridical approach. According to Ambedkar, constitutional morality was not a natural sentiment in India and needed to be cultivated. For any working democracy, constitutional praxis is an interpretive exercise that transcends textual orthodoxy. This is how Justice Krishna Iyer gave effect to Ambedkarism, in the larger and correct sense of the word. Ambedkarism is nothing but constitutionalism, which in India is inseparable from its socialist ideology. However, Ambedkar clearly identified the ironies in the Constitution. He said: “On the 26th January, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we shall be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions?” (Constituent Assembly Debates, Volume IX).

This was precisely the challenge undertaken by Justice Krishna Iyer as a Minister, legislator and judge. He was the only Indian judge who consciously and constantly tried to supplement Ambedkar by meaningfully answering the anxieties of the constitutional mastermind. He was a social democrat on the bench. He demonstrated various facets of humanism in adjudication, which for him was also a creative process. Shamsher Singh (1974) explained Governors’ powers in a federal set-up. Maneka (1978) declared the fundamental right to free movement. Re: S. Mulgaokar (1978) clarified that even judges were not immune to criticism and that contempt power could not infringe press freedom. “Court is not an inert abstraction; it is people in judicial power,” Justice Krishna Iyer explained.

Ravi makes a reference to almost all his significant judgments. Ratlam Municipality (1980) had predictive value as it foresaw the serious issues relating to solid waste management much before there was legislation in the country on the subject.

An abolitionist

Ediga Anamma (1974) and Rajendra Prasad (1978) were judicial protests against the gallows. Justice Krishna Iyer was an abolitionist on and off the bench who assimilated the philosophy of Albert Camus: “To assert in any case that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good” ( Reflections on the Guillotine , 1957). The author gives a brief and splendid account of the Indian abolitionist movement, which owes much to Justice Krishna Iyer.

Upendra Baxi says: “Indian constitutionalism in its endless normativity provides not just the matrix of practices of power but also ideologies for their justification and interrogation as well” ( Marx, Law and Justice , Tripathi, 1993). It is erroneous to perceive the Constitution as a bare legal text. It is a political document. Mark Tushnet opposes the popular notion that the Constitution is important because “it protects the fundamental rights”. For him, the Constitution matters “because it provides a structure for our politics”. Justice Krishna Iyer always realised this reality, and this book conveys the same message.

Literature on Justice Krishna Iyer in English does not focus much on his political life and extralegal genius. Ravi’s book fills this gap. The book contains several photographs of historical value. There is a useful appendix that lists books by and about Justice Krishna Iyer. There are also articles written by Justice Krishna Iyer in Malayalam. The book happens to be in a regional language with geographic limitations. Since the legend of the Indian judiciary was unbound in all respects, a translation of this work into English and other languages becomes a social and historical imperative.

Kaleeswaram Raj is a lawyer practising in the Supreme Court and the High Court of Kerala (kaleeswaramraj@ gmail.com).