|
|
|
 |
24 May, 2015
The following excerpts are drawn from two articles, that appear in succession in the issue of Frontline (Vol. 31, No. 26, Dec 27 -Jan 09, 2015) in response to the passing away of Justice V.R. Krishna Iyer (1914-2014). The articles are "Justice at heart" by V. Venkatesan and "Constitutional Nationalist".
Excerpt 1:
In an autobiographical account written in 2001, Vaidyanathapuram Rama Aiyar Krishna Iyer, better known as Justice V.R. Krishna Iyer, reflected on the memorable events of his life as a judge. "What were my guiding goals I tried to practice on and off the bench?" he asks himself. The first lesson, fundamental to life and law, which he learnt on the bench, was humility without hubris and humanist hearing without "high bench" hauteur. The second value, which touched his judicial heart, was the compassionate treasury of the Preamble to the Constitution, particularly its five opening words, " We, the People of India", as the democratic imperative which bound him. The third imperative was to hear either side fairly since courage and independence obligated him "to give (even) the devil his due", whether he be in the right or in the wrong. Among the last things he learnt was that "perfect justice is a mirage". "In the pursuit of the illusion of perfect justice, we jeopardise the justice that is within our grasp," he wrote. (emphasis added)
Excerpt 2:
Way back in 1977, he [Justice V.R. Krishna Iyer] declared on behalf of the Supreme Court that the country's constitutional culture was rooted in the supremacy of justice. While interpreting the constitutional provisions dealing with the power of the executive to transfer a High Court judge without his consent from one High Court to another, he found the spiritual value of having a free and independent judiciary as part of our constitutional culture.
He said: "The spiritual value of a free judiciary for a civilised human order is symbolised in the imperative Fiat Justicia and inscribed in ancient Indian Neeti Shastras. To us of a constitutional culture rooted in the supremacy of justice --- social, economic, and political --- and subjected to colonial injustice before we became free, independence of the judiciary is no speculative nicety nor sweet novelty but a dear creed to defend liberty" (S.H. Sheth vs Union of India, 1977). In the same case, he further opined that "the appreciation of this pivotal issue of the Judge's metier and methods demands acceptance of the broader bearings and constitutional culture".
Excerpt 3:
Despite his unique judicial philosophy, Justice Krishna Iyer hardly dissented from his brother judges while on the bench. Even in the split judgements of the court, he was always on the side of the majority, trying to harmonise his decision with the majority and express his dissent in a nuanced manner, so as to contribute to the evolution of the law through concurring judgements. This unique quality, perhaps, stemmed from his belief that law develops through diverse views and that flashes of collision bring out the truth and justice.
Excerpt 4:
Justice Krishna Iyer regarded his ruling delivered as the single vacation judge in June 1975 in Indira Gandhi vs Raj Narain as the most sensational case of his carer. While refusing Prime Minister Indira Gandhi's plea for an absolute stay on the Allahabad High Court's order setting aside her election on the grounds that she had violated the election law, he ruled that she had lost her status and privileges as a Member of Parliament but could retain her position as Prime Minister. His ruling in the case was hailed by the legal scholar H.M. Seervai as the finest hour of the Supreme Court.
The eminent legal academic Upendra Baxi wrote on the occasion of his centenary: "Krishna, along with some other gifted legal brethren, pioneered the conversion of the Supreme Court of India into a Supreme Court for the people of India."
Excerpt 5:
In 1978, Justice Krishna Iyer, writing for the bench, declared that correctionalist criminal justice was part of the constitutional culture of India. The court was dealing with the propriety of enhancing the sentence of imprisonment awarded to "seven dangerously ideological teenagers, politically impatient with the deepening of injustice of the economic order and ebulliently infantile in their terrorist tactices". They were accused of the offence of having "robbed the State Bank of a few thousand rupees with non-violent use of crude pistols and country bombs which, in the language of the Penal Code, amounts to dacoity --- a grave property crime". They were duly prosecuted, convicted and awarded two and a half years' rigorous imprisonment by the trial court. On appeal, the High Court enhanced the sentence to seven years' rigorous imprisonment.
Justice Krishna Iyer frowned upon the manner in which the High Court enhanced the sentence and its stance that the "ends of justice" demanded it. He set aside the High Court judgement and restored the sentence imposed by the sessions court. He called for prison reforms in the line with humanism and correctionalism. He asserted: "After all, the constitutional culture of our country imposes this obligation...." ... He reasoned: "The therapeutic basis of incarceratory lifestyle is not unknown to Gandhian India because the Father of the Nation regarded a criminal as a morally aberrant patient." He advocated a humanitarian ethos, stating that these values had their roots in the Constitution.
Excerpt 6:
In the Rajendra Prasad case (1979), referring to the amendment doing away with the death penalty for murder save in exceptional categories, he declared: "So far as it goes, the benignity of the change reflects the constitutional culture we have explained." In the same case, he went on to state: "Our culture is at stake, our karuna [empathy] is threatened, our Constitution is brought into contempt by a cavalier indifference to the deep reverence for life and a superstitious offering (emphasis added) of human sacrifice to propitiate the Goddess of Justice."
...
"In Rajendra Prasad, too, Justice Krishna Iyer reasoned that "if the murderous operation of a diehard criminal jeopardises social security in a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are --- never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore, social justice projected by Article 38 colours the concept of reasonableness in Article 19 and non-arbitrariness in Article 14."
"In Ediga Anamma (Ediga Anamma vs State of Andhra Pradesh (1974)), Justice Krishna Iyer laid down the principles that ought to govern commutation of death sentence to life imprisonment: "Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, pyschic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved have received the benefit of life imprisonmnet of if the offence is only constructive, being, under S[ection] 302 read with S[ection] 149, or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanly opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into crime." In this case, the appellant, a rural woman, was convicted and sentenced to death for killing another woman and her child. The deceased happened to be the paramour of the appellant's lover. In his judgement, Justice Krishna Iyer commuted the death sentence to life imprisonment, citing the above grounds.
Again, in the Dalbir Singh case (1979), speaking for the court, he commented on the jurisprudence of sentencing in India, lamenting the lack of percolation of the constitutional culture: "The judgement under appeal is a hint of the judicial confusion even in this grave area of death penalty. True, the jurisprudence of sentencing in Free India has been a Cindrella and the values of our Constitution have not adequately humanised the punitive diagnostics of criminal courts, which sometimes, though rarely, remind us of the torturesome and trigger-happy abberations of the Middle Ages and some gory geographic segments, soaked in retributive blood and untouched by the correctional karuna of our constitutional culture."
Justice Krishna Iyer was to acknowledge later that these two decisions (Rajendra Prasad and Ediga Anamma), setting aside the death sentences, gave much solace to his soul. Criminal jurisprudence, he said, would fulfill its functional trust when life and liberty were saved for even the least of humanity.
Excerpt 7:
Again, in the Rakesh Kaushik case (1980), he made this observation about the Tihar Jail: "Were there a modicum of truth in the disclosures made of vice and violence, overt and covert, in the goings-on in Tihar, such institutional outrages would make our constitutional culture blush..."
...
In the Prem Shankar Shukla case (1980), Justice Krishna Iyer declared that the value of human dignity, which formed part of our constitutional culture, militated against the handcuffing of undertrials or prisoners (emphasis added): "Those who are inured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanise him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness' and security."
In the Kishore Singh Ravinder Dev case (1981), the court was dealing with complaints and instances of torture of prisoners and undertrials in police custody. After a detailed analysis of the situtation in all its aspects, Justice Krishna Iyer categorically said: "Nothing is more cowardly and unconscionable than a person in police custody being beaten up, and nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of human rights."
Excerpt 8:
He again relied on India's constitutional culture while attempting to harmoniously blend the developmental necessities of the backward regions via institutional reservation and national considerations of everbody's equal opportunity for higher education being ensured regardless of geographical, institutional or other inhibitions. "We must never forget two values synthesised in our constitutional culture, as set out in the Preamble -- unity and integrity of the nation and equality of opportunity of weaker sections" (Jagdish Saran case, 1980).
...
In the Akhil Bharatiya Soshit Karamchari Sangh case (1981), he explained that the right to equality without discrimination in public employment and reservation to the backward classes under Article 16 of the Constitution were two sides of the same coin and such interpretation was an insightful perception of our constitutional culture:
"This is not mere harmonious statutory construction of Article 16 (1) and (4) but insightful perception of our constitutional culture, reflecting the current resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharath. If freedom, justice and equal opportunity to unfold one's own personality belong alike to Bhangi and Brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Article 16(4) promises, the state must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props."
He added: "The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the melcha, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly, we must understand the people for whom it is made (emphasis added) --- the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities."
Elucidating the argument, he said: "We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses, including the harijan-girijan millions hungering for a humane deal after feudal-colonial history's long night."
| |
|