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Mainstream, VOL LII No 51, December 13, 2014

An Activist Judge with Aristotle’s Mental Range, Fearless Krishna Iyer was a Game-changer

Monday 15 December 2014, by T J S George


If style maketh the man, opinion maketh the judge. A wise opinion memorably expressed goes directly into the conscience of society and the annals of time. Such was the opinion: “Law without politics is blind. Politics without law is deaf.” It was an aphorism that marked the personality, the commitment and the intellectualism of Justice V.R. Krishna Iyer. Some 700 judgments he pronounced from the Bench of the Supreme Court and all of them were studded with bold ideas boldly expressed. They all had but one aim: Uphold the human rights of ordinary people, even of detainee suspects (he pronounced against handcuffing as a routine) and jailed convicts (he took up a prisoner’s letter about torture as a public interest litigation).

India’s judicial firmament is full of shining stars. (The Emergency years showed that there were also judges who were unworthy of their calling.) Fali Nariman in his autobiography cites some examples of the great, such as Vivian Bose, S.R. Das and P.B. Gajendragadkar. He then says that as “pathfinders” he could name only two: Justice K. Subba Rao and Justice V.R. Krishna Iyer. More than all others “they influenced creative judicial thinking. They lighted new, difficult (and different) paths—paths which others followed.”

The lay public is not all that familiar with the Subba Rao saga, but the legal fraternity remembers with reverence his efforts to ensure the sanctity of citizens’ personal liberties. As Nariman puts it, Subba Rao’s “concern for fundamental rights and his distrust of parliamentary majority led to some of his most controversial decisions. He abhorred absolute power—especially the arrogance of absolute power” whether exercised by the executive or the legislature.

If Subba Rao’s agenda was to make politics subservient to law, Krishna Iyer’s was to make law serve the ends of social justice. He became arguably the most famous of Supreme Court judges. One reason was his activism which increased after his retirement in 1980. There was no people’s cause that he did not champion; at the age of 99 he even sat in dharna demanding a cancer centre for Kochi. He was interested in practically all subjects; one of the 105 books he authored was on life after death. Former Chief Justice of India M.N. Venkatachaliah put it best when he said: “The range of Krishna Iyer’s mind was that of Aristotle.”

But the big reason for his fame was, ironically, his judgment in a political case—the election case appeal by Indira Gandhi in 1975. Krishna Iyer was a junior puisne judge in the Supreme Court at that time. It was just an accident that the appeal came up before him. It was summer recess for the court and Krishna Iyer happened to be filling in as vacation judge. That was when Indira Gandhi approached the court pleading for an absolute stay on the Allahabad High Court’s verdict disqualifying her.

Indira Gandhi was at the height of her power. It was not incumbent on the junior vacation judge to take up the case. He could have just as well granted a stay till the reopening of the court when a proper Bench of three or four judges could have given a decision. But this was Krishna Iyer who had what Nariman called “that abiding quality of a great judge—he was fearless”. Taking the full weight of responsibility upon himself, the vacation judge heard the arguments nonstop for six hours, three each by Nani Palkhivala (for Indira Gandhi) and Shanti Bhushan (for Raj Narain). It was 2 o’clock in the morning when the writing of the judgment was completed. The Court rejected the plea for a complete stay of the High Court verdict and allowed only a partial stay. Indira Gandhi was allowed to function as the Prime Minister, but without the right to vote in Parliament. The order was handed down on June 24. On June 25-26 Emergency was proclaimed.

To understand the extent of Krishna Iyer’s courage in passing that judgment, we must know that Palkhivala had sounded a warning during the argument. His words were: “The nation was solidly behind (Indira) as Prime Minister” and “there were momentous conse-quences, disastrous to the country, if anything less than the total suspension of the order under appeal were made”. Krishna Iyer remained undaunted. Constitutional lawyer M. Seervai, usually a critic of Krishna Iyer, described this as the Supreme Court’s finest hour. Was that the same as saying that V.R. Krishna Iyer was India’s finest judge? His one judgment certainly changed the game for Indian history.