FULL TEXT OF THE SPEECH MADE BY SRI. FALI.S.NARIMAN, SENIOR ADVOCATE, Supreme Court of India on 29TH JUNE, 2014 Hon’ble Chief Justice of Kerala Dr. Manjula Chellur – who is in a long line of Chief Justices – commencing with the most illustrious of them all – Chief Justice M. S. Menon head of the Judiciary from 1961 to 1969 – the person who appointed Advocate Krishna Iyer appointed a Judge. Friends and admirers of the Sarada Krishna Sadgamaya Foundation for Law and Justice and all its distinguished Office bearers and Adv. P.B.Sahasranaman And above all, friends and admirers of Justice Krishna Iyer who are gathered here this morning. I consider myself privileged to be one of the key-players in today’s function. I look upon myself as OLD – but find that I am 15 years younger than the young-at-heart-and-head who is happily in our midst. And the first thing I suggest we should do, ladies and gentlemen, is to give him a big hand – just for being with us here on this joyous day. At his age, neither you nor I nor any of us here will be around – we may perhaps be down below or up above, but definitely not in this world! I do not how many of you know that when Krishna Iyer started his professional career as an advocate he started it with a bang – true to character. He was explosive from the start. He told me the story when I was last in Cochin in February 2012. I did not find this true story in the Miscellany (just released) so let me begin with it. After the Government of Kerala, of which he was a minister was dismissed by the Centre, way back in the late nineteen fifties, Krishna Iyer took up the practice of law in the Kerala High Court. He paid his life-subscription and was duly enrolled by the then Secretary of the Bar – who, incidentally, Mr. C.K.Sivasankara Panicker, Advocate General, none other than the father of Justice K. S. Radhakrishan, a distinguished sitting Judge of the Supreme Court of India who retired from office only last month. But when Krishna Iyer’s name went up to the Bar Committee for approval, the Committee of the Kerala High Court Bar Association rejected it since the newly enrolled Member was (as they put it) “an avowed communist.” Krishna Iyer then told me, the sequel – with his eyes glistening: “I said I would sue them all since they had second thoughts about refusing to enrol a communist after accepting this communist’s life subscription. I told them that my threats are as serious as the one who has uttered them.” And the threat worked. The Committee backed down. Krishna Iyer remained enrolled as member of the Kerala Bar Association - and the Kerala High Court had one less suit. As he has written, in his Miscellany, he has dictated one or more Chapters of this book only from the time he crossed age ninety-nine. For a retired Supreme Court judge anywhere in the world this is a record- the one thing that comes close to it is a book just published by retired Justice John Paul Stevens of the U.S.Supreme Court who retired from the Court at the of 92 and at 96 has published his latest book on the US Constitution titled “Six Amendments – why and when we should change the Constitution “. Old men around the world are active these days even in these nineties. The importance of this Miscellany , just released, is not so much in its content but in the fact that it has been written - dictated first to dedicated secretaries, then transcribed, and finally published by the inimitable Manish Arora – whom the author rightly calls “my best publisher”. So it is not for the contents of the book of musings that this function is held. The fact that some nasty people may even critically describe the writings as “ramblings”. Some of them are.But I would say to them: if you can even ramble like him whilst in your 99th year (if at all you ever get there) then as Rudyard Kipling says in one of his great poems: “You are a better man than I am, Ganga Din”. In these musings Justice Krishna Iyer has been frank – sometimes, brutally frank – In fact on the very first few pages of this miscellany he has remembered a grave wrong of long years ago - whilst praising Senior Advocate Madhav Reddy for arguing a case boldly before the Supreme Court of India, he has simultaneously criticised the conduct of two Chief Justices of India – one who was the subject of the case and the other the Judge who heard the case. Only a Krishna Iyer can be critical of Chief Justices of India it is; because post-retirement (after November 1980) he at once became increasingly involved in public affairs (never private affairs). Because his views have always been frank fearless and rational and though expressed in Kochi and received throughout India. The fact he has been by almost universal consent acclaimed as Chief Justice of the Peoples Court of India – a title he still proudly holds with distinction – I like to think that the reason why we celebrate today with the release of this book, his 99 – going-on-to – 100 years is because he has been above all things an INNOVATOR in the field of law. If innovative judgments were permitted to be patented Krishna Iyer would be the judge holding the large number. Let me give you two instances: Justice Krishan Iyer’s humanising influence on the law was first expressed in a case of little apparent importance. It is one of his judgments that I like best - a case of a small time businessman of Kerala who went by the rollicking name of Jolly George Verghese. It was way back in the year 1979 (thirty-five years ago) when Krishna Iyer was already for more than 6 years a Judge in the Supreme Court. The story of Jolly George Verghese is now familiar to us - like many others of his kind this individual could not afford to pay his judgment-debts. And so, like many hundreds of others at the time, he was marched off to Civil prison: Rightly, Courts in Kerala had said, relying on Section 51 of the Code of Civil Procedure 1908 – since one of the modes of execution of a money decree is imprisonment of the debtor in Civil Jail. But Jolly George Verghese was more fortunate than his other debt ridden brethren: he appealed to the Supreme Court of India. And happily for him and for the law, the case came before a Bench presided over Justice Krishna Iyer. The judgment is a treat. I advise all you enthusiasts in law and in social justice to read it. It is simply written. There is no verbosity – and there there are also fine literary flourishes. Always a man (of vast and varied reading) Krishna Iyer in this judgment quotes Shakespeare, he says: “Imprisonment is not to be ordered merely because, like Shylock the creditor says, I crave the law, the penalty and forfeit of my bond.” (a quote from the ‘Merchant of Venice’) Krishna Iyer then goes on to quote a book older than Shakesphere , the Bible . And the quote is from the Old Testament : “thou Mercy is reasonable in the time of affliction it raps clouds of rain in the time of drought.” (beautiful imagery) And so saying Krishna Iyer harmonising Section 51 CPC with the International Covenant on Civil and Political Rights along with Article 21 of the Constitution. The judgment under appeal before him is ordered to be set aside. The executing Court is directed to decide de novo the means that Jolly George Verghese had to discharge the decree in the light of the interpretation given. Jolly George is given a fresh lease of life. All this is Pristine Krishna Iyer, and I recommend the judgment to you. It is how judgments should be written. You will find it reported in AIR 1980 SC 470). This judgment not only reflects the Judge’s clarity in thought but at the time a tribute to the reasonable innovative thinking. When the case first came before him he looked into the law and found what he was looking for - Article 11 of the International Covenant on Civil and Political Rights 1969 – (ICCPR) One of the major United Nation’s Covenants: India was a party to it. Article 11 of the ICCPR says: “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.” This provision is in the teeth of Section 51 of CPC – how then to reconcile both? The ICCPR though not part of Indian law –is certainly part of International Law recognised in India. Justice Krishna Iyer was conscious of this. So he reasoned that International law must have some influence on the interpretation of our own national law especially when our national law pre-dates India’s ratification of the UN Covenant by more than 60 years. So by a process of judicial interpretation , in the light of Article 11 of the ICCPR, he concluded “that if a debtor once had the means but now he has not, or if he has the money now on which there are other legitimate and pressing claims, it would be violative of the spirit of Article 11 (which is part of international law) to arrest and confine him in jail so as to coerce him into payment”. This is something which Judges of High Courts and the Justices of the Supreme Court need constantly to remind themselves. The Law has remained as Krishna Iyer had interpreted it. Simple default to discharge a debt even a judgment-debt is not enough. There must be some element of bad faith beyond mere indifference to pay. Some deliberate disposition not to pay despite the means to pay. Then there is another case – again today an old case. As Lord Denning used to say, old cases like old words are best, and old words when short are best of all. It is again a gem of a judgment authored by Krishna Iyer sitting along with Justice Chinnappa Redddy. The case of the Ratlam Municipality is a typical instance where the Court had no more to go on than a statutory directive under Section 133 of the Criminal Procedure Code (a provision re: nuisance and how to abate it) – It empowered the Magistrate on receiving a Report of the Police Officer or other information to order the removal from any public place or from any river or channel any unlawful obstruction or nuisance. But Krishna Iyer looked for and found something new in the Section – this is how he describes Section 133 of Criminal Procedure Code and it effect: “9. So the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. ‘All power is a trust – we are accountable for its exercise – it all springs, from the people and for the people . Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise.” The Sub-Divisional Magistrate of Ratlam had been moved to take action by applying to the Municipality ordering it to construct suitable drain pipes with sufficient flow of water to wash the filth, stop the stench and to provide sanitation facilities. The Magistrate finding that “nuisance” was established, gave detailed directions as to how the nuisance should be abated. But the Ratlam Municipality challenged this order first in the High Court, and then in appeal to the Supreme Court, and the question which the Court had to answer was whether in an application under Section 133 of the Criminal Procedure Code a Court could apart from imposing punishment could compel a statutory body to carry out its duties to the public by undertaking construction of sanitation facilities at considerable cost, and on a time bound basis. Krishna Iyer J. speaking for the Court said: “At issue is the coming of age of that branch of public law bearing on community actions and the Court’s power to force public bodies to implement specific plans in response to public grievances.” These are golden words; they are the words with which the new era of genuine (not fake) PILs got initiated. Justice Krishna Iyer’s Court spent sometime on this case particularly because of the attitude (of what the Court called) “the callous public bodies habituated to deleterious inaction”. One of the legal pleas to absolve the municipality from the Magistrate’s specific direction under Section 133 was that the municipality had no funds to comply with the directions. The Court first negated this plea on principle, in ringing words: “The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 133 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be. But then realistically the Court also allowed the municipality to fame a scheme commensurate with the costs involved which the municipality could well-afford with help of loans from the State Government and (negotiated with Court) then approved monitored for the future – on the principle set out in Article 47 – a directive principle of State policy – viz. that the improvement of public health is amongst the primary duties of the State. The Court then revised the Magistrate’s order what was called a “workable formula” the implementation of which would be “watch-dogged by the Court”. In this decision we see the beginning of what is truly public interest litigation when the executive branch or its agencies have failed to perform their executive duties. The decision stands out as an effective answer to those who complain that Courts needlessly interferes with executive functions. The case shows that – that they do so, not needlessly, but when they have to. The case of Ratlam Municipality is written in a simple language, easy to understand. It has for years now spurred into action many High Courts throughout the country over the years whenever their Writ Jurisdiction has been invoked. It is a leading case frequently followed. Do read this innovative judgment authored by Justice Krishna Iyer. It is reported in AIR 1980 SC 1622 (the year 1980 was the last but golden year of the Krishna Iyer Court). In this case incidentally Krishan Iyer also invented a new litigative strategy which is being increasingly practised today – viz. negotiating with parties whilst at the same time judging their cases. The Court negotiated with and induced the State Government to grant a loan to the impecunious municipality so that it could successfully abate a long-standing nuisance. This technique is now increasingly recommended all around the world – and has been described “as the wave of the future”. It is Krishna Iyer who is responsible for innovating in India this wave of the future. We are all agreed that Justice V. R. Krishna Iyer, has had all the abiding qualities of a great Judge - he has been innovative and fearless. But was he truly independent? It was his independence as a Judge that was put to the test when he was still a junior Puisne Judge in the Supreme Court - Within two years of his elevation from the Law Commission to the highest Court, he sat as Vacation Judge during the Summer Recess of 1975. This was destined to be the most historic Summer Recess Session of the Court! On June 12, 1975 Mrs. Gandhi’s Election had been set aside in the election petition filed against her by Mr. Raj Narain in the High Court of Allahabad. The High Court Judge had ruled that she had forfeited her seat in the Lok Sabha. Mrs. Gandhi engaged the eminent Nani Palkhivala seeking an absolute stay of the judgment and order. Seeing the importance of the matter Justice Krishna Iyer could have posted it for the re-opening granting a stay in the meanwhile . But aht would be only passing the buck , shirking to decide the case. Krishan Iyer has not shirked he went to hear the case. After hearing Palkhiwals’s eloquent arguments for a day, the Vacation Judge was not convinced and he said so in reasoned order the next day which was dictated in Court. I have always taken the tactics of pulling his leg since then to tell him that it was this order (and not Mrs. Gandhi’s order) that brought on the Internal Emergency of June 1975! But were seriously - India’s Constitutional historian H. M. Seervai (otherwise very critical of Justice Krishna Iyer and many of his judgments) has placed on record his high appreciation of the Vacation Judge’s order: (let me quote it) – from Seervai’s 4th Edition (Vol.2 page 2206). “.....the historian will say that the Supreme Court moved towards its finest hour, a day before the Proclamation of Emergency, when on 24th June, 1975, Krishna Iyer J., following judicial precedents, rejected an application made by Mrs. Gandhi that the Allahabad High Court’s Order, finding her guilty of corrupt election practices and disqualifying her for six years, should be totally suspended. In the best traditions of the judiciary, Krishna Iyer J., granted a conditional stay of the Order under Appeal - although he had been reminded by her eminent Counsel Mr. N. A. Palkhivala, “that the nation was solidly behind her as Prime Minister” and that “there were momentous consequences, disastrous to the country, if anything less than the total suspension of the order under appeal were made”. (Unquote) Great praise indeed. But then Krishna Iyer always did what he thought was right, and never bothered about the consequences. An assessment of Krishna Iyer’s contribution to the law by reference to his prolific judgments – more than seven hundred - delivered during the seven years that he sat on the Bench of the country’s highest Court - would not (I feel) do him adequate justice – It would only help to gather together a wide range of phrased judicial opinions on a whole variety of subjects. I believe his contribution to Indian jurisprudence has been much greater. With his pronouncement on the Bench Justice Krishna Iyer, more than any other Judge on the Bench (past or present) has taught other Judges to think! this influence on his brethren was profounded. There were in the nineteen eighties and nineteen nineties adherents to what was popularly known as the Krishna Iyer school of law. This is his real contribution Through his judgments, he showed that the Anglo-Saxon system of jurisprudence India has adopted (and adapted) can work if only we know how to make it work: which is to decide (as one must) according to law, but never to forget that law without justice is like an egg without its yolk, and much of its salt! When any of you visit the Supreme Court (as you will and must) you will find there are hanging in Court Room No.1 portraits of India’s first Chief Justice Sir Harilal Kania and (on the opposite side of the room) the portrait of Justice Bijan Kumar Mukherjea the fourth CJI (a great and courageous Judge). In Court Room No. 2 there is a portrait of Justice Venkatarama Aiyyar (not Justice Venkataramiah from Karnataka from whom we all learnt and whom we all knew and loved) but another Justice Venkatarama Aiyyar of long ago from Madras (who sat in the Supreme Court in the mid-nineteen fifties. Then some 30 years later because of his yeoman judgment in a celebrated case and at the insistence of the Bar the great Justice H.R. Khanna’s portrait was put up in Court No. 2. But there are no other portraits of any of the other nearly 200 odd Judges that have set in the Supreme Court of India since 1950. In my view, there are two of them who stand who now deserve the honour to become the head and shoulders above the rest: Justice K. Subba Rao and Justice Krishna Iyer. I have called them pathfinders in the law – a designation they richly deserve. Their portraits should adorn one or other of the Court rooms. Last year I had moved in this direction. There was a portrait to be prepared at my instance of the great man who is present here. But then when I persisted with the former CJI Justice Sadasivam I found that although he was agreeable some colleagues of his (I don’t know who) were not favourably disposed to the proposal and so the project has now been shelved. But in India in a good cause unless you persist nothing happens. My request to you my friends who are here - lawyers, social workers, ardent and enthusiast supporters of Krishna Iyer is that you to write to the Chief Justice of India and to the Justices of the Supreme Court that you support the idea of a portrait of Justice Krishna Iyer being unveiled in one of the Court rooms – not for sectarian reasons, not because he is a Keralalite from this beautiful State, but because he is a Judge who belongs to the entire community of Judges and Lawyers in the country and deserves special recognition. Because at age 99 this man is not old – but to quote a stanza from the famous poem First-World-War poet of renown (Robert Laurence Binyon): I quote one of the stanzas from it: “He shall grow not old as we that are left grow old; Age shall not weary him, nor the years condemn – At the going down of the sun and in the morning We will remember him.”
Posted on: Sun, 29 Jun 2014 11:46:12 +0000
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