The Supreme Court Judge Who Was Jailed By Government Of India

As a judge, Justice Krishna Iyer is widely acknowledged to have thoroughly Indianised, and might I add, humanised, the colonial traditions that had continued to grip the Top Court for quite a few of its initial years. Justice Krishna Iyer's jurisprudence was inimitable, easy enough for the layman to understand, yet, often requiring one to refer a dictionary or a thesaurus. Justice S. M. Sikri is reported to have stated at one point that he did not understand Krishna Iyer's judgements. This inimitable jurisprudence, however, almost single handedly rewrote the Constitution, gearing it more towards ensuring access to justice for the common man, and helped transform "the Supreme Court of India into the Supreme Court for Indians".

A most ardent crusader for justice, he firmly believed that fearless justice is a prominent creed of our Constitution. No wonder, Fali Nariman considers Justice Krishna Iyer to be India's Lord Denning. Volumes have already been written about the body of work that has endlessly enriched Indian jurisprudence, and has indeed laid bare the original intent and aspiration of the framers of our Constitution, truly bringing it to life. This article does not attempt to add to those volumes, but merely tries to trace out the source of the fountain from which sprang forth this unique jurisprudence.

It appears, Justice Krishna Iyer, one of the most distinguished justices to have adorned the Top Court, and unlike any other judge at the Supreme Court, had a criminal history and a substantial political past. It is from this past that the Krishna Iyer School of Law evolved during the course of his judgeship, which continued to actively attract adherents far and wide, well after his retirement.

Born on 15 November, 1915 at Palghat in Palakkad District, located in the then Madras Presidency, and presently part of the State of Kerala, Krishna Iyer was heavily influenced by his father, who was a prominent lawyer practicing at Tellicherry and Malabar District Courts. Having completed his basic legal education in 1937, Krishna Iyer was called to the bar in Malabar, in 1938, and joined his father at the District Courts, where he continued for many years. Although the father-son duo had a varied clientele, ranging from industrialists and landlords to poor peasants, the son soon found himself drawn to the cause of the helpless and the downtrodden, driven heavily by idealism. He would often use the income from the affluent clientele to offset the flourishing pro-bono practice he was cultivating.

Kerala, at that time, was witnessing a storm. Kingdom of Travancore was flirting with the idea of transforming into an independent country, based on the "American model". The proposal did not go down well with the Communists, who were present in significant numbers in the region, their ranks swelled on account of the incoming masses of peasants, following the brutal famine conditions. Riots were a frequent occurrence, and at one point, the Communists had even established a "self-government" in the area – which was, however, savagely put down by the Travancore Army and Navy. On 18 July, 1947 the Maharaja issued a Royal Proclamation creating an Independent Travancore. On 25 July, an attempt was made on the life of Sir C. P. Ramaswamy Iyer, the Dewan of Travancore, who was also the architect of the aforesaid flirtations. On 30 July, the Maharaja wrote to Lord Mountbatten, a letter intimating his decision to sign the Instrument of Accession to the Indian Union, "though not without hesitation". That was not the end of it. After several rounds of discussions, the Kingdom of Travancore finally acceded to the Indian Union in 1949, and merged with the Kingdom of Cochin to form the short-lived State of Travancore-Kochi.

Thereafter, the Communist movement in Kerala would only grow from strength to strength.

Committed to the cause of the oppressed and the suppressed, Krishna Iyer could not stay aloof from the popular movements of the day – peasants struggles, workers' strikes and the arrest of local leaders who were taking forward these movements. State action against such movements often led to criminal proceedings. Certainly, he was pulled right into the eye of the storm. Rising to the challenge, he rose to be a leading lawyer on the criminal side as well, often representing leaders from across the political spectrum. Of course, staying true to his convictions, he also represented the "peasant militants" of his region with equal vigour, and often, without any financial benefit. Recalling those years, he states "Gently I became a public figure of sorts without party affiliation. Communists like P. Krishna Pillai were often visiting me. Gandhians and bitter type of Congressmen who were not for power or office used to visit me frequently."

His early professional success and contact with communist struggles (working class and peasantry) drew him into the court as a defender of local Communists even in sensational cases of murder and rioting. There were times when Krishna Iyer would, while defending a "Communist", let fly a wisecrack or two at the judge hearing the case. On such occasions, he often found himself being advised by "well-meaning" colleagues and seniors, sometimes even judges, to not spoil his career at such an early stage, by appearing for Communists. Krishna Iyer paid no heed to such well-meaning exhortations, for he was singularly committed to the cause of justice. He was able to organise a legal-aid service through which about ten lawyers started appearing for industrial workers and agricultural labourers.

However, one fine afternoon, in May, 1948, Krishna Iyer was placed under arrest, under accusations of actively helping Communists in their violent activities and providing hideouts for them. One of the more colourful charges against him was that he used the courts for political propaganda. The arrest could not be justified by the police in Court and consequently he was released after spending about a month in jail. The experience of it stayed with him nevertheless, and not merely as a subdued memory. This is how he recapitulated the event:

"You sit in the lock-up which has iron bars to separate you from the outside world and when friends come they look on you like animals in the zoo. Answering the calls of nature has to be done in the cell itself. And there is hardly any privacy even in that process since the policemen will be watching you under the pretext that from behind the bars you will magically escape!"

Even after he was moved to the Central Jail in Kannaur, the conditions did not improve:

Here also life was unbearable, a cement floor where one has to lie down with mosquitoes making aerial attacks and bugs bleeding you from all sides. It was a terrible experience where privacy was absent, dignity did not exist and facilities for decent life were next to nothing.

The 30-day stint in prison was enough to leave an indelible mark, and he would, in fact, draw a great deal from it, in the future. It could only have been this personal experience that led to the celebrated judgements in Charles Sobhraj and Sunil Batra, where he so delicately wove in the concepts of personal liberty and dignity for prisoners – a class of citizens who are rarely considered worthy of the most basic humanities.

As Justice Chelameswar once said, "…He had seen the turmoil of life; that made him what he was". To this day, he remains probably the only judge of the Supreme Court who was jailed by the Government of India, after Independence.

In 1952, Krishna Iyer moved on to the next phase of public service – that of a legislator. He contested the 1952 Madras Assembly elections from Kuthuparamba. Madras Presidency, in 1952, comprised of constituencies which would later become part of Tamil Nadu, Andhra Pradesh (and Telangana), Kerala and Karnataka. He had been returned as an Independent candidate, but enjoyed support from the Communists and the Indian Union Muslim League.

The 1952 Madras Assembly in itself saw some historic happenings. Communists alone had secured 63 constituencies, and with allies, could have easily robbed the Congress the chance of continuing in government. With senior leaders trounced, and with just 152 members in the 375-member Assembly, the Congress was nowhere near the half-way mark. It nevertheless formed a minority government under C. Rajagopalachari –aka– Rajaji, who had himself not been elected to the House, but had come in as a nominated member. On 30 June, 1952, the Leader of the House moved a motion of confidence in the Council of Ministers. After Rajaji's statement in support of the motion, it was Krishna Iyer's turn to speak for the opposition. The House listened with rapt attention. For a while, it seemed Madras would in fact see the first ever Communist government in India. That was not to happen. This was where the precedents for political horse trading were set. Rajaji proved his majority in the House with the direct support of 13 independent members and the "outside support" of 30 members from other parties. All this was, of course, long before the traditions of Aya Ram, Gaya Ram had been established, and the consequent Anti-Defection Law was enacted.

Throughout the tenure of the 1952 Assembly, Krishna Iyer remained true to his calling. He frequently drew attention to the prevalent inequities in society, and when needed, fearlessly pointed out the government's shortcomings. He also put to use his legal training, and often implored the government to act in furtherance of the Directive Principles of State Policy. During these years, he was recognised as a prominent legislator in the opposition and a committed social reformer.

The State of Kerala, as we know it today came into existence in 1956. Krishna Iyer saw therein, a chance to represent his home in the Kerala Assembly. He contested from Tellicherry, once again, as an Independent, with support from allies. It was an epic event when EMS was elected leader, and formed the first Communist government of India. Even though Krishna Iyer was not a member of the Party, he was an obvious choice for ministership, especially in view of his yeoman service to the cause of the poor and the disadvantaged, which was largely aligned with the leftist agenda, and his performance in the Madras Assembly, where he fought battles alongside avowed Communists.

Over the course of his ministership, Krishna Iyer juggled a very wide array of portfolios. Needless to say, he used the opportunity to the fullest, and set about bringing some of the most revolutionary changes. As a minister, he is credited with the revolutionary Kerala Land Reforms Act that ensured legal protection to the actual tiller of land. All land reforms legislation in other states, owe their inspiration to this law. The only flaw that unkind critics could point to was an exception made for trust properties, to which refuge some knowledgeable persons had resorted to ahead of the passing of the Act. Krishna Iyer must also be credited for the nation's first master plan for water resources. Krishna Iyer turned out to be a great legislator and administrator. Even as a Minister, he did not forget his own first-hand experience with jail conditions and the inhuman treatment of prisoners, and began a lifetime passion for prison reform and the treatment of prisoners as human beings.

Records reveal that Krishna Iyer often made it a point to attend to even the simplest of public grievances brought to his notice, personally, as far as possible. When EMS declared that "…it is not the job of the police to suppress the trade union, peasant and other mass activities of any mass organization, or a political struggle waged by any political party…", Krishna Iyer stood by him in implementing the new police policy.

Even as Law Minister, Krishna Iyer was committed to ensuring accountability of the judiciary. One of the ways he went about this was by proposing 10 extra days of sitting, to reduce arrears. The High Court, initially, rejected the proposal, refusing to "work like factory-men." It was only when he moved a bill in the Assembly, to amend the Kerala High Court Act, and CJI Das communicated his displeasure to the Chief Justice of the High Court, that the High Court consented. Ahead of his time, Krishna Iyer fought for gender justice (repeal of the Travancore and Cochin Christian Succession Acts), introduced a dowry prohibition act which was far more effective than the Central legislation, and a debt redemption law to assist the poor and the indigent population of the state.

It was perhaps this unfaltering pursuit of justice that seemingly numbed him to all notions of class, status and political affiliations, and enabled him to focus only on the injustices prevalent in society, and fuelled his crusade. Justice Krishna Iyer's decision in Jolly George Verghese clearly establishes the fact that he had an immensely humanising outlook that only aimed to do complete justice, irrespective of social standing of a person. It also goes to establish his credentials as an innovative judge.

The first EMS Ministry was dismissed in 1959. Krishna Iyer contested the 1960 elections, but was actually sent to the House by the Courts (having contested the original result of loss by a margin of just 7 votes). He joined the House as a member of the Opposition, where he relived the Madras Assembly days. He lost the 1965 elections. This allowed him to return to advocacy, and build up to what was coming next.

In 1968, at age 52, when another CPI(M)-dominated government was in power, he was appointed a judge of the Kerala High Court. Justice Krishna Iyer was on the Bench of the High Court for 3 years, when, in September, 1971, thanks to his friendship with Mohan Kumaramangalam, he was called to Delhi for a short stint at the Gajendragadkar Law Commission.

In 1973, it was time for him to move to the Supreme Court. This transition was not as smooth as it is now being made out to be. According to P. P. Rao, Chief Justice S. M. Sikri and a section of the Bombay Bar were against the move due to his political antecedents, including his Ministership in the Communist Government. Even Soli Sorabjee, former Attorney-General of India, confessed that he had been one of those who protested his appointment to the Apex Court, but after watching his performance on the Bench, he became his admirer. Even Gadbois notes that "his appointment was greeted by mainstream lawyers and many others with a chorus of boos, mainly because of his reputation as a leftist and because many believed that S. Mohan Kumaramangalam was his patron" (which was not a popular position to be in, on account of the recent supersession). What followed at the Supreme Court, led to the establishment of one of the brightest legacies which has not dulled a bit, even today.

Justice Krishna Iyer was a self-confessed 'judicial activist', which, according to him, meant the 'furtherance of . . . social causes', 'advancing the cause of the backward classes, and not just those identified as such by the government'. Krishna Iyer often twisted the law and Constitution in order to support and help the downtrodden. According to him, the Constitution contained an approved social and economic philosophy, but most judges, because of their class backgrounds, were unable to apply the philosophy faithfully. He said that the elite class backgrounds of many judges helped explain why so many of them decided cases in favour of landlords over tenants. In 1980, Justice Krishna Iyer said that the Supreme Court was mainly Brahmin and upper class (no Scheduled Caste judge had been appointed to the Court at that time). He concluded that judges' backgrounds affect their decisions.

Justice Krishna Iyer retired on November, 14, 1980, at the age of 65, and immediately headed to Kerala, without waiting for any plush assignment, as is the trend today. A gifted writer, he was a frequent contributor to newspapers and magazines across the country, and each article, unique and insightful in its own right. Some are of the opinion that retirement in fact freed him from the institutional shackles, which enabled him to write the most scathing opinions on a plethora of topics – judicial activism, misuse of the contempt power, nuclear energy policy, India's Sri Lanka strategy, judicial accountability (and here), environmental management, abolition of capital punishment and many more. Years after retirement, he had transformed in to the nation's conscience keeper, and was especially successful at calling out any and all questionable actions of the Supreme Court. One often wonders if the Supreme Court was robbed of his presence too early. Krishna Iyer lived by his convictions till his dying breath.

One can only hope that the doctrine of Karuna, that Justice Krishna Iyer introduced in Sunil Batra, would again serve as the guiding philosophy today – when the most downtrodden masses are visibly, and indifferently, divorced from the benevolent spirit of the welfare state sought to be established by our founding fathers, through the Constitution. Maybe the need of the hour is, in fact, to have judges who have had personal experiences that aid the administration of justice a little less mechanically, and a little more organically.

Views are personal only.