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Tuesday, Nov 16, 2004

Opinion

Opinion - Leader Page Articles

A man for all seasons

By Soli J. Sorabjee

The one essential quality that distinguishes V.R. Krishna Iyer from his judicial brethren and puts him in a class of his own is compassion. A tribute on his ninetieth birthday.

FALLIBLE HUMAN beings do at times make errors of judgment. But none can surpass the monumental error I made in opposing Krishna Iyer's appointment as a judge of the Supreme Court in a letter jointly signed by eight other leading lawyers of the Bombay High Court and published in the Indian Express on July 2, 1973. The occasion for this impetuous action was the apprehension that in the wake of the doctrine of a committed judiciary propagated at that time the appointment to the Supreme Court of a self-confessed political animal who had exhibited feathers of deep crimson would be a disaster.

Soon after the publication of the letter I had occasion to appear before Justice Krishna Iyer in the Supreme Court. I was a bit anxious about his reaction to my appearance before him. The worries were unfounded. There were no stern looks, no sarcastic remarks. Like the True Gentleman portrayed by Cardinal Newman "he had too much good sense to be affronted by insults and was too well employed to remember injuries." I publicly acknowledged my mistake at the time of his retirement by an article in the Statesman published in January 1981.

It was after my appointment as a law officer in 1977 that I came to know Justice Krishna Iyer closely and developed a rapport or rather kinship with him. I have vivid memories of the arguments in Mohinder Gill, a case that involved the powers of the Chief Election Commissioner and whether natural justice required him to give a prior hearing before cancelling the whole poll of Ferozepur constituency. Justice Krishna Iyer vastly expanded the frontiers of natural justice but characteristically warned that natural justice "is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation; nothing more — but nothing less."

Appearance in the case of Maneka Gandhi was exhilarating. The issue was whether the right to travel abroad and to be issued a passport for that purpose was implicit on the ambit of `personal liberty.' Justice Krishna Iyer's conclusion in his concurring judgment is brilliant. "... the watershed between a police state and a people's raj is located partly through its passport policy. ... the policing of a people's right of exit or entry is fraught with peril to liberty unless policy is precise, operationally respectful of recognised values and harassment proof."

In the cases of Sunil Batra and Charles Sobhraj his concern for the rights of prisoners was overwhelming. My appearance in these cases was a unique experience. It was a joint endeavour or perhaps a conspiracy between the Bench and the Bar to protect the fundamental rights of prisoners.

Thanks to Justice Krishna Iyer's judgments `jail birds' will no longer have to rot under degrading and inhuman conditions. The horrors of solitary confinement have been banished. No more will the jailer and his minions be the monarchs of all they survey, because prisoners now have rights and remedies to combat prison arbitrariness and assert their human dignity. Justice Krishna Iyer's portrait should find a prominent place in every penal institution as the benefactor of numerous prison inmates.

Justice Krishna Iyer's opposition to capital punishment, which he regards as official murder, springs essentially from his deep reverence for the dignity and worth of every individual however downtrodden and despised. He has not minced words to express his abhorrence of society snuffing out the life of one of its members on the ground of retributive justice.

His deep attachment to personal liberty revolts at the prospect of persons being detained on mere suspicion without a trial. Preventive detention was an anathema to him. But he did not experience great difficulty in upholding detention of saboteurs and sophisticated smugglers who played havoc with public safety and our economy.

And that is only one instance of the paradox of Justice Krishna Iyer. What could be more paradoxical than Justice Krishna Iyer, a Marxist steeped in dialectical materialism and its dogmas and yet an ardent believer in life after death? Listen to his judicial plea for simplicity of language in legislative drafting. "Incomprehensible law annoys the administration and estrange the citizen ... the command of the law can claim the allegiance of the law only by simplicity in legislation." Again the paradoxical Justice Krishna Iyer overlooked the need for simplicity also in judicial pronouncements, which must be intelligible and comprehensible to all courts, authorities and persons.

It is impossible to recount Justice Krishna Iyer's judgments in a single article. One of his significant judgments is the famous case, In Re: S. Mulgaokar, which raised the issue of use of contempt power against the Press for highly critical and derogatory articles about the judiciary. Justice Krishna Iyer deprecated judge baiting. He warned that the Court shall not "hesitate but shall do stern justice to such `professional' contemners." Soon thereafter he paradoxically observes, "Even so, to be gentle is to be just and the quality of mercy is not strained. So, it is that a benign neglect, not judicial genuflexion, is often the prescription."

To my mind his greatest contribution to our constitutional jurisprudence is his landmark judgment in Samsher Singh, which was delivered under trying domestic circumstances on account of his wife's illness. Justice Krishna Iyer recognises that "the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role" but "he is not rival centre of power in any sense." Then in stentorian tones he declares the law to be that "the President and Governor shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations like (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous."

Nothing rankled Justice Krishna Iyer more than confronting injustice. To him law was the instrument to secure social justice. And if in this noble quest he crossed rigid legalistic boundaries, so be it. He is in the good company of Chief Justice Earl Warren of the U.S. Supreme Court and Lord Denning and other bold judicial souls whose judicial unorthodoxy has ultimately led to the advancement of social justice and promotion of fundamental freedoms.

For a true assessment of Justice Krishna Iyer do not turn to learned authors on constitutional law and carping critics nor to bumptious bureaucrats and insolent administrators who are understandably annoyed by his insistence on the observance of the principles of fairplay in all areas of decision-making. Seek the answer from Jolly George and the tribe of debtors who have been spared the degradation of imprisonment for their genuine inability to satisfy money decrees passed against them because, according to Justice Krishna Iyer's judgment, "to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling, because to be poor in this land of poverty is no crime."

There are judges who are more erudite than Justice Krishna Iyer, judges who have an excellent memory for Supreme Court and House of Lord citations, judges who can master the record of a case in a few minutes. But the one essential quality that distinguishes him from his judicial brethren and puts him in a class of his own is compassion. He took human suffering seriously and dispensed justice with compassion, which he possessed in abundance.

After retirement from the Bench his zest for service to his fellow beings has intensified. You will find him on a platform in different parts of India and abroad and raising his voice fearlessly for the downtrodden segments of humanity. He tirelessly fills the unforgiving minute with sixty seconds worth of distance run, though in the process he exhausts himself.

His mission in life can be summed up in the moving poem by Emily Dickinson.

If I can stop one heart from breaking

I shall not live in vain.

If I can ease one life the aching or cool one pain

Or help one fainting robin unto its nest again

I shall not live in vain.

Justice Krishna Iyer has not lived in vain. Today he is 90 years old, 90 years spent not in hankering after fame and fortune but in the service of humanity; not with pomp and glory, but with transparent sincerity and true humility. That event is indeed an occasion for celebration and for paying tribute to this Man for all Seasons who has planted indelible footprints on the sands of time.

(The writer is former Attorney General for India.)

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A man for all seasons