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Constitutional nationalist

Print edition : January 09, 2015

Justice V.R. Krishna Iyer. Photo: By Special Arrangement

April 1957: Members of the first Communist Ministry headed by E.M.S. Namboodiripad in Kerala. Justice Krishna Iyer (third from right) held several portfolios in it. Photo: The Hindu Archives

Justice V.R. Krishna Iyer understood Indian culture as the constitutional culture of India. For him this was the real Indian heritage, about which he was nationalistic.

WAS Justice V.R. Krishna Iyer a cultural nationalist? It is true that he transcended descriptions and definitions. He has been called a Marxist, a communist and a rationalist, among other things. There were instances when he described himself as agnostic. Was he not a Hindu? He called himself a Hindu, sometimes vociferously. But will the self-anointed saviours of the so-called Hindu culture be comfortable accepting him as one? Not that he might have needed their approval.

Justice Krishna Iyer was a cultural nationalist of a unique blend. He loved and cherished the ancient heritage of India. He considered himself one who attempted to follow the sublime footsteps of Vivekananda, Aurobindo Ghosh, Sree Narayana Guru, Rabindranath Tagore, Dr B.R. Ambedkar and Mahatma Gandhi. He declared himself a believer in India’s ancient philosophical concepts such as Tat tvam asi (that thou art), Aham Brahmasmi (I am Brahman, or the infinite reality), and Vasudhaiva kutumbakam (the world is one family). He named his residence “Sadgamaya” (lead me to truth in Sanskrit).

While proclaiming himself a genuine Hindu, he protested against the definition of a Hindu given by the Kerala High Court in M. Muaralidharan Nair vs State of Kerala (1990), which stated a Hindu to be a person who believed in God and temple worship. The court was dealing with the case pertaining to the election of members to the Travancore Devaswom Board by the Hindu Members of the Legislative Assembly. The relevant law had left the term Hindu without any qualification. An amendment requiring a Hindu to be one who believed in God and temple worship was brought by an ordinance but was dropped.

The rule provided that Hindu MLAs of Kerala may nominate and elect the members of the Board. The court, while setting aside the election, declared that only those Hindus who believed in God and temple worship could vote or be nominated in the Devaswom Board election. Justice Krishna Iyer criticised the decision with vigour. In his inimitable style, he said such a restrictive definition of a Hindu was antithetical to the Indian ethos and tradition. He quoted from the Vedas and the Upanishads to support his argument. He relied on the expositions of Vivekananda and Aurobindo Ghosh.

‘High Court Hinduism’

The case inspired him to write a number of articles and a book in Malayalam titled Who is a Hindu? He wrote: “This judicial rescue of the Hindu gods housed in shaking shrines from menacing infidels may give psychic solace to the souls of those whose consternation about imminent disaster to Hindu gods through a government of crimson guardians may be gravely real.... But to elevate external worship as the unavoidable essence of ‘High Court Hinduism’ is mayhem on the soul of our culture.”

Justice Krishna Iyer had discerned Indian culture as the constitutional culture of India. For him this was the real Indian heritage of which we should all be nationalistic.

Way back in 1977, he declared on behalf of the Supreme Court that the country’s constitutional culture was rooted in the supremacy of justice. While interpreting the constitutional provisions dealing with the power of the executive to transfer a High Court judge without his consent from one High Court to another, he found the spiritual value of having a free and independent judiciary as part of our constitutional culture.

He said: “The spiritual value of a free judiciary for a civilised human order is symbolised in the imperative Fiat Justicia and inscribed in ancient Indian Neeti Shastras. To us of a constitutional culture rooted in the supremacy of justice—social, economic and political—and subjected to colonial injustice before we became free, independence of the judiciary is no speculative nicety nor sweet novelty but a dear creed to defend liberty” ( S.H. Sheth vs Union of India,1977). In the same case, he further opined that “the appreciation of this pivotal issue of the Judge’s metier and methods demands acceptance of the broader bearings and constitutional culture”.

In the Ranganatha Reddy case (1977), Justice Krishna Iyer stated that the interpretation of the law should be in tune with constitutional culture and philosophy. The Supreme Court Bench was reversing the decision of the High Court that had struck down the legislation for the nationalisation of contract carriages by the Karnataka government on the surprising ground of lack of public purpose. He stressed the need to feel the philosophy of the Constitution and express the constitutional culture while interpreting the provisions of the statute under challenge.

In 1978, Justice Krishna Iyer, writing for the bench, declared that correctionalist criminal justice was part of the constitutional culture of India. The court was dealing with the propriety of enhancing the sentence of imprisonment awarded to “seven dangerously ideological teenagers, politically impatient with the deepening injustice of the economic order and ebulliently infantile in their terrorist tactics”. They were accused of the offence of having “robbed the State Bank of a few thousand rupees with non-violent use of crude pistols and country bombs which, in the language of the Penal Code, amounts to dacoity—a grave property crime”. They were duly prosecuted, convicted and awarded two and a half years’ rigorous imprisonment by the trial court. On appeal, the High Court enhanced the sentence to seven years’ rigorous imprisonment.

Justice Krishna Iyer frowned upon the manner in which the High Court enhanced the sentence and its stance that the “ends of justice” demanded it. He set aside the High Court judgment and restored the sentence imposed by the sessions court. He called for prison reforms in line with humanism and correctionalism. He asserted: “After all, the constitutional culture of our country imposes this obligation….” (Lingala Vijay Kumar case, 1978). He reasoned: “The therapeutic basis of incarceratory lifestyle is not unknown to Gandhian India because the Father of the Nation regarded a criminal as a morally aberrant patient.” He advocated a humanitarian ethos, stating that these values had their roots in the Constitution

Aaginst death penalty

While laying down the principle that the death penalty may be imposed only in the rarest of rare cases, Justice Krishna Iyer relied on the constitutional culture of India which supports the view of doing away with the death penalty save in exceptional cases. In the Rajendra Prasad case (1979), referring to the amendment doing away with the death penalty for murder save in exceptional categories, he declared: “So far as it goes, the benignity of the change reflects the constitutional culture we have explained.” In the same case, he went on to state: “Our culture is at stake, our karuna [empathy] is threatened, our Constitution is brought into contempt by a cavalier indifference to the deep reverence for life and a superstitious offering of human sacrifice to propitiate the Goddess of Justice.”

He elaborated: “The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice, which is a paramount principle and cultural paradigm of our Constitution.”

Again, in the Dalbir Singh case (1979), speaking for the court, he commented on the jurisprudence of sentencing in India, lamenting the lack of percolation of the constitutional culture: “The judgment under appeal is a hint of the judicial confusion even in this grave area of death penalty. True, the jurisprudence of sentencing in Free India has been a Cinderella and the values of our Constitution have not adequately humanised the punitive diagnostics of criminal courts, which sometimes, though rarely, remind us of the torturesome and trigger-happy aberrations of the Middle Ages and some gory geographic segments, soaked in retributive blood and untouched by the correctional karuna of our constitutional culture.”

While reiterating that the fundamental rights were available even to those who were undergoing imprisonment as a punishment although they may suffer shrinkage necessitated by incarceration, Justice Krishna Iyer relied on the constitutional culture of India. “Our constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction,” he said in the Sunil Batra II case (1980).

Again, in the Rakesh Kaushik case (1980), he made this observation about the Tihar Jail: “Were there a modicum of truth in the disclosures made of vice and violence, overt and covert, in the goings-on in Tihar, such institutional outrages would make our constitutional culture blush…”

He again relied on India’s constitutional culture while attempting to harmoniously blend developmental necessities of the backward regions via institutional reservation and national considerations of everybody’s equal opportunity for higher education being ensured regardless of geographical, institutional or other inhibitions. “We must never forget two values synthesised in our constitutional culture, as set out in the Preamble—unity and integrity of the nation and equality of opportunity of weaker sections” (Jagadish Saran case, 1980).

In the Prem Shankar Shukla case (1980), Justice Krishna Iyer declared that the value of human dignity, which formed part of our constitutional culture, militated against the handcuffing of undertrials or prisoners: “Those who are inured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanise him and, therefore, to violate his very personhood, too often using the mask of ‘dangerousness’ and security.”

In the Kishore Singh Ravinder Dev case (1981), the court was dealing with complaints and instances of torture of prisoners and undertrials in police custody. After a detailed analysis of the situation in all its aspects, Justice Krishna Iyer categorically said: “Nothing is more cowardly and unconscionable than a person in police custody being beaten up, and nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of human rights.”

In another case, he stated that empathy with every individual is the highest principle of our constitutional culture (Som Prakash Rekhi case, 1981). It was a case dealing with the issue of an old man’s pension being reduced from Rs.250 to Rs.40 by reductions and discretionary withholding of payment by the employer, that too a public sector company. The court found that even if these deductions and withholding were assumed legal, they were unjust. It declared: “Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity.” According to him, law and justice must be on talking terms and what matters under our constitutional scheme is not merciless law but humane legality.

In the Akhil Bharatiya Soshit Karamchari Sangh case (1981), he explained that the right to equality without discrimination in public employment and reservation to the backward classes under Article 16 of the Constitution were two sides of the same coin and such interpretation was an insightful perception of our constitutional culture:

“This is not mere harmonious statutory construction of Article 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharath. If freedom, justice and equal opportunity to unfold one’s own personality belong alike to Bhangi and Brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Article 16(4) promises, the state must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props.”

He added: “The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly, we must understand the people for whom it is made—the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.”

Elucidating the argument, he said: “We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses, including the harijan-girijan millions hungering for a humane deal after feudal-colonial history's long night.”

Justice Krishna Iyer searched for the cultural core of constitutional protection and pointed to some instances in history to understand the problem. He said we could not blink at the agony of the depressed classes and their marginalisation, which had been condemned by social reformers as rank irreligion and social injustice. He quoted Swami Vivekananda, who, stung by the glaring social injustice, had argued: “The same power is in every man, to the one manifesting more, the other less. Where is the claim to privilege? All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity, the environments were not, perhaps, suitable to him. When he gets the opportunity he will manifest it. The idea that one man is born superior to another has no meaning in Vedanta; that between two nations one is superior and the other inferior has no meaning whatsoever....”

Justice Krishna Iyer noticed that there was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the Dalit cause. There was Babasaheb Ambedkar—a Mahar by birth and fighter to his last breath against the Himalayan injustice to the Dalit fellow millions stigmatised by their inherited handicap—who was the Chairman of the drafting committee of the Constituent Assembly. There was Jawaharlal Nehru, one of the foremost architects of free India, who stood four square between caste suppression by the upper castes and the socialist egalitarianism implicit in secular democracy.

Justice Krishna Iyer declared that these forces nurtured the roots of our constitutional values among which should be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward, particularly that pathetic segment described colourlessly as the Scheduled Castes and the Scheduled Tribes. According to him, to recognise these poignant realities of social history and to interpret the Constitution so as to fulfil itself, not eruditely to undermine its substance through the tyranny of literality, was the task of judicial patriotism so relevant in Third World conditions to make liberation a living fact.

Justice Krishna Iyer had realised that like other constitutions, the Indian Constitution was not merely a text but rather a system of values. A Constitution is a system of values that provides guidance for public life; these values live and are reproduced almost daily in the life of the nation. A Constitution is also a declaration of a nation’s commitment to the ideals it values most and aspires to attain. In this tone, Justice Krishna Iyer once described the late Rev. M.A. Thomas (founder of the Vigil India Movement) as “a one-man campaigner against decline and fall of Bharath’s rich heritage, happily composite, and morally Gandhian”.

It is generally accepted that “…culture, and cultural norms, are part of a Constitution”. According to Matthew S.R. Palmer, who studied the constitutional culture of New Zealand, “…the underlying foundations of a constitution, even if contested, are deeper-seated than even the formal Westminster device of constitutional conventions would indicate”. The foundations of a constitution are culturally embedded in its operation through the values of those who operate it and also who, at least impliedly or inherently, subscribe to those values. Constitutional culture derives from the complex mixture of factors that reflect and affect national culture as it manifests in attitudes to the exercise of public power.

Gagic Harutyunian, who did a detailed study of the constitutional culture in the context of Armenia, attempted a definition of the notion of constitutional culture “as a historically formed sustainable value system of convictions, perceptions, and legal awareness, enriched by the experience of generations, that constitutes the basis for the social community in the process of establishing and guaranteeing, through public accord, of the fundamental rules of democratic and lawful behaviour.”

Composite culture

The development of the Indian constitutional culture extends from prehistoric times to the formal adoption of the Indian Constitution, through the freedom struggle. No doubt, we have studied the constitutions of other nations and taken what is suitable to the Indian tradition and culture, but by and large the values ingrained in the Indian Constitution are very much a part of our culture and civilisation. Granville Austin remarked: “The Constitution’s spirit came from a third source: the Objectives Resolution adopted during the December 1946 Assembly session, which itself drew from Congress party documents of two decades earlier.” The real source of the constitutional culture of India is the composite culture of India as referred to in the Indian Constitution. However, it was mainly influenced by two sources: the national movement and Gandhian ideology.

The necessity to further develop and evolve our constitutional culture in tune with our national composite culture and in the context of the national and international realities cannot be overemphasised. It is apposite to be reminded of what Ambedkar said in this context: “Constitutional morality is not a natural sentiment. It has to be cultivated.” While moving the Draft Constitution in the Constituent Assembly, he said: “Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that man was vile.”

Justice Krishna Iyer was not alone in advocating the theory of constitutional culture. The eminent jurist N.A. Palkhiwala argued that when the Constitution was adopted in 1950, we started with 5,000 years behind us ( India’s Priceless Heritage). Justice H.R. Khanna wrote: “A Constitution is not a parchment of paper, it is a way of life and has to be lived up to” ( Making of Indian Constitution).

In a constitutional democracy, it is the constitutional culture that the people should be nationalistic about. Justice Krishna Iyer, through his life and writings, will keep inspiring every Indian to be a committed constitutional nationalist.

M.P. Raju is a lawyer practising in the Supreme Court of India. He has authored several books, including Minority Rights: Myth or Reality (2002), Uniform Civil Code: A Mirage (2003), and Education: A Mission in Jeopardy (2005).

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