Note: Current Tamil Nadu Cases, a pre-eminent law journal has thought it fit to bring out a volume in honour of Justice Iyer.S. Kalyanaraman
A PRICELESS JEWEL - OUR NATION’S PRIDE
By-
K.V. VISWANATHAN,
Senior Advocate, Supreme Court of India,
and former Additional Solicitor General of India
A pilgrimage to “Sadgamaya”, the residence of Justice Iyer at Kochi ought to be a memorable one, for one and all. So it was in my case. I dropped in around 4, in the March of 2006. Barely had I entered, I realized that Justice Iyer, had had a flurry of hectic activity in his house. The whole of that morning, he had put together a group of small children and drawn up a “Children Manifesto”-setting out as to what the plan of action should be for the children of India. Now you realize why Justice Krishna Iyer is so different, from most of the rest of us. He was thinking, fifty years ahead.
Justice Iyer has always been far ahead of his times. Oceans of ink and reams of paper, have already illuminated his illustrious career through his multi-faceted activities. I do not propose to conduct, what Justice Mathew would call, “an idle parade of familiar learning”. Two crucial aspects of Justice Iyer’s life as a judge, have fascinated me, and continue to fascinate me.
Noted Senior Counsel Sri Fali S. Nariman, in his monograph-“The Judiciary and the role of the Path Finders”[1]has the following to say on Justice Iyer-
“He often strayed from the beaten path of the law, spinning in his own “cocoon of jurisprudence”…Even when he was writing a majority judgment he made provision (as in a minority opinion) for the “brooding spirit of the future”.
First of the two facets is actually picturized by Mr. Nariman. Why do we say that? It is common knowledge that law makers have often been trigger happy when it came to neutralizing judicial verdicts. Validation statutes have been the order of the day and since the classic judgment of Justice Hidayatullah in Prithivi Cotton Mills[2], Courts have given that leeway to the legislature, as long as the validating statute only removed the basis and did not reverse the verdict.
But when it came to Justice Iyer’s judgments, the Parliamentarians, were more than happy, to not only lap up the judgment but also enact laws to give effect to the prophetic pronouncements of Justice Iyer. All this in a range of subjects- not merely in criminal, constitutional and human rights law, for which he is more famous, but even with regard to his pronouncements in subjects like environmental and intellectual property law. Mind you-Justice Iyer was a judge between 1973 and 1980 and for him to be prophetic in these areas, during that period, marks him out as Very Rare (V.R).
Now let us sample a few- In Indian Performing Rights Society Vs. Eastern India Motion Pictures[3],the question was about the composer’s right to a copyright in a soundtrack as opposed to the right of the producer. Keeping the then existing legislative provisions, the Court ruled for the producer. Justice Krishna Iyer wrote a concurring judgment which he called a footnote and in it said the following-
“Strangely enough, “author”, as defined in Section 2(d), in relation to a musical work, is only the composer and Section 16 confines “copyright” to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because art, in one sense, depends on the ethos and the aesthetic best of a people, and while universal protection of intellectual and aesthetic property of creators of “works” is an international obligation, each country in its law must protect such rights wherever originality is contributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law-making is the province of Parliament, but the Court must communicate to the law-maker such infirmities as exist in the law extant.”
This was in 1977. Today by an amendment in 2012, Parliament has stepped in by introducing amendment to Section 17 of the Copyright Act, 1957 which gives effect to a clairvoyant appeal of Justice Iyer.
In Municipal Council, Ratlam Vs.Vardichan[4], Justice Iyer through his pronouncement, again laid down the pathway for legislative change in the form of enactment of the Environment Protection Act. The Court was faced with a question relating to the power of the court to compel the municipal authority, by way of affirmative action, to take steps to address problems of sanitation in the municipal area. Justice Krishna Iyer examined the framework of law, as it then existed, under which court could direct such action to be taken by the municipal authorities and stressed upon the need for exercise of the powers under the statutory framework for imparting social justice to people by insisting on maintenance of a clean environment.
The legislative steps, to have a more structured legal framework in the area of environment protection finally culminated into the legislation of the Environment Protection Act, 1986 and the Municipal Solid Wastes (Management and Handling) Rules 2000. Speaking for the Court in 1980 in Vardichan, Justice Krishna Iyer had held-
“Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the Rule of Law.”
It was always believed that criminal law was skewed in favour of the accused during the twentieth Century and that the recognition of victim rights in criminal law is a recent phenomenon. For Justice Iyer, nothing can be farther from truth.
In P.S.R Sadanantham Vs. Arunachalam[5], Justice Krishna Iyer took note of the compelling reasons for allowing a private individual to challenge an order of acquittal, in the Supreme Court, under Article 136 of the Constitution, and indicated the need for giving such liberty to a complainant to file appeal against an acquittal order. Picking up the thread, Parliament’s legislative reform came in the year 2009, by way of enactment of an amendment to Section 372 of the Code of Criminal Procedure, which added a Proviso to the Section, permitting a victim to file an appeal against an order of the trial court, acquitting the accused or convicting for a lesser offence or imposing inadequate compensation[6].
The above are just a few illustrations, to demonstrate that Justice Iyer has been a torch bearer, a pioneer, a driver for legislative and social change, a one man pressure group, who gave direction for policy change. He had so thoroughly mastered the theory, science and grammar of law, that when a problem presented itself, he was able to view it from a totally different pedestal, and articulate a correct and permanent solution, which ordinary mortals could not.This is why he was different and that is what marks him out as a precious jewel.
While he singled himself out for special treatment, even at the hands of the legislature, by the sheer force of his judgments, there is another illustrious aspect - his style of judgment writing. If words are a vehicle for conveying thoughts, Justice Krishna Iyer always rode a Rolls Royce. Lord Denning, talking of lawyers with knowledge of literature and those without, said that, while the former was like an architect, the latter was just a mason. But Justice Krishna Iyer was not just about law and English literature. He had a literature of his own. Let us savour a few.
It is only recently, that the Hon’ble Supreme Court, dealing with the death penalty cases, ruled that inordinate delay, in disposal of mercy petitions will result in commutation of death penalty, since it was a serious infringement of the prisoner’s right under Article 21[7]. Hold your breath and see how the seeds for it was sown thirty-six years back, in the first Sunil Batracase[8], when in the following powerful and telling words, Justice Iyer stated:-
“This ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. The convict is not sentenced to imprisonment. He is not sentenced to solitary confinement. He is a guest in custody, in the safe keeping of the host-jailor until the terminal hour of terrestrial farewell whisks him away to the halter. This is trusteeship in the hands of the Superintendent, not imprisonment in the true sense. Section 366(2) Criminal Procedure Code (Jail Custody) and Form 40 (safely to keep) underscore this concept, reinforced by the absence of a sentence of imprisonment under Section 53, read with Section 73, Indian Penal Code. The inference is inevitable that if the ‘condemned’ men were harmed by physical or mental torture the law would not tolerate the doing since injury and safety are obvious enemies. “
Mark the phrase 'mental torture'.
Similarly, explaining the Indian Constitutional model of governance and how its structure is more akin to the British Westminster model and not the American model, Justice Krishna Iyer eloquently says[9]:-
“Not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a ‘silver jubilee’ span of time."
“Not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a ‘silver jubilee’ span of time."
Words, which simply etch the concept in the readers mind, for it to stay there permanently. A virtual tour of Washington D.C., London and New Delhi in all of two lines.
Every time one reads a judgment or an article of Justice Krishna Iyer, one is left in absolute bewilderment at the vast expanse of knowledge possessed by him. Chief Justice Hidayatullah, himself a legal giant, while describing the great Mr. Alladi Krishnaswami Aiyar, mentions that Alladi was sure footed while traversing the thickets of law. Justice Krishna Iyer leaves you with the very same feeling.
Now to end on a personal note, I was overjoyed when my professional Guru and eminent Senior Advocate, Mr.K.K.Venugopal, directed me to be with, and look after Justice Krishna Iyer, at my friend Krishnan Venugopal’s wedding reception in July 1993. During my interaction, I was pleasantly surprised to know that my late grand Father Sri. K.R.Viswanantha Iyer, a leading lawyer at Kallachi, Malabar and Justice Iyer, then a renowned lawyer at the District Courts at Tellicherry, had handled matters together. He recollected a few cases, and spoke in glowing terms about my grand-father.
I feel absolutely privileged and honoured to be asked to write this piece, as Justice Krishna Iyer enters the Centenary year. I seek his blessings and wish him many more years of happy and healthy living, and continued contribution to the cause of the Indian Public. In a broad sense we are all stake holders, in his faculties, for his contributions actually enure to our benefit.
I thank the editorial board and wish Current Tamil Nadu Cases, a pre-eminent law journal, many more years of service to the cause of law.
By-
K.V. VISWANATHAN,
Senior Advocate, Supreme Court of India,
and former Additional Solicitor General of India
[1](1987)3SCC J-1
[2]Shri Prithvi Cotton Mills Ltd. Vs Broach Borough Municipality &Ors.(1969)2SCC283
[3](1977)2SCC 820
[4](1980)4SCC162
[5](1979)2SCC297
[6]Act 5 of 2009, Section 29
[7]Shatrughan Chauhan Vs. Union of India, (2014)3SCC 1
[8]Sunil Batra Vs. Delhi Administration &Ors. (1978)4SCC494
[9]Samsher Singh v. State of Punjab, (1974) 2 SCC 831, paragraph 104