Rebel with a cause

Justice Iyer believed in the human right to have rights

Written by UPENDRA BAXI | Published:December 6, 2014 12:00 am
Krishna’s sight may have been affected but his constitutional vision was intact. Krishna’s sight may have been affected but his constitutional vision was intact.

Justice Krishna Iyer (or Krishna, as I was privileged to call him) was chronologically old but he remained an angry young person — angry at the injustice in the world, but intoxicated by local thoughts of justice.

For him, youth should be measured by the amount of pain one feels when coming across a new idea. The “shopkeepers of justice” (as he described conservative justices), are always truly old because they feel no pain when they encounter devastated or ruined human lives, whereas “activist judges” take human and social suffering seriously, and can also take human rights seriously.

Krishna was a connoisseur of ideas of and about justice. Almost singlehandedly, he rewrote the theory of crime and punishment in India. He measured the distance between colonial and postcolonial law by laying down standards to civilise the administration of justice. He detested the barbarity of total institutions such as the police, prisons and custodial institutions. Even when sparingly administering capital punishment, he inveighed against it and believed in making it very rare as an alternative to its total abolition; he outlawed solitary confinement and putting undertrials or prisoners in manacles. In many ways, he was India’s Jeremy Bentham.

Krishna believed that legisprudence (the wisdom of legislatures or the theory of legislation) should always be reinforced by constitutional jurisprudence (the principles of justice and fairness that judges develop), and jurisprudence in turn should animate demosprudence (the prudence that accentuates the constitutionally worst-off). He pioneered, with some other gifted brethren, the conversion of the Supreme Court of India into a Supreme Court for the people, for India.

His love of social action ligation (SAL) is well known. On the bench, he was a tower of strength for Justices P.N. Bhagwati, D.A. Desai, O. Chinnappa Reddy and others who believed in SAL and adjudicatory leadership. Off the bench, Krishna valiantly pursued lost social and human rights causes. He was a rebel with a cause and without a pause. He continued to remind justices that the disadvantaged, dispossessed and disenfranchised remain the justice constituencies of the Constitution of India, for whom justices ought to show an ethic of care, as well as of human rights. Krishna believed with the philosopher Hannah Arendt in the human right to have rights.

His penchant for judicial reforms is no secret. To add a little known example, in the wake of the Mathura open letter to the chief justice of India, Krishna said on the high bench that an ounce of judicial sensitivity is worth a tonne of judicial reform. This remains true.

His presence and voice on the high bench and in the worlds of law reform, public activism and scholarship is known to us all; often, we find it hard to keep up with Krishna! He was active in every sphere. His home in Ernakulam was a veritable Lok Adalat permanently in session.

Which justice would lend his picture and name to a public hoarding on the way from the Kochi airport to the city with the motto: “Save the Street Children”?

I was once asked to introduce him at a Gandhi Smriti in Surat. I said, one may dare do this if one could “introduce” a cyclone, a tornado, a volcano or tsunami. Krishna was a natural, elemental force with whom you gravitated or perished. Incidentally, he once surprised me by seeming to read a text, only to later learn that he was merely turning blank pages from a photo diary of Jawaharlal Nehru.

Krishna’s sight may have been affected but his constitutional vision was intact. He didn’t live to see India become a just and caring state while still being a strong state, but he has done much, as a justice and a human being, to eliminate the conceptual distinction between India and Bharat. Even when the judicial handkerchief was small and tattered, Krishna valiantly followed Mahatma Gandhi’s counsel to wipe every tear from every eye. He accomplished the nearly impossible task of living well and taught many of us how to do the same. He continued to guide us by his luminous being and doing.

Whether or not the Indian state belatedly confers the coveted Bharat Ratna on him, Krishna remains a jewel in the people’s crown.

The writer is emeritus professor of law, University of Warwick, UK

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