Eighty-seven and still batting!

By Fali S. Nariman

Mr. V. R. Krishna Iyer's most outstanding contribution has been that whatever he has given to the law he has also given unstintedly to public life. He has exhibited that inestimable quality - so rare these days - of his public pronouncements always coinciding with his private opinions.

An assessment of Mr. Krishna Iyer's contribution to the law by reference to his prolific judgments - more than 700 delivered during the seven years that he sat on the Bench of the country's highest court - would not do him adequate justice. It would only help collate a wide range of flamboyantly-phrased judicial opinions on a variety of subjects. I believe his contribution to Indian jurisprudence is much greater. Justice Krishna Iyer, more than any other Judge by his pronouncements on the Bench has made other Judges think! Through his judgments, he showed to them (and us lawyers) that the Anglo-Saxon system of jurisprudence India had adopted (and adapted) did work if only we knew how to make it work: which was 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!

He was responsible for - and in turn inspired - a new thrust, a new direction, for decision-making in the Supreme Court. He helped to humanise the legal system - particularly in the field of criminal jurisprudence and jail reform.

He extended the frontiers of the accountability of the State and its instrumentalities in their ever-expanding operations. He often strayed from the beaten path of the law spinning his own ``cocoon of jurisprudence,'' making no secret of the fact that a judge must have a social philosophy and a humane approach to legal problems.

Law to him was ``value-loaded''. His social philosophy was more than an interpretative tool. It has been the mainspring of almost all his judicial dicta. He founded a new ``school of jurisprudence'' - which had at one time many adherents: now alas, very few.

And then, he had that abiding quality of a great judge - he was fearless. Whilst 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 the Vacation Judge during the summer recess of 1975.

It was destined to be the most historic summer recess of the court. Indira Gandhi had lost the election petition filed against her by Raj Narain in the High Court of Allahabad. The High Court judge ruled that she had forfeited her seat in the Lok Sabha. Indira Gandhi applied for an absolute stay of the judgment and order. The matter was argued before Krishna Iyer - the Vacation Judge.

He could have passed the buck - granting an absolute stay till the reopening of the court when a Bench of three or five judges would have finally heard the application. But he did not flinch. Sitting singly and so taking the entire odium on himself, he passed an order granting only a limited stay, consistent with the practice of the Supreme Court in all election appeals.

He ordered that whilst Indira Gandhi as Prime Minister could speak in either House of Parliament (so long as she filled that office) she as a Member of Parliament could not vote nor participate in proceedings of the Lok Sabha - since she had been unseated by the judgment of a competent election court.

India's constitutional expert Mr. H. M. Seervai (otherwise critical of Justice Krishna Iyer and many of his judgments) applauded: in his book on the Constitutional Law of India he described the passing of the order granting a conditional stay as the ``Supreme Court's finest hour.''

Great praise, indeed. But then Mr. Krishna Iyer always did what he thought was right - not bothering about the consequences.

His pronouncements when on the Bench and off it (after retirement) have been invariably swadeshi - of an indigenous socialistic bent: But his fame has spread far beyond the country's frontiers. Only a few weeks ago when I was in Paris attending a plenary session of the International Court of Arbitration of the ICC, an old time colleague on the court, Mr. Antis A. Triantafyllides, a distinguished lawyer from Cyprus, said to me that he had read the Constitution Bench judgment in Fatehchand vs. State of Maharashtra (delivered in January 1977) and was greatly impressed by the high quality of its thought- content and language.

I was quite amazed. I asked him how he came to know about it, and he said that he was looking for judgments of courts around the world on debt-relief laws and found that Mr. Krishna Iyer's judgment in Fatehchand was the finest. I am privileged to have been (at least in part) responsible for this decision, since I argued the case for the petitioners - and lost!

What has endeared him to us all is that after retirement he has been a vocal public figure. He advises no one but public causes, he holds no briefs but for his country. Whenever he speaks on matters of moment, India listens.

At eighty-seven he is not old - because, to paraphrase the great poet: ``He shall grow not old as we that are left grow old/ Age shall not weary him nor the years contend/ At the going down of the sun and in the morning/ We shall (always) remember him.''

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