Justice Krishna Iyer- A Tribute

Born on November 15, 1915, he obtained his degree in English Literature from Annamalai University and law from the Madras University, studying at the Madras Law College. He started practice in 1938. Law alone could not contain his diverse interests and talents. He was active in public life and in people's movements. As a legislator and a Minister holding diverse and important portfolios - Home, Law, Prisons, Irrigation, Electricity- in the first ever elected Communist Government he did splendid work. He brought to bear the impress of his personality upon all that he did. And as a minister too he advanced constitutional culture, all his work being informed by the spirit of constitutionalism. July 1968 marked his appointment as a Judge of the Kerala High Court (which M.S. Menon, CJ considered one of the signal successes in his judicial career). He moved to the Law Commission (presided over by Gajendragadkar CJ) in 1971 and on 17 July, 1973 he was elevated to the Supreme Court. He was thus a maker, executor, reformer and interpreter of law- indeed all this and more - a great humanist - a colossus and a phenomenon. There were some murmurs against his appointment to the Supreme Court. But those who came to complain, stayed on to admire and revere.

His judicial career was marked by rare judicial statesmanship, creativity and craftsmanship. His tenure on the Bench expanded the universe of judicial discourse, his judgements covering the entire spectrum of law and exhibiting remarkable perspicacity. His learning was vast, his knowledge deep and his enunciation of law complete. The range of his mind was truly astounding.

He was of the view like Justice Holmes that law like life itself is not doing a sum, it is painting a picture. The pictures he painted will always be looked to and studied as long as the art of judging remains part of our heritage. In the centenary issue of the Law Quarterly Review in January 1985, its then editor P.V.Baker referred to Lord Denning's many judgements as the abundant raw material for the LQR. Justice Iyer's judgements similarly provide ample raw material for study and research and for the development of law.

The greatness which made for his lasting fame as a judge rested on the judge's sense of his own duties. Judges are necessarily conditioned in their function by the material placed before them in the arguments and by the anxiety not to impair judicial consistency. But a judge with deep knowledge of the philosophy of law and the ways of men, even while working within such limits, transfers experience into law and by generalising performs a genuine act of creation. Krishna Iyer was pre-eminently such a creative genius. It falls to a great judge like him "to fashion each stone he adds to fit the architecture of the vast fabric reared by the wisdom of the past centuries."

A judge, said Cardozo, J., must think of himself as an artist, who although he must know the handbooks should never trust to them for his guidance. In the end he must rely upon his almost instinctive sense of where the line lay between the word and the purpose that lay behind it, he must somehow manage to be true to both. This ability, it is said, is born out of wisdom, the gift of God. Krishna Iyer had it in abundance.

To him law was essentially a science of principles to be applied in the light of man's social evolution. He believed that judges owed great responsibility to the society to give expression to its aspirations and values. While he was aware of the significance of the past, he was conscious of the fact that law was made for man and not man for law. Law must be stable, yet it cannot stand still. Like all great men he was ahead of his times in his juristic conceptions and regarding problems facing society to meet the demands of a changing world with its shifting emphasis and differing needs.

He recognized the importance of the sense of legal history and traditions ensuring that judicially declared principles advanced the interest of society at large though stated in the context of individual cases. That is the relevance of the common law of which he was a great exemplar. Like the great common law judges he blazed new trails and nudged the law a little forward. With all his pro-active judicial role and creativity he was firmly rooted in the well established fundamentals. He demonstrated with flair that not only fidelity and creativity are not antagonistic, but with devoted insight they enhance one another. Whatever he said was profound, his masterly exposition matched by his brilliant expression which came naturally to him and was not a studied exercise.

The jurist even as a spokesman for the Court cannot escape being himself. In law, even as rules are compelling and cases fall upon one another in dull monotony, the manner and the personality of a judge appear in the interstices of his opinions and Justice Krishna Iyer was always himself among his various brother judges, the distinctive style of his opinions always standing out. His judgements bear the impress of a distinguished jurist evolving doctrines of law suited to the peculiar need and environment of India on the basis of Common Law and statutes. They have a wide leeway of personalised discourse marked by the judicial process of continuous discussion.

His eminence as a man of law and a public figure was matched by his great compassion and empathy which were his soul mates on or off the Bench. All his work was permeated by these sterling qualities. He humanized the law and illumined justice making it accessible and meaningful. As William Brennan, J said, sensitivity to one's intuitive and passionate responses and awareness of the range of human experience, is, therefore, not only an inevitable, but a desirable part of the judicial process, an aspect more to be nurtured than to be feared. The stern features of the Goddess of Justice relented into a compassionate smile and the language of the statute was subjected to strain when circumstances required it to mete out justice to the less fortunate. He gave content to the form of justice by filling it with the ardour of life.

Justice Krishna Iyer was fully alive to what Learned Hand called the Judiciary's 'proper representative character as a complementary organ of the social will' which cannot be overlooked. Law is, in Holmes' language, not a brooding omnipresence in the sky but a flexible, pragmatic instrument of social order dependent on the political values of the society which it purports to regulate. He believed with Friedmann that it would be tragic if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society. The rule of law and the rule of life have to run parallel. Law is not an end in itself but only a means to achieve social good. Constitutional law symbolises an intersection of law and politics (in its noble sense), wherein issues of political power are acted upon by persons trained in the legal traditions, working in judicial institutions, following the procedures of law, thinking as lawyers think.

The essence of constitutionalism may be said to be limited government- disciplining public power and confining public authorities within the limit of their powers. Humanism may be said to be the crystallisation and the sum total of all human rights concerns which make life worth living and meaningful. It is only a confluence of constitutionalism and humanism that can bring about a conflict- free, happy and contended society which is the aim of all laws and good government. None was more conscious of this than Justice Iyer.

While there may be no unanimity on the source, scope and limits of judicial power, there is no gainsaying that it is essential as long as it does not breach its embankments. The genius is to find its limits. Justice Krishna Iyer found them pre-eminently well and that is his claim to greatness. His contributions in that behalf are truly substantial and significant. His commitment to the Constitution and constitutionalism and his endeavours in fostering that spirit and upholding those values were magnificent.

Justice Iyer, as Justice Bhagwati says, believed that our Supreme Court is a political institution as much like the U.S. Supreme Court and he said that law without politics is blind, politics without law is deaf. He held the view that proceedings in the Halls of Justice must be informed, to some extent, by the great verity that the broad sweep of human history is guided by sociological forces beyond the ken of the noisy hour or the quirk of legal nicety- life is larger than law.

It is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the judges' value preferences respond to the multi-dimensional problems of the day. An awareness of history and the political process is an integral part of those preferences. Judicial review, in that sense, is not apolitical. It is an exercise of political power. Justice Krishna Iyer had the social and political experience and familiarity and grasp of the political process and realities which better facilitated his dealing with complex issues that came up for judicial scrutiny and pressed for an answer. Justice Brandeis had perceptively said that knowledge must precede understanding and understanding must precede judgement. Justice Iyer epitomised this in his judicial life and work.

Iyer, J fastidiously observed the caution administered by Marshall, CJ in Fletcher v Peck : "The question whether a law be void for its repugnancy is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The Court when impelled by duty to render such a judgement would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." His prefatory caveat (as he called it) in R.S.Joshi v. Ajit Mills bears testimony to this understanding.

He spoke of Marshall's observations in McCulloch v. Maryland as the beacon light. Let the goal be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution are constitutional.

The essence of his constitutional and judicial philosophy and his correct approach to the exercise of judicial power is reflected in the dicta: Unconstitutionality and not unwisdom is the narrow area of judicial review; Courts do not substitute their social and economic beliefs for the judgement of legislative bodies.; that for removal of unwise laws from the statute books appeal lies not to the Courts but to the ballot and the processes of democratic government; and that while the unconstitutional exercise of power by the executive and the legislative branches is subject to judicial restraint, the only check upon the exercise of judicial power is the judges' own sense of self restraint. The Constitution is the property of the people. The Courts' know-how is to apply the Constitution, not to assess it. Whatever the judge's personal views and reservations on the philosophy, the politics, the economics, the pragmatics of a policy, the Court is called upon only to pass judgement on the vires.

But he was a master in blending and balancing a measure of judicial activism and a measure of judicial restraint. Hear what he says: The limited task assigned to us is to interpret the Constitution as it is, not to venture starry eyed proposals for reform. Even so, our activism in interpretation must be aglow with the insightful observations of Marshall, CJ, "We must never forget that it is a Constitution which we are expounding, a Constitution intended to endure for ages and consequently to be adapted to the various crisis of human affairs." This he did very dexterously and splendidly.

The Constitution which lays down the basic framework of the nation's policy is built and rests on certain fundamental values reflected in the Fundamental Rights and the Directive Principles which may be described as the soul of the Constitution and the testament of the founding fathers. He said that in the process of interpretation, Part IV of the Constitution must enter the soul of Part III and the laws. The ideal is to achieve the goals in Part IV while protecting the rights under Part III. The Constitution provides for stability without stagnation and growth without destruction of essential values. Law is a social science and constitutionality turns not on abstract principles or rigid legal canons but concrete realities and given conditions. An impugned legislation would have to be viewed through a socially constructive, not legally capacious microscope. Stray misfortunes are inevitable when laws affecting large chunks of the community are enacted. Social legislation without tears affecting vested rights is impossible.

He said the roots of our constitutional ideas- at least some of them- can be traced to our ancient culture. The noble Upanishadic behest of collective acquisition of cultural strength sah:veeryam karavavayaih is involved in and must evolve out of equality if we are true to the subtle substance of our finer heritage.

He possessed great felicity of expression and language was in his hands a pliant tool which he wielded in a manner unprecedented in judicial annals. In one pithy sentence he captured picturesquely the essence of our parliamentary system of government. He posed the question- Phrased metaphorically, is the Rashtrapathi Bhavan or Raj Bhavan an Indian Buckingham Palace or a half way house between it and the White House? And he answered: Not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. The President is only a metaphor for the Union Council of Ministers who really rule. This is one of his greatest contributions to our constitutional jurisprudence.

His most signal contribution to the development of constitutional law and constitutionalism is the creative, expansive and humanistic interpretation of Art 21- the most basic of all freedoms. It was not mere interpretation but rather the revelation of new meaning, fresh content and deep purpose in Art 21. Unfolding the philosophy of Art 21 he invalidated bar fetters, solitary confinement and handcuffing of accused. He struck a balance between humanising prison atmosphere and preservation of internal order and discipline. The rights of under-trials, prisoners and convicts were recognised and protected. Access to counsel/legal aid and the right of a relative of being informed of arrest was enforced.

It is the pride of our Constitutional Law that all power, whatever its source, must, in its exercise anathematise arbitrariness and obey standards and guidelines, intelligible and intelligent and integrated with the manifest purpose of the power and all actions of the State must be informed by the finer canons of constitutionalism. Law is reasonable law, not any enacted piece. An enacted apparition is a constitutional illusion. Procedural justice is writ patently on Art 21. What is fundamental is life and liberty. What is procedural is the manner of its exercise.

A person cannot be imprisoned only because of his inability to meet his contractual obligations and make payment unless there is proof of his wilful failure to pay inspite of sufficient means and the absence of more pressing claims. While International Law- Treaties and Conventions- become enforceable only when incorporated into the municipal law, where it is not inconsistent with the domestic law, it is an aid to interpretation. And national law is construed in consonance with International Law to foster respect for which is also an obligation under Art 51 (c).

He extended the frontiers of the accountability of the State and its instrumentalities in their ever expanding operations. He enforced the shift in the thrust of public law from 'authority' to 'justification'- a great boost for constitutionalism. The right of the people to speak for and approach the Courts for redressal for violation of their rights and for enforcement of positive obligation against public authorities was recognised. This was Ratlam Municipality case. Ratlam Municipality and Hussainara Khatoon were truly the harbingers of PIL. He conceived law to be a social auditor and the audit function could be put into action when someone with real public interest ignited the jurisdiction. If that someone has concern deeper than that of a busy body he cannot be told off at the gates although whether the issue raised by him is justiciable may still remain to be considered. The law of standing was liberalised.

A commitment to the legality of the laws and their enforcement for public good was realised. He observed that public law in our piebald economy and pluralist society responds to societal challenges and constitutional changes. When public bodies under colour of public laws recover people's money, later discovered to be erroneous levies, the dharma of the situation admits of no equivocation. There is no law of limitation. It is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy. He gave a new thrust and a humane dimension to industrial jurisprudence.

He knew with Lord Denning that public policy is an unruly horse, but it is for an able and competent judge to ride that unruly horse and to bring it down on the side of justice. He greatly expanded the frontiers of natural justice but characteristically warned against unnatural expansion of natural justice and said that standards may vary from situation to situation. The philosophy behind natural justice is participatory justice in the process of democratic rule of law. In Nawab Khan he held that where an order encroached upon the fundamental right of an accused without due hearing and the Court quashed such order, it did not merely kill it but performed the obsequies of the order which died at birth. Laws knows of no finer hour than when it cuts through formal concepts and transitory emotions to come to the rescue of the oppressed citizens. Procedure is the handmaid of justice, not its mistress. His great passion was to do real justice. And in that endeavour he moulded procedure and brushed aside the conservatism which fails to conserve and nurtures the form at the expense of the substance.

He was, however, always careful in maintaining the right balance between the different wings of Government. He observed "Mistrust of Government is violative of comity between instrumentalities....Suspicion is the upas tree under whose shade reason fails and justice dies". He reminded us that independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government's pleasure. He held that Courts must be tempered by the thought that while compromise on principle is unprincipled, applied Administrative Law in modern complexities of government must be realistic, not academic. He was conscious that there must be a sensible approximation, there must be elasticity of adjustment in response to the practical necessities of government which cannot foresee today the developments of tomorrow in their nearly infinite variety. He cautioned that the constitutional fascination for the basic structure doctrine cannot be made a Trojan horse to penetrate the entire legislative camp. It is not every minor violation but a real palpable jettisoning that would destroy the basic structure. "It is fundamental that a nation's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses by perennial suspense all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up."

He believed that Courts adopt a policy of restrained review when the situation is complex and intertwined with social, historical and other substantially human factors. The Court's deference to those who have the affirmative responsibility of making laws and to those whose function is to implement them has great relevance in the context and when to this is added the number of times that judges have been overruled by events, self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. The attitude of judicial humility which this consideration enjoins is not an abdication of the judicial function, it is a due observance of its limits.

This approach and attitude is clearly seen in his judgements. He said that in contempt jurisdiction silence is a sign of strength since the power is wide and the judges are both prosecutor and judge. "Many an arrow at random sent hits a mark the archer never meant and ex cathedra generalisations run the genetic risk of noetic imperfections. The Almighty does not share his omniscience with the judiciary."

In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey in the Law of the Constitution likened to the work of bees when constructing a honey comb is maintained to a large extent by the mutual respect which each institution has for the other. This is as much a prescription for the future as it was for the past. Justice Iyer embodied and exemplified this profound maxim.

Krishna Iyer was a path finder and a stellar pointer in the judicial firmament. He 'altered the habits of the mind of judges.' In all his judgements, even when in a majority, he made provisions for the brooding spirit of the future. Even when concurring, many times he wrote separate judgements adopting his own line of reasoning, referring to various authorities and bringing to bear a fresh approach to the problem on hand. One may, for instance, refer to T.N. Khosa, Samsher Singh, Thomas, Maneka Gandhi. He included in his judgements seemingly irrelevant passages- but they were addressed to future generations to mould the law and carry it forward. He innovated judicial tools, broke new ground and lighted new paths.

The new sights that he fixed for the Court are epochal; the new trends of thought remain long after he is gone. In fact, without ever having the authority of a Chief Justice he left his distinctive mark on the decisions of the Supreme Court in the 1970s- the Krishna Iyer era. It is appropriate that we remember and honour such great judges while lesser souls fade away. The individual contribution of judges is absorbed in the anonymity of the coral reef by which the judicial process shapes the law. Their name and fame are writ in water. In the course of a century the acclaim of a bare handful survives. Justice Krishna Iyer belongs to that select class.

A perfect gentleman, "he had too much good sense to be affronted by insults and was too well employed to remember injuries". His innate generosity and warmth would scorch any trace of malice or meanness.

His 34 years of post retirement saw him rise to greater heights passionately espousing public causes and being the conscience keeper of the judiciary and thus advancing and nurturing constitutionalism. He believed that silence is not a virtue when there is a duty to speak and shared Dante's view that 'the hottest paces in hell are reserved for those who, in a time of great moral crisis, maintain their neutrality.' He was greater than his deeds and truer than his surroundings. Smaller men have tried to emulate him both in language and judging. But they have failed as they necessarily would. For, Krishna Iyer was a genius and an artiste and art cannot be imitated.

Striking a personal note, I had the good fortune of knowing him since November 1970 and always received his abundant affection and goodwill. He passed away in his 100^th year, on December 4, 2014 leaving us bemoaning with the poet: Oh! for a touch of the vanished hand / And the sound of a voice that is still.

Palkhivala once said that we should be able to say at the end of the day that while we joined the profession to do well we stayed in the profession to do good. Krishna Iyer would have had the immense satisfaction that he stayed in the law and in the world for 99 years to do good. And on a short day of frost and sun he did not retire till evening.

When Justice Douglas retired 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'. Substitute 'poor' for 'First Amendment' and the description would aptly fit Justice Krishna Iyer.

The love and respect with which we light his memory and record our gratitude for a life to which we owe so much is a measure of his magnificent contribution to law and life and, even more, what Tolstoy called his 'impersonal love for mankind'.