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Mainstream, VOL LII No 51, December 13, 2014

End of an Epoch

Monday 15 December 2014, by Vijay Kumar

When Prof Julius Stone, one of the most distinguished legal scholars of last century, passed away, his disciple, himself a great contemporary jurist, Prof Upendra Baxi, in a moving tribute, wrote: “Writing is a career of death in a sense it signifies the absence of the author”. In this sense, the great writing is a gateway to immortality. From this perspective, the profoundly erudite judgments penned down by great judges are more perdurable than great advocacy of eminent counsels. The judgments written by Justice Krishna Iyer may not be in the category of profoundly erudite judges and, yet, his judgments will endure much longer than his mortal stay.

What made Justice Krishna Iyer an icon in his lifetime, indeed even when he was in the Bench? The answer lies in his different approach in treatment of law. For him, the law had the human element and human soul rather than arcane gobbledegook. Justice Krishna Iyer was a judge in the High Court and Supreme Court for a short span of twelve years (1968 to 1973, he was a Judge of the Kerala High Court, out of which last two years he was on deputation in the Law Commission of India and a Judge of the Supreme Court for little more than seven years) and, yet, no judge has left such an indelible imprint as Justice Krishna Iyer did. Justice Krishna Iyer, almost single-handedly, transformed the image of the Supreme Court at the time when its credibility was at its lowest ebb after the infamous judgment in Habeas Corpus ruling that right to move to the court for enforcement of right to life stood suspended during the Emergency. It was Justice Krishna Iyer who converted the Supreme Court from “an arena of legal quibbling for a man with a big purse”, to borrow the language of Justice Dwivedi in the Kesavanand Bharati, into, to quote Prof Upendra Baxi, “the Supreme Court for Indians”. There is always interstitial gap in the text of law and it is only gifted judges like Justice Krishna Iyer who can use the gap to further the cause of public justice rather than being circumscribed by the technicality of the law.

It would be apposite to refer to a well-known story to demonstrate Justice Krishna Iyer’s passion for justice. Justice Learned Hand (one of the greatest judges of America, who was never elevated to the Supreme Court) was an articled clerk of the most cerebral judge of the US Supreme Court, Justice Oliver Holmes, and the story goes that once Justice Oliver Holmes, while on way to Supreme Court, dropped Learned Hand at the gate of the Law School and Learned Hand, after getting down from the car, said : ‘Goodday Judge, go to the court and do justice’, upon which Justice Oliver Holmes retorted to the young man: ‘It is not my duty to do justice; I am going to the court to decide cases in accordance with law.’ Justice Krishna Iyer was a complete contrast to the Holmesian prescription. For him, doing justice was a mission, and if the law stood in the way, he never hesitated in bending it. Justice Krishna Iyer inaugurated the subaltern jurisprudence by espousing the cause for the poor, downtrodden, women and prisoners.

There has been no dearth of judges, before and after Justice Krishna Iyer, who were more erudite than him from the narrow perspective of legal brilliance. Then what made Justice Krishna Iyer different from his brethren? First and foremost, Justice Krishna Iyer had constitutional vision, particularly the promise of directive principles in his heart and evinced statesmanship in fashioning the progressive, equitable and human juris-prudence with his unmatched judicial creativity and craftsman-ship. Second, the success of Justice Krishna Iyer lay in his humility; a virtue that enabled him to persuade his brethren and provide adjudicatory leadership. Third, the sheer scale of his fecundity even after his retirement and well into almost his last moment has no parallel. Furtherance of public justice demands the exacting standard for producing ‘public reasoning’ through liberating discourse in a sense it was conceptualised by Prof John Rawl in Theory of Justice (1971) and entrenched by Prof Amratya Sen in Idea of Justice (2009).

The post-Emergency period was the brightest phase for the Indian Supreme Court and this transformation owed solely to the crusading zeal of Justice Krishna Iyer. It is during this phase that Justice Krishna Iyer alongwith Justice P.N. Bhagwati inaugurated the Public Interest Litigation by relaxing the rule of standing. It is the inauguration of the public interest litigation that enabled the common citizenry to have access to the court and take on the powerful, resourceful and mighty. It is through the instrumentality of the PIL that the Supreme Court has been evolving constitutionalism by interrogating the deviant political practice.

Justice Krishna Iyer always transcended the technicality of law, nay, the policy and ideology of the party. He was always larger than law and political formation. For him, law was not a technical rule but a means to advance ‘public justice’. Similarly, he cognised that no political party and ideology could capture the entire public and political space and the result was that he was larger than the ideology of any political party. It is this realisation which made his approach open-ended and refreshing at all times. The passing away of Justice Krishna Iyer has clearly marked the end of an epoch, but his copious judgments and writings will always be available as intellectual and juristic resources for adjudicators, nay, social activists. His astral spirits will continue to influence even future generations.

The author is an Advocate, Supreme Court of India.