Voice of The Populist Jurisprudent (L.s.sathyamurthy)

SOCIETY FOR COMMUNITY ORGANISATION TRUST
Justice Bhagwati Bhavan, 143, Lake View Road,

K.K. Nagar, Madurai - 625 020.
Ph : 0452 - 2583962, 2580636
Bibliographical Data Bibliographical Data
Title of the book -Voice of the Populist Jurisprudent Title of the book -Voice of the Populist Jurisprudent
Author -L.S.Sathiyamurthy Author -L.S.Sathiyamurthy
Language -English Language -English
Edition -First Edition -First
Date of Publication -15th November, 2014 Date of Publication -15th November, 2014
Reprint - June 2018 Reprint - June 2018
Size of the book -1 x 8 size Size of the book -1 x 8 size
Printed area -18 x 10.5 Printed area -18 x 10.5
Paper used -18.6 TNPL Map Litho Paper used -18.6 TNPL Map Litho
Printing points -12 Printing points -12
No.of pages 214 No.of pages 214
No.of copies -1000 No.of copies -1000
Laser typeset -Soco Trust, Madurai Laser typeset -Soco Trust, Madurai
Printers -Hema Mala Syndicate, Sivakasi Printers -Hema Mala Syndicate, Sivakasi
Binding -Section Bind Binding -Section Bind
Donation -Rs.100 Donation -Rs.100
Publishers -Society for Community Organisation Trust Publishers -Society for Community Organisation Trust
Justice Bhagwati Bhavan, Justice Bhagwati Bhavan,
143, Lake View Road, K.K.Nagar 143, Lake View Road, K.K.Nagar
Madurai - 625 020, India Madurai - 625 020, India
Ph: 0452 - 2583962, fax: 2580922 Ph: 0452 - 2583962, fax: 2580922
e-mail: socotrust82@gmail.com e-mail: socotrust82@gmail.com
Subject - Justice V.R.Krishna Iyer’s Judgements Subject - Justice V.R.Krishna Iyer’s Judgements
and Writings and Writings
Dedicated Dedicated
to to
My Parents My Parents
Sri L.B.Sonnappan & Sri L.B.Sonnappan &
Shyamala Sonnappan Shyamala Sonnappan
JUSTICE N.KIRUBAKARAN JUSTICE N.KIRUBAKARAN
Judge Judge
High Court High Court
Madras Madras
08.11.2014 08.11.2014
FOREWORD FOREWORD
The pain taking effort of the author The pain taking effort of the author
is we ll reflected in the book a n d it is is well re fle c t ed in the bo o k a n d it is
evident, as one goes through the book. evident, as one goes through the book.
The author attempted to give a new dimension The author attempted to give a new dimension
about the great jurist living legend, great about the great jurist living legend, great
fighter, crusader of human rights, voice of fighter, crusader of human rights, voice of
democracy namely Justice V.R.Krishna Iyer. democracy namely Justice V.R.Krishna Iyer.
We should feel happy that we are We should feel happy that we are
also living in the same period in which also living in the same period in which
Justice Iyer also lives. Justice Iyer also lives.
4 4
The contribution of Justice Iyer as an The contribution of Justice Iyer as an
advocate, policy maker, judge, jurist and advocate, policy maker, judge, jurist and
a human rights activist is well conceived a human rights activist is well conceived
and brought out in this research work and brought out in this research work
by L.S.Sathiyamurthy. by L.S.Sathiyamurthy.
Justice Krishna Iyer’s socio jurist’s contribution Justice Krishna Iyer’s socio jurist’s contribution
for the rights of the prisoners, voiceless people, for the rights of the prisoners, voiceless people,
women, and underprivileged has been very women, and underprivileged has been very
elegantly narrated in this book. elegantly narrated in this book.
The judgements of Justice Iyer are meticulously The judgements of Justice Iyer are meticulously
analysed and they are appropriately extracted analysed and they are appropriately extracted
wherever necessary by the author. The efforts wherever necessary by the author. The efforts
of the author have to be appreciated. of the author have to be appreciated.
I congratulate the author for writing this I congratulate the author for writing this
wonderful book on Justice V.R. Krishna Iyer. wonderful book on Justice V.R. Krishna Iyer.
I hope the book will be useful for the lawyers, I hope the book will be useful for the lawyers,
Judges, Socialists, Human Rights activists and Judges, Socialists, Human Rights activists and
the general public. the general public.
Justice N.KIRUBAKARAN Justice N.KIRUBAKARAN
5 5
6 6
ADMIRER’S APOLOGIA ADMIRER’S APOLOGIA
This Small book is a gesture of love respect This Small book is a gesture of love respect
and regards I built upon Justice V.R.Krishna and regards I built upon Justice V.R.Krishna
Iyer - Living Legend of Law, a best known and most Iyer - Living Legend of Law, a best known and most
revered jurisprudent of the twentieth century revered jurisprudent of the twentieth century
and this new millennium. His valuable and this new millennium. His valuable
judicial and extra-judicial contributions has judicial and extra-judicial contributions has
put the Indian socio-legal and judicial put the Indian socio-legal and judicial
institutions at a high pedestal. Like many people institutions at a high pedestal. Like many people
around the world, I came to know him at far as a around the world, I came to know him at far as a
Judge of the Supreme Court of India, where myriad Judge of the Supreme Court of India, where myriad
law text books carried his pronouncements in the law text books carried his pronouncements in the
form of precedents. I heard his speech at World form of precedents. I heard his speech at World
University Service (WUS) Centre during the days I University Service (WUS) Centre during the days I
was studying for a law degree in Chennai, in the was studying for a law degree in Chennai, in the
year 1991. Of times that I recollect reading passion- year 1991. Of times that I recollect reading passion-
ately on Justice Krishna Iyer’s literature, including ately on Justice Krishna Iyer’s literature, including
his trendsetting judgments, legal, para-legal, extra- his trendsetting judgments, legal, para-legal, extra-
judicial and other writings, those words and works judicial and other writings, those words and works
added yet another admirer in his list of reverence. added yet another admirer in his list of reverence.
Thus, these words are of one such admirer’s humble Thus, these words are of one such admirer’s humble
tribute to an icon of Indian Jurisprudence. tribute to an icon of Indian Jurisprudence.
Justice V R Krishna Iyer’s contributions are the Justice V R Krishna Iyer’s contributions are the
anthology of guiding legal principles, core judicial anthology of guiding legal principles, core judicial
values, progressive thoughts, innovations, and values, progressive thoughts, innovations, and
creative ideas, penned down with powerful words. It creative ideas, penned down with powerful words. It
is my endeavor to re-introduce them to the youths in is my endeavor to re-introduce them to the youths in
the legal and judicial fraternity and the volunteers the legal and judicial fraternity and the volunteers
of social justice. of social justice.
7 7
Therefore, some of his often quoted judgments Therefore, some of his often quoted judgments
and extra-judicial products such as books, and extra-judicial products such as books,
endowment lectures, articles, columns, letters endowment lectures, articles, columns, letters
etc., are analysed and studied in this context. The etc., are analysed and studied in this context. The
messages they conveyed and theory propounded, messages they conveyed and theory propounded,
the seeds of ideas they sowed are weaved together in the seeds of ideas they sowed are weaved together in
to a structure in this book. Also, I am to clarify that to a structure in this book. Also, I am to clarify that
this is not a comprehensive study or research about this is not a comprehensive study or research about
the luminous and voluminous works of Justice the luminous and voluminous works of Justice
V.R.Krishna Iyer. This is neither a biography V.R.Krishna Iyer. This is neither a biography
nor a hagiography. But then, it is difficult not to nor a hagiography. But then, it is difficult not to
succumb to the Living Legend of Law - Justice succumb to the Living Legend of Law - Justice
V.R.Krishna Iyer’s humane qualities, extra-ordinary V.R.Krishna Iyer’s humane qualities, extra-ordinary
legal acumen, commitment to social justice and legal acumen, commitment to social justice and
conviction to grant reliefs to the common men of conviction to grant reliefs to the common men of
the country. Thus, this book is an attempt to vividly the country. Thus, this book is an attempt to vividly
recall the valuable contributions of the greatest recall the valuable contributions of the greatest
judge of our times. judge of our times.
Few years ago, Sri V.Lakshmanan, Advocate, Few years ago, Sri V.Lakshmanan, Advocate,
Tiruppur and an author of three books on Justice Tiruppur and an author of three books on Justice
V.R.Krishna Iyer, was humbled to accompany V.R.Krishna Iyer, was humbled to accompany
myself to Satgamaya, the abode of the Living Legend myself to Satgamaya, the abode of the Living Legend
and there I formed a close acquaintance with the and there I formed a close acquaintance with the
noble soul, Justice V.R.Krishna Iyer, of which I have noble soul, Justice V.R.Krishna Iyer, of which I have
been benefitted at large. The advice and guidance been benefitted at large. The advice and guidance
I received from the Living Legend, helped me to I received from the Living Legend, helped me to
serve the people better. I must record here a debt serve the people better. I must record here a debt
of gratitude to Sri V Lakshmanan for his kindness. of gratitude to Sri V Lakshmanan for his kindness.
The idea of this book was mooted by The idea of this book was mooted by
Mr.A.Mahaboob Batcha, managing trustee of SOCO Mr.A.Mahaboob Batcha, managing trustee of SOCO
Trust, Madurai and a public spirited volunteer for Trust, Madurai and a public spirited volunteer for
the cause of social justice. He has been a continuing the cause of social justice. He has been a continuing
8 8
resource and furnished me a rare collection of books resource and furnished me a rare collection of books
on and by Justice V R Krishna Iyer, from SOCO on and by Justice V R Krishna Iyer, from SOCO
Documentation Centre. He made me to read well Documentation Centre. He made me to read well
and understand the philosophy of great jurists like and understand the philosophy of great jurists like
V R Krishna Iyer, P N Bhagwati and other laureates. V R Krishna Iyer, P N Bhagwati and other laureates.
It is his constant support, motivation, lending of It is his constant support, motivation, lending of
rare study materials and warm encouragement that rare study materials and warm encouragement that
made me begin and successfully complete this work. made me begin and successfully complete this work.
I am indebted to him. I am indebted to him.
I am grateful to SOCO Trust, Madurai for having I am grateful to SOCO Trust, Madurai for having
consented to publish this book. My sincere regards consented to publish this book. My sincere regards
to Mrs. S.Selva Gomathi, Deputy Director and all to Mrs. S.Selva Gomathi, Deputy Director and all
the staff of SOCO Trust for their sincere efforts in the staff of SOCO Trust for their sincere efforts in
bringing this book in a good shape. bringing this book in a good shape.
I am grateful and indebted to the Hon’ble the I am grateful and indebted to the Hon’ble the
Chief Justice, High Court, Madras, The Hon’ble Chief Justice, High Court, Madras, The Hon’ble
judges of the High Court, Madras for granting the judges of the High Court, Madras for granting the
permission to publish this book and encouraging permission to publish this book and encouraging
me to write it well. me to write it well.
I am grateful to Hon’ble Mr.Justice S.Na- I am grateful to Hon’ble Mr.Justice S.Na-
gamuthu, Judge, High Court, Madras for the gamuthu, Judge, High Court, Madras for the
continued guidance and support. continued guidance and support.
I express my deep gratitude to Hon’ble Mr. I express my deep gratitude to Hon’ble Mr.
Justice N. Kirubakaran, Judge, High Court, Madras Justice N. Kirubakaran, Judge, High Court, Madras
for complimenting a foreword with the kind words for complimenting a foreword with the kind words
of appreciations, which adds value to this book. of appreciations, which adds value to this book.
I am grateful to Dr N Balu, Dean, SRM Law I am grateful to Dr N Balu, Dean, SRM Law
School and former vice-chancellor of NUALS, who School and former vice-chancellor of NUALS, who
has appreciated this work and guided for with has appreciated this work and guided for with
valuable inputs. valuable inputs.
9 9
My thanks to Hon'ble Mr.P.Kalaiarasan, Registrar My thanks to Hon'ble Mr.P.Kalaiarasan, Registrar
General, High Court, Madras, and Mr.Durai. General, High Court, Madras, and Mr.Durai.
Jayachandran, Principal District and Sessions Jayachandran, Principal District and Sessions
Judge, Salem for their valuable support. I am also Judge, Salem for their valuable support. I am also
thankful to all the senior judges and colleagues in thankful to all the senior judges and colleagues in
the trial judiciary and ministerial staff of the courts the trial judiciary and ministerial staff of the courts
for their co-operation and appreciations. for their co-operation and appreciations.
I owe immeasurable thank to Dr M C Valson, Dr I owe immeasurable thank to Dr M C Valson, Dr
K Balakrishnan and learned professors of NUALS K Balakrishnan and learned professors of NUALS
for their encouragement and valuable advice. for their encouragement and valuable advice.
My sincere thank to Mr.V. Lakshmi Narayanan, My sincere thank to Mr.V. Lakshmi Narayanan,
Honorary Deputy Editor-in-chief, Madras Law Honorary Deputy Editor-in-chief, Madras Law
Journal and Mr. C S K Sathish advocate, High Journal and Mr. C S K Sathish advocate, High
Court, Madras for their kind appreciation and Court, Madras for their kind appreciation and
support. support.
I especially thank to Mr.C K Rajan, Senior I especially thank to Mr.C K Rajan, Senior
Advocate, Tiruchirappalli, who has often quoted Advocate, Tiruchirappalli, who has often quoted
Justice V R Krishna Iyer in the trial court rooms Justice V R Krishna Iyer in the trial court rooms
and augmented my interest in studying the bench and augmented my interest in studying the bench
mark decisions. Mr. K. Sukumaran (Geethalayan) mark decisions. Mr. K. Sukumaran (Geethalayan)
Advocate, Kumbakonam, Mr. K R Venkatesan, Advocate, Kumbakonam, Mr. K R Venkatesan,
Advocate, Tiruchirappalli, and Mr KSJJ Kennedy, Advocate, Tiruchirappalli, and Mr KSJJ Kennedy,
Advocate, Lalgudi and many friends who have Advocate, Lalgudi and many friends who have
encouraged me to do this work successfully. encouraged me to do this work successfully.
Mr. Raghul Sudheesh, founder-editor-in-chief, Mr. Raghul Sudheesh, founder-editor-in-chief,
Legal Reporter and Ms. Sonakshi Das, student at Legal Reporter and Ms. Sonakshi Das, student at
School of Law, KIIT University, have assiduously School of Law, KIIT University, have assiduously
assisted and provided constructive suggestions in assisted and provided constructive suggestions in
bringing this book. My sincere regards to both of bringing this book. My sincere regards to both of
them. them.
10 10
Also, in the process of accomplishing this book, Also, in the process of accomplishing this book,
I have self-isolated appreciation and support. I have self-isolated appreciation and support.
I especially thank to Mr.C K Rajan, Senior I especially thank to Mr.C K Rajan, Senior
Advocate, Tiruchirappalli, who has often quoted Advocate, Tiruchirappalli, who has often quoted
Justice V R Krishna Iyer in the trial court rooms Justice V R Krishna Iyer in the trial court rooms
and augmented my interest in studying the bench and augmented my interest in studying the bench
mark decisions. Mr. K.Sukumaran (Geethalayan) mark decisions. Mr. K.Sukumaran (Geethalayan)
Advocate, Kumbakonam, Mr.K.R.Venkatesan, Advocate, Kumbakonam, Mr.K.R.Venkatesan,
Advocate, Tiruchirappalli, and Mr KSJJ Kennedy, Advocate, Tiruchirappalli, and Mr KSJJ Kennedy,
Advocate, Lalgudi and many friends who have Advocate, Lalgudi and many friends who have
encouraged me to do this work successfully. encouraged me to do this work successfully.
Mr. Raghul Sudheesh, founder-editor-in-chief, Mr. Raghul Sudheesh, founder-editor-in-chief,
Legal Reporter and Ms. Sonakshi Das, student at Legal Reporter and Ms. Sonakshi Das, student at
School of Law, KIIT University, have assiduously School of Law, KIIT University, have assiduously
assisted and provided constructive suggestions in assisted and provided constructive suggestions in
bringing this book. My sincere regards to both of bringing this book. My sincere regards to both of
them. them.
Also, in the process of accomplishing this book, Also, in the process of accomplishing this book,
I have self-isolated myself from my family and I have self-isolated myself from my family and
friends and have unintentionally caused neglect. I friends and have unintentionally caused neglect. I
am thankful for their patience and understanding. am thankful for their patience and understanding.
L.S.SATHIYAMURTHY L.S.SATHIYAMURTHY
Senior Civil Judge/First Additional Sub. Judge Senior Civil Judge/First Additional Sub. Judge
Housing Board Main Road, Housing Board Main Road,
SALEM- 636 008 SALEM- 636 008
11 11
PUBLISHERS NOTE PUBLISHERS NOTE
SOCO Trust which has a unique privilege SOCO Trust which has a unique privilege
of having the living legend Justice V.R. Krishna of having the living legend Justice V.R. Krishna
Iyer as one of its patrons, decided to celebrate his Iyer as one of its patrons, decided to celebrate his
birth centenary celebration by publish his work birth centenary celebration by publish his work
and other literatures written by various scholars and other literatures written by various scholars
and Juristes on Justice V.R.Krishna Iyer’s life and and Juristes on Justice V.R.Krishna Iyer’s life and
mission. When we decided to bring out the serves, mission. When we decided to bring out the serves,
we expressed our desire to Mr.Justice K.Chandru, we expressed our desire to Mr.Justice K.Chandru,
an ardent and adherent follower of Justice V.R.Kr- an ardent and adherent follower of Justice V.R.Kr-
ishna Iyer, to publish his book “Living Legend and ishna Iyer, to publish his book “Living Legend and
Labour Jurisprudence” as centenary celebration Labour Jurisprudence” as centenary celebration
series 1, he whole heartedly accepted our request series 1, he whole heartedly accepted our request
and permissed to bring his book is printing. and permissed to bring his book is printing.
During the course of discussion During the course of discussion

Mr.L.S.Sathiyamurthy, I Additional Sub Judge Mr.L.S.Sathiyamurthy, I Additional Sub Judge
of Salem had expressed his desire to write a small of Salem had expressed his desire to write a small
volume on Justice V.R.Krishna Iyer’s Judicial volume on Justice V.R.Krishna Iyer’s Judicial
pronouncements and extra judicial writings. pronouncements and extra judicial writings.
Mr.L.S.Sathiyamurthy is a rare human being full Mr.L.S.Sathiyamurthy is a rare human being full
of compassion and mercy. He is among the few who of compassion and mercy. He is among the few who
dispenses justice in the way Justice V.R.Krishna dispenses justice in the way Justice V.R.Krishna
Iyer puts it “to make rule of law run in consonance Iyer puts it “to make rule of law run in consonance
with rule of life. SOCO Trust is happy to bring this with rule of life. SOCO Trust is happy to bring this
book “Voice of the Populist Jurisprudent” in black book “Voice of the Populist Jurisprudent” in black
and white. and white.
12 12
We are grateful to Hon’ble Justice N.Kirubakaran, We are grateful to Hon’ble Justice N.Kirubakaran,
Judge, High Court of Madras, who amidst his Judge, High Court of Madras, who amidst his
pressing scheduled had find time to write the pressing scheduled had find time to write the
foreword to this work. We are also grateful to foreword to this work. We are also grateful to
Dr.N.Balu, Former Vice Chancellor of National Uni- Dr.N.Balu, Former Vice Chancellor of National Uni-
versity of Advanced Legal Studies (NUALS), Kochi versity of Advanced Legal Studies (NUALS), Kochi
and Dean of SRM School of Law for his guidance. and Dean of SRM School of Law for his guidance.
Justice N.Kirubakaran himself a humanitarian Justice N.Kirubakaran himself a humanitarian

judge, who often saw the person behind the criminal judge, who often saw the person behind the criminal
and not the crime itself and to us known the and not the crime itself and to us known the
corridors of the courts an humanity loving justice, corridors of the courts an humanity loving justice,
holds the most befitting hands to pen the foreword holds the most befitting hands to pen the foreword
for this work on Justice V.R.Krishna Iyer. for this work on Justice V.R.Krishna Iyer.
We sincerely acknowledge our thanks to We sincerely acknowledge our thanks to

Mr.P.Ramanathan, Private Secretary and Mrs. Mr.P.Ramanathan, Private Secretary and Mrs.
Chandrika, Stengrapher to Justice V.R.Krishna Chandrika, Stengrapher to Justice V.R.Krishna
Iyer, Mr.G.N.Babu, Mrs.S.Shafeena, Mrs.S.Selva Iyer, Mr.G.N.Babu, Mrs.S.Shafeena, Mrs.S.Selva
Gomathi, Dy.Director, SOCO Trust, Prof. I.Nazneen, Gomathi, Dy.Director, SOCO Trust, Prof. I.Nazneen,
Trustee of SOCO Trust and Mr.M.Mahaboob Athiff, Trustee of SOCO Trust and Mr.M.Mahaboob Athiff,
advocate, High Court of Madras who contributed in advocate, High Court of Madras who contributed in
various ways to make the book a reality. various ways to make the book a reality.
A.Mahaboob Batcha A.Mahaboob Batcha

Managing Trustee Managing Trustee
13 13
CONTENTS CONTENTS
Foreword Foreword
by Hon’ble Mr.Justice N.Kirubakaran .......4 by Hon’ble Mr.Justice N.Kirubakaran .......4
Admirer's Apolozia .......6 Admirer's Apolozia .......6
Publisher's Note ......11 Publisher's Note ......11
Justice V.R.Krishna Iyer - A Colossal ......18 Justice V.R.Krishna Iyer - A Colossal ......18
Frivolous Suits - Shoot at Sight ......53 Frivolous Suits - Shoot at Sight ......53
Of Life and Its Transcendence Why Not Of Life and Its Transcendence Why Not
the Voyage? ......74 the Voyage? ......74
Victim's Voice ......85 Victim's Voice ......85
Unaided Justice Seekers and Legal Services ....103 Unaided Justice Seekers and Legal Services ....103
Muthamma - Magnum Opus on Misogyny ....122 Muthamma - Magnum Opus on Misogyny ....122
Ediga - Annamma - Penlalogical Solution Ediga - Annamma - Penlalogical Solution

for Punitive Dilemma ....145 for Punitive Dilemma ....145
Crusade Against Lethal Leaf and Liquor ....161 Crusade Against Lethal Leaf and Liquor ....161
Champion of the Celebrated Right to Champion of the Celebrated Right to

Information ....170 Information ....170
Lawyer's Case - Wages of Sin ....175 Lawyer's Case - Wages of Sin ....175
Ratlam - A Road Map for Civic Jurisprudence....190 Ratlam - A Road Map for Civic Jurisprudence....190
Reference and Selected Bioliography ....202 Reference and Selected Bioliography ....202
Table of Cases ....205 Table of Cases ....205
Index ....208 Index ....208
VOICE OF THE POPULIST JURISPRUDENT VOICE OF THE POPULIST JURISPRUDENT
15 15 15 15
‘An erudite judge illumines the pages of law re- ‘An erudite judge illumines the pages of law re-
ports. He earns the respect and admiration of the mem- ports. He earns the respect and admiration of the mem-
bers of the Bar and the Bench. The legal fraternity may bers of the Bar and the Bench. The legal fraternity may
remember him as his reputation survives to posterity. remember him as his reputation survives to posterity.
But rarely is such a judge widely known outside the world But rarely is such a judge widely known outside the world
of law. of law.
Erudition coupled with an honest missionary zeal Erudition coupled with an honest missionary zeal
in the cause of social uplift gives a different image to a judge in the cause of social uplift gives a different image to a judge
and makes him live not only in the books of law but also in and makes him live not only in the books of law but also in
the hearts of men. the hearts of men.
Sri.V.R.Krishna Iyer is known and respected by Sri.V.R.Krishna Iyer is known and respected by
the public of this country. His tenure of office the public of this country. His tenure of office
as a judge of this court, later as member of the Law as a judge of this court, later as member of the Law
Commission and finally as a judge of the Supreme Commission and finally as a judge of the Supreme
Court has been marked by a distinction that singles Court has been marked by a distinction that singles
him out from the rest of his colleagues. His decisions evince him out from the rest of his colleagues. His decisions evince
a new approach to law and new role for the Judge.” a new approach to law and new role for the Judge.”
Extract of the Tribute paid to Justice V.R.Krishna Extract of the Tribute paid to Justice V.R.Krishna
Iyer by the High Court, Kerala in a contempt proceedings Iyer by the High Court, Kerala in a contempt proceedings
initiated against him. initiated against him.
- (Vincent Panikulangara Vs V.R.Krishna Iyer - (Vincent Panikulangara Vs V.R.Krishna Iyer
(1983 KLT 829; 1983 2 ILR (Kerala) 626) (1983 KLT 829; 1983 2 ILR (Kerala) 626)
17 17
1 1
JUSTICE V.R.KRISHNA IYER - A COLOSSAL JUSTICE V.R.KRISHNA IYER - A COLOSSAL
A soul - Satisfying Experience A soul - Satisfying Experience

Judgment Debtor’s Judgment Judgment Debtor’s Judgment
Contemnor or Critique? Contemnor or Critique?
Unprecedented precedent Unprecedented precedent
Un-examined witness - Fair Practice Advocate Krishna Un-examined witness - Fair Practice Advocate Krishna
Iyer’s Efforts Iyer’s Efforts
18 18
JUSTICE V.R.KRISHNA IYER - JUSTICE V.R.KRISHNA IYER -

A COLOSSAL A COLOSSAL
I ndia as a country is prorated its locus as

the largest democracy as well as the largest
I ndia as a country is prorated its locus as
the largest democracy as well as the largest
judiciary around the world. The Constitution judiciary around the world. The Constitution
of India has made its judiciary as an independent, of India has made its judiciary as an independent,
multi-tier body of adjudication. The hierarchy is best multi-tier body of adjudication. The hierarchy is best
discerned right from the Munsif or the Magistrate discerned right from the Munsif or the Magistrate
Courts as the substratum to the High Court as the Courts as the substratum to the High Court as the
‘State's highest forum for justice’ and the Supreme ‘State's highest forum for justice’ and the Supreme
Court as the ‘Supreme and Apex constitutional Court as the ‘Supreme and Apex constitutional
institution’ of justice in the country. Ever since our institution’ of justice in the country. Ever since our
independence, the Supreme Court has been the independence, the Supreme Court has been the
conscience of the people and the savior of India’s conscience of the people and the savior of India’s
democracy, a salient feature of our Constitution democracy, a salient feature of our Constitution
itself. Apart from being our nation’s patron, it itself. Apart from being our nation’s patron, it
has also been the seconder in prevention of mal- has also been the seconder in prevention of mal-
administration and mis- management. Thus, administration and mis- management. Thus,
bolstering our faith by functioning as a watchdog bolstering our faith by functioning as a watchdog
to protect our rights and liberties guaranteed to the to protect our rights and liberties guaranteed to the
citizenry. Judicial activism and existence of bona citizenry. Judicial activism and existence of bona
fide public interest litigations (PIL) have brought to fide public interest litigations (PIL) have brought to
light the decisive capacity in the minds of people in light the decisive capacity in the minds of people in
shaping the destiny of the nation. shaping the destiny of the nation.
Precedents vouch for profuse icons adorning Precedents vouch for profuse icons adorning
the noble bench of the Supreme Court and leaving the noble bench of the Supreme Court and leaving
19 19
indelible imprints in the annals of judicial history indelible imprints in the annals of judicial history
and earning global reputation and reverence. and earning global reputation and reverence.
Undoubtedly, one amongst such laureate is Justice Undoubtedly, one amongst such laureate is Justice
V.R. Krishna Iyer; a rare concoction of unique V.R. Krishna Iyer; a rare concoction of unique
multi-faceted personality with humane qualities multi-faceted personality with humane qualities
and leadership skills. Throughout his life, he bore and leadership skills. Throughout his life, he bore
within himself two diametrically opposite qualities. within himself two diametrically opposite qualities.
As a popular political activist and an elected As a popular political activist and an elected
representative with a conviction to political ideology, representative with a conviction to political ideology,
he was seen to share moments with mammoth he was seen to share moments with mammoth
crowds. However, people were privy to his other crowds. However, people were privy to his other
side in the Bench, where he convincingly secluded side in the Bench, where he convincingly secluded
himself from the people and penned down the disputes himself from the people and penned down the disputes
uninfluenced by any of the party statecrafts. He uninfluenced by any of the party statecrafts. He
has won the hearts of lawyers, litigants, common has won the hearts of lawyers, litigants, common
public and leaders of all sects of politics and society public and leaders of all sects of politics and society
by the bulk and sheer brilliance in his benchmark by the bulk and sheer brilliance in his benchmark
pronouncements. pronouncements.
Justice V R Krishna Iyer has played many prominent Justice V R Krishna Iyer has played many prominent
roles in his life. Being a dynamic lawyer, he has roles in his life. Being a dynamic lawyer, he has
defended many leaders including A.K.Gopalan and defended many leaders including A.K.Gopalan and
other politicians in court room battles and has saved other politicians in court room battles and has saved
their life and political career. The litigating and their life and political career. The litigating and
legally defending experience while standing in the legally defending experience while standing in the
Bar enriched his legal acumen to greater extents. Bar enriched his legal acumen to greater extents.
He had fought in the public election thrice and was He had fought in the public election thrice and was
elected as a representative of (MLA) from Tellicherry, elected as a representative of (MLA) from Tellicherry,
apart from being a member of Madras Presidency apart from being a member of Madras Presidency
Legislature and Kerala Legislative Assembly. The Legislature and Kerala Legislative Assembly. The
versatile experience of legislating he gained in the versatile experience of legislating he gained in the
20 20
Assembly is one of the rarest experiences. Worthy it Assembly is one of the rarest experiences. Worthy it
is to note that in India, there is no other Judge of the is to note that in India, there is no other Judge of the
High Court and the Supreme Court who had such High Court and the Supreme Court who had such
an opportunity to serve in the Legislature before an opportunity to serve in the Legislature before
their elevation. In his public life, his services their elevation. In his public life, his services
rewarded him a politically glorified post in the rewarded him a politically glorified post in the
ministry. ministry.
Thus, he served as a Minster of Law and Prison Thus, he served as a Minster of Law and Prison
Reforms in the State of Kerala, which bestowed upon Reforms in the State of Kerala, which bestowed upon
him powers of financial independency to introduce him powers of financial independency to introduce
and implement welfare schemes and projects. and implement welfare schemes and projects.
A sojourn in the Law Commission of India, having A sojourn in the Law Commission of India, having
gotten him to Delhi, introduced him to pre-legislating gotten him to Delhi, introduced him to pre-legislating
experience of drafting Law Reports and Bills. His experience of drafting Law Reports and Bills. His
impeccable hold on the language, coupled with his impeccable hold on the language, coupled with his
drafting experience, augmented his skills to fine drafting experience, augmented his skills to fine
tune comprehensive exercises from drafts to bills tune comprehensive exercises from drafts to bills
and ordinances to laws. His tenures as Judge of the and ordinances to laws. His tenures as Judge of the
Kerala High Court and the Supreme Court, respectively, Kerala High Court and the Supreme Court, respectively,
made him privy to other essential experiences made him privy to other essential experiences
including that of acid-test and determination of the including that of acid-test and determination of the
law being vires or otherwise. law being vires or otherwise.
Post retirement, Justice Iyer has dedicated Post retirement, Justice Iyer has dedicated
himself to being an activist and has subsequently himself to being an activist and has subsequently
participated in numerous historical events. The participated in numerous historical events. The
Electoral politics had once again indulged him in Electoral politics had once again indulged him in
fray and he was a contestant for the President of fray and he was a contestant for the President of
India in the ‘fateful hour of history’ in 1987, however, India in the ‘fateful hour of history’ in 1987, however,
was defeated by the Electoral College. Establishing was defeated by the Electoral College. Establishing
himself as an avid learner, he took the post-election himself as an avid learner, he took the post-election
21 21
exercise as a tide to travel from Kashmir to Kanyakumari exercise as a tide to travel from Kashmir to Kanyakumari
and infuse within himself the pulse of the people, and infuse within himself the pulse of the people,
politicians and their parties. The defeat did the least politicians and their parties. The defeat did the least
bit to demobilize him. He travelled around the world bit to demobilize him. He travelled around the world
to preside over seminars, present papers and deliver to preside over seminars, present papers and deliver
prestigious endowment lectures. In due course, his prestigious endowment lectures. In due course, his
prolific writings produced more than one hundred prolific writings produced more than one hundred
books. The campaigns and crusades against violation books. The campaigns and crusades against violation
of human rights and supporting the cause of public of human rights and supporting the cause of public
welfare, promoting communal harmony, eradicating welfare, promoting communal harmony, eradicating
corruption from public life and public offices and corruption from public life and public offices and
other numerous noble causes have become the other numerous noble causes have become the
breath of his life. breath of his life.
Interestingly, in an endeavor to disseminate Interestingly, in an endeavor to disseminate
rights and fight against the torture & death rights and fight against the torture & death
penalty, Justice V R Krishna Iyer played a promising penalty, Justice V R Krishna Iyer played a promising
role by appearing in a Tamil movie of Kamal role by appearing in a Tamil movie of Kamal
Hassan, Virumandi, and made a clarion call against Hassan, Virumandi, and made a clarion call against
the capital punishment on screen. His life, career and the capital punishment on screen. His life, career and
services can be reflected through the illuminating services can be reflected through the illuminating
lines from Hamlet, lines from Hamlet,
“All the world s a stage, “All the world s a stage,
and all the men and women merely players; and all the men and women merely players;
They have their exits and their entrances, They have their exits and their entrances,
and one man in his time plays many parts”. and one man in his time plays many parts”.
22 22
A Soul - Satisfying Experience A Soul - Satisfying Experience
‘When on the Bench, unset apostnophe he ‘When on the Bench, unset apostnophe he
shared arresting semblance with Lord Denning s shared arresting semblance with Lord Denning s
picturesque smile of a judge as the rider. When counsel picturesque smile of a judge as the rider. When counsel
urged the master of the rolls (Lord Denning) not to urged the master of the rolls (Lord Denning) not to
invent a new head of public policy, he retorted, ‘I know invent a new head of public policy, he retorted, ‘I know
that public policy is an unruly horse but it is for an that public policy is an unruly horse but it is for an
able and competent judge to ride that unruly horse able and competent judge to ride that unruly horse
and to bring him down on the side of justice insert. and to bring him down on the side of justice insert.
It is indeed notable that in due course of his judicial It is indeed notable that in due course of his judicial
career, Justice Krishna Iyer gladly rode such unruly career, Justice Krishna Iyer gladly rode such unruly
horses; and even more laudable were his constant horses; and even more laudable were his constant
endeavors in conjuring them from amongst the herd. endeavors in conjuring them from amongst the herd.
He showed considerable prowess (and ingenuity) in He showed considerable prowess (and ingenuity) in
bringing them down on the side of the justice1 bringing them down on the side of the justice1
Justice V R Krishna Iyer, a ‘living legend of law’ Justice V R Krishna Iyer, a ‘living legend of law’
was elevated to the Bench of Kerala High Court on was elevated to the Bench of Kerala High Court on
2nd July, 1968. After the conventional swearing in 2nd July, 1968. After the conventional swearing in
ceremony, he delivered his maiden speech as a judge ceremony, he delivered his maiden speech as a judge
of the High Court, with a robust reflection of his of the High Court, with a robust reflection of his
judicial vision and mission. The bulk of his words judicial vision and mission. The bulk of his words
were coated with sheer candor and docility. After were coated with sheer candor and docility. After
gesturing his thankfulness for everyone around, gesturing his thankfulness for everyone around,
with immense humility, he began, with immense humility, he began,
‘My Lord, the Chief Justice, Brother Judges, ‘My Lord, the Chief Justice, Brother Judges,
brothers and sisters at the Bar. In a country brothers and sisters at the Bar. In a country
1
Fali S Nariman, ‘Before memory fades An Autobiography' 1
Fali S Nariman, ‘Before memory fades An Autobiography'
Hay House India (2010) page 327. Hay House India (2010) page 327.
23 23
like India, judges are not only trusted with the like India, judges are not only trusted with the
adjudication of rights and wrongs, but also adjudication of rights and wrongs, but also
betoken as sentinels on the qui vive. They betoken as sentinels on the qui vive. They
face newer challenges and shoulder myriad face newer challenges and shoulder myriad
responsibilities in upholding the Constitution and responsibilities in upholding the Constitution and
the laws of the land. the laws of the land.
For as we know, where justice is a copious For as we know, where justice is a copious
and a true concept, the ‘Rule of Law is a more and a true concept, the ‘Rule of Law is a more
positive and dynamic idea, with socio-economic positive and dynamic idea, with socio-economic
content and political overtone not implied in them content and political overtone not implied in them
by orthodox jurists. The social goals enshrined in by orthodox jurists. The social goals enshrined in
the preamble to our Constitution, the fundamental the preamble to our Constitution, the fundamental
rights chapter and the directive principles of state rights chapter and the directive principles of state
policy, broadly and vaguely project our current policy, broadly and vaguely project our current
legal philosophy. The judicial organ, being part legal philosophy. The judicial organ, being part
of the state, shares the national objective and of the state, shares the national objective and
perspective of political and economic democracy. perspective of political and economic democracy.
It spells itself from the articles of the Constitution It spells itself from the articles of the Constitution
and the corpus juris of India, starring the legal and the corpus juris of India, starring the legal
framework of a secular society with egalitarian framework of a secular society with egalitarian
urges, thus, departing from the old order and urges, thus, departing from the old order and
sensing them on trial. sensing them on trial.
It is my humble prayer that I be given the It is my humble prayer that I be given the
courage and vision to live up to the sacred trust courage and vision to live up to the sacred trust
of the high office, for, I am keenly sensitive to the of the high office, for, I am keenly sensitive to the
demanding nature of the judicial process, which demanding nature of the judicial process, which
strikes at social evils, legislative transgressions strikes at social evils, legislative transgressions
and quasi-judicial injustices2. and quasi-judicial injustices2.
2
See, The full text of the speech is available in the book ‘Wandering in many worlds'- 2
See, The full text of the speech is available in the book ‘Wandering in many worlds'-
An Autobiography An Autobiography
24 24
These reviving words of credence from Justice These reviving words of credence from Justice
Krishna Iyer, on the first day of his assuming high Krishna Iyer, on the first day of his assuming high
office, had touched the hearts of common men and office, had touched the hearts of common men and
enhanced the confidence of lawyers and litigants enhanced the confidence of lawyers and litigants
over the juridical arena. On his elevation to the over the juridical arena. On his elevation to the
Judicature, it appeared as if God's own State was Judicature, it appeared as if God's own State was
favored another diamond on its crown. Mr.V.V.Giri, favored another diamond on its crown. Mr.V.V.Giri,
the then Vice-President of India, in his letter of the then Vice-President of India, in his letter of
felicitation3 dated 2nd of July, 1968, described felicitation3 dated 2nd of July, 1968, described
the acceptance of judgeship by Krishna Iyer as a the acceptance of judgeship by Krishna Iyer as a
‘financial sacrifice and abdication of leadership at ‘financial sacrifice and abdication of leadership at
the Bar’. He drew a balance sheet of Bar and Bench the Bar’. He drew a balance sheet of Bar and Bench
as ‘what for the Bar is a loss, is a distinct gain to as ‘what for the Bar is a loss, is a distinct gain to
the Bench . It was a short span of four years that the Bench . It was a short span of four years that
Justice Iyer served as a puisne judge of the Kerala Justice Iyer served as a puisne judge of the Kerala
High Court. Even though he was not elevated to High Court. Even though he was not elevated to
the pedestal of a Chief Justice, his presence in the the pedestal of a Chief Justice, his presence in the
Bench was felt in depth by the learned counsels Bench was felt in depth by the learned counsels
and common folk. and common folk.
Justice Krishna Iyer has not only decided cases Justice Krishna Iyer has not only decided cases
pertaining to constitutional validity of Acts of pertaining to constitutional validity of Acts of
legislators and exceeds of executives, but has also legislators and exceeds of executives, but has also
distinguished himself on definitions of small accords distinguished himself on definitions of small accords
in the courts, with his distinguished and venerable in the courts, with his distinguished and venerable
legal acumen. He has rightly earned his deference legal acumen. He has rightly earned his deference
by adjudicating disputes and resolving them with by adjudicating disputes and resolving them with
perpetual solutions. It is pertinent to take note that perpetual solutions. It is pertinent to take note that
each of his judgments has laid down its own legal each of his judgments has laid down its own legal
principle and remained a legal philosophy in the principle and remained a legal philosophy in the
3
The letter dated 2nd July, 1968 by the vice president of India, reproduced 3
The letter dated 2nd July, 1968 by the vice president of India, reproduced
in the book 'Wandering in many worlds -An Autobiography' in the book 'Wandering in many worlds -An Autobiography'
25 25
adjudicatory domain. The decision in Kuruvilla adjudicatory domain. The decision in Kuruvilla
Chandy vs Hassan Bava Rawthar4 is a classic Chandy vs Hassan Bava Rawthar4 is a classic
instance to describe Krishna Iyer as a legal instance to describe Krishna Iyer as a legal
philosopher. The term ‘appearance’ often used in philosopher. The term ‘appearance’ often used in
courts, legal domains and documents has several courts, legal domains and documents has several
connotations and lacks a codified definition in the connotations and lacks a codified definition in the
Code. However, in an endeavor to draw its definition Code. However, in an endeavor to draw its definition
and fine tune its meaning and application in the and fine tune its meaning and application in the
legal parlance, he made a journey of precedents legal parlance, he made a journey of precedents
and searched volumes of text books and at last, and searched volumes of text books and at last,
interpreted the term to suit the party who rightfully interpreted the term to suit the party who rightfully
deserves the cause. deserves the cause.
For better appreciation of his wit and reasoned For better appreciation of his wit and reasoned
accord, it is appropriate to throw some light on the accord, it is appropriate to throw some light on the
facts of this case. It was a suit of a pauper, dismissed facts of this case. It was a suit of a pauper, dismissed
at the trial stage, following the non-execution of at the trial stage, following the non-execution of
warrant by the advocate commissioner, who was warrant by the advocate commissioner, who was
appointed to record the evidence of a witness. But, appointed to record the evidence of a witness. But,
on subsequent motion under Order 9 Rule 9 CPC, on subsequent motion under Order 9 Rule 9 CPC,
the suit was restored. The aggrieved defendant the suit was restored. The aggrieved defendant
preferred a revision for the same and put forth the preferred a revision for the same and put forth the
following questions: following questions:
a. What is understood by the expression a. What is understood by the expression
‘non- appearance’ ? ‘non- appearance’ ?
b.Considering a situation where an advocate b.Considering a situation where an advocate
appears on behalf of the party, moves an appears on behalf of the party, moves an
adjournment and on refusal thereof, does adjournment and on refusal thereof, does
nothing more for the benefit of his client in the nothing more for the benefit of his client in the
case, can such an event be construed as lim- case, can such an event be construed as lim-
4
Kuruvilla Chandy vs Hassan Bava Rawthar (1969 KLT 402; 1969 KLR 177). 4
Kuruvilla Chandy vs Hassan Bava Rawthar (1969 KLT 402; 1969 KLR 177).
26 26
ited participation of the party so as to deprive ited participation of the party so as to deprive
him of the benefit of Order 9 rule 9 CPC? him of the benefit of Order 9 rule 9 CPC?
c. A pleader appears at the hearing c. A pleader appears at the hearing
on behalf of a plaintiff, and applies for an on behalf of a plaintiff, and applies for an
adjournment either on the ground that he had adjournment either on the ground that he had
no time to prepare himself with the case, or no time to prepare himself with the case, or
on the ground that the papers were departed on the ground that the papers were departed
with his senior, and thus, he could not proceed with his senior, and thus, he could not proceed
with the case. In furtherance of this, the with the case. In furtherance of this, the
application stands refused, and the pleader, application stands refused, and the pleader,
unable to go on with the case, faces dismissal unable to go on with the case, faces dismissal
of the suit. Under these circumstances, is of the suit. Under these circumstances, is
it acceptable to hold the plaintiff appearing it acceptable to hold the plaintiff appearing
through a pleader? through a pleader?
It is an established principle in law, that a party is It is an established principle in law, that a party is
not said to ‘appear' by a pleader if the pleader appears not said to ‘appear' by a pleader if the pleader appears
at the hearing and acknowledges filing of his at the hearing and acknowledges filing of his
‘vakkalatnama' and states the lack of instructions ‘vakkalatnama' and states the lack of instructions
from his client and his denial to move further with from his client and his denial to move further with
the suit as a consequence thereof. Similarly, a party the suit as a consequence thereof. Similarly, a party
is not said to ‘appear' through a pleader if the is not said to ‘appear' through a pleader if the
pleader bears no instructions other than to apply for pleader bears no instructions other than to apply for
an adjournment, and, upon contingency of refusal, an adjournment, and, upon contingency of refusal,
withdraws himself from the suit with the defense withdraws himself from the suit with the defense
of no direction. of no direction.
‘Learned counsel for the petitioner has cited ‘Learned counsel for the petitioner has cited
certain other rulings before me, which, to some extent, certain other rulings before me, which, to some extent,
concurs this viewpoint. However, I am inclined concurs this viewpoint. However, I am inclined
to take the view that a beneficial provision to take the view that a beneficial provision
calculated to help a party in default should be so calculated to help a party in default should be so
27 27
construed so as to give the benefit of reasonable construed so as to give the benefit of reasonable
doubt, if doubt exists, in favour of the party in doubt, if doubt exists, in favour of the party in
default. Even otherwise, appearance through a default. Even otherwise, appearance through a
pleader in court has a purpose to serve, and if pleader in court has a purpose to serve, and if
the presence of the advocate does not serve that the presence of the advocate does not serve that
purpose, it is as good as non-appearance from purpose, it is as good as non-appearance from
the party's point of view. The learned subordinate the party's point of view. The learned subordinate
judge has, therefore, taken the correct view of the judge has, therefore, taken the correct view of the
law and proceeded to dispose of the application law and proceeded to dispose of the application
under Order 9 Rule 9, read with order 17 Rule under Order 9 Rule 9, read with order 17 Rule
2 CPC. Ergo, let me conclude my point with the 2 CPC. Ergo, let me conclude my point with the
learned thought that in law, as in philosophy, learned thought that in law, as in philosophy,
appearance is not always reality.' appearance is not always reality.'
His tenure on the Kerala High Court Bench was His tenure on the Kerala High Court Bench was
brief but bright. The versatile experience of Justice brief but bright. The versatile experience of Justice
Krishna Iyer as an advocate from taluk level Krishna Iyer as an advocate from taluk level
Tellessery Courts to High Court Bench, is seldom a Tellessery Courts to High Court Bench, is seldom a
unique phenomena. He has vividly recalled his days unique phenomena. He has vividly recalled his days
at the High Court Bench and to quote5, ‘I decided at the High Court Bench and to quote5, ‘I decided
several cases with imaginative novelty, social justice and several cases with imaginative novelty, social justice and
remedial creativity. My jurisprudence had a literary flavour remedial creativity. My jurisprudence had a literary flavour
reflected in my judgments and justice was my goal, law reflected in my judgments and justice was my goal, law
being but a tool. Humanity, not legality, was the object of the being but a tool. Humanity, not legality, was the object of the
judicial process and even sentencing of convicts had a positive judicial process and even sentencing of convicts had a positive
transformatory objective. My experience as a Minister of Law, transformatory objective. My experience as a Minister of Law,
Justice, Home and Prison stood on good stead while on the Justice, Home and Prison stood on good stead while on the
Bench. Justice Raman Nair, ICS, with whom I sat in the early Bench. Justice Raman Nair, ICS, with whom I sat in the early
days, was a strong man with firm grasp of British jurisprudence. days, was a strong man with firm grasp of British jurisprudence.
I came from the people, knew their sorrows, and had socialist, I came from the people, knew their sorrows, and had socialist,
secular convictions. I respected him for his integrity but disa- secular convictions. I respected him for his integrity but disa-
5
The full text of the speech is available in the book Wandering in many Worlds-An 5
The full text of the speech is available in the book Wandering in many Worlds-An
Autobiography, page 161 Autobiography, page 161
28 28
greed with him in his hard and harsh perspectives and allergy greed with him in his hard and harsh perspectives and allergy
to socialist ideology. However, we agreed on our conclusions to socialist ideology. However, we agreed on our conclusions
and I enjoyed hearing cases along with him.' 6
and I enjoyed hearing cases along with him.' 6
After a short tenure as the Chairman of the After a short tenure as the Chairman of the
Central Law Commission, he was elevated to the Central Law Commission, he was elevated to the
Supreme Court on July 17th, 1973, amidst protest Supreme Court on July 17th, 1973, amidst protest
from a section of the Bar. He served as Judge of the from a section of the Bar. He served as Judge of the
Apex Court of India for seven years (1973-1980), Apex Court of India for seven years (1973-1980),
and in his sprint as the Judge, penned down seven and in his sprint as the Judge, penned down seven
hundred and twenty four judgments and short hundred and twenty four judgments and short
prompt orders. An American researcher opined prompt orders. An American researcher opined
that ‘No judge in India has, during a comparable that ‘No judge in India has, during a comparable
seven-year period, written so many judgments on seven-year period, written so many judgments on
a serious front and almost majority of them being a serious front and almost majority of them being
shelved as classics in postremo.'7 shelved as classics in postremo.'7
In the court, Justice Krishna Iyer was a prolific In the court, Justice Krishna Iyer was a prolific
writer and an indefatigable worker. His record writer and an indefatigable worker. His record
of judgments, in sheer number, surpasses the of judgments, in sheer number, surpasses the
statistics of Subba Rao. His pre-occupation for quick statistics of Subba Rao. His pre-occupation for quick
justice is apparent in his judgments.8 justice is apparent in his judgments.8
Justice Brain J., Preston, Chief Justice of the Justice Brain J., Preston, Chief Justice of the
Land and Environment, Court of New South Wales, Land and Environment, Court of New South Wales,
in an article, has felicitated Justice V R Krishna Iyer in an article, has felicitated Justice V R Krishna Iyer
as ‘one of the most pro-active judges to have ever as ‘one of the most pro-active judges to have ever
served on the Supreme Court and made valuable served on the Supreme Court and made valuable
contributions to varied areas of law, human rights contributions to varied areas of law, human rights
6
Wandering in many worlds- An Autobiography, page 158 6
Wandering in many worlds- An Autobiography, page 158
7
Justice V R Krishna Iyer, 98 Not Out, Universal Law publishing Law Co Ltd New 7
Justice V R Krishna Iyer, 98 Not Out, Universal Law publishing Law Co Ltd New
Delhi, 2013 Delhi, 2013
8
Fali S Nariman, Before Memory fades – An Autobiography, Hay House India (2010) 8
Fali S Nariman, Before Memory fades – An Autobiography, Hay House India (2010)
page 329 page 329
29 29
and social justice, constitutional and public law and and social justice, constitutional and public law and
has widened the access to environmental justice.'9 has widened the access to environmental justice.'9
9
Justice V. R. Krishna Iyer’ 80th Birthday souvenir, SOCO Trust, Madurai, 1995 9
Justice V. R. Krishna Iyer’ 80th Birthday souvenir, SOCO Trust, Madurai, 1995
30 30
Judgement Debtor's Judgement Judgement Debtor's Judgement
Justice Krishna Iyer, while assuming the Justice Krishna Iyer, while assuming the
judgeship of Supreme Court, was at the receiving judgeship of Supreme Court, was at the receiving
end of warmth and welcome and to a certain extent, end of warmth and welcome and to a certain extent,
strings of brickbats as well; evident from the bulk strings of brickbats as well; evident from the bulk
of protests by a group of senior lawyers against his of protests by a group of senior lawyers against his
elevation, who channeled their retorts through a elevation, who channeled their retorts through a
series of revolting articles in print media. However, series of revolting articles in print media. However,
the collective opinion of the loathsome transposed the collective opinion of the loathsome transposed
on Justice Iyer's effulgent jurisprudential articulation, on Justice Iyer's effulgent jurisprudential articulation,
conviction on social justice, pronouncements causing conviction on social justice, pronouncements causing
profound impact on society and legal system on the profound impact on society and legal system on the
large, his contribution to the legal aid and development large, his contribution to the legal aid and development
of public interest litigation. And thereby, the old of public interest litigation. And thereby, the old
order yielded place to the new. On the day of his order yielded place to the new. On the day of his
retirement, the Supreme Court Bar Association sent retirement, the Supreme Court Bar Association sent
a letter which ran thus: a letter which ran thus:
‘Permit us to remind you that the Bar is the ‘Permit us to remind you that the Bar is the
judge and no judge can avoid or escape the verdict judge and no judge can avoid or escape the verdict
of the Bar. We have summoned you this evening of the Bar. We have summoned you this evening
to hear our unanimous declaratory verdict. Our to hear our unanimous declaratory verdict. Our
verdict is a decree of affection and admiration. verdict is a decree of affection and admiration.
Let us also declare, in these proceedings, which Let us also declare, in these proceedings, which
are sui generis, that we are not only your judges are sui generis, that we are not only your judges
but also your judgment-debtors. but also your judgment-debtors.
It was in stormy weather that you first took It was in stormy weather that you first took
your seat on the Supreme Court Bench on 17 July your seat on the Supreme Court Bench on 17 July
1973. Some members of the Bar were apprehensive 1973. Some members of the Bar were apprehensive
31 31
that your appointment may not contribute to the that your appointment may not contribute to the
traditions of judicial detachment. But those who traditions of judicial detachment. But those who
came to scoff, stayed on to respect and to admire. came to scoff, stayed on to respect and to admire.
Last Thursday the weather was crisp and bright. Last Thursday the weather was crisp and bright.
But in the court where you sat, there was a humid But in the court where you sat, there was a humid
air. Eyes were moist. We felt that a great air. Eyes were moist. We felt that a great
intellectual and a great gentleman was sitting in intellectual and a great gentleman was sitting in
the Court for the last time.'10 the Court for the last time.'10
Such words reflect nothing short of profound Such words reflect nothing short of profound
homage to one such luminary, who is recognized homage to one such luminary, who is recognized
as one of our country's radical legal reformer. It is as one of our country's radical legal reformer. It is
Justice Krishna Iyer's exemplary performance in Justice Krishna Iyer's exemplary performance in
the Bench, conviction on social justice, landmark the Bench, conviction on social justice, landmark
pronouncements and veneration of constitutional pronouncements and veneration of constitutional
values that won the hearts of both friends as well values that won the hearts of both friends as well
as foes-turned-into-friends in pursuance of their as foes-turned-into-friends in pursuance of their
fond admiration for him. fond admiration for him.
Compromising on the pecuniary perks he gained Compromising on the pecuniary perks he gained
at the Bar and sacrificing his public life that had him at the Bar and sacrificing his public life that had him
on a higher pedestal as Minister of State, Justice on a higher pedestal as Minister of State, Justice
Iyer took up the seat of a judge with philanthropist Iyer took up the seat of a judge with philanthropist
impulsions. He directed himself to render justice to impulsions. He directed himself to render justice to
the deserving and depressed and to raise voice from the deserving and depressed and to raise voice from
the Bench for the helpless victims. In his words, the Bench for the helpless victims. In his words,
during the maiden speech as Judge of the High during the maiden speech as Judge of the High
Court, Ernakulam, his commitment to society was, Court, Ernakulam, his commitment to society was,
above all,– ‘to gain a soul-satisfying experience in his above all,– ‘to gain a soul-satisfying experience in his
judgeship career, thus, stating that, judgeship career, thus, stating that,
10
10

32 32
‘The Advocate pleads for rights and fights ‘The Advocate pleads for rights and fights
against injustice. The judge fulfills himself in the against injustice. The judge fulfills himself in the
quest for truth and justice. Together, the divine quest for truth and justice. Together, the divine
duet of ‘doing justice is played. To me it is perhaps, duet of ‘doing justice is played. To me it is perhaps,
a soul – satisfying experience’.11 a soul – satisfying experience’.11
To this day, embarking upon series of acclamations To this day, embarking upon series of acclamations
and conspicuous distinctions, he is regarded as a and conspicuous distinctions, he is regarded as a
noble soul- a living legend, who has won the hearts of noble soul- a living legend, who has won the hearts of
people from all walks of life. Even as a centenarian, people from all walks of life. Even as a centenarian,
his second childhood, he has been tirelessly serving his second childhood, he has been tirelessly serving
the humanity. the humanity.
Through this introduction, reflecting upon Through this introduction, reflecting upon
known facts and events of his yester years, a better known facts and events of his yester years, a better
understanding of some of the landmark decisions understanding of some of the landmark decisions
penned by Justice V.R.Krishna Iyer shall be penned by Justice V.R.Krishna Iyer shall be
attempted. Through these decisions, he raised attempted. Through these decisions, he raised
his voice for the concerned and the destitute. His his voice for the concerned and the destitute. His
discernments have often been quoted, followed and discernments have often been quoted, followed and
admired by the legal fraternity in India, as well as admired by the legal fraternity in India, as well as
abroad. abroad.
11
11

33 33
An Erudite Legal Luminary An Erudite Legal Luminary
‘Language is the vehicle of thought. Lack ‘Language is the vehicle of thought. Lack
of language skill handicaps a person from of language skill handicaps a person from
communicating his views to his fellow, kith and communicating his views to his fellow, kith and
kin. This skill is one of the basic and extremely kin. This skill is one of the basic and extremely
important qualifications for a person who chooses important qualifications for a person who chooses
law as career. Lord Denning, in his masterpiece law as career. Lord Denning, in his masterpiece
‘The Discipline of Law' has stressed need and ‘The Discipline of Law' has stressed need and
necessity of the command of language for a lawyer. necessity of the command of language for a lawyer.
In his words, ‘to succeed in the profession of In his words, ‘to succeed in the profession of
the law, you must seek to cultivate command the law, you must seek to cultivate command
of language.' Words are the lawyer's tools of of language.' Words are the lawyer's tools of
trade. When you are called upon to address a trade. When you are called upon to address a
judge, it is your words which count most. It is by judge, it is your words which count most. It is by
them that you will hope to persuade the judge of them that you will hope to persuade the judge of
the rightness of your cause. When you have to the rightness of your cause. When you have to
interpret a section in a statute or a paragraph in a interpret a section in a statute or a paragraph in a
Regulation, you have to study the very words. You Regulation, you have to study the very words. You
have to draw up a will or a contract; you have to have to draw up a will or a contract; you have to
choose your words well. You have to look into the choose your words well. You have to look into the
future- envisage all the contingencies that may future- envisage all the contingencies that may
come to pass- and then use words to provide for come to pass- and then use words to provide for
them. On the words you use, your client's future them. On the words you use, your client's future
may depend. may depend.
The reason why words are so important is The reason why words are so important is
because words are the vehicle of thought. When because words are the vehicle of thought. When
you are working out a problem on your own-at you are working out a problem on your own-at
your desk or walking home- you think in words, your desk or walking home- you think in words,
not in symbols or numbers. When you are advising not in symbols or numbers. When you are advising
34 34
your client-in writing or by word of mouth-you your client-in writing or by word of mouth-you
must use words. must use words.
There is no other means available.'12 There is no other means available.'12
Justice Krishna Iyer, with a familiar inclination, Justice Krishna Iyer, with a familiar inclination,
chose law as his career, which, much to his interest, chose law as his career, which, much to his interest,
unlocked the opportunities of public service and social unlocked the opportunities of public service and social
commitment for him. He acquired his impeccable commitment for him. He acquired his impeccable
language skill during his graduation days at language skill during his graduation days at
Annamalai University, Chidambaram. His Annamalai University, Chidambaram. His
eloquence, clarity of communication and the art of eloquence, clarity of communication and the art of
writing, positioned him as the editor of an English writing, positioned him as the editor of an English
magazine ‘Annamalai miscellany.' Thus, with all his magazine ‘Annamalai miscellany.' Thus, with all his
academic endeavors and balancing literary skills, academic endeavors and balancing literary skills,
he acquired and articulated his communication he acquired and articulated his communication
clout and command of language, that rendered clout and command of language, that rendered
contribution of new legal words and phrases into contribution of new legal words and phrases into
the domain of legal literature. the domain of legal literature.
In a seven-judge Bench decision on reservation of In a seven-judge Bench decision on reservation of
backward classes in State of Kerala vs N.M.Thomas,13 backward classes in State of Kerala vs N.M.Thomas,13
the term ‘top creamy layer' was introduced by Justice the term ‘top creamy layer' was introduced by Justice
Krishna Iyer; it was used to describe the social Krishna Iyer; it was used to describe the social
environment in which a new trend of privileged groups environment in which a new trend of privileged groups
among under privileged classes inconspicuously among under privileged classes inconspicuously
seized the benefits of reservation intended for deserving seized the benefits of reservation intended for deserving
people from the marginalized section of society. people from the marginalized section of society.
Credits to Justice Iyer, now the term ‘top creamy Credits to Justice Iyer, now the term ‘top creamy
layer' is a well acquainted phrase and finds place layer' is a well acquainted phrase and finds place
in subsequent decisions of the Supreme Court on in subsequent decisions of the Supreme Court on
reservation. reservation.
12
Lord Denning, The Discipline of Law, Lexis Nexis- Butterworths, Indian reprint, 12
Lord Denning, The Discipline of Law, Lexis Nexis- Butterworths, Indian reprint,
1979 page 5 1979 page 5
13
(1976) 2 SCC 310 13
(1976) 2 SCC 310
35 35
Turning the pages of legal bygones, he has Turning the pages of legal bygones, he has
beautifully coined assortment of words that still beautifully coined assortment of words that still
reflect in the pronouncements of subsequent case reflect in the pronouncements of subsequent case
laws, one of which is the term ‘Plums of backwardism' laws, one of which is the term ‘Plums of backwardism'
which earned its place in the legal dictionary and which earned its place in the legal dictionary and
in a couple of sociology books as well. in a couple of sociology books as well.
It is indeed worth mention that the Wharton's It is indeed worth mention that the Wharton's
Law Lexicon, in its fifteenth edition, included the Law Lexicon, in its fifteenth edition, included the
words formulated by Justice V.R.Krishna Iyer. It was words formulated by Justice V.R.Krishna Iyer. It was
revised by Dr. Justice AR Lakshmanan, former judge revised by Dr. Justice AR Lakshmanan, former judge
of the Supreme Court. There are more than one of the Supreme Court. There are more than one
hundred words contributed to the English language hundred words contributed to the English language
and to say the least, legal literature augments with and to say the least, legal literature augments with
the wealth and richness of such words that flow from the wealth and richness of such words that flow from
the pen of the justice V R Krishna Iyer. They have the pen of the justice V R Krishna Iyer. They have
been in use and functional in the same meaning been in use and functional in the same meaning
and context by scholars and socio-legal experts, in and context by scholars and socio-legal experts, in
order to express their views. The world of linguistics, order to express their views. The world of linguistics,
literature and law have accepted, recognized and literature and law have accepted, recognized and
acknowledged those words and find application of acknowledged those words and find application of
words thereof. A culmination of all such literary words thereof. A culmination of all such literary
skills out case Justice V R Krishna Iyer's gift of glib. skills out case Justice V R Krishna Iyer's gift of glib.
The infamous Bhopal gas tragedy, where hundreds The infamous Bhopal gas tragedy, where hundreds
of lives were taken by intake of toxic gases and which of lives were taken by intake of toxic gases and which
blotched a hole in everyone s heart, has shaken blotched a hole in everyone s heart, has shaken
the conscious of the nation. In a series of articles written the conscious of the nation. In a series of articles written
to draw the attention of the government and to gear to draw the attention of the government and to gear
up the relief and remedial measures, Justice Iyer up the relief and remedial measures, Justice Iyer
has yet, introduced another word ‘gassassination.' has yet, introduced another word ‘gassassination.'
Additionally, ‘poverty jurisprudence' is a novel kind of Additionally, ‘poverty jurisprudence' is a novel kind of
36 36
jurisprudence that he invented while dealing with the jurisprudence that he invented while dealing with the
benevolent provisions available to the impecunious benevolent provisions available to the impecunious
debtors and Debt Relief Act. debtors and Debt Relief Act.
It is the anguish that was expressed through a It is the anguish that was expressed through a
new coinage of the word ‘extortionary rate of interest' new coinage of the word ‘extortionary rate of interest'
against extortion of money in the name of recovery against extortion of money in the name of recovery
of principal amount, with exorbitant rate of interest, of principal amount, with exorbitant rate of interest,
penal interest etc., from the hapless borrowers. penal interest etc., from the hapless borrowers.
As is known to all, the parliamentary proceedings As is known to all, the parliamentary proceedings
are often disturbed due to pandemonium, uproar are often disturbed due to pandemonium, uproar
and unruly scenes. Much to our interest, in order and unruly scenes. Much to our interest, in order
to define the commotion, he contributed a new to define the commotion, he contributed a new
parliamentary phrase for unparliamentarily attitudes, parliamentary phrase for unparliamentarily attitudes,
that is, ‘Parliamendemonium.' that is, ‘Parliamendemonium.'
Justice V R Krishna Iyer was, however, subjected Justice V R Krishna Iyer was, however, subjected
to difficulties on two occasions because of his usage of to difficulties on two occasions because of his usage of
English. He has long since stated, ‘If a big Kumbakonam English. He has long since stated, ‘If a big Kumbakonam
shakes the nation, the President cannot remain a shakes the nation, the President cannot remain a
sleepy Kumbhakarna.' Through this, what he meant sleepy Kumbhakarna.' Through this, what he meant
to convey is that, when a large-scale national financial to convey is that, when a large-scale national financial
scandal is reportedly alleged against the Government, scandal is reportedly alleged against the Government,
the President cannot sleep over it smugly. He used the the President cannot sleep over it smugly. He used the
word “Kumbhakonam” to describe a fraud. He received word “Kumbhakonam” to describe a fraud. He received
protest letters from the place Kumbhakonam protest letters from the place Kumbhakonam
against the defamatory innuendo and he apologized against the defamatory innuendo and he apologized
to them on this front. On a subsequent protest to them on this front. On a subsequent protest
from the said place, the Oxford has removed the from the said place, the Oxford has removed the
aforementioned calumnious meaning14. aforementioned calumnious meaning14.
14
A surfeit of Tribute to India's Greatest Living Judge: Justice V.R.Krishna Iyer 14
A surfeit of Tribute to India's Greatest Living Judge: Justice V.R.Krishna Iyer
- A festschrift, Universal Law publishing Law Co Ltd new Delhi, 2014, page 15 - A festschrift, Universal Law publishing Law Co Ltd new Delhi, 2014, page 15
37 37
In his autobiography, Justice Krishna Iyer has In his autobiography, Justice Krishna Iyer has
dealt quite a lot about the boogie and brickbats he dealt quite a lot about the boogie and brickbats he
received from his own country as well as from the received from his own country as well as from the
land beyond, over his language and unconventional land beyond, over his language and unconventional
style of judgment writings. style of judgment writings.
‘One of the frequent complaints leveled against ‘One of the frequent complaints leveled against
my judgment was the form of my judgment, my judgment was the form of my judgment,
quite unconventional, rarely traditional and reveling quite unconventional, rarely traditional and reveling
in difficult diction but elegantly literary. I was in difficult diction but elegantly literary. I was
accused of uncommon words, which were recondite accused of uncommon words, which were recondite
in orthodox judgments. I am guilty of these charges in orthodox judgments. I am guilty of these charges
but many from the Bench and the Bar in India and but many from the Bench and the Bar in India and
abroad have expressed appreciation about my abroad have expressed appreciation about my
English. Some scholars say that present judges English. Some scholars say that present judges
have forsaken grammar, fine phrases and even have forsaken grammar, fine phrases and even
respect for spelling and lexical correctness.'15 respect for spelling and lexical correctness.'15
It shall not be incorrect to conclude that, It shall not be incorrect to conclude that,
although a jurist, Justice Iyer has, to the best extent although a jurist, Justice Iyer has, to the best extent
possible in his individual capacity, contributed like possible in his individual capacity, contributed like
a philologist to the language and literature through a philologist to the language and literature through
his prolific writing and ingenuous interpretations. his prolific writing and ingenuous interpretations.
15
V.R.Krishna Iyer, Wandering in many Worlds- An Autobiography, page 188 15
V.R.Krishna Iyer, Wandering in many Worlds- An Autobiography, page 188
38 38
Contemnor Or Critique? Contemnor Or Critique?
There have been intense denunciations leveled There have been intense denunciations leveled
against Justice Krishna Iyer, from the legal and against Justice Krishna Iyer, from the legal and
the co-legal fraternity, about his post retirement the co-legal fraternity, about his post retirement
columns, newspaper notes and speeches. Claims columns, newspaper notes and speeches. Claims
arise that they are intended only to damage and arise that they are intended only to damage and
tarnish the image of judiciary and judges in the tarnish the image of judiciary and judges in the
minds of common men. minds of common men.
Post retirement on superannuation, he has not Post retirement on superannuation, he has not
accepted any offer from the government to head a accepted any offer from the government to head a
commission of enquiry or any other ad hoc assignments. commission of enquiry or any other ad hoc assignments.
On the other hand, he has travelled across the On the other hand, he has travelled across the
country and abroad to deliver endowment lectures, country and abroad to deliver endowment lectures,
has presided over a couple of conferences and has has presided over a couple of conferences and has
been contributing articles on contemporary legal, been contributing articles on contemporary legal,
social and political issues. In those lectures and social and political issues. In those lectures and
writings, he has leveled criticism about the judiciary writings, he has leveled criticism about the judiciary
and its function. Noteworthy is the fact that such and its function. Noteworthy is the fact that such
criticism is un intentional and is not made for criticism is un intentional and is not made for
the common folks to underestimate the values the common folks to underestimate the values
of judiciary. It is often argued by socio-legal of judiciary. It is often argued by socio-legal
authors, activists and a sect of legal fraternity authors, activists and a sect of legal fraternity
that Justice Krishna Iyer, having served positions that Justice Krishna Iyer, having served positions
as a lawyer, a legislator, a Judge of the High as a lawyer, a legislator, a Judge of the High
Court, Member of Law Commission and a Court, Member of Law Commission and a
Judge of Supreme Court, has a moral and legal Judge of Supreme Court, has a moral and legal
o bl i g ati o n to defen d those co n stitution a l ob l ig at i o n t o def en d t h o se co ns t i t ut i o na l
institutions. Per contra, he has made unwarranted institutions. Per contra, he has made unwarranted
comments and criticism about those eminent comments and criticism about those eminent
offices. offices.
39 39
No doubt, Justice Krishna Iyer had gained No doubt, Justice Krishna Iyer had gained
unique and enormous experience in all phases and unique and enormous experience in all phases and
facets of law and justice. Having appeared as counsel facets of law and justice. Having appeared as counsel
in numerous sensational cases, he got considerable in numerous sensational cases, he got considerable
standing in the Bar and experience in litigating standing in the Bar and experience in litigating
process. He has also served as a member of process. He has also served as a member of
Legislature and Minister in Kerala. The public life Legislature and Minister in Kerala. The public life
gave him another experience of legislating of laws. As gave him another experience of legislating of laws. As
a Judge of the High Court and country 's Apex Court, a Judge of the High Court and country 's Apex Court,
Justice Iyer has adjudicated disputes, passed order Justice Iyer has adjudicated disputes, passed order
in writs and held laws and their provisions as ultra in writs and held laws and their provisions as ultra
vires and unconstitutional. Apart from that, as a vires and unconstitutional. Apart from that, as a
member of the Law Commission, he has also drafted member of the Law Commission, he has also drafted
laws and possessed experience in pre-legislative laws and possessed experience in pre-legislative
process. Therefore, having served in all legal and process. Therefore, having served in all legal and
constitutional offices, it leads us to wonder whether constitutional offices, it leads us to wonder whether
he had deliberate intentions in causing damage to he had deliberate intentions in causing damage to
the apex bodies, or otherwise. However, it is through the apex bodies, or otherwise. However, it is through
his endless contributions and benefactions that his his endless contributions and benefactions that his
genuineness may be ascertained and analyzed. His genuineness may be ascertained and analyzed. His
words and works indulged him to face the contempt words and works indulged him to face the contempt
of court on two occasions and one of such cases was of court on two occasions and one of such cases was
disposed off without any hearing. disposed off without any hearing.
40 40
Unprecedented Precedent Unprecedented Precedent
Sifting through clover leaves of precedents, Sifting through clover leaves of precedents,
another case had created quite a piquant and another case had created quite a piquant and
embarrassing situation in the Kerala High Court. The embarrassing situation in the Kerala High Court. The
Court had taken up an issue of issuance of summon Court had taken up an issue of issuance of summon
to its former judge, who was later elevated to Supreme to its former judge, who was later elevated to Supreme
Court. The decision in Vincent Panikulangara vs Court. The decision in Vincent Panikulangara vs
V.R.Krishna Iyer16 has remained in the pages of law V.R.Krishna Iyer16 has remained in the pages of law
journal as an unprecedented precedent. Throwing journal as an unprecedented precedent. Throwing
light into this case, dating back to the symposium light into this case, dating back to the symposium
organized on the eve of (October–November, 1981) organized on the eve of (October–November, 1981)
Silver Jubilee Celebrations of High Court of Kerala, Silver Jubilee Celebrations of High Court of Kerala,
Justice Krishna Iyer made a speech, when Justice Justice Krishna Iyer made a speech, when Justice
G.Viswanatha Iyer (the then judge of Kerala High G.Viswanatha Iyer (the then judge of Kerala High
Court) was on the chair. Court) was on the chair.
Vincent Panikulangara, who attended that Vincent Panikulangara, who attended that
symposium, moved the Advocate General for sanction symposium, moved the Advocate General for sanction
to prosecute Justice Krishna Iyer, describing the to prosecute Justice Krishna Iyer, describing the
speech as ‘Scandalisation', and was subsequently speech as ‘Scandalisation', and was subsequently
granted the same. granted the same.
Recollections of the text of the speech as extracted Recollections of the text of the speech as extracted
by Mr. Vincent in his petition is produced as, by Mr. Vincent in his petition is produced as,
a.‘One day the people of this country will rise a.‘One day the people of this country will rise
and say that we don't want this magnificent red and say that we don't want this magnificent red
stone edifice on the Curzon Road, because it is stone edifice on the Curzon Road, because it is
seen as counterproductive to the High Courts.' seen as counterproductive to the High Courts.'
b.‘When property rights were affected in R.C. b.‘When property rights were affected in R.C.
Kooper s case the judges heart began to bleed.' Kooper s case the judges heart began to bleed.'
16
1983 KLT 829; 1983 2 ILR (Kerala) 626 16
1983 KLT 829; 1983 2 ILR (Kerala) 626
41 41
c. ‘The whole question is whether the judiciary c. ‘The whole question is whether the judiciary
lives down its partiality towards the propertariat lives down its partiality towards the propertariat
and cultivates affection for the proletariat.' and cultivates affection for the proletariat.'
d.‘And in this country, the Jesus are get- d.‘And in this country, the Jesus are get-
ting crucified and the Barbases are very much ting crucified and the Barbases are very much
upheld, thanks perhaps to the judiciary.' upheld, thanks perhaps to the judiciary.'
e. ‘That they (judiciary) have not been e. ‘That they (judiciary) have not been
ordinarily influenced by the executive or the ordinarily influenced by the executive or the
legislature.' legislature.'
f. ‘In fact, as an insider there is many a thing f. ‘In fact, as an insider there is many a thing
I know which I should not mention in public.' I know which I should not mention in public.'
g.‘Our whole judicial approach has a certain g.‘Our whole judicial approach has a certain
independence from all civilized behavior.' independence from all civilized behavior.'
h.‘In fact, to speak very frankly, the Indian h.‘In fact, to speak very frankly, the Indian
judiciary is non est.' judiciary is non est.'
The Division Bench of the Kerala High Court The Division Bench of the Kerala High Court
did an academic exercise to define the contours did an academic exercise to define the contours
of permissible criticism. It drew a line between of permissible criticism. It drew a line between
well-informed criticism and ill-informed criticism, well-informed criticism and ill-informed criticism,
and held that Justice Krishna Iyer has spent years and held that Justice Krishna Iyer has spent years
and perhaps a life time as part of the judiciary. and perhaps a life time as part of the judiciary.
Therefore, the comments made by him are not of a Therefore, the comments made by him are not of a
person who is vituperative or who wants to bring person who is vituperative or who wants to bring
disrepute to the judicial system of this country. disrepute to the judicial system of this country.
By pointing the fragility of the judicial system and By pointing the fragility of the judicial system and
alerting the people to the need for a change, he had alerting the people to the need for a change, he had
alerted his audience to bestow serious attention to alerted his audience to bestow serious attention to
the concurring issues at hand. the concurring issues at hand.
42 42
The Division Bench of High Court, instead of The Division Bench of High Court, instead of
condemning the contemnor, paid encomium to him. condemning the contemnor, paid encomium to him.
‘An erudite judge illumines the pages of law ‘An erudite judge illumines the pages of law
reports. He earns the respect and admiration of reports. He earns the respect and admiration of
the members of the bar and the bench. The legal the members of the bar and the bench. The legal
fraternity may remember him as his reputation fraternity may remember him as his reputation
survives to posterity. But rarely is such a judge survives to posterity. But rarely is such a judge
widely known outside the world of law. Erudition widely known outside the world of law. Erudition
coupled with an honest missionary zeal in the coupled with an honest missionary zeal in the
cause of social uplift gives a different image to a cause of social uplift gives a different image to a
judge and makes him live not only in the books of judge and makes him live not only in the books of
law but also in the hearts of men. Sri.V.R.Krishna law but also in the hearts of men. Sri.V.R.Krishna
Iyer is known and respected by the public of this Iyer is known and respected by the public of this
country. His tenure of office as a judge of this court, country. His tenure of office as a judge of this court,
later as member of the Law Commission and finally later as member of the Law Commission and finally
as a judge of the Supreme Court has been marked as a judge of the Supreme Court has been marked
by a distinction that singles him out from the rest by a distinction that singles him out from the rest
of his colleagues. His decisions evince a new of his colleagues. His decisions evince a new
approach to law and new role for the Judge. Many approach to law and new role for the Judge. Many
a good judge has come and gone, having performed a good judge has come and gone, having performed
their duty with dedication and integrity. As efficient their duty with dedication and integrity. As efficient
judges are expected to do, leaving a mark of his judges are expected to do, leaving a mark of his
own and an imprint of his individuality but giving own and an imprint of his individuality but giving
no room for anyone to raise his eyebrows at no room for anyone to raise his eyebrows at
him at any time on account of infringement of him at any time on account of infringement of
traditional behavior and infringing status quo traditional behavior and infringing status quo
decorum. While leaving a distinct mark of his decorum. While leaving a distinct mark of his
personality in all that he did, Sri.V.R.Krishna Iyer personality in all that he did, Sri.V.R.Krishna Iyer
did challenge established traditional values and did challenge established traditional values and
approaches and opened new vistas of thought and approaches and opened new vistas of thought and
action to promote the social engineering process in action to promote the social engineering process in
this country’. this country’.
43 43
Justice Krishna Iyer is a firm believer that judiciary Justice Krishna Iyer is a firm believer that judiciary
in India is an independent organ of the State and in India is an independent organ of the State and
it commands the highest respects among all the it commands the highest respects among all the
constitutional institutions. His critical interventions constitutional institutions. His critical interventions
on crucial movements to uphold the supremacy of on crucial movements to uphold the supremacy of
the Constitution has earned him the respect of all the Constitution has earned him the respect of all
people throughout the country. people throughout the country.
One classic instance here would prove the One classic instance here would prove the
amount of respect and institutional affection and amount of respect and institutional affection and
admiration he has conjured from the judiciary. admiration he has conjured from the judiciary.
In the process of pronouncing the judgment In the process of pronouncing the judgment
i n t h e l a n d m a r k “LIC case” 17 , i n o r d i n a t e i n t h e l a n d m a r k “LIC case” 17 , i n o r d i n a t e
delay of a year occurred in between the hearing of delay of a year occurred in between the hearing of
arguments and delivering the verdict. As a conscious arguments and delivering the verdict. As a conscious
judge from the Bench of Apex Court, Justice judge from the Bench of Apex Court, Justice
Iyer in a humble manner offered an explanation Iyer in a humble manner offered an explanation
and assigned reasons to excuse the delay caused and assigned reasons to excuse the delay caused
in dispensation of justice. What stood apart was in dispensation of justice. What stood apart was
the fact that there is no such explanation offered the fact that there is no such explanation offered
in any other case. It was his sincere commitment in any other case. It was his sincere commitment
and firm belief that the judiciary can live in the and firm belief that the judiciary can live in the
hearts of every man and enjoy the confidence of all hearts of every man and enjoy the confidence of all
people, only if it is secluded and absolved of clouds people, only if it is secluded and absolved of clouds
of doubts. Therefore, the reasoned explanation of doubts. Therefore, the reasoned explanation
would prevent the baseless and false presumptions would prevent the baseless and false presumptions
that arise in the minds of litigants and justice seekers. that arise in the minds of litigants and justice seekers.
His confession about criticism on judiciary appeared His confession about criticism on judiciary appeared
in his autobiography ‘Wandering in many worlds’ in his autobiography ‘Wandering in many worlds’
(page 200), runs as follows: (page 200), runs as follows:
17
(AIR 1980 SC 81: 1981 (1) SCC 315) 17
(AIR 1980 SC 81: 1981 (1) SCC 315)
44 44
‘I must confess here that I am a severe critic ‘I must confess here that I am a severe critic
of the judiciary and of the justice delivery system of the judiciary and of the justice delivery system
we have today. My accusations arise from my we have today. My accusations arise from my
deep commitment to justice and my passionate deep commitment to justice and my passionate
belief that the judiciary in our democracy is belief that the judiciary in our democracy is
possibly the greatest guarantee of personal liberties possibly the greatest guarantee of personal liberties
and social justice. My heart bleeds when I see and social justice. My heart bleeds when I see
how the judiciary and the legal profession fail to how the judiciary and the legal profession fail to
redeem the pledge made to the people of India. redeem the pledge made to the people of India.
It is this passion, which makes it difficult for me It is this passion, which makes it difficult for me
to mince words when it comes to criticism of the to mince words when it comes to criticism of the
judiciary. My experience as judge both in the High judiciary. My experience as judge both in the High
Court and in the Supreme Court, I believe, lend Court and in the Supreme Court, I believe, lend
authenticity to my accusations as they come from authenticity to my accusations as they come from
the genuine commitment to the independence of the genuine commitment to the independence of
the judiciary and the sanctity of the justice delivery the judiciary and the sanctity of the justice delivery
system.' system.'
Ergo, such clarifications and veracity in Ergo, such clarifications and veracity in
confessions from the core of the Living Legend's confessions from the core of the Living Legend's
heart shield every shred of misfitting doubt conjured heart shield every shred of misfitting doubt conjured
up against Justice Iyer, targeting him of extra- up against Justice Iyer, targeting him of extra-
judicial talks and demeaning the purpose of the judicial talks and demeaning the purpose of the
entire legal system. The court as a constitutional entire legal system. The court as a constitutional
institution remains as the only hope for the common institution remains as the only hope for the common
men, when their elected representatives fail and men, when their elected representatives fail and
executives exceed. It is not only the forum for executives exceed. It is not only the forum for
adjudication of dispute, but also a valiant custodian adjudication of dispute, but also a valiant custodian
of basic values and fundamental rights. of basic values and fundamental rights.
The Supreme Court in Oma vs State of Tamil Nadu18 The Supreme Court in Oma vs State of Tamil Nadu18
has emphasized the role of judge as follows: has emphasized the role of judge as follows:
18
(2013 3 SCC 440) 18
(2013 3 SCC 440)
45 45
‘A judge has no weapon or sword. A judge's greatest ‘A judge has no weapon or sword. A judge's greatest
strength is the trust and confidence of the people, strength is the trust and confidence of the people,
whom he serves. Gaining confidence of the people is whom he serves. Gaining confidence of the people is
a mandatory requirement for a judge.' a mandatory requirement for a judge.'
Justice Krishna Iyer has earned and enjoyed the Justice Krishna Iyer has earned and enjoyed the
confidence while adorning the Bench. Neither any confidence while adorning the Bench. Neither any
litigant has ever sought for a transfer of case from litigant has ever sought for a transfer of case from
his Bench, nor has Justice Iyer rescued himself his Bench, nor has Justice Iyer rescued himself
from hearing any case, during his tenure as judge. from hearing any case, during his tenure as judge.
The post retirement writings and contributions of The post retirement writings and contributions of
Justice Krishna Iyer might appear to be a criticism, Justice Krishna Iyer might appear to be a criticism,
but they are the reflection and revelations of his but they are the reflection and revelations of his
commitment for the cause of justice. His suggestions commitment for the cause of justice. His suggestions
are often sought by various non-governmental are often sought by various non-governmental
organization and public & social activities, on social, organization and public & social activities, on social,
political and legal crisis. political and legal crisis.
The revered Fali. S. Nariman has assessed the The revered Fali. S. Nariman has assessed the
life and contribution of Justice Krishna Iyer, both life and contribution of Justice Krishna Iyer, both
during the Bench and after the retirement as, during the Bench and after the retirement as,
‘During his tenure in the Supreme Court of ‘During his tenure in the Supreme Court of
India, from 1973 to 1980, Justice V.R. Krishna India, from 1973 to 1980, Justice V.R. Krishna
Iyer (born in 1915) gave equal space to justice, Iyer (born in 1915) gave equal space to justice,
compassion and the law. In retirement he has compassion and the law. In retirement he has
been the voice of conscience of India s higher been the voice of conscience of India s higher
judiciary.'19 judiciary.'19
The assessment of the great leader of the Indian The assessment of the great leader of the Indian
Bar is as true as it can get and Justice Krishna Bar is as true as it can get and Justice Krishna
Iyer exudes every bit of the conscience of Indian Iyer exudes every bit of the conscience of Indian
Jurisprudence. Jurisprudence.
19
Fali. S. Nariman, ‘The State of the Nation, Hay House India (2013) page-345 19
Fali. S. Nariman, ‘The State of the Nation, Hay House India (2013) page-345
46 46
Un-Examined Witnesses - Fair Practice Un-Examined Witnesses - Fair Practice
Advocate Krishna Iyer's Efforts Advocate Krishna Iyer's Efforts
‘One may lose a legal battle, but win a social ‘One may lose a legal battle, but win a social
war’ war’
Many researchers and authors have ventured Many researchers and authors have ventured
and authored several books on the judicial and authored several books on the judicial
pronouncements of Justice Krishna Iyer. A few pronouncements of Justice Krishna Iyer. A few
have concentrated on his contribution as a counsel have concentrated on his contribution as a counsel
in the courts from Tellicherry to the High Court, in the courts from Tellicherry to the High Court,
Ernakulam. Ernakulam.
As a lawyer, Justice V.R.Krishna Iyer had As a lawyer, Justice V.R.Krishna Iyer had
lucrative practice and acquired a leading stand in lucrative practice and acquired a leading stand in
the Bar, both on Civil and Criminal sides. Though the Bar, both on Civil and Criminal sides. Though
there lay an opportunity for him to become a public there lay an opportunity for him to become a public
prosecutor and government pleader at his young prosecutor and government pleader at his young
age, he politely declined with a commitment to age, he politely declined with a commitment to
work for the poor and peasants to whom access to work for the poor and peasants to whom access to
court and justice was ivory tower during those days. court and justice was ivory tower during those days.
However, he made it affordable for those deserving However, he made it affordable for those deserving
destitute and labourers. He has fought the legal destitute and labourers. He has fought the legal
battle with his best qualities of honesty and integrity battle with his best qualities of honesty and integrity
with courage and dedication, as could be seen from with courage and dedication, as could be seen from
the highlights in the case of Dr. Kasi Iyer vs State the highlights in the case of Dr. Kasi Iyer vs State
of Kerala20. In a sessions case, he appeared as a of Kerala20. In a sessions case, he appeared as a
counsel for the accused and assisted the High Court counsel for the accused and assisted the High Court
in laying down a procedure so as to the presence in laying down a procedure so as to the presence
of un-examined witnesses in the court, during the of un-examined witnesses in the court, during the
examination of other witnesses. examination of other witnesses.
20
1966 Cr L J 1445 20
1966 Cr L J 1445
47 47
The decision in Dr. Kasi Iyer Vs State of Kerala21 The decision in Dr. Kasi Iyer Vs State of Kerala21
was handed down by Justice P. Govinda Menon after was handed down by Justice P. Govinda Menon after
hearing the eloquent arguments of the then counsel hearing the eloquent arguments of the then counsel
for revision petitioner, Krishna Iyer. In the prime for revision petitioner, Krishna Iyer. In the prime
legislations of Criminal Jurisprudence in India, namely legislations of Criminal Jurisprudence in India, namely
Indian Penal Code, Code of Criminal Procedure Indian Penal Code, Code of Criminal Procedure
and Evidence Act, there is no specific provision and Evidence Act, there is no specific provision
available to decide whether an examined witness available to decide whether an examined witness
of a case can remain in the court while the other of a case can remain in the court while the other
witnesses of the same case deposed. An extraordinary witnesses of the same case deposed. An extraordinary
situation arose in a Sessions case and the outstanding situation arose in a Sessions case and the outstanding
lawyer dealt it with the cause of justice. lawyer dealt it with the cause of justice.
It was during the trial of a Sessions case before It was during the trial of a Sessions case before
Additional Sessions Judge, Trivandrum, where the Additional Sessions Judge, Trivandrum, where the
Sessions Judge allowed the investigation officer (IO), Sessions Judge allowed the investigation officer (IO),
also a witness, to remain in court while the other also a witness, to remain in court while the other
witnesses in the same case were being examined. witnesses in the same case were being examined.
As a defence, counsel Krishna Iyer filed a petition to As a defence, counsel Krishna Iyer filed a petition to
keep away from the court the unexamined witnesses keep away from the court the unexamined witnesses
at an inaudible distance, that is to say, he suggested at an inaudible distance, that is to say, he suggested
the investigating officer (IO) of the case to remain at the investigating officer (IO) of the case to remain at
bay. The Sessions Judge disallowed the application bay. The Sessions Judge disallowed the application
and thereby permitted the Investigating Officer to and thereby permitted the Investigating Officer to
remain in court, when the case was in progress by remain in court, when the case was in progress by
examination of other witnesses. Therefore, aggrieved examination of other witnesses. Therefore, aggrieved
by the order of the Sessions Judge, V.R.Krishna Iyer by the order of the Sessions Judge, V.R.Krishna Iyer
preferred revision. preferred revision.
The order of the High Court was pronounced The order of the High Court was pronounced
after the termination of trial, but it threw a light in after the termination of trial, but it threw a light in
21
1966 Cr. L.J. 1445 21
1966 Cr. L.J. 1445
48 48
the dark area of trial and examination of witness. the dark area of trial and examination of witness.
Krishna Iyer had fairly conceded that the trial of Krishna Iyer had fairly conceded that the trial of
the case was over at Tiruvandram. But, the practice the case was over at Tiruvandram. But, the practice
that prevailed in the courts in Tiruvandram area of that prevailed in the courts in Tiruvandram area of
Kerala was unjust and against the universal practice Kerala was unjust and against the universal practice
of trial and in order to abolish such unfair trail of trial and in order to abolish such unfair trail
practices in courts, he argued the case on merits practices in courts, he argued the case on merits
and won laurels for the same. The decision in Dr. and won laurels for the same. The decision in Dr.
Kasi Iyer case is a landmark pronouncement in the Kasi Iyer case is a landmark pronouncement in the
area of examination of witness. The relevant portion area of examination of witness. The relevant portion
of the judgment is re-produced hereunder. of the judgment is re-produced hereunder.
‘The question that arises for decision is whether ‘The question that arises for decision is whether
the Court has got power to order unexamined the Court has got power to order unexamined
witnesses out of Court until their examination witnesses out of Court until their examination
is taken up. It is true that neither the Evidence is taken up. It is true that neither the Evidence
Act nor the Code of Criminal Procedure contain Act nor the Code of Criminal Procedure contain
any specific provision for ordering witnesses out any specific provision for ordering witnesses out
of Court, although it is generally done by the of Court, although it is generally done by the
Court as a matter of practice. In Halsbury's Laws Court as a matter of practice. In Halsbury's Laws
of England (Vol.10. at p. 470) it is stated that of England (Vol.10. at p. 470) it is stated that
unexamined witnesses may be ordered out of unexamined witnesses may be ordered out of
Court at the request of either party. In Halsbury Court at the request of either party. In Halsbury
s Laws of England (Vol.15), Lord Simond's Edn., s Laws of England (Vol.15), Lord Simond's Edn.,
(pg. 439) the rule of practice is stated to be that, (pg. 439) the rule of practice is stated to be that,
at any time during the course of a trial, and on at any time during the course of a trial, and on
the application of either party, the Judge may the application of either party, the Judge may
order witnesses in the case to leave the Court order witnesses in the case to leave the Court
until called for.' until called for.'
Throwing some light to the case of Nathusing vs Throwing some light to the case of Nathusing vs
The Crown, AIR 1925 Nag 296, the question was The Crown, AIR 1925 Nag 296, the question was
49 49
whether a police officer whose presence was objected whether a police officer whose presence was objected
to, could be excluded from Court. Therein was held: to, could be excluded from Court. Therein was held:
“Section 352, Cr. P. C. gives power to the Court “Section 352, Cr. P. C. gives power to the Court
to order leave of any particular person from the to order leave of any particular person from the
room used by the Court. It makes no exception room used by the Court. It makes no exception
in the case of a police officer. When the accused in the case of a police officer. When the accused
person objects to the presence of a police officer person objects to the presence of a police officer
or other person, it is on the Magistrate to decide or other person, it is on the Magistrate to decide
whether the accused person's fear of prejudice to whether the accused person's fear of prejudice to
his case is reasonable, considering the intelligence his case is reasonable, considering the intelligence
and susceptibilities of the class to which he and susceptibilities of the class to which he
belongs and not merely whether the presence belongs and not merely whether the presence
is convenient or helpful to the Court or the is convenient or helpful to the Court or the
prosecution”. prosecution”.
A Pitchaiah Sarma v. G.C. Veerayya,22 is another A Pitchaiah Sarma v. G.C. Veerayya,22 is another
case to substantiate our understanding on this case to substantiate our understanding on this
matter. It was the instance of a civil case and the matter. It was the instance of a civil case and the
question that arose for decision was regarding the question that arose for decision was regarding the
power of the Court to exclude from the Court parties power of the Court to exclude from the Court parties
and their witnesses during the trial. The plaintiff and their witnesses during the trial. The plaintiff
and his witnesses were examined and the defendant and his witnesses were examined and the defendant
was present in Court throughout the examination. was present in Court throughout the examination.
After the plaintiff's side was over, the first witness After the plaintiff's side was over, the first witness
for the defendant was put into the witness box. for the defendant was put into the witness box.
Even then, the fourth defendant remained in Court. Even then, the fourth defendant remained in Court.
Counsel for the plaintiff objected to his presence in Counsel for the plaintiff objected to his presence in
the Court and subsequently, the fourth defendant the Court and subsequently, the fourth defendant
was ordered to leave the Court hall. The matter was ordered to leave the Court hall. The matter
was taken up to the High Court, questioning the was taken up to the High Court, questioning the
22
AIR 1961 Andhra Pradesh 420, 22
AIR 1961 Andhra Pradesh 420,
50 50
power and jurisdiction of the Court to order the power and jurisdiction of the Court to order the
party to leave the Court when he was instructing his party to leave the Court when he was instructing his
counsel. It was held: counsel. It was held:
“Since under Section 135 of the Evidence Act “Since under Section 135 of the Evidence Act
the Court has the power to prescribe the order, In the Court has the power to prescribe the order, In
which witnesses are to be examined, where a party which witnesses are to be examined, where a party
is also a witness, the Court can inquire him to give is also a witness, the Court can inquire him to give
evidence before he examines his other witnesses. If evidence before he examines his other witnesses. If
he is not willing to do so, the Court can order him out he is not willing to do so, the Court can order him out
of the Court hall when his other witnesses are giving of the Court hall when his other witnesses are giving
evidence. This procedure ensures to the party his evidence. This procedure ensures to the party his
right to be present in Court when his suit is being right to be present in Court when his suit is being
tried”. tried”.
Herewith, I respectfully concur with the view Herewith, I respectfully concur with the view
expressed in these cases and hold that to ensure a expressed in these cases and hold that to ensure a
fair trial even in the absence of any specific provision fair trial even in the absence of any specific provision
in any enactment, the Court has inherent power in any enactment, the Court has inherent power
to order that no witness who has to give evidence to order that no witness who has to give evidence
should he present when the deposition of the other should he present when the deposition of the other
witnesses are being taken, unless he himself is witnesses are being taken, unless he himself is
examined as a witness. examined as a witness.
In Lalmani v. Bejai Ram,23 Bennet.J., held that In Lalmani v. Bejai Ram,23 Bennet.J., held that
the universal practice in the Courts of India is that, the universal practice in the Courts of India is that,
witnesses should be called in only by one and that witnesses should be called in only by one and that
no witness who is to give evidence should be present no witness who is to give evidence should be present
when the deposition of a previous witness is being when the deposition of a previous witness is being
taken and a breach of this rule may well be termed taken and a breach of this rule may well be termed
an abuse of the process of the Court and, therefore, an abuse of the process of the Court and, therefore,
under Section 151, C. P. C., the Court has inherent under Section 151, C. P. C., the Court has inherent
23
AIR 1934 All 840 23
AIR 1934 All 840
51 51
power to prevent that abuse and the Court can order power to prevent that abuse and the Court can order
such witnesses to absolve their place as a witness. such witnesses to absolve their place as a witness.
In Subh Karam Singh v. Kedar Nath, AIR 1941 In Subh Karam Singh v. Kedar Nath, AIR 1941
All 314, a Division Bench of the same High Court All 314, a Division Bench of the same High Court
opined their prudential views on the same matter. opined their prudential views on the same matter.
In this case, learned Judge was not seen taking In this case, learned Judge was not seen taking
into consideration these matters and the so-called into consideration these matters and the so-called
practice of obtaining in the Trivandrum area could practice of obtaining in the Trivandrum area could
afford no justification. As stated in Halsbury's Laws afford no justification. As stated in Halsbury's Laws
of England (Vol.15, Pg.440), ‘in criminal trials, a of England (Vol.15, Pg.440), ‘in criminal trials, a
prosecutor is entitled to remain in Court only in his prosecutor is entitled to remain in Court only in his
capacity as prosecutor and if he is in the position capacity as prosecutor and if he is in the position
of a witness as well, he may be ordered to retire.' of a witness as well, he may be ordered to retire.'
As a lawyer, Krishna Iyer has made sincere As a lawyer, Krishna Iyer has made sincere
efforts and assisted the courts by quoting various efforts and assisted the courts by quoting various
legal works of foreign jurists and played a fair role legal works of foreign jurists and played a fair role
in laying down some of the most revered and best in laying down some of the most revered and best
principles of legal jurisprudence. One such an event principles of legal jurisprudence. One such an event
is the abolition of unjust procedure of trial that is the abolition of unjust procedure of trial that
prevailed in the courts of Trivandrum. prevailed in the courts of Trivandrum.
52 52
2 2
FRIVOLOUS SUITS-SHOOT AT SIGHT FRIVOLOUS SUITS-SHOOT AT SIGHT
Global perspectives Global perspectives

The Indian Experience The Indian Experience
Snow Hill Arrears - Sun Light Innovation Snow Hill Arrears - Sun Light Innovation
Conduciveness in Court Conduciveness in Court
53 53
FRIVOLOUS SUITS - SHOOT FRIVOLOUS SUITS - SHOOT

AT SIGHT AT SIGHT
'T he process of justice should not harass

the parties' -Justice Krishna Iyer in Maneka Gandhi vs
'T he process of justice should not harass
the parties' -Justice Krishna Iyer in Maneka Gandhi vs
Rani Jethmalani1 Rani Jethmalani1
Betwixt string of profuse cases deluged in courts, Betwixt string of profuse cases deluged in courts,
matters pertaining to trivial disputes implicating matters pertaining to trivial disputes implicating
fructuous claims in frivolous and vexatious suits fructuous claims in frivolous and vexatious suits
consume the bulk of judiciary's recherché moments. consume the bulk of judiciary's recherché moments.
Time consumption of those cases cause hurdles in Time consumption of those cases cause hurdles in
expeditious disposal of cases filed by the real justice expeditious disposal of cases filed by the real justice
seeker. Much of the seekers are made to wait in seeker. Much of the seekers are made to wait in
queues for years in the corridors of Courts and quite queues for years in the corridors of Courts and quite
often, those seekers do not survive to perceive their often, those seekers do not survive to perceive their
own ends of justice. Despite alternative mechanisms own ends of justice. Despite alternative mechanisms
provided in Section 89 of the Civil Procedure Code, provided in Section 89 of the Civil Procedure Code,
the dispensation of justice is delayed, of whose ma- the dispensation of justice is delayed, of whose ma-
jor concerns are the frivolous and vexatious cases jor concerns are the frivolous and vexatious cases
in the offing of the Courts. in the offing of the Courts.
Vexatious litigation entails legal action or pro- Vexatious litigation entails legal action or pro-
ceedings initiated maliciously and without probable ceedings initiated maliciously and without probable
cause, by an individual or group of persons acting cause, by an individual or group of persons acting
for the purpose of annoying or embarrassing an for the purpose of annoying or embarrassing an
opponent. The groundless and baseless lawsuits, opponent. The groundless and baseless lawsuits,
without cause of action, are also termed vexatious without cause of action, are also termed vexatious
or frivolous suits. or frivolous suits.
1
AIR 1979 SC 468;(1979) 4 sec 167 1
AIR 1979 SC 468;(1979) 4 sec 167
54 54
Global Perspectives Global Perspectives
Setting in motion law suits for nugatory Setting in motion law suits for nugatory
claims and paltry disputes is a global phenomenon claims and paltry disputes is a global phenomenon
that hauls the opponent of the case to peril. In the that hauls the opponent of the case to peril. In the
judicial system of the United States, an attorney judicial system of the United States, an attorney
who encourages vexatious litigation is subject to who encourages vexatious litigation is subject to
disciplinary action for reasons of violating rules disciplinary action for reasons of violating rules
of professional conduct. Even so, they may be of professional conduct. Even so, they may be
suspended from practice of law or disbarred from suspended from practice of law or disbarred from
engaging themselves in legal profession. engaging themselves in legal profession.
However, agendas in California detail a However, agendas in California detail a
‘Vexatious Litigant List' prepared and periodically ‘Vexatious Litigant List' prepared and periodically
reviewed by the administrative office of the Courts. reviewed by the administrative office of the Courts.
It is further quite intriguing to note that a long list It is further quite intriguing to note that a long list
of 57 pages also hosted in their official website1, of 57 pages also hosted in their official website1,
chalks out the names of all persons prohibited chalks out the names of all persons prohibited
from future filing of lawsuits. Raymond Wacks, in from future filing of lawsuits. Raymond Wacks, in
his masterpiece, “Law: A very short introduction2” his masterpiece, “Law: A very short introduction2”
has quoted the ‘Mc Donald Coffee Case' as one of has quoted the ‘Mc Donald Coffee Case' as one of
the decisions frequently derided as an example of the decisions frequently derided as an example of
frivolous litigation. Ironically, the case of the coffee frivolous litigation. Ironically, the case of the coffee
steam created quite a steam within the four walls steam created quite a steam within the four walls
of the Courts. The riveting facts of the case that of the Courts. The riveting facts of the case that
poured a magnificent number of 700 lawsuits in a poured a magnificent number of 700 lawsuits in a
decade against a coffee shop discourses that one decade against a coffee shop discourses that one
Stella Liebeck, a woman aged about 79 years, who Stella Liebeck, a woman aged about 79 years, who
1
Available at <www.courts.ca.gov/documents/vexlist.pdf> last visited on September 1
Available at <www.courts.ca.gov/documents/vexlist.pdf> last visited on September
15, 2014 15, 2014
2
Raymond Wacks, “Law - A Very Short Introduction”, Oxford university Press, 2008 2
Raymond Wacks, “Law - A Very Short Introduction”, Oxford university Press, 2008
Edition, page 51-52 Edition, page 51-52
55 55
placed a order for a cup of hot coffee from a ‘drive placed a order for a cup of hot coffee from a ‘drive
through restaurant.' While she was seated in the through restaurant.' While she was seated in the
passenger's seat, her grandson parked the car for passenger's seat, her grandson parked the car for
her to add cream and sugar to her coffee. She placed her to add cream and sugar to her coffee. She placed
the coffee cup between her knees and pulled the the coffee cup between her knees and pulled the
far side of the lid to remove it. In the process, she far side of the lid to remove it. In the process, she
spilled the entire cup of coffee on her lap, causing spilled the entire cup of coffee on her lap, causing
her third-degree burns that required a skin graft her third-degree burns that required a skin graft
and two years of follow-up treatment. and two years of follow-up treatment.
Thereafter, she sued McDonald’s for gross Thereafter, she sued McDonald’s for gross
negligence, claiming that they had sold coffee that negligence, claiming that they had sold coffee that
was ‘unreasonably dangerous' and ‘defectively was ‘unreasonably dangerous' and ‘defectively
manufactured’. She adduced evidence that McDonald manufactured’. She adduced evidence that McDonald
served coffee at 82-88 degrees Celsius (which would served coffee at 82-88 degrees Celsius (which would
cause a third-degree burn in 2 to 7 seconds), and cause a third-degree burn in 2 to 7 seconds), and
argued that that the maximum temperature at argued that that the maximum temperature at
which coffee should be served is 60 degrees Celsius. which coffee should be served is 60 degrees Celsius.
McDonald’s acutely hot coffee, as was claimed, McDonald’s acutely hot coffee, as was claimed,
could cause third-degree burns requiring skin could cause third-degree burns requiring skin
grafts, in 12 to 15 seconds. McDonald's argued that grafts, in 12 to 15 seconds. McDonald's argued that
it dispensed very hot coffee from its drive-through it dispensed very hot coffee from its drive-through
windows, because customers normally wanted to windows, because customers normally wanted to
drive with the coffee; the high temperature would drive with the coffee; the high temperature would
ensure it stayed hot. The evidence by the appellant ensure it stayed hot. The evidence by the appellant
further demonstrated that between 1982 and 1992, further demonstrated that between 1982 and 1992,
the company had received more than 700 complaints the company had received more than 700 complaints
of customers being burned by hot coffee. It had settled of customers being burned by hot coffee. It had settled
claims arising from scalding injuries for more than claims arising from scalding injuries for more than
$500,000, or, one complaint per 24 million cups of $500,000, or, one complaint per 24 million cups of
coffee bought. coffee bought.
56 56
The jury found McDonald's 80 percent liable for the The jury found McDonald's 80 percent liable for the
incident and Mrs Liebeck, 20% liable. The coffee cup incident and Mrs Liebeck, 20% liable. The coffee cup
contained a warning, but the jury decided that it was contained a warning, but the jury decided that it was
inadequate. Thereafter, they awarded her damages inadequate. Thereafter, they awarded her damages
of US$200,000, which was subsequently reduced of US$200,000, which was subsequently reduced
by 20% to $200,000, which was subsequently by 20% to $200,000, which was subsequently
reduced by 20 percent to $160,000. In addition, the reduced by 20 percent to $160,000. In addition, the
jury awarded her $2.7 million in punitive damages jury awarded her $2.7 million in punitive damages
(to punish McDonald's). This latter sum was reduced (to punish McDonald's). This latter sum was reduced
by the judge to $480,000, culminating her pecuniary by the judge to $480,000, culminating her pecuniary
awards to a total of $640,000. The decision was awards to a total of $640,000. The decision was
appealed by both parties, but the case was eventually appealed by both parties, but the case was eventually
settled out of court for an undisclosed amount under settled out of court for an undisclosed amount under
$600,000. This, as we are of prudent understanding, $600,000. This, as we are of prudent understanding,
is a classic paradigm of frivolous suits for damages, is a classic paradigm of frivolous suits for damages,
wherefore Courts are overburdened with such wherefore Courts are overburdened with such
occurrences. occurrences.
57 57
The Indian Experience The Indian Experience
In India, the higher courts in the long catena In India, the higher courts in the long catena
of decisions have upheld the denouement that of decisions have upheld the denouement that
initiating legal proceedings with deliberate cognition initiating legal proceedings with deliberate cognition
that it bears no legal basis and continuing the same that it bears no legal basis and continuing the same
after discovery of the fact of no merit in the same, after discovery of the fact of no merit in the same,
pertains to ‘frivolous or vexatious litigations.' pertains to ‘frivolous or vexatious litigations.'
The Law Commission of India, in its 192nd Report The Law Commission of India, in its 192nd Report
forwarded in June, 2005 has made an in-depth forwarded in June, 2005 has made an in-depth
study of vexatious litigations pouring and pending study of vexatious litigations pouring and pending
in Indian High Courts and Trial Courts. The report in Indian High Courts and Trial Courts. The report
suggested: suggested:
‘After considering various laws on the subject ‘After considering various laws on the subject
in Commonwealth jurisdictions as also the in Commonwealth jurisdictions as also the
aforesaid Indian statutes of Madras and aforesaid Indian statutes of Madras and
Maharashtra, the Law Commission has Maharashtra, the Law Commission has
recommended in the report that if a person is recommended in the report that if a person is
instituting or continuing vexatious proceedings instituting or continuing vexatious proceedings
‘habitually and without reasonable ground‘, the ‘habitually and without reasonable ground‘, the
Advocate General or the Registrar of the High Advocate General or the Registrar of the High
Court or the person against whom such cases Court or the person against whom such cases
are filed (with leave of the High Court) may are filed (with leave of the High Court) may
move the High Court (in a Division Bench) to de- move the High Court (in a Division Bench) to de-
clare the person a ‘vexatious litigant‘. Once that clare the person a ‘vexatious litigant‘. Once that
declaration is made, it ought to be published declaration is made, it ought to be published
in the Official Gazette and communicated to all in the Official Gazette and communicated to all
subordinate courts. Thereafter, the person so subordinate courts. Thereafter, the person so
declared as the vexatious litigant, can file civil declared as the vexatious litigant, can file civil
or criminal proceedings on the High Court or or criminal proceedings on the High Court or
58 58
subordinate courts only (i) with the leave of the subordinate courts only (i) with the leave of the
High Court or, (ii) (if he is filing such cases in the High Court or, (ii) (if he is filing such cases in the
subordinate courts) with the leave of the District subordinate courts) with the leave of the District
and Sessions Court. These courts will further and Sessions Court. These courts will further
examine whether the proceedings proposed to be examine whether the proceedings proposed to be
instituted or being continued have a prima facie instituted or being continued have a prima facie
ground and also, whether or not, they constitute ground and also, whether or not, they constitute
an abuse of the process of court. If the leave is an abuse of the process of court. If the leave is
refused, the proposed or pending case filed by refused, the proposed or pending case filed by
such person will be dismissed by the court. If such person will be dismissed by the court. If
the vexatious litigant files any such case before the vexatious litigant files any such case before
a court without obtaining leave as required by a court without obtaining leave as required by
the Act, the case will be dismissed and costs will the Act, the case will be dismissed and costs will
have to be awarded by the court in which such have to be awarded by the court in which such
proceedings are filed. In addition, the High Court proceedings are filed. In addition, the High Court
which imposed the condition of leave, if it thinks which imposed the condition of leave, if it thinks
fit, may punish the vexatious litigant for contempt fit, may punish the vexatious litigant for contempt
of the High Court. However, the provisions of the High Court. However, the provisions
of the proposed Act will not be applicable to of the proposed Act will not be applicable to
proceedings taken by the vexatious litigant in proceedings taken by the vexatious litigant in
defending himself against proceedings filed by defending himself against proceedings filed by
other parties. Similarly, proceedings under Article other parties. Similarly, proceedings under Article
226 of the Constitution of India are excluded from 226 of the Constitution of India are excluded from
its purview. The bar against vexatious litigant for its purview. The bar against vexatious litigant for
taking out criminal proceedings is restricted to taking out criminal proceedings is restricted to
private complaints that he may propose to lodge private complaints that he may propose to lodge
against others.' against others.'
The Law Commission has recommended the The Law Commission has recommended the
enacting of similar laws to that of the Madras Act, enacting of similar laws to that of the Madras Act,
1949 and State of Maharashtra Act, 1971, so as to 1949 and State of Maharashtra Act, 1971, so as to
59 59
provide legal protection to the law abiding citizens from provide legal protection to the law abiding citizens from
vexatious litigations pursued against them. The vexatious litigations pursued against them. The
erstwhile State of Madras boasts an altogether separate erstwhile State of Madras boasts an altogether separate
enactment referred to as the Madras Vexatious enactment referred to as the Madras Vexatious
Litigation (Prevention) Act, 1949, passed by the Madras Litigation (Prevention) Act, 1949, passed by the Madras
Provincial Legislature, conferring powers and Provincial Legislature, conferring powers and
jurisdiction upon the High Court to deal with the jurisdiction upon the High Court to deal with the
habitual litigants indulging in vexatious litigation. habitual litigants indulging in vexatious litigation.
Under this Act, the High Court is competent to issue Under this Act, the High Court is competent to issue
an order against any person that he shall be absolved an order against any person that he shall be absolved
from instituting any proceedings in any courts in the from instituting any proceedings in any courts in the
Presidency-town without the leave of the High Court, Presidency-town without the leave of the High Court,
and elsewhere, without the leave of the District and elsewhere, without the leave of the District
and Sessions judge. and Sessions judge.
The constitutional validity of this Act was upheld The constitutional validity of this Act was upheld
by the Supreme Court in Prabhakar Rao N. Malwe vs by the Supreme Court in Prabhakar Rao N. Malwe vs
State of Andhra Pradesh1. Similarly, in the erstwhile State of Andhra Pradesh1. Similarly, in the erstwhile
State of Maharashtra, there subsists The Maharashtra State of Maharashtra, there subsists The Maharashtra
Vexatious Litigation (Prevention) Act, 1971 that had Vexatious Litigation (Prevention) Act, 1971 that had
been in force to curb the menace of habitual and been in force to curb the menace of habitual and
unscrupulous litigating ventures by veteran court unscrupulous litigating ventures by veteran court
birds. Both the Acts are suitable adaptations of birds. Both the Acts are suitable adaptations of
the provisions of the statute of England enacted in the provisions of the statute of England enacted in
1896, provisions of which have been applied quite 1896, provisions of which have been applied quite
redundantly in free India. redundantly in free India.
The Supreme Court has projected the perils of The Supreme Court has projected the perils of
overburdened courts, arrears of cases and the trivial overburdened courts, arrears of cases and the trivial
matters lingering for decades for adjudication by matters lingering for decades for adjudication by
the Apex Courts. In those cases, cost of litigation the Apex Courts. In those cases, cost of litigation
1
AIR 1965 SC 1827 :1965 SCR (3) 743 1
AIR 1965 SC 1827 :1965 SCR (3) 743
60 60
augments and even gets higher than the claim of the augments and even gets higher than the claim of the
parties. The Buffalo case2 is a classic instance for parties. The Buffalo case2 is a classic instance for
this kind of ‘Litigative Addiction' by government and this kind of ‘Litigative Addiction' by government and
quasi governmental institutions. The facts of the quasi governmental institutions. The facts of the
case go as such: A poor woman had availed a loan case go as such: A poor woman had availed a loan
of Rupees fifteen thousand and purchased a buffalo of Rupees fifteen thousand and purchased a buffalo
with hopes that the milk vending would help her with hopes that the milk vending would help her
sustain a livelihood. Unfortunately, within a short sustain a livelihood. Unfortunately, within a short
span of ten months the buffalo met its demise. It span of ten months the buffalo met its demise. It
was insured with the New India Insurance Company was insured with the New India Insurance Company
Ltd, for fifteen thousand rupees, for a period of four Ltd, for fifteen thousand rupees, for a period of four
years. The postmortem (a readymade ritual to claim years. The postmortem (a readymade ritual to claim
insured amount on death) was conducted by a qualified insured amount on death) was conducted by a qualified
veterinary surgeon and thereafter immediately, she veterinary surgeon and thereafter immediately, she
lodged a claim for insurance money through the lodged a claim for insurance money through the
gramin bank to the insurance company. gramin bank to the insurance company.
Both institutions failed in their duties and statutory Both institutions failed in their duties and statutory
obligation and the destitute was dragged to face obligation and the destitute was dragged to face
litigation in order to claim the insured amount on litigation in order to claim the insured amount on
the dead buffalo. She filed a complaint before the the dead buffalo. She filed a complaint before the
District Consumer Redressal Forum, which was District Consumer Redressal Forum, which was
allowed with cost in 2007. The bank, dissatisfied allowed with cost in 2007. The bank, dissatisfied
with the award passed in favor of the said woman, with the award passed in favor of the said woman,
preferred an appeal to the State Consumer Redressal preferred an appeal to the State Consumer Redressal
Commission, Haryana, which dismissed the appeal. Commission, Haryana, which dismissed the appeal.
The legal battle was continued by the bank which The legal battle was continued by the bank which
took the matter to the National Consumer Disputes took the matter to the National Consumer Disputes
Redressal Commission. Once again, the claim of the Redressal Commission. Once again, the claim of the
woman was upheld by the national level forum. In woman was upheld by the national level forum. In
2
Gurgaon Gramin Bank vs Smt.Khazani and Another (AIR 2012 SC 2881: (2012) 8 2
Gurgaon Gramin Bank vs Smt.Khazani and Another (AIR 2012 SC 2881: (2012) 8
SCC 781) SCC 781)
61 61
the end, the frivolous pleas and vexatious defenses the end, the frivolous pleas and vexatious defenses
of the bank was consecutively declined by three of the bank was consecutively declined by three
forums of Consumer Law. Even after knitting ends in forums of Consumer Law. Even after knitting ends in
all three rounds of legal battle, the bank continued all three rounds of legal battle, the bank continued
with its deleterious tendency of launching irresponsible with its deleterious tendency of launching irresponsible
litigation, which brought the poor woman to the litigation, which brought the poor woman to the
Apex Court by way of a Special Leave Petition (SLP). Apex Court by way of a Special Leave Petition (SLP).
The Supreme Court in its decision has observed The Supreme Court in its decision has observed
that it is the ‘ill-luck ' of the ‘dissatisfied bank' that that it is the ‘ill-luck ' of the ‘dissatisfied bank' that
spent a huge amount towards cost of litigation in spent a huge amount towards cost of litigation in
this trivial dispute apropos death of a buffalo, stake this trivial dispute apropos death of a buffalo, stake
of which is only Rupees fifteen thousand. To quote of which is only Rupees fifteen thousand. To quote
the Supreme Court: the Supreme Court:
“Number of litigations in our country is on the “Number of litigations in our country is on the
rise, for small and trivial matters; people and rise, for small and trivial matters; people and
sometimes Central and State Governments and sometimes Central and State Governments and
their instrumentalities, Banks, nationalized or their instrumentalities, Banks, nationalized or
private, come to courts may be due to ego clash private, come to courts may be due to ego clash
or to save the officer's skin. Judicial system is or to save the officer's skin. Judicial system is
over-burdened, which naturally causes delay over-burdened, which naturally causes delay
in adjudication of disputes. Mediation centers, in adjudication of disputes. Mediation centers,
opened in various parts of our country, have to opened in various parts of our country, have to
some extent eacase the burden of the courts but we some extent eacase the burden of the courts but we
are still in the tunnel and the light is far away. On are still in the tunnel and the light is far away. On
more than one occasion, this court has reminded more than one occasion, this court has reminded
the Central government, State governments the Central government, State governments
and other instrumentalities as well as the and other instrumentalities as well as the
various banking institutions to take earnest various banking institutions to take earnest
efforts to resolve the disputes at their end. At efforts to resolve the disputes at their end. At
times, some give-and-take attitudes should be times, some give-and-take attitudes should be
adopted or both shall resolve to sink. Unless adopted or both shall resolve to sink. Unless
62 62
serious questions of law of general importance serious questions of law of general importance
arise for consideration or a question which affects arise for consideration or a question which affects
large number of persons or the stakes are very large number of persons or the stakes are very
high, court's jurisdiction cannot be invoked for high, court's jurisdiction cannot be invoked for
resolution of small and trivial matters. We are resolution of small and trivial matters. We are
really disturbed by the manner in which those really disturbed by the manner in which those
types of matters are being brought to courts even types of matters are being brought to courts even
at the level of Supreme Court of India and this at the level of Supreme Court of India and this
case falls in that category. Jurisdiction of this case falls in that category. Jurisdiction of this
(Supreme Court) court is invoked by a Gramin (Supreme Court) court is invoked by a Gramin
bank on an issue on which no question of law bank on an issue on which no question of law
arises for consideration . arises for consideration .
Ultimately, the Apex Court dismissed the SLP by Ultimately, the Apex Court dismissed the SLP by
the bank and condemned the lavish spent of public the bank and condemned the lavish spent of public
money of Rs 25,950 by opting for multi-forum money of Rs 25,950 by opting for multi-forum
litigation in case of a petty claim of Rs 15,000, apart litigation in case of a petty claim of Rs 15,000, apart
from to and fro expenses of the bank officials. The from to and fro expenses of the bank officials. The
Supreme Court concluded the judgment with a Supreme Court concluded the judgment with a
prayer to God: ‘Let God save the gramins.' Such is prayer to God: ‘Let God save the gramins.' Such is
the level of pain and agony expressed in euphemistic the level of pain and agony expressed in euphemistic
language by the committed judiciary against frivolous language by the committed judiciary against frivolous
cases on flimsy grounds and trivial claims. cases on flimsy grounds and trivial claims.
Justice Krishna Iyer, being against ‘Procedural Justice Krishna Iyer, being against ‘Procedural
Prolixity’, has not only advocated for free and fair Prolixity’, has not only advocated for free and fair
trail, but also for expeditious dispensation of justice. trail, but also for expeditious dispensation of justice.
Sharing disparity with the provisions in the Code pro- Sharing disparity with the provisions in the Code pro-
viding multi-tier adjudicating process of cases from viding multi-tier adjudicating process of cases from
Trial Court to appellate forum, revision, review and Trial Court to appellate forum, revision, review and
other prolonging phenomena, Justice Iyer, in a letter other prolonging phenomena, Justice Iyer, in a letter
to the Prime Minister of India, appealed to repeal to the Prime Minister of India, appealed to repeal
63 63
those provisions mechanically applied by litigants those provisions mechanically applied by litigants
to cause deliberate delay of delivering justice to cause deliberate delay of delivering justice
to deserving parties. The letter read as follows: to deserving parties. The letter read as follows:
‘Our CPC and CrPC are a horrendous heritage ‘Our CPC and CrPC are a horrendous heritage
from the victorian vintage and deserve to be from the victorian vintage and deserve to be
subjected to cardiac and cerebral surgeries. subjected to cardiac and cerebral surgeries.
We suffer these days from malignant tumours, We suffer these days from malignant tumours,
which are mortal to justice unless treated early which are mortal to justice unless treated early
by drastic remedies. So, I came to the conclusion by drastic remedies. So, I came to the conclusion
with all my experience in the trial court, civil with all my experience in the trial court, civil
and criminal and high court as well as the and criminal and high court as well as the
Supreme Court that we have to resort to some novel Supreme Court that we have to resort to some novel
trategies if this disastrous pathology of long delays trategies if this disastrous pathology of long delays
of even the smallest litigation is to be eliminated. of even the smallest litigation is to be eliminated.
Learned jurists and judges have come out with Learned jurists and judges have come out with
lots of punditry to make proposals which lengthen lots of punditry to make proposals which lengthen
or aggravate the longevity of litigation. We have or aggravate the longevity of litigation. We have
revisions, reviews and other procedural prolixity revisions, reviews and other procedural prolixity
which makes justice immortal and beyond the which makes justice immortal and beyond the
means of the poor. We talk and talk of platitudes means of the poor. We talk and talk of platitudes
without the end in view. The little man of India without the end in view. The little man of India
with his little purse seeks justice not from the with his little purse seeks justice not from the
Everest Courts but from the lowest courts, as Everest Courts but from the lowest courts, as
has been pointed out earlier but never taken up has been pointed out earlier but never taken up
seriously. We must tackle the reform of the trial seriously. We must tackle the reform of the trial
courts and the first appellate court. Even the courts and the first appellate court. Even the
Constitution of India, with Article 227 and 136 Constitution of India, with Article 227 and 136
may have to be modified, if what matters is early may have to be modified, if what matters is early
and easy justice, not perfect tier upon tier, and and easy justice, not perfect tier upon tier, and
64 64
deck upon deck scale of justice. All these can deck upon deck scale of justice. All these can
be handled with simple recipes which involve be handled with simple recipes which involve
unconventional methodologies, provided we unconventional methodologies, provided we
are brave reformers. We had won freedom are brave reformers. We had won freedom
from the British but we are still under from the British but we are still under
procedural imprisonment and lazy lethargy procedural imprisonment and lazy lethargy
of Victorian jurisprudence3.” of Victorian jurisprudence3.”
It has been assessed that there are about ten to It has been assessed that there are about ten to
fifteen percent of civil cases pending in the subor- fifteen percent of civil cases pending in the subor-
dinate courts which bask in the nature of frivolous dinate courts which bask in the nature of frivolous
and vexatious claims. They have been filed without and vexatious claims. They have been filed without
any valid and sustainable cause of action and the any valid and sustainable cause of action and the
veteran, venomous litigant who pours such suits veteran, venomous litigant who pours such suits
seems aware of the hyper technicalities to apply seems aware of the hyper technicalities to apply
and harass the other side. When such a determined and harass the other side. When such a determined
engineer of fake litigation, with an audacious engineer of fake litigation, with an audacious
application approached the Supreme Court, Justice application approached the Supreme Court, Justice
Krishna Iyer dealt him with iron hands of law, in the Krishna Iyer dealt him with iron hands of law, in the
landmark case of T. Arivanandam vs T. V. Satyapal4, landmark case of T. Arivanandam vs T. V. Satyapal4,
a pioneer decision on frivolous and vexatious suits. a pioneer decision on frivolous and vexatious suits.
It was a decision in which, a tenant, against whom It was a decision in which, a tenant, against whom
the order of eviction was passed in the rent control the order of eviction was passed in the rent control
proceedings, was confirmed and upheld by the proceedings, was confirmed and upheld by the
High Court. The tenant reserved frames of repeated High Court. The tenant reserved frames of repeated
intervals from time to time in order to vacate the intervals from time to time in order to vacate the
premises, but his son initiated a new round of civil premises, but his son initiated a new round of civil
litigation by filing a suit for declaration, that the litigation by filing a suit for declaration, that the
order of eviction against his father was obtained order of eviction against his father was obtained
3
Justice V R Krishna Iyer, Letters & Lectures of an anguished soul, SOCO Trust, 3
Justice V R Krishna Iyer, Letters & Lectures of an anguished soul, SOCO Trust,
Madurai, 2013, page 46 Madurai, 2013, page 46
4
AIR 1977 SC 2421; (1977) 4 SCC 467 4
AIR 1977 SC 2421; (1977) 4 SCC 467
65 65
by fraud and collusion; leading to consequential by fraud and collusion; leading to consequential
injunction against the landlord from evicting him injunction against the landlord from evicting him
(except by due process of law) and from preventing (except by due process of law) and from preventing
the execution of the order of eviction. When the the execution of the order of eviction. When the
second round of suit came up before the Supreme second round of suit came up before the Supreme
Court, it bore suggestions to that of Chapter XI Court, it bore suggestions to that of Chapter XI
of The Indian Penal Code, stating that it must be of The Indian Penal Code, stating that it must be
triggered against the vexatious litigant and the triggered against the vexatious litigant and the
irresponsible lawsuit has to be disposed of forthwith irresponsible lawsuit has to be disposed of forthwith
on imposing compensatory costs, by invoking Section on imposing compensatory costs, by invoking Section
35 (A) of Code of Civil Procedure. Justice Krishna 35 (A) of Code of Civil Procedure. Justice Krishna
Iyer, speaking on behalf of the Bench: Iyer, speaking on behalf of the Bench:
“From the statement of the facts found in the “From the statement of the facts found in the
judgment of the High Court, it is perfectly plain judgment of the High Court, it is perfectly plain
that the suit now pending before the First Munsif‘s that the suit now pending before the First Munsif‘s
Court, Bangalore, is a flagrant misuse of the mercies Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful- not formal must remember that if on a meaningful- not formal
- reading of the plaint it is manifestly vexatious - reading of the plaint it is manifestly vexatious
and meritless, in the sense of not disclosing a and meritless, in the sense of not disclosing a
clear right to sue, he should exercise his power clear right to sue, he should exercise his power
under Order V11 Rule 11, C.P.C., taking care to under Order V11 Rule 11, C.P.C., taking care to
see that the ground mentioned therein is fulfilled. see that the ground mentioned therein is fulfilled.
And, if clear drafting has created the illusion of And, if clear drafting has created the illusion of
a cause of action, nip it in the bud at the first a cause of action, nip it in the bud at the first
hearing by examining the party searchingly under hearing by examining the party searchingly under
Order X, C.P.C. An active judge is the answer to Order X, C.P.C. An active judge is the answer to
irresponsible law suits. The Trial Courts would irresponsible law suits. The Trial Courts would
insist imperatively on examining the party at the insist imperatively on examining the party at the
first hearing so that bogus litigation can be shot first hearing so that bogus litigation can be shot
66 66
down at the earliest stage. The Penal Code is also down at the earliest stage. The Penal Code is also
resourceful enough to meet such men, and must resourceful enough to meet such men, and must
be triggered against them." be triggered against them."
Justice Iyer was of the belief that if terms of a Justice Iyer was of the belief that if terms of a
plaint were oblivious to a clear right to sue and bore plaint were oblivious to a clear right to sue and bore
no survival value, it ought to be shot down at the no survival value, it ought to be shot down at the
earliest stage. This trend setting judgment has been earliest stage. This trend setting judgment has been
the upholder as a legal literature guide to the Bench the upholder as a legal literature guide to the Bench
and Bar to identify the frivolous and vexatious and Bar to identify the frivolous and vexatious
cases and to curb them. It suggested, inter alia, the cases and to curb them. It suggested, inter alia, the
rejection of plaint under Order VII Rule XI, CPC, and rejection of plaint under Order VII Rule XI, CPC, and
examination of parties for ascertainment whether examination of parties for ascertainment whether
allegations in pleadings are admitted or denied under allegations in pleadings are admitted or denied under
Order X CPC, to direct them to opt for any mode Order X CPC, to direct them to opt for any mode
for alternative dispute resolution etc., to charge for alternative dispute resolution etc., to charge
the vexatious litigant under the penal provisions the vexatious litigant under the penal provisions
in chapter XI IPC and to impose compensatory cost in chapter XI IPC and to impose compensatory cost
under Section 35 (A), CPC. under Section 35 (A), CPC.
Above all, it reminds an advocate of his duty as Above all, it reminds an advocate of his duty as
an officer of justice, to refuse the brief of dubious an officer of justice, to refuse the brief of dubious
client and assist the court for early disposal of client and assist the court for early disposal of
worthwhile disputes. Granting ex parte orders to worthwhile disputes. Granting ex parte orders to
unrighteous litigants would tempt gamblers in unrighteous litigants would tempt gamblers in
litigation into easy court, thus, forming the caveat litigation into easy court, thus, forming the caveat
of the claim lodged by Justice Krishna Iyer. The of the claim lodged by Justice Krishna Iyer. The
obligation to be activated by the Bar is asserted in obligation to be activated by the Bar is asserted in
his own worthy words: his own worthy words:
“It may be a valuable contribution to the cause “It may be a valuable contribution to the cause
of justice if counsels screen wholly fraudulent and of justice if counsels screen wholly fraudulent and
frivolous litigation refusing to be beguiled by dubious frivolous litigation refusing to be beguiled by dubious
67 67
clients. And remembering that an advocate is clients. And remembering that an advocate is
an officer of justice, he owes it to society not to an officer of justice, he owes it to society not to
collaborate in shady actions. The Bar Council collaborate in shady actions. The Bar Council
of India, we hope, will activate this obligation. of India, we hope, will activate this obligation.
We are constrained to make these observations We are constrained to make these observations
and hope that the co-operation of the Bar will be and hope that the co-operation of the Bar will be
readily forthcoming to the Bench for spending readily forthcoming to the Bench for spending
judicial time on worthwhile disputes and avoiding judicial time on worthwhile disputes and avoiding
the distraction of sham litigation such as the the distraction of sham litigation such as the
one we are disposing of. Another moral of this one we are disposing of. Another moral of this
unrighteous chain litigation is the gullible grant unrighteous chain litigation is the gullible grant
of ex parte orders tempts gamblers in litigation of ex parte orders tempts gamblers in litigation
into easy courts. A judge who succumbs to ex into easy courts. A judge who succumbs to ex
parte pressure in unmerited cases help devalue parte pressure in unmerited cases help devalue
the judicial process to a great extent." the judicial process to a great extent."
The SLP in Arivanandam case was decided on The SLP in Arivanandam case was decided on
October 14, 1977 by the Supreme Court, shortly October 14, 1977 by the Supreme Court, shortly
after the amendment in the CPC and insertion of after the amendment in the CPC and insertion of
Order VII Rule XI by Act 104 0f 1976 with effect from Order VII Rule XI by Act 104 0f 1976 with effect from
February 1, 1977. Probably, it is the first decision of February 1, 1977. Probably, it is the first decision of
the Apex Court on rejection of plaint on the ground the Apex Court on rejection of plaint on the ground
of creating illusion of cause of action, meritless, vex- of creating illusion of cause of action, meritless, vex-
atious and in the sense of not disclosing a clear right atious and in the sense of not disclosing a clear right
to sue. The proposition laid down in this case for the to sue. The proposition laid down in this case for the
first time has now evolved and the courts are often first time has now evolved and the courts are often
identifying the meritless re-litigations and mani- identifying the meritless re-litigations and mani-
festly vexatious suits in the light of the decision in festly vexatious suits in the light of the decision in
Arivanandam case. After the pronouncement in the Arivanandam case. After the pronouncement in the
above case, invoking Order VII Rule XI has become above case, invoking Order VII Rule XI has become
an independent right of defendant in a suit, in an independent right of defendant in a suit, in
68 68
addition to the filing of written statement and addition to the filing of written statement and
defending it in raising multi-inconsistent pleas, defending it in raising multi-inconsistent pleas,
available under law. While dealing with the meritless available under law. While dealing with the meritless
and unworthy cases, Justice Krishna Iyer has and unworthy cases, Justice Krishna Iyer has
coined yet another phrase ‘Litigative Bankruptcy.' coined yet another phrase ‘Litigative Bankruptcy.'
In his view, the country is mauled and ruined by In his view, the country is mauled and ruined by
wasteful litigation. The orthodox jurisprudence may wasteful litigation. The orthodox jurisprudence may
be good for the middle ages and feudalism, but the be good for the middle ages and feudalism, but the
present situation is different from those colonial present situation is different from those colonial
years and a systematic change in the Victorian years and a systematic change in the Victorian
jurisprudence would pave a way for a small man to jurisprudence would pave a way for a small man to
really access the justice. really access the justice.
It is said that longevity of litigation is higher than It is said that longevity of litigation is higher than
the longevity of life of a litigant. To cure and curb the longevity of life of a litigant. To cure and curb
the menace of enormous delay in disposal of cases, the menace of enormous delay in disposal of cases,
increasing the number of Judges or the Courts will increasing the number of Judges or the Courts will
not be the sole solution, rather the introduction of not be the sole solution, rather the introduction of
substantial changes in the procedural laws, updating substantial changes in the procedural laws, updating
the existing laws to cater the needs of developments the existing laws to cater the needs of developments
taken place in technology, science and society and taken place in technology, science and society and
repealing of obsolete laws are the need of the hour. repealing of obsolete laws are the need of the hour.
Therefore, Justice Krishna Iyer in his letter to the Therefore, Justice Krishna Iyer in his letter to the
prime minister has made a call for ‘Liberate India prime minister has made a call for ‘Liberate India
from Victorian Jurisprudence.' While speaking for from Victorian Jurisprudence.' While speaking for
the Bench in Ratlam municipality case (AIR 1980 the Bench in Ratlam municipality case (AIR 1980
SC 1622 : 1980 4 SCC 162) he has condemned the SC 1622 : 1980 4 SCC 162) he has condemned the
blinkered rules of British Indian Vintage that causes blinkered rules of British Indian Vintage that causes
hurdles in the name of locus standi. The law of a hurdles in the name of locus standi. The law of a
nation ought to reflect the heritage and culture of nation ought to reflect the heritage and culture of
the soil and response to the social, political and the soil and response to the social, political and
69 69
economic needs and developments, backed up by economic needs and developments, backed up by
the vision of the Constitution of India through its the vision of the Constitution of India through its
preamble: ‘JUSTICE, social, economic and political.' preamble: ‘JUSTICE, social, economic and political.'
Justice is the ultimate goal for all people and to Justice is the ultimate goal for all people and to
reach the pivotal point, law, as an instrument, reach the pivotal point, law, as an instrument,
should be updated, reflecting vox populi and should be updated, reflecting vox populi and
sentiments of the soil and their sons and daughters. sentiments of the soil and their sons and daughters.
70 70
Snow Hill Arrears - Sun Light Innovation Snow Hill Arrears - Sun Light Innovation
The arrears or backlog of cases and delay in The arrears or backlog of cases and delay in
dispensation cause threat to the existing judicial dispensation cause threat to the existing judicial
system. The remedy suggested by Justice Krishna system. The remedy suggested by Justice Krishna
Iyer states that instead of imitating the western Iyer states that instead of imitating the western
model and create ad-hoc foray or persona designate model and create ad-hoc foray or persona designate
in the name and style of ‘mobile court or small claim in the name and style of ‘mobile court or small claim
courts', innovations need to be undertaken in this courts', innovations need to be undertaken in this
regard. Quoting his lectures on ‘The Court and the regard. Quoting his lectures on ‘The Court and the
Common Man'1: Common Man'1:
‘Mobile courts galore, children's courts, family ‘Mobile courts galore, children's courts, family
courts, traffic court, small claim courts, conciliation courts, traffic court, small claim courts, conciliation
tribunals, shop-floor tribunals, comradely courts tribunals, shop-floor tribunals, comradely courts
and evening courts are among many experiences and evening courts are among many experiences
currently going on in the west and socialist countries. currently going on in the west and socialist countries.
Arrears and delays will melt like snow in the sun Arrears and delays will melt like snow in the sun
if innovations are undertaken.' if innovations are undertaken.'
1
Justice V R Krishna Iyer, ‘The Court and the Common Man , University of Madras, 1
Justice V R Krishna Iyer, ‘The Court and the Common Man , University of Madras,
1983 (Tmt. Indira Gandhi-Endowment Lectures) page75. 1983 (Tmt. Indira Gandhi-Endowment Lectures) page75.
71 71
Conduciveness In Court Conduciveness In Court
The Court is the common men's hope and noble The Court is the common men's hope and noble
forum for the justice seekers to get their grievances forum for the justice seekers to get their grievances
redressed. Ergo, it is conducive to transmit a litigant redressed. Ergo, it is conducive to transmit a litigant
and witness friendly atmosphere for tranquility to and witness friendly atmosphere for tranquility to
prevail during orderly conduct of court proceedings, prevail during orderly conduct of court proceedings,
which in turn, would instill the confidence of the which in turn, would instill the confidence of the
parties and their counsel. The courts and their parties and their counsel. The courts and their
judicial works are not be disturbed by any of the judicial works are not be disturbed by any of the
external disturbing factors. While dismissing the external disturbing factors. While dismissing the
petition for transfer of venue of trial of a defamation petition for transfer of venue of trial of a defamation
case against Smt Maneka Gandhi1, filed by Smt case against Smt Maneka Gandhi1, filed by Smt
Rani Jethmalani, daughter of Sri Ram Jethmalani, Rani Jethmalani, daughter of Sri Ram Jethmalani,
a reputed senior advocate, Justice Iyer reserved a reputed senior advocate, Justice Iyer reserved
his observation and direction to ensure fair trial as his observation and direction to ensure fair trial as
a caveat to the courts. Protecting the parties and a caveat to the courts. Protecting the parties and
ensuring fair trial are the two extremely important ensuring fair trial are the two extremely important
tasks of the court. He said: tasks of the court. He said:
‘Mob action may throw out of gear the wheels ‘Mob action may throw out of gear the wheels
of the judicial process, engineered fury may of the judicial process, engineered fury may
paralyze parties ability to present his case or paralyze parties ability to present his case or
participate in the trial, if the justice system grinds participate in the trial, if the justice system grinds
to a halt through physical maneuvers or sound to a halt through physical maneuvers or sound
and fury of the senseless populace the rule of law and fury of the senseless populace the rule of law
runs aground.' runs aground.'
Precautionary measures ought to be undertaken Precautionary measures ought to be undertaken
by the Court for proper and prompt proceedings, by the Court for proper and prompt proceedings,
because Justice Krishna Iyer has (often) interpreted because Justice Krishna Iyer has (often) interpreted
1
AIR 1979 SC 468 : 1979 4 SCC 167 1
AIR 1979 SC 468 : 1979 4 SCC 167
72 72
and insisted upon one of the principles of natural and insisted upon one of the principles of natural
justice, that is, ‘audi altrem patrem' in his own justice, that is, ‘audi altrem patrem' in his own
words as follows: words as follows:
‘Even the most hated anathema has a right ‘Even the most hated anathema has a right
to be heard without the rage of ruffians or huff or to be heard without the rage of ruffians or huff or
toughs being turned against him to unnerve him as toughs being turned against him to unnerve him as
a party or witness or advocate. Physical violence a party or witness or advocate. Physical violence
to a party, actual or imminent, is reprehensible to a party, actual or imminent, is reprehensible
when seeks justice before a tribunal.' when seeks justice before a tribunal.'
3 3
OF LIFE AND ITS OF LIFE AND ITS

TRANSCENDENCE WHY NOT TRANSCENDENCE WHY NOT
THE VOYAGE? THE VOYAGE?
The Nascence of Human Rights The Nascence of Human Rights

Travel - A core Liberty Travel - A core Liberty
OF LIFE AND ITS OF LIFE AND ITS
TRANSCENDENCE - WHY NOT TRANSCENDENCE - WHY NOT
THE VOYAGE THE VOYAGE
"Perceived from an alternate angle,

travel abroad is a cultural enrichment, "Perceived from an alternate angle,
travel abroad is a cultural enrichment,
which enables one's understanding which enables one's understanding
of one's own country in better light. Thus, it of one's own country in better light. Thus, it
serves to national interest to have its citizenry serves to national interest to have its citizenry
see other countries and judge one's country on a see other countries and judge one's country on a
comparative scale”. comparative scale”.
This is an observation on travel abroad and This is an observation on travel abroad and
its purpose made by Justice V.R. Krishna Iyer in its purpose made by Justice V.R. Krishna Iyer in
Maneka Gandhi case. Maneka Gandhi case.
Smt. Maneka Gandhi, an activist and politician, Smt. Maneka Gandhi, an activist and politician,
upon receipt of a letter dated July 2, 1977 was upon receipt of a letter dated July 2, 1977 was
apprised by the Regional Passport office, New Delhi apprised by the Regional Passport office, New Delhi
that the government has decided to impound her that the government has decided to impound her
passport No. K-869668 under section 10 (3)(C) of passport No. K-869668 under section 10 (3)(C) of
the Passport Act,1967 and that, she was required the Passport Act,1967 and that, she was required
to surrender the same within seven days from the to surrender the same within seven days from the
receipt of the letter. Consequently, she filed a writ receipt of the letter. Consequently, she filed a writ
petition under Article 32 of Constitution before the petition under Article 32 of Constitution before the
Supreme Court. A Bench consisting of seven judges Supreme Court. A Bench consisting of seven judges
heard and delivered a unanimous decision on heard and delivered a unanimous decision on
January 25, 197823. Justice Krishna Iyer, in January 25, 197823. Justice Krishna Iyer, in
75 75
his own style wrote a concurring but separate his own style wrote a concurring but separate
judgment, ‘colorfully, yet respectfully’, endorsing the judgment, ‘colorfully, yet respectfully’, endorsing the
judgment of Justice P.N. Bhagwati: judgment of Justice P.N. Bhagwati:
“Remember, even democracies have “Remember, even democracies have
experienced executive lawlessness and eclipse of experienced executive lawlessness and eclipse of
liberty on the one hand and ‘subversive use of liberty on the one hand and ‘subversive use of
freedoms by tycoons and saboteurs on the other, freedoms by tycoons and saboteurs on the other,
and then the summons to judges comes from the and then the summons to judges comes from the
Constitution, overriding the necessary deference Constitution, overriding the necessary deference
to government and seeking in perspective, and to government and seeking in perspective, and
overseeing in effective operation the enjoyment of overseeing in effective operation the enjoyment of
the ‘great rights’ . This court lays down the law the ‘great rights’ . This court lays down the law
not pro tempore but lastingly.” not pro tempore but lastingly.”
With the above caveat Justice Krishna Iyer has With the above caveat Justice Krishna Iyer has
clarified in his judgment that the Supreme Court had clarified in his judgment that the Supreme Court had
occasions to declare illegal the exceeds of executives, occasions to declare illegal the exceeds of executives,
arbitrary acts of authorities and bureaucrats but arbitrary acts of authorities and bureaucrats but
for the first time, a statue was brought to legal-acid for the first time, a statue was brought to legal-acid
test in the Maneka Gandhi case. test in the Maneka Gandhi case.
“To our front is a legislation regulating travel “To our front is a legislation regulating travel
abroad. Is it void in part or over-wide in terms? abroad. Is it void in part or over-wide in terms?
Make a note that ‘lawful illegality' becomes the Make a note that ‘lawful illegality' becomes the
rule, if ‘lawless legislation' be not removed. In our rule, if ‘lawless legislation' be not removed. In our
jural order, if a stature is void, must the constitution jural order, if a stature is void, must the constitution
and its sentinels sit by silently, or should the lines or and its sentinels sit by silently, or should the lines or
legality be declared with clarity so that adherence legality be declared with clarity so that adherence
to valid norms become easy and precise? What to valid norms become easy and precise? What
characterizes the existence and eclipse of the characterizes the existence and eclipse of the
right of exit? Breathless there the man with soul right of exit? Breathless there the man with soul
so dead who if he leaves, will not return to his so dead who if he leaves, will not return to his
76 76
own native land? The question presented so own native land? The question presented so
simplistically may still have overtones of security, simplistically may still have overtones of security,
sensitivity, sovereign complexity and other internal sensitivity, sovereign complexity and other internal
and external factors, and that is why the and external factors, and that is why the
case, which we are deciding, has spread case, which we are deciding, has spread
the canvas wide. I must express a pensive the canvas wide. I must express a pensive
reflection, sparked off by submissions at reflection, sparked off by submissions at
the Bar, that regardless of the ‘civil liberty' the Bar, that regardless of the ‘civil liberty'
credentials or otherwise of a particular credentials or otherwise of a particular
government and mindless of the finer phraseolog government and mindless of the finer phraseolog
y of a restrictive legislation, eternal vigilance y of a restrictive legislation, eternal vigilance
by the superior judiciary and the enlightened by the superior judiciary and the enlightened
activists who are the catalysts of the community, activists who are the catalysts of the community,
is the perpetual price of the preservation of every is the perpetual price of the preservation of every
freedom we cherish. For if unchecked, the greater freedom we cherish. For if unchecked, the greater
the power, the more dangerous the abuse it the power, the more dangerous the abuse it
renders. To deny freedom of travel or exit to one renders. To deny freedom of travel or exit to one
untenably is to deny it to any or many likewise, untenably is to deny it to any or many likewise,
and the right to say ‘aye ' or ‘nay' to any potential and the right to say ‘aye ' or ‘nay' to any potential
traveler should, therefore, not rest with the minions traveler should, therefore, not rest with the minions
or masters of government without being gently and or masters of government without being gently and
benignly censored by constitutionally sanctioned benignly censored by constitutionally sanctioned
legislative norms if the reality of liberty is not to be legislative norms if the reality of liberty is not to be
drowned in the hysteria of the hour or the hubris drowned in the hysteria of the hour or the hubris
of power. It is never trite to repeat that ‘where of power. It is never trite to repeat that ‘where
laws end, tyranny begins', and law becomes laws end, tyranny begins', and law becomes
unlawful even if it is not in accordance with unlawful even if it is not in accordance with
constitutional provisions, beyond abridgment by constitutional provisions, beyond abridgment by
the two branches of government. In the context of the two branches of government. In the context of
scary expressions like “security'', “public order'', scary expressions like “security'', “public order'',
77 77
‘'public interest" and ‘'friendly foreign relations", ‘'public interest" and ‘'friendly foreign relations",
we must warn ourselves that not verbal labels we must warn ourselves that not verbal labels
but real values are the governing constitutions in but real values are the governing constitutions in
the exploration and adjudication of constitutional the exploration and adjudication of constitutional
prescriptions and proscriptions. Government may prescriptions and proscriptions. Government may
enter and exit, but the fundamental right of the enter and exit, but the fundamental right of the
people cannot be subject to the wishful value-sets people cannot be subject to the wishful value-sets
of political regimes of the passing day.' of political regimes of the passing day.'
While dealing with the case of impounding of trav- While dealing with the case of impounding of trav-
el documents, he has made a travel into legal docu- el documents, he has made a travel into legal docu-
ments way back in 1215 AD, the magna carta which ments way back in 1215 AD, the magna carta which
affirmed the freedom to move beyond the borders affirmed the freedom to move beyond the borders
of the Kingdom and all other relevant material and of the Kingdom and all other relevant material and
opinions of foreign courts on travel and right. opinions of foreign courts on travel and right.
In a book authored by Zia Mody, which analyzed In a book authored by Zia Mody, which analyzed
and studied the decisions of the Supreme court, and studied the decisions of the Supreme court,
‘Ten Judgments that changed India'1, the decision ‘Ten Judgments that changed India'1, the decision
in Maneka Gandhi occupied second place, after the in Maneka Gandhi occupied second place, after the
Kesavananda Bharathi judgment2. The author has Kesavananda Bharathi judgment2. The author has
opined that in 1976, in the case of ADM Jabalpur vs opined that in 1976, in the case of ADM Jabalpur vs
Shivkant Shukla3, the Supreme Court has unhappily Shivkant Shukla3, the Supreme Court has unhappily
held that a defence could not be filed by a habeas held that a defence could not be filed by a habeas
corpus petition challenged during an emergency. A corpus petition challenged during an emergency. A
large segment of the citizenry lost faith in the judiciary large segment of the citizenry lost faith in the judiciary
and there followed a disillusionment amongst the and there followed a disillusionment amongst the
people who felt betrayed by their elected representa- people who felt betrayed by their elected representa-
tives and abandoned by the highest court of the land. tives and abandoned by the highest court of the land.
1
Zia Mody, ‘10 judgments that changed India' , Shoba De, New Delhi, 2012, page 1
Zia Mody, ‘10 judgments that changed India' , Shoba De, New Delhi, 2012, page
31. 31.
2
AIR 1973 SC 1461 2
AIR 1973 SC 1461
3
AIR 1976 SC 1207 3
AIR 1976 SC 1207
78 78
With the decision in Maneka Gandhi, the Supreme With the decision in Maneka Gandhi, the Supreme
Court attempted to restore the citizen's faith in the Court attempted to restore the citizen's faith in the
judiciary. It went beyond its immediate mandate judiciary. It went beyond its immediate mandate
to make some striking assertions, which went as to make some striking assertions, which went as
to become the bedrock of protection of human to become the bedrock of protection of human
rights of “aam admi” in the year that followed. The rights of “aam admi” in the year that followed. The
case marked the beginning of a golden era of human case marked the beginning of a golden era of human
rights jurisprudence in India in a period where the rights jurisprudence in India in a period where the
Supreme Court transformed itself into an ‘institutional Supreme Court transformed itself into an ‘institutional
ombudsman of human rights’. ombudsman of human rights’.
Justice Krishna Iyer has travelled into the Justice Krishna Iyer has travelled into the
human history and talked with the men of other human history and talked with the men of other
centuries and countries in order to pen down a centuries and countries in order to pen down a
prolific judgment of this stature, involving strong prolific judgment of this stature, involving strong
foundation for rights and liberty which cannot be foundation for rights and liberty which cannot be
disturbed or destroyed by tyranny or tsunami. In disturbed or destroyed by tyranny or tsunami. In
his words: his words:
“I have divagated a great deal into travel “I have divagated a great deal into travel
constitutionality in the setting of story of the constitutionality in the setting of story of the
human journey, even though such diffusion is human journey, even though such diffusion is
partly beyond the strict need in this case. But partly beyond the strict need in this case. But
judicial travelling like other travelling, is almost judicial travelling like other travelling, is almost
like taking with men of centuries and countries”. like taking with men of centuries and countries”.
After the pronouncement on Maneka Gandhi After the pronouncement on Maneka Gandhi
case, Article 21 has been considered as the ‘bounty case, Article 21 has been considered as the ‘bounty
of rights’. Its boundary has been broadened by of rights’. Its boundary has been broadened by
subsequent cases decided by the Supreme Court. subsequent cases decided by the Supreme Court.
The word “life" in Article 21 is not only applicable to The word “life" in Article 21 is not only applicable to
the ‘person' or ‘citizen’ or ‘human existence’ and to the ‘person' or ‘citizen’ or ‘human existence’ and to
the life and security of the species but the Supreme the life and security of the species but the Supreme
79 79
Court further expanded the term life in Article 21 Court further expanded the term life in Article 21
of the constitution in its decision in 2014, where of the constitution in its decision in 2014, where
it held that every species has an inherent right to it held that every species has an inherent right to
live and shall be protected by law, subject to the live and shall be protected by law, subject to the
exception provided but by necessity. An animal exception provided but by necessity. An animal
upholds honour and dignity which cannot be upholds honour and dignity which cannot be
arbitrarily seized and its rights and privacy has to arbitrarily seized and its rights and privacy has to
be respected and protected from unlawful attacks4. be respected and protected from unlawful attacks4.
The decision is Maneka Gandhi case continues to The decision is Maneka Gandhi case continues to
have a real and resounding impact on executive have a real and resounding impact on executive
and legislature, particularly on interpreting Part III and legislature, particularly on interpreting Part III
of the Constitution. of the Constitution.
Animal Welfare Board of India vs Nagaraja (2014) 7 SCC 1 para 72

4
Animal Welfare Board of India vs Nagaraja (2014) 7 SCC 1 para 72
4
80 80
The Nascence Of Human Rights The Nascence Of Human Rights
Justice P.N. Bhagwati, who also sat on the Justice P.N. Bhagwati, who also sat on the
Bench with Justice Krishna Iyer, has hailed the Bench with Justice Krishna Iyer, has hailed the
decision of Maneka Gandhi case as a starting point decision of Maneka Gandhi case as a starting point
of promoting human rights by the Apex Court. In of promoting human rights by the Apex Court. In
his words, his words,
‘There are three basic commitments which the ‘There are three basic commitments which the
Supreme Court has developed in the last few years Supreme Court has developed in the last few years
with a view to promoting human rights; commitment with a view to promoting human rights; commitment
to participative justice, commitment against to participative justice, commitment against
arbitraries and commitment to just standards arbitraries and commitment to just standards
by procedure.' by procedure.'
The genesis of this development was the case of The genesis of this development was the case of
Maneka Gandhi, which came before the Supreme Maneka Gandhi, which came before the Supreme
Court, in 1977. It is acknowledged by jurists in Court, in 1977. It is acknowledged by jurists in
India that the case constitutes a water-shed in the India that the case constitutes a water-shed in the
history of Constitutional law, just as the case of U.K. history of Constitutional law, just as the case of U.K.
Ridge vs Baldwin Marks, which marked a turning Ridge vs Baldwin Marks, which marked a turning
point in the development of administrative law1. point in the development of administrative law1.
Prior to the decision in Maneka Gandhi case, the Prior to the decision in Maneka Gandhi case, the
Supreme Court has delivered numerous judgments Supreme Court has delivered numerous judgments
and protected people from the arbitrary action of and protected people from the arbitrary action of
the executives. It was, for the first time the Apex the executives. It was, for the first time the Apex
Court took a view that Article 21 affords protection Court took a view that Article 21 affords protection
not only against executive action, but also against not only against executive action, but also against
legislation and no law can deprive a person of his legislation and no law can deprive a person of his
personal liberty unless it prescribed a procedure personal liberty unless it prescribed a procedure
1
Dr. Justice P.N.Bhagwati, ‘Death penalty- An affront to Human Rights', SOCO TRUST 1
Dr. Justice P.N.Bhagwati, ‘Death penalty- An affront to Human Rights', SOCO TRUST
(CRDP SALEM) Madurai 204, page 38. (CRDP SALEM) Madurai 204, page 38.
81 81
which is reasonable, fair and just and it would be which is reasonable, fair and just and it would be
for the court to determine whether the procedure for the court to determine whether the procedure
is reasonable, fair and just; if it is not, the court is reasonable, fair and just; if it is not, the court
can strike down the law as invalid. Thus, Article 21 can strike down the law as invalid. Thus, Article 21
assumed a new dimension and the court introduced assumed a new dimension and the court introduced
due process in the Constitutional Law of India by a due process in the Constitutional Law of India by a
process of judicial construction. process of judicial construction.
82 82
Travel - A Core Liberty Travel - A Core Liberty
The decision in Maneka Gandhi has remained The decision in Maneka Gandhi has remained
unique in many aspects. The extra-legal journey unique in many aspects. The extra-legal journey
made by Justice V.R. Krishna Iyer highlighted made by Justice V.R. Krishna Iyer highlighted
many important views on travel abroad. It is a legal many important views on travel abroad. It is a legal
literature and a valuable document that explains literature and a valuable document that explains
the social values of travel. It is Justice Krishna Iyer's the social values of travel. It is Justice Krishna Iyer's
philosophy that “travel is not a casual facility but the philosophy that “travel is not a casual facility but the
core of liberty." The right to travel abroad upheld in core of liberty." The right to travel abroad upheld in
this case puts the Indian Judiciary in the apex at this case puts the Indian Judiciary in the apex at
the global map. The reasoned extra-legal reasons the global map. The reasoned extra-legal reasons
assigned in this decision for ‘right to travel' are assigned in this decision for ‘right to travel' are
reflected when he remarks: reflected when he remarks:
“His right is yet inchoate and only lays the “His right is yet inchoate and only lays the
base. But, what we focus is that the loftiest base. But, what we focus is that the loftiest
towers rise from the ground. And despite towers rise from the ground. And despite
destructive and exploitative trade, racial hatreds destructive and exploitative trade, racial hatreds
and creedal quarrels, colonial subjections and and creedal quarrels, colonial subjections and
authoritarian spells, the world has advanced authoritarian spells, the world has advanced
because of gregarious men adventuring forth, because of gregarious men adventuring forth,
taking with them their thoughts and feelings on taking with them their thoughts and feelings on
a trans-national scale. This human planet is our a trans-national scale. This human planet is our
single home, though geographically variegated, single home, though geographically variegated,
culturally diverse, politically pluralist, in science culturally diverse, politically pluralist, in science
and technology competitive and cooperative, in and technology competitive and cooperative, in
arts and life- styles a lovely mosaic and, above arts and life- styles a lovely mosaic and, above
all, suffused with a cosmic consciousness of unity all, suffused with a cosmic consciousness of unity
and inter-dependence. This Grand Canyon has and inter-dependence. This Grand Canyon has
been the slow product of the perennial process of been the slow product of the perennial process of
83 83
cultural interaction, intellectual cross-fertilization, cultural interaction, intellectual cross-fertilization,
ideological and religious confrontations and meeting ideological and religious confrontations and meeting
and mating of social systems; and the wellspring and mating of social systems; and the wellspring
is the wanderlust of man and his wondrous is the wanderlust of man and his wondrous
spirit moving towards a united human order spirit moving towards a united human order
founded on human rights. Human advance has founded on human rights. Human advance has
been promoted through periods of pre-history and been promoted through periods of pre-history and
history by the flow of fellow men, and the world history by the flow of fellow men, and the world
owes much to exiles and émigrés for liberation, owes much to exiles and émigrés for liberation,
revolution, scientific exploration and excellence revolution, scientific exploration and excellence
in arts. Stop this creative mobility by totalitarian in arts. Stop this creative mobility by totalitarian
decree and whole communities and cultures will decree and whole communities and cultures will
stagnate and international awakening so vital stagnate and international awakening so vital
for the survival of homo sapiens wither away. for the survival of homo sapiens wither away.
To argue for arbitrary inhibition of travel rights To argue for arbitrary inhibition of travel rights
under executive directive or legislative tag is to under executive directive or legislative tag is to
invite and accelerate future shock. This broader invite and accelerate future shock. This broader
setting is necessary if we are to view the larger setting is necessary if we are to view the larger
import of the right to passport in its fundamental import of the right to passport in its fundamental
bearings. It is not law alone but life’s leaven. It bearings. It is not law alone but life’s leaven. It
is not a casual facility but the core of liberty.' is not a casual facility but the core of liberty.'
84 84
4 4
VICTIM'S VOICE VICTIM'S VOICE
No-Fault Liability No-Fault Liability

Prison is Not for Poor Prison is Not for Poor
Victimological Views Victimological Views
85 85
VICTIM'S VOICE VICTIM'S VOICE
R oadway casualties are a major cause

for undue and premature deaths, mortal
R oadway casualties are a major cause
for undue and premature deaths, mortal
mishaps and injuries. According to the mishaps and injuries. According to the
report of World Health Organization (WHO), road report of World Health Organization (WHO), road
accidents constitute the highest cause of deaths accidents constitute the highest cause of deaths
between the age groups of fifteen and nineteen and between the age groups of fifteen and nineteen and
third highest in the age group of thirty to forty two third highest in the age group of thirty to forty two
years. The report of Indian Road Transport Ministry years. The report of Indian Road Transport Ministry
states that a total of 4, 97, 686 road accidents were states that a total of 4, 97, 686 road accidents were
reported in 2011, resulting to 1, 42, 485 deaths, reported in 2011, resulting to 1, 42, 485 deaths,
or so to say, an average of one road accident every or so to say, an average of one road accident every
minute resulting in one death every 3.7 minutes1. minute resulting in one death every 3.7 minutes1.
Casualties are primarily a human tragedy which Casualties are primarily a human tragedy which
causes immense hardship, loss of bread winner, causes immense hardship, loss of bread winner,
consortium, income, pain and mental agony to the consortium, income, pain and mental agony to the
deceased’s kith and kin. The special forums of law deceased’s kith and kin. The special forums of law
constituted under the Motor Vehicles Act are being constituted under the Motor Vehicles Act are being
flooded with claim petitions. It is estimated that an flooded with claim petitions. It is estimated that an
average of 30 percent of litigants in trial courts are average of 30 percent of litigants in trial courts are
claimants for compensation for loss occurred in claimants for compensation for loss occurred in
such road accidents. such road accidents.
Prior to amendments and framing of Rules by Prior to amendments and framing of Rules by
the States under the Motor Vehicle Act, the poor the States under the Motor Vehicle Act, the poor
claimants who lost their limb or kith and kin had claimants who lost their limb or kith and kin had
1
Justice J.R. Midha, Law relating to Motor Accident claims, Universal Law Publishing 1
Justice J.R. Midha, Law relating to Motor Accident claims, Universal Law Publishing
Co., New Delhi (2013) page 1 Co., New Delhi (2013) page 1
86 86
to pay court fees for the amount claimed towards to pay court fees for the amount claimed towards
compensation or to sue as pauper, under the provisions compensation or to sue as pauper, under the provisions
of Order 33 CPC. Justice Krishnan Iyer was the of Order 33 CPC. Justice Krishnan Iyer was the
pioneer in providing provisions for payment of liberal pioneer in providing provisions for payment of liberal
or nominal court fees in the state framed Rules or nominal court fees in the state framed Rules
under the Motor Vehicle Act. One such inference under the Motor Vehicle Act. One such inference
could be drawn from the case where a widow and could be drawn from the case where a widow and
her daughter, while claiming compensation for their her daughter, while claiming compensation for their
deceased bread-earner of the family who succumbed deceased bread-earner of the family who succumbed
to his injuries by an accident through the State to his injuries by an accident through the State
owned transport bus of Haryana Government, owned transport bus of Haryana Government,
sought exemptions from paying court fee and sought exemptions from paying court fee and
application of Order 33 CPC. It was allowed by the application of Order 33 CPC. It was allowed by the
Tribubal, however, the Haryana Government argued Tribubal, however, the Haryana Government argued
that the provisions of Order 33 CPC are not applicable that the provisions of Order 33 CPC are not applicable
to Tribunals, which deal with road accident claims. to Tribunals, which deal with road accident claims.
The Special Leave Petition (SLP) in State of Haryana The Special Leave Petition (SLP) in State of Haryana
Vs Smt. Darshana Devi2 came up before the Bench Vs Smt. Darshana Devi2 came up before the Bench
of Supreme Court, presided over by Justice V.R. of Supreme Court, presided over by Justice V.R.
Krishna Iyer and Justice D. Chinnappa Reddy, both Krishna Iyer and Justice D. Chinnappa Reddy, both
humane judges, who rendered justice to the poor humane judges, who rendered justice to the poor
claimants. On behalf of the Bench Justice Krishna claimants. On behalf of the Bench Justice Krishna
Iyer, spoke thus, Iyer, spoke thus,
“The poor shall not be priced out of the justice “The poor shall not be priced out of the justice
market by insistence on court-fee and refusal to apply market by insistence on court-fee and refusal to apply
the exemptive provisions of Order XXXIII, C.P.C. the exemptive provisions of Order XXXIII, C.P.C.
So we are distressed that the State of Haryana, So we are distressed that the State of Haryana,
mindless of the mandate of equal justice mindless of the mandate of equal justice
to the indigent under the Magna Carta of our to the indigent under the Magna Carta of our
2
AIR 1979 SC page 855; 1979 2 SCC, page 236 2
AIR 1979 SC page 855; 1979 2 SCC, page 236
87 87
Republic, expressed in Article 14 and stressed in Republic, expressed in Article 14 and stressed in
Article 39A of the Constitution, has sought leave Article 39A of the Constitution, has sought leave
to appeal against the order of the High Court of to appeal against the order of the High Court of
which was rightly extended the ‘Pauper provisions which was rightly extended the ‘Pauper provisions
to auto-accident claims. The reasoning of the High to auto-accident claims. The reasoning of the High
Court in holding that Order XXXIII will apply to Court in holding that Order XXXIII will apply to
tribunals which have the trappings of the Civil tribunals which have the trappings of the Civil
Court finds our approval. We affirm the decision. Court finds our approval. We affirm the decision.
Even so it is fair for the State to make clear the Even so it is fair for the State to make clear the
situation by framing appropriate rules to exempt situation by framing appropriate rules to exempt
from levy of court fee cases of claims of compensation from levy of court fee cases of claims of compensation
where automobile accidents are the cause." where automobile accidents are the cause."
This is the voice of Living Legend for dependents This is the voice of Living Legend for dependents
and victims of road accidents. He refused the leave and victims of road accidents. He refused the leave
with a message tag. with a message tag.
‘The second principle the State of Haryana has ‘The second principle the State of Haryana has
unhappily failed to remember is its duty under unhappily failed to remember is its duty under
Article 41 of the Constitution to render public Article 41 of the Constitution to render public
assistance without litigation, in cases of disablement assistance without litigation, in cases of disablement
and hapless want. It is a notorious fact that and hapless want. It is a notorious fact that
our highways are graveyards on a tragic sale, our highways are graveyards on a tragic sale,
what with narrow, neglected roads, reckless, what with narrow, neglected roads, reckless,
unchecked drivers, heavy vehicular traffic and unchecked drivers, heavy vehicular traffic and
State Transport buses often inflicting the maximum State Transport buses often inflicting the maximum
casualties. Now that insurance against third casualties. Now that insurance against third
party risk is compulsory and motor insurance party risk is compulsory and motor insurance
is nationalized and transport itself is largely is nationalized and transport itself is largely
by State undertakings, the principle of no-fault by State undertakings, the principle of no-fault
liability and on-the-spot settlement of claims liability and on-the-spot settlement of claims
should become national policy. should become national policy.
88 88
The victims, as here, are mostly below the The victims, as here, are mostly below the
and litigants bear compounded misery. Hit-and- and litigants bear compounded misery. Hit-and-
run cases are common and the time is ripe for run cases are common and the time is ripe for
the court to examine whether no-fault liability is the court to examine whether no-fault liability is
not implicit in the Motor Vehicle Act itself and for not implicit in the Motor Vehicle Act itself and for
Parliament to make law in this behalf to remove Parliament to make law in this behalf to remove
all doubts. A long ago Report of the Central Law all doubts. A long ago Report of the Central Law
Commission confined to hit-and-run cases of auto Commission confined to hit-and-run cases of auto
-accidents is gathering dust. The horrendous -accidents is gathering dust. The horrendous
increase of highway casualties and the chronic increase of highway casualties and the chronic
neglect of rules of road-safety constrain us to neglect of rules of road-safety constrain us to
recommend to the Central Law Commission and recommend to the Central Law Commission and
to Parliament to sensitize this tragic area of tort to Parliament to sensitize this tragic area of tort
law and overhaul it humanistically. Another law and overhaul it humanistically. Another
aspect must be noticed before we part with this aspect must be noticed before we part with this
petition is that, in many States, for want of judicial petition is that, in many States, for want of judicial
manpower or other pathological cause, the manpower or other pathological cause, the
accident claims pend before tribunals in heartless accident claims pend before tribunals in heartless
slowness. Courts must give this bleeding class of slowness. Courts must give this bleeding class of
cases high priority, adopt simplified procedures cases high priority, adopt simplified procedures
without breach of natural justice, try out pre-trial without breach of natural justice, try out pre-trial
settlements and narrow down the controversy settlements and narrow down the controversy
and remember, that ‘wiping every tear from every and remember, that ‘wiping every tear from every
eye has judicial relevance. For, law must keep its eye has judicial relevance. For, law must keep its
promise to justice. While we dismiss the petition promise to justice. While we dismiss the petition
for leave, we hope the Haryana State will hasten for leave, we hope the Haryana State will hasten
to frame rules under the Motor Vehicles Act to to frame rules under the Motor Vehicles Act to
enable claimants for compensation to be free from enable claimants for compensation to be free from
payment of court-fee.' payment of court-fee.'
89 89
After a chain of directions from the higher courts, After a chain of directions from the higher courts,
the State governments have framed Rules under the State governments have framed Rules under
Motor Vehicle Act. Consequently, the claimants got Motor Vehicle Act. Consequently, the claimants got
a major relief from paying court fees for the amount a major relief from paying court fees for the amount
claimed as compensation at the time of filing the claimed as compensation at the time of filing the
claim petitions. Today, the courts and tribunals are claim petitions. Today, the courts and tribunals are
exercising their discretion in allowing the claimants exercising their discretion in allowing the claimants
to pay the court fees, after the award is passed in to pay the court fees, after the award is passed in
their favour. Above all, suing as a pauper under their favour. Above all, suing as a pauper under
order 33 C.P.C, which consumes considerable time order 33 C.P.C, which consumes considerable time
for pre-claim adjudicatory process are repealed for pre-claim adjudicatory process are repealed
from the procedure Code texts for motor accident from the procedure Code texts for motor accident
victims. The claimants can straight away claim the victims. The claimants can straight away claim the
compensatory reliefs. Thus, the two tier lingering compensatory reliefs. Thus, the two tier lingering
litigatory structure has been reduced in all States. litigatory structure has been reduced in all States.
It is Justice Krishna Iyer's judgment in Darshana It is Justice Krishna Iyer's judgment in Darshana
Devi case that set a new trend and seemed to wipe Devi case that set a new trend and seemed to wipe
out the tears of the inflicted victims. In his words, out the tears of the inflicted victims. In his words,
‘We should expand the jurisprudence of access ‘We should expand the jurisprudence of access
to justice as an integral part of social justice and to justice as an integral part of social justice and
examine the constitutionalism of court-fee levy examine the constitutionalism of court-fee levy
as a facet of human rights highlighted in our as a facet of human rights highlighted in our
Constitution. If the State itself should commit Constitution. If the State itself should commit
travesty of this basic principle, in the teeth of travesty of this basic principle, in the teeth of
Articles 14 and 39A, where an indigent widow is Articles 14 and 39A, where an indigent widow is
involved, a second look at its policy is overdue. involved, a second look at its policy is overdue.
The court must give the benefit of doubt against The court must give the benefit of doubt against
levy of a price to enter the temple of justice. Until levy of a price to enter the temple of justice. Until
one day the whole issue of the validity of profit one day the whole issue of the validity of profit
-making through sale of civil justice, disguised as -making through sale of civil justice, disguised as
90 90
court fee, is fully reviewed by this court. Before court fee, is fully reviewed by this court. Before
parting with this point we must express our poignant parting with this point we must express our poignant
feeling that no state, it seems, has, as yet, framed feeling that no state, it seems, has, as yet, framed
rules to give effect to the benignant provisions rules to give effect to the benignant provisions
of legal aid to the poor in Order XXXIII Rule 9A, of legal aid to the poor in Order XXXIII Rule 9A,
Civil Procedure code, although several years Civil Procedure code, although several years
have passed since the enactment. Parliament have passed since the enactment. Parliament
is stultified and the people are frustrated. Even is stultified and the people are frustrated. Even
after a law has been enacted for the benefit of after a law has been enacted for the benefit of
the poor, the State does not bring into force by the poor, the State does not bring into force by
wilful default in fulfilling the condition sine qua wilful default in fulfilling the condition sine qua
non. It is a public duty of each great branch of non. It is a public duty of each great branch of
Government to obey the rule of law and uphold Government to obey the rule of law and uphold
the tryst with the Constitution by making rules the tryst with the Constitution by making rules
to effectuate legislation meant to help the poor. to effectuate legislation meant to help the poor.
Now, a claimant under Motor Vehicle Act need Now, a claimant under Motor Vehicle Act need
not declare himself as pauper for the purpose of not declare himself as pauper for the purpose of
paying court fee. It is milestone in the victim and paying court fee. It is milestone in the victim and
compensatory jurisprudence.' compensatory jurisprudence.'
91 91
No - Fault Liability No - Fault Liability
After raising voice from the Bench for a poor After raising voice from the Bench for a poor
claimant of an automobile accident, Justice Iyer claimant of an automobile accident, Justice Iyer
has made various suggestions to reduce the rate of has made various suggestions to reduce the rate of
road accidents which have prevailed at an alarming road accidents which have prevailed at an alarming
rate in India. In an article ‘The wheels of justice rate in India. In an article ‘The wheels of justice
to victims of wheeled traffic’1 he has made valid to victims of wheeled traffic’1 he has made valid
suggestions to compensate the victims and fasten suggestions to compensate the victims and fasten
the liability on the manufactures of vehicles and the liability on the manufactures of vehicles and
insurance companies. In his commendable language, insurance companies. In his commendable language,
his suggestions stand not only as legal centric about his suggestions stand not only as legal centric about
fixing quantum of compensation and liability of fixing quantum of compensation and liability of
owner of vehicle, but also creates awareness among owner of vehicle, but also creates awareness among
the drivers, passengers, pedestrians and automobile the drivers, passengers, pedestrians and automobile
owners. As he would say, owners. As he would say,
“We must reform accident liability laws and “We must reform accident liability laws and
impose no fault liability much larger than now. impose no fault liability much larger than now.
The state must intensify traffic regulation through The state must intensify traffic regulation through
voluntary bodies. The Indian Roads Congress voluntary bodies. The Indian Roads Congress
has been demanding stricter and more regular has been demanding stricter and more regular
checking, elimination of mechanical defects checking, elimination of mechanical defects
and the like. Road safety clinics for negligent and the like. Road safety clinics for negligent
drivers, more constructive campaigns among all drivers, more constructive campaigns among all
road-users for better awareness of traffic safety road-users for better awareness of traffic safety
discipline, speed regulators which put a limit on discipline, speed regulators which put a limit on
maximum speed, training of the traffic police to maximum speed, training of the traffic police to
be diligent regarding overloading, over-speeding, be diligent regarding overloading, over-speeding,
proper detection equipment’s, use of tests like proper detection equipment’s, use of tests like
1
Justice V.R.KrishnaIyer, In search of Social Justice, Jagrut Bharat, Dharwad, 1986 page 1
Justice V.R.KrishnaIyer, In search of Social Justice, Jagrut Bharat, Dharwad, 1986 page
69 69
92 92
breath-analyzers to detect intoxication, prevention breath-analyzers to detect intoxication, prevention
of jay-walking and jay-biking and of families of jay-walking and jay-biking and of families
perilously packed on cycles and scooters, perilously packed on cycles and scooters,
intelligence squads to arrest the universal bribery intelligence squads to arrest the universal bribery
in licensing drivers and vehicles, banning air horns in licensing drivers and vehicles, banning air horns
and air pollution- these are peripheral recipes; and air pollution- these are peripheral recipes;
Likewise, annual medical check-ups for drivers Likewise, annual medical check-ups for drivers
(owner-drivers included) driving schools by public (owner-drivers included) driving schools by public
bodies and recognized by the State where bodies and recognized by the State where
delinquent drivers may be sent for refresher delinquent drivers may be sent for refresher
courses, seeking the active cooperation of drivers courses, seeking the active cooperation of drivers
unions in Operation Road Safety, mobile traffic unions in Operation Road Safety, mobile traffic
ways, involvement of automobile associations, ways, involvement of automobile associations,
schools and colleges in making traffic flows schools and colleges in making traffic flows
smooth and alert, official agencies for quickly smooth and alert, official agencies for quickly
liquidating traffic jams-these are democratic liquidating traffic jams-these are democratic
procedures. Why, we must win over the drivers and procedures. Why, we must win over the drivers and
passengers themselves by effective propaganda passengers themselves by effective propaganda
and mobilized public opinion. Wearing helmets by and mobilized public opinion. Wearing helmets by
everyone on a scooter is an anti- suicide device! everyone on a scooter is an anti- suicide device!
Sitting on bus roofs and hanging on to the sides of Sitting on bus roofs and hanging on to the sides of
buses are lawless acrobatics verging on attempts buses are lawless acrobatics verging on attempts
to suicide”. to suicide”.
In addition to the above ideas, an active government In addition to the above ideas, an active government
machinery or body to monitor the process of automobile machinery or body to monitor the process of automobile
manufacturer and a ‘Highway Ombudsman’ with manufacturer and a ‘Highway Ombudsman’ with
plenary powers from nuts and bolts to blood and plenary powers from nuts and bolts to blood and
bones of accident reliefs and punitive counts are bones of accident reliefs and punitive counts are
the worthy, valid and acceptable suggestions from the worthy, valid and acceptable suggestions from
Justice Krishna Iyer to traffic causalities and thwart Justice Krishna Iyer to traffic causalities and thwart
accidents. accidents.
93 93
Prison in Not For Poor Prison in Not For Poor
“Every prison that is mere built, is built with “Every prison that is mere built, is built with
bricks of shame” bricks of shame”
- Oscar Wilde (1854-1900) The Balled of Reading Garl 1898 - Oscar Wilde (1854-1900) The Balled of Reading Garl 1898
Vol. Vol.
India as a subcontinent is bestowed with India as a subcontinent is bestowed with

geographically impressive land with subject of geographically impressive land with subject of
diversities in race, caste, ethnic, religious with diversities in race, caste, ethnic, religious with
major language groups and hundreds of dialects. major language groups and hundreds of dialects.
In addition to that, prevailing drought in one part In addition to that, prevailing drought in one part
and deluge in another part is a disturbing ecological and deluge in another part is a disturbing ecological
diversity, to say the least. Relentless hunger and diversity, to say the least. Relentless hunger and
famine stretching over in one area and water of famine stretching over in one area and water of
grains in its adjacent area is also dramatically an grains in its adjacent area is also dramatically an
opposite phenomena prevailing and perturbing the opposite phenomena prevailing and perturbing the
people. Justice V.R. Krishna Iyer has pleaded for people. Justice V.R. Krishna Iyer has pleaded for
‘economic justice’ and has raised his voice with ‘economic justice’ and has raised his voice with
diction from the Bench of Supreme Court for a poor diction from the Bench of Supreme Court for a poor
and impecunious debtor, saving him from the Civil and impecunious debtor, saving him from the Civil
Prison. The decision in Jolly George Verghese vs The Prison. The decision in Jolly George Verghese vs The
Bank of Cochin1 has raised many curtains. Bank of Cochin1 has raised many curtains.
A judgment debtor, who suffered a decree against A judgment debtor, who suffered a decree against
him passed in favour of the bank, knocked at the him passed in favour of the bank, knocked at the
doors of Supreme Court, when Justice V.R. Krihshna doors of Supreme Court, when Justice V.R. Krihshna
Iyer was then on the Bench. He was retrieved Iyer was then on the Bench. He was retrieved
and rescued from the iron hands of law and was and rescued from the iron hands of law and was
treated with compassion of justice, with in its fair treated with compassion of justice, with in its fair
procedure and frame work. Already there were two procedure and frame work. Already there were two
other money decrees against him. In execution of a other money decrees against him. In execution of a
1
AIR 1980 SC 470 ; 1980 SCR (2) 913 1
AIR 1980 SC 470 ; 1980 SCR (2) 913
94 94
decree granted in favour of the bank, a warrant of decree granted in favour of the bank, a warrant of
arrest and detention in the civil prison was issued arrest and detention in the civil prison was issued
against him under Section 51 and Order 21 Rule against him under Section 51 and Order 21 Rule
37 of Code of Civil Procedure. Besides civil arrest 37 of Code of Civil Procedure. Besides civil arrest
process, the decree holders have had precluded process, the decree holders have had precluded
against the properties of the judgment debtors and against the properties of the judgment debtors and
in consequence, all his immovable properties had in consequence, all his immovable properties had
been attached for the purpose of sale in discharge been attached for the purpose of sale in discharge
of the decree debts. In his judgment, Justice V.R. of the decree debts. In his judgment, Justice V.R.
Krishna Iyer applied Article 11 of the International Krishna Iyer applied Article 11 of the International
Covenant on Civil and Political Rights, which reads, Covenant on Civil and Political Rights, which reads,
‘No one shall be imprisoned merely on ‘No one shall be imprisoned merely on
the ground of inability to fulfill a contractual the ground of inability to fulfill a contractual
obligation.’ He has further held that “The Covenant obligation.’ He has further held that “The Covenant
bans imprisonment merely for not discharging a bans imprisonment merely for not discharging a
decree of debt. Unless there be some other vice decree of debt. Unless there be some other vice
or mens rea apart from failure to foot the decree, or mens rea apart from failure to foot the decree,
international law frowns on holding the debtor’s international law frowns on holding the debtor’s
person in civil prison, as hostage by the court. person in civil prison, as hostage by the court.
India is now a signatory to this Covenant and India is now a signatory to this Covenant and
Art. 51 (c) of the Constitution obligates the State to Art. 51 (c) of the Constitution obligates the State to
“foster respect for international law and treaty ob- “foster respect for international law and treaty ob-
ligations in the dealings of organised peoples with ligations in the dealings of organised peoples with
one another”. Even so, until the municipal law one another”. Even so, until the municipal law
is changed to accommodate the Covenant, what is changed to accommodate the Covenant, what
binds the court is the former, not the latter. A. H. binds the court is the former, not the latter. A. H.
Robertson in “Human Rights-in National and Inter- Robertson in “Human Rights-in National and Inter-
national Law” rightly points out that international national Law” rightly points out that international
conventional law must go through the process conventional law must go through the process
of transformation into the municipal law before of transformation into the municipal law before
95 95
the international treaty can become an internal the international treaty can become an internal
law. From the national point of view the national law. From the national point of view the national
rules alone count. With regard to interpretation, rules alone count. With regard to interpretation,
however, it is a principle generally recognized however, it is a principle generally recognized
in national legal system that, in the event of in national legal system that, in the event of
doubt, the national rule is to be interpreted doubt, the national rule is to be interpreted
in accordance with the State’s international in accordance with the State’s international
obligations. obligations.
It is too obvious to need elaboration that to It is too obvious to need elaboration that to
cast a person in prison because of his poverty cast a person in prison because of his poverty
and consequent inability to meet his contractual and consequent inability to meet his contractual
liability is appalling. To be poor, in this land of liability is appalling. To be poor, in this land of
‘Daridra Narayana', is no crime and to ‘recover’ ‘Daridra Narayana', is no crime and to ‘recover’
debts by the procedure of putting one in prison debts by the procedure of putting one in prison
is too flagrantly violative of Article 21, unless is too flagrantly violative of Article 21, unless
there is proof of the minimal fairness of his wilful there is proof of the minimal fairness of his wilful
failure to pay in spite of his sufficient means failure to pay in spite of his sufficient means
and absence of more terribly pressing claims on and absence of more terribly pressing claims on
his means such as medical bills to treat cancer his means such as medical bills to treat cancer
or other grave illness. Unreasonableness and or other grave illness. Unreasonableness and
unfairness in such a procedure is inferable from unfairness in such a procedure is inferable from
Art. 11 of the Covenant. But this is precisely Art. 11 of the Covenant. But this is precisely
the interpretation we have put on the Proviso the interpretation we have put on the Proviso
to Section 51 C.P.C. and the lethal blow of Art. to Section 51 C.P.C. and the lethal blow of Art.
21 cannot strike down the provision, as now 21 cannot strike down the provision, as now
interpreted. The words which hurt are “or has had interpreted. The words which hurt are “or has had
since the date of the decree, the means to pay the since the date of the decree, the means to pay the
amount of the decree”. This implies, superficially amount of the decree”. This implies, superficially
read, that if at any time after the passing of an read, that if at any time after the passing of an
old decree the judgment-debtor had come by some old decree the judgment-debtor had come by some
96 96
resources and had not discharged the decree, he resources and had not discharged the decree, he
could be detained in prison even though at that could be detained in prison even though at that
later point of time he was found to be penniless. later point of time he was found to be penniless.
This is not a sound position apart from being in- This is not a sound position apart from being in-
human going by the standards of Art. 11 (of the human going by the standards of Art. 11 (of the
Covenant) and Art.21 (of the Constitution). The Covenant) and Art.21 (of the Constitution). The
simple default to discharge is not enough. There simple default to discharge is not enough. There
must be some element of bad faith beyond mere must be some element of bad faith beyond mere
indifference to pay, some deliberate or recusant indifference to pay, some deliberate or recusant
disposition in the past or, alternatively, current disposition in the past or, alternatively, current
means to pay the decree or a substantial part of means to pay the decree or a substantial part of
it. The provision emphasizes the need to establish it. The provision emphasizes the need to establish
not mere omission to pay but an attitude of refusal not mere omission to pay but an attitude of refusal
on demand verging on dishonest disowning of the on demand verging on dishonest disowning of the
obligation under the decree. Here considerations obligation under the decree. Here considerations
of the debtor’s other pressing needs and of the debtor’s other pressing needs and
straitened circumstances will play prominently. straitened circumstances will play prominently.
We would have, by this construction, sauced We would have, by this construction, sauced
law with justice, harmonized Section 51 with the law with justice, harmonized Section 51 with the
Covenant and the Constitution. Covenant and the Constitution.
The question may squarely arise some day The question may squarely arise some day
as to whether the Proviso to s. 51 read with O. as to whether the Proviso to s. 51 read with O.
21, r. 37 is in excess of the Constitution or not”. 21, r. 37 is in excess of the Constitution or not”.
At last, the order of the High Court was set aside At last, the order of the High Court was set aside
with a direction to the execution court to decide de with a direction to the execution court to decide de
novo the means of the judgment debtor to discharge novo the means of the judgment debtor to discharge
the decree, in the light of the interpretation. In the the decree, in the light of the interpretation. In the
annals of the history of the Court in India, it was annals of the history of the Court in India, it was
the first occasion that the suffering of the judgment the first occasion that the suffering of the judgment
debtor was carefully considered by the apex forum debtor was carefully considered by the apex forum
97 97
of law. A new law of rule for execution of money of law. A new law of rule for execution of money
decrees, that is the execution court shall find on decrees, that is the execution court shall find on
adjudication whether the debtor has the ability adjudication whether the debtor has the ability
and financial capacity to repay debt or improperly and financial capacity to repay debt or improperly
evading or dishonestly committing act of bad faith. evading or dishonestly committing act of bad faith.
This point of consideration has become a formula This point of consideration has become a formula
for executing courts to invoke section 51 read with for executing courts to invoke section 51 read with
Order 21 Rule 37 CPC for detention of a debtor in Order 21 Rule 37 CPC for detention of a debtor in
civil prison. civil prison.
Justice V.R. Krishna Iyer spoke, “Imprisonment Justice V.R. Krishna Iyer spoke, “Imprisonment
is not to be ordered merely because, like Shylock, is not to be ordered merely because, like Shylock,
the creditor says, “I crave the law, the penalty and the creditor says, “I crave the law, the penalty and
forfeit of my bond”. The law does recognize the forfeit of my bond”. The law does recognize the
principle that “Mercy is reasonable in the time of principle that “Mercy is reasonable in the time of
affliction, as clouds of rain in the time of drought”. affliction, as clouds of rain in the time of drought”.
98 98
Victimological Views Victimological Views
It is often remarked that Justice Krishna Iyer had It is often remarked that Justice Krishna Iyer had
dealt with offenders and guilt-proven fellows on a liberal dealt with offenders and guilt-proven fellows on a liberal
note in imposing penal sanctions and introducing note in imposing penal sanctions and introducing
prison reforms. It is yet another important prison reforms. It is yet another important
facet of his compassionate jurisprudence that facet of his compassionate jurisprudence that
considered the victims of crime their plight, sufferings considered the victims of crime their plight, sufferings
and need for restitution and medical-aid, legal aid and need for restitution and medical-aid, legal aid
etc. etc.
In Maru Ram vs Union of India1 he has observed In Maru Ram vs Union of India1 he has observed
that the count should not deplete sufferings of the that the count should not deplete sufferings of the
people who die, suffer or are maimed at the hands people who die, suffer or are maimed at the hands
of criminals. Every crime leaves at least a person of criminals. Every crime leaves at least a person
in peril and produces a victim. The handbook titled in peril and produces a victim. The handbook titled
“Justice for Victims” by the United Nations has “Justice for Victims” by the United Nations has
defined ‘victim’ as those who have individually or defined ‘victim’ as those who have individually or
collectively suffered harm, including physical or collectively suffered harm, including physical or
mental injury, emotional suffering. Economic loss mental injury, emotional suffering. Economic loss
or substantial impairment of their fundamental or substantial impairment of their fundamental
rights through acts or omissions that are violation rights through acts or omissions that are violation
by criminal laws or internationally recognized by criminal laws or internationally recognized
norms relating to human rights. Therefore, at any norms relating to human rights. Therefore, at any
point where life or rights are directing or impliedly point where life or rights are directing or impliedly
impaired by a crime or his dependants is deemed impaired by a crime or his dependants is deemed
to be victim of crime. to be victim of crime.
It is the victim who plays an important role and It is the victim who plays an important role and
provides clues for collection of evidence during provides clues for collection of evidence during
investigation. As a witness, the victim is subjected to investigation. As a witness, the victim is subjected to
embarrassment and humiliation, with lach of legal embarrassment and humiliation, with lach of legal
1
AIR1980 SC page 2147; (1981) 1 SCC page 107 1
AIR1980 SC page 2147; (1981) 1 SCC page 107
99 99
literacy and without financial support. Though, he literacy and without financial support. Though, he
discharges his moral and statutory obligations, he discharges his moral and statutory obligations, he
is never said to receive proper attention, aid and is never said to receive proper attention, aid and
protection from state and its organs. Compensation protection from state and its organs. Compensation
is the only major relief provided in section 357 code is the only major relief provided in section 357 code
of Criminal Procedure, 1974. The Supreme Court, of Criminal Procedure, 1974. The Supreme Court,
in Ankush Shivaji Gaikwad vs State of Maharashtra in Ankush Shivaji Gaikwad vs State of Maharashtra
has held that there is a mandatory duty on the has held that there is a mandatory duty on the
courts to apply its mind to the question of awarding courts to apply its mind to the question of awarding
compensation in every criminal case. compensation in every criminal case.
However, the remedy available in Section 357 However, the remedy available in Section 357
Cr.P.C. is neither comprehensive nor a pragmatic Cr.P.C. is neither comprehensive nor a pragmatic
solution to the suffered share holder of the system. solution to the suffered share holder of the system.
The award of compensation would logically arise The award of compensation would logically arise
only after the court records its conviction on proven only after the court records its conviction on proven
guilt. Thus, the compensation under Section 357 of guilt. Thus, the compensation under Section 357 of
Cr.P.C. is a factor based on conviction after proving Cr.P.C. is a factor based on conviction after proving
the guilt beyond all reasonable doubts. The quantum the guilt beyond all reasonable doubts. The quantum
of compensation depends upon the financial capacity of compensation depends upon the financial capacity
of the offender. By an amendment in 2008 ‘Victim Com- of the offender. By an amendment in 2008 ‘Victim Com-
pensation Scheme’ (VLS) has been inserted in Cr.P.C pensation Scheme’ (VLS) has been inserted in Cr.P.C
and a new provision section 357(A) provides pre-trail and a new provision section 357(A) provides pre-trail
compensation for immediate first aid, medical compensation for immediate first aid, medical
treatment within two months to the victims. It is treatment within two months to the victims. It is
a landmark development in the field of victimology a landmark development in the field of victimology
in India2. in India2.
Prior to this legislative measure, Justice Krishna Prior to this legislative measure, Justice Krishna
Iyer raised his voice for a separate code to grant re- Iyer raised his voice for a separate code to grant re-
2
New section 357 (A) inserted by the code of criminal procedure (Amendment) Act, 2
New section 357 (A) inserted by the code of criminal procedure (Amendment) Act,
2008 (5 of 2009 section 28, w.e.f 31-12-2009) 2008 (5 of 2009 section 28, w.e.f 31-12-2009)
100 100
lief to victims since the variety of victims cannot be lief to victims since the variety of victims cannot be
coped with a mere section 357 Cr.P.C. In his words, coped with a mere section 357 Cr.P.C. In his words,
“Traditional crimes under the penal code and “Traditional crimes under the penal code and
criminal laws must not neglect the victims or leave it criminal laws must not neglect the victims or leave it
to the Prime Minister or Chief Minister to grant relief to the Prime Minister or Chief Minister to grant relief
out of governmental grace. A code which provides out of governmental grace. A code which provides
rights and remedies, and a character which spells rights and remedies, and a character which spells
out principles, both relevant to ground realities, out principles, both relevant to ground realities,
are a categorical imperative. Why a separate are a categorical imperative. Why a separate
code? Because the variety of victims cannot be code? Because the variety of victims cannot be
coped with by a mere section 357 of the Criminal coped with by a mere section 357 of the Criminal
Procedure Code or its expanded version or the Procedure Code or its expanded version or the
ad hoc and ambiguous indignation and award ad hoc and ambiguous indignation and award
of compensation and award of compensation by of compensation and award of compensation by
a Summit Bench. Of course, a rapist must pay a Summit Bench. Of course, a rapist must pay
clearly by way of reparation. He must be made clearly by way of reparation. He must be made
to work in the jail, paid wages and made to part to work in the jail, paid wages and made to part
with a large part of it to the victim of his crime. with a large part of it to the victim of his crime.
The one raped must be given protection and right The one raped must be given protection and right
to abortion, free of charge, under court direction. to abortion, free of charge, under court direction.
Her reputation must be judicially protected by Her reputation must be judicially protected by
non-disclosure of name. Beggars, being offenders non-disclosure of name. Beggars, being offenders
in some States, are also victims in another sense. in some States, are also victims in another sense.
They must be given relief and rehabilitation under They must be given relief and rehabilitation under
judicial aegis. A victim of stabbing may find judicial aegis. A victim of stabbing may find
retribuitive solace from the prison term of the retribuitive solace from the prison term of the
convict but he needs restitutory justice too. The convict but he needs restitutory justice too. The
same principle applies to many other offences same principle applies to many other offences
relating to person and property. Compensatory relating to person and property. Compensatory
101 101
antidotes are part of penological therapeutics and antidotes are part of penological therapeutics and
must come under the court’s authority”. must come under the court’s authority”.
As he observed in Maru Ram’s case, victimology is As he observed in Maru Ram’s case, victimology is
jargoning branch of humane criminal justice. The State jargoning branch of humane criminal justice. The State
itself may have its strategy of alleviating hardships itself may have its strategy of alleviating hardships
of victims as part of Art 41. So, the mandatory of victims as part of Art 41. So, the mandatory
minimum in Section 433(A) cannot be linked up minimum in Section 433(A) cannot be linked up
with the distress of the dependants. A cursory vied with the distress of the dependants. A cursory vied
of the catena of decisions of the Supreme court of the catena of decisions of the Supreme court
would show that Justice Krishna Iyer is a pioneer would show that Justice Krishna Iyer is a pioneer
and sowed the seeds of victimological thoughts in and sowed the seeds of victimological thoughts in
the year 1980 itself. Now, it has become an integral the year 1980 itself. Now, it has become an integral
and inevitable area to be considered while deciding and inevitable area to be considered while deciding
criminal cases by the courts. criminal cases by the courts.
102 102
5 5
UNAIDED JUSTICE SEEKERS UNAIDED JUSTICE SEEKERS

AND LEGAL SERVICES AND LEGAL SERVICES
Equal Justice in action Equal Justice in action
Legal aid - incidental to right of appeal Legal aid - incidental to right of appeal
Doctrine of Loser-pay all and suitor’s fund Doctrine of Loser-pay all and suitor’s fund
Litigative Credibility Litigative Credibility

103 103
UNAIDED JUSTICE UNAIDED JUSTICE

SEEKERS AND LEGAL SEEKERS AND LEGAL
SERVICES SERVICES
Quite discernible is the palpability of

courts in India, which remain over ladened
Quite discernible is the palpability of
courts in India, which remain over ladened
with cases; subjecting litigants thereof with cases; subjecting litigants thereof
to months and years of unhindered patience and to months and years of unhindered patience and
determination. Delay as a concomitant to piling of cases determination. Delay as a concomitant to piling of cases
is accountable to myriad of causes. In the process, is accountable to myriad of causes. In the process,
the litigant has to pay huge amount towards fee, the litigant has to pay huge amount towards fee,
for lawyers and remit a considerable sum as the for lawyers and remit a considerable sum as the
court fee. Even though the poor stands valid causes court fee. Even though the poor stands valid causes
and justifiable reasons, he is ostensibly mandated and justifiable reasons, he is ostensibly mandated
to shell an enormous amount towards litigative to shell an enormous amount towards litigative
expenses. If he cannot afford the cost of litigation, expenses. If he cannot afford the cost of litigation,
he has no other option than to abandon and give he has no other option than to abandon and give
up his claim, despite his valid cause and the right up his claim, despite his valid cause and the right
and entitlement vested upon him. The courts are and entitlement vested upon him. The courts are
duty bound to redress the grievances of the under duty bound to redress the grievances of the under
privileged and the people living below (BPL). If the privileged and the people living below (BPL). If the
courts in a country refuse to redress or provide relief courts in a country refuse to redress or provide relief
to those deserving depressed people, kangaroo to those deserving depressed people, kangaroo
courts will mushroom around and usurp the powers courts will mushroom around and usurp the powers
of democratic institutions. Cost, financial and other of democratic institutions. Cost, financial and other
disabilities should not cause hurdle in searching disabilities should not cause hurdle in searching
and granting of reliefs and remedies. Amartya Sen, and granting of reliefs and remedies. Amartya Sen,
104 104
an eminent scholar, while addressing questions of an eminent scholar, while addressing questions of
enhancing justice and removing injustices, pointed enhancing justice and removing injustices, pointed
out that there are clearly remediable injustices out that there are clearly remediable injustices
around us which we want to eliminate, and such around us which we want to eliminate, and such
needs perseverance, support and an effort to give needs perseverance, support and an effort to give
effect to the same1. effect to the same1.
To reduce the litigative burden of the ‘justice To reduce the litigative burden of the ‘justice
seeker’, that is, the litigant, the 42nd amendment seeker’, that is, the litigant, the 42nd amendment
inserted Article 39 (A) in the Constitution. It directed inserted Article 39 (A) in the Constitution. It directed
the State to provide ‘free legal aid to poor and to take the State to provide ‘free legal aid to poor and to take
other suitable steps to ensure justice to all, as offered other suitable steps to ensure justice to all, as offered
by the preamble.’ In pursuance of the amendment by the preamble.’ In pursuance of the amendment
and to give effect to the words in Article 39 (A), and to give effect to the words in Article 39 (A),
the Legal Service Authorities Act, (Act 39 of 1987) the Legal Service Authorities Act, (Act 39 of 1987)
(hereinafter referred to as “LSA”) was notified by (hereinafter referred to as “LSA”) was notified by
the Central Government. The basic objective was the Central Government. The basic objective was
to provide true and competent legal services to the to provide true and competent legal services to the
weaker sections of the society so as to ensure that weaker sections of the society so as to ensure that
opportunities for securing justice are not denied opportunities for securing justice are not denied
to any citizen by reasons of economic and other to any citizen by reasons of economic and other
disabilities. disabilities.
Even prior to the enactment of LSA, 1987, Justice Even prior to the enactment of LSA, 1987, Justice
Krishna Iyer was seen to remark that, ‘if the courts Krishna Iyer was seen to remark that, ‘if the courts
fail in their sole (soul) and the Supreme Court in its fail in their sole (soul) and the Supreme Court in its
task of injecting the justifiable causes and imposing task of injecting the justifiable causes and imposing
justice, they would be treated as nothing short of fallen justice, they would be treated as nothing short of fallen
institutions’ . Even so, Justice Iyer has made institutions’ . Even so, Justice Iyer has made
conspicuous assertion of the State s duty in execution conspicuous assertion of the State s duty in execution
of its role in his book ‘Equal justice and forensic of its role in his book ‘Equal justice and forensic
1
Amartya Sen, Idea of Justice, Allen Lane (Penguin) 2009 1
Amartya Sen, Idea of Justice, Allen Lane (Penguin) 2009
105 105
process - truth and myth’, which stands as an alert process - truth and myth’, which stands as an alert
message against alarmingly raising unauthorized, message against alarmingly raising unauthorized,
unconstitutional kangaroo courts and khap unconstitutional kangaroo courts and khap
panchayats, which recognize ‘honor killing’ and other panchayats, which recognize ‘honor killing’ and other
inhumane practices. The caveat runs as follows, inhumane practices. The caveat runs as follows,
‘The court, as a global hope, is the keeper of the ‘The court, as a global hope, is the keeper of the
country’s justice and conscience, and remains the country’s justice and conscience, and remains the
watchdog of the polity’s democratic balance and watchdog of the polity’s democratic balance and
the monitor of the Constitution’s guarantees, even the monitor of the Constitution’s guarantees, even
amidst the clash of arms and polemics of politics. amidst the clash of arms and polemics of politics.
This functional supremacy will be rhetorical This functional supremacy will be rhetorical
futility unless the judiciary displays that inventive futility unless the judiciary displays that inventive
genius for adaptive mutations and sensitive genius for adaptive mutations and sensitive
solicitude for the disable human segment needed solicitude for the disable human segment needed
to transform, with canalized creativity and to transform, with canalized creativity and
enlightened responsibility, the challenges of social enlightened responsibility, the challenges of social
justice into the fearless forensic directives which justice into the fearless forensic directives which
actualize redress for the little man in large numbers. actualize redress for the little man in large numbers.
If the courts fail here, the streets will then and If the courts fail here, the streets will then and
there resolve to ‘mischief, thou art afoot, take thou there resolve to ‘mischief, thou art afoot, take thou
what course thou wilt.’ And the crisis of legitimacy what course thou wilt.’ And the crisis of legitimacy
gripping the judicial institutions will deepen, and gripping the judicial institutions will deepen, and
non-judicial alternatives in dispute-resolution non-judicial alternatives in dispute-resolution
methods will appear on the people’s agenda to methods will appear on the people’s agenda to
make courts irrelevant. This is a caveat, and make courts irrelevant. This is a caveat, and
one ought to remember - the judicial panoply is one ought to remember - the judicial panoply is
already obsolescent and its writs are rusting2.’ already obsolescent and its writs are rusting2.’
A plain view of his contributions shall render how A plain view of his contributions shall render how
remarkable were Justice Iyer s role in promoting remarkable were Justice Iyer s role in promoting
legal aid services. He writes, legal aid services. He writes,
Justice V.R. Krighna Iyer, ‘Wandering in many worlds page 192
2
Justice V.R. Krighna Iyer, ‘Wandering in many worlds page 192
2
106 106
‘I even went to the extent of persuading ‘I even went to the extent of persuading
successful lawyers to give some of their huge successful lawyers to give some of their huge
fees as donation to the legal aid society of the fees as donation to the legal aid society of the
Supreme Court. The great D.A. Desai, the then Supreme Court. The great D.A. Desai, the then
Chairman of the Supreme Court legal aid society Chairman of the Supreme Court legal aid society
was happy that I replenished his resources by was happy that I replenished his resources by
this practice. I recollect an instance where Mrs. this practice. I recollect an instance where Mrs.
Nadini Sathpati, a lawyer, was debarred by way Nadini Sathpati, a lawyer, was debarred by way
of a punishment, but I thought that making the of a punishment, but I thought that making the
best use of the professional services of the culprit best use of the professional services of the culprit
was a better form of punishment. I quashed the was a better form of punishment. I quashed the
disbarment and directed her to serve the legal disbarment and directed her to serve the legal
aid board free for two years so that the cause of aid board free for two years so that the cause of
justice would benefit, causing her to regret the justice would benefit, causing her to regret the
reactions and the legal aid board, in turn, would reactions and the legal aid board, in turn, would
get a capable lawyer without paying salary. get a capable lawyer without paying salary.
Imagination, innovation, compassion and social Imagination, innovation, compassion and social
justice were my guidelines in exercising judicial justice were my guidelines in exercising judicial
jurisdiction3.’ jurisdiction3.’
Indeed, Justice Krishna Iyer had helped the legal Indeed, Justice Krishna Iyer had helped the legal
aid society for its effective functioning by providing aid society for its effective functioning by providing
and augmenting financial resources. Him, along and augmenting financial resources. Him, along
with Justice P.N. Bhagwati, both assumed judgeship with Justice P.N. Bhagwati, both assumed judgeship
of at the Supreme Court on the same day. They of at the Supreme Court on the same day. They
had already worked together in a high powered had already worked together in a high powered
committee of the government and recommended committee of the government and recommended
the setting up of legal aid organizations in Taluk, the setting up of legal aid organizations in Taluk,
District, State and National levels. Justice Bhagwati District, State and National levels. Justice Bhagwati
in his autobiography, ‘My Trust With Justice’ has in his autobiography, ‘My Trust With Justice’ has
recorded it as, recorded it as,
3
Dr. Justice P.N.Bhagwati, ‘My trust with justice' Universal Law Publishing Co. Pvt. 3
Dr. Justice P.N.Bhagwati, ‘My trust with justice' Universal Law Publishing Co. Pvt.
Ltd, New Delhi (2013) page 93 Ltd, New Delhi (2013) page 93
107 107
‘On my appointment to the Supreme Court, I ‘On my appointment to the Supreme Court, I
again got the opportunity to revive the legal aid again got the opportunity to revive the legal aid
program. Justice Krishna Iyer was sworn in as program. Justice Krishna Iyer was sworn in as
a judge of the Supreme Court on the same day a judge of the Supreme Court on the same day
as myself. We had already worked together as as myself. We had already worked together as
members of a High Powered Committee appointed members of a High Powered Committee appointed
by the Government of India for the purpose of by the Government of India for the purpose of
considering and recommending setting-up of a considering and recommending setting-up of a
legal aid program in the country. This committee legal aid program in the country. This committee
had made its report recommending setting up of had made its report recommending setting up of
a legal aid organization at the Central level and a legal aid organization at the Central level and
State Legal Aid Committee to be established by State Legal Aid Committee to be established by
each State within its territory. The committee also each State within its territory. The committee also
recommended setting up of legal aid committees recommended setting up of legal aid committees
at the district and Taluka/Tehsil levels presided at the district and Taluka/Tehsil levels presided
over by the district judge and the civil judge over by the district judge and the civil judge
respectively. This committee laid down the minimum respectively. This committee laid down the minimum
criteria for providing legal aid to the poor and criteria for providing legal aid to the poor and
the indigent in civil and criminal cases and also the indigent in civil and criminal cases and also
recommended the setting up of legal and clinics recommended the setting up of legal and clinics
or centers where poor could get free legal advice. or centers where poor could get free legal advice.
Various other recommendations were also made Various other recommendations were also made
by the committee in the Report including one for by the committee in the Report including one for
setting up of mediation centers for bringing about setting up of mediation centers for bringing about
settlement of disputes involving claims for small settlement of disputes involving claims for small
amounts or disputes of a minor nature, where amounts or disputes of a minor nature, where
mediation would be a cheaper and speedier remedy. mediation would be a cheaper and speedier remedy.
This report was submitted to the Government of This report was submitted to the Government of
India for taking the necessary action for setting India for taking the necessary action for setting
up the legal aid program4. up the legal aid program4.
4
Ibid. 4
Ibid.
108 108
Justice Krishna Iyer’s contribution to the Justice Krishna Iyer’s contribution to the
development of legal-aid has been gratefully development of legal-aid has been gratefully
acknowledged in the farewell address made by the acknowledged in the farewell address made by the
Supreme Court Bar on 15th, November, 1980, Supreme Court Bar on 15th, November, 1980,
‘Your crusade for legal aid and law reform, ‘Your crusade for legal aid and law reform,
your concern for and commitment to the common your concern for and commitment to the common
people has become quintessential catalyst in the people has become quintessential catalyst in the
legal process5'. legal process5'.
It is worth mention that the legal aid system has It is worth mention that the legal aid system has
now been christened as the ‘Legal Services Authority’ now been christened as the ‘Legal Services Authority’
functioning in every taluk and district at the grass functioning in every taluk and district at the grass
root level and as State and National authorities root level and as State and National authorities
at the top level. It has been regularly organizing at the top level. It has been regularly organizing
lok-adalat, as well as legal awareness campaigns lok-adalat, as well as legal awareness campaigns
in villages and colleges. Thus, the existence of legal in villages and colleges. Thus, the existence of legal
service has become an inseparable component of service has become an inseparable component of
justice administration system. Justice Krishna justice administration system. Justice Krishna
Iyer is one of the founding fathers of the pro-poor Iyer is one of the founding fathers of the pro-poor
legal programmes in India. Justice P.N.Bhagwati legal programmes in India. Justice P.N.Bhagwati
and Justice Krishna Iyer have unanimously raised and Justice Krishna Iyer have unanimously raised
their voice for providing free legal aid to ensure that their voice for providing free legal aid to ensure that
opportunities for securing justice are not denied to opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities. any citizen by reason of economic or other disabilities.
They are the unparalleled pair of judges who have They are the unparalleled pair of judges who have
rendered unique services for establishment and rendered unique services for establishment and
development of legal aid system in India. development of legal aid system in India.
Living legend of law in the UK, Lord Denning spoke Living legend of law in the UK, Lord Denning spoke
in the House of Lords that ‘One has to remember in the House of Lords that ‘One has to remember
that legal aid can be used most oppressively against that legal aid can be used most oppressively against
5
Kuruvilla Chandy vs Hassan Bava Rawthar (1969 KLT 402; 1969 KLR 177). 5
Kuruvilla Chandy vs Hassan Bava Rawthar (1969 KLT 402; 1969 KLR 177).
109 109
innocent people’6. On the other side of the bark, Living innocent people’6. On the other side of the bark, Living
legend of law in India, Justice Krishna Iyer has also legend of law in India, Justice Krishna Iyer has also
got similar views and vision. He has embarked upon got similar views and vision. He has embarked upon
services for disseminating legal awareness among services for disseminating legal awareness among
people and for development of legal aid movement people and for development of legal aid movement
in India. in India.
6
Lord Denning s speech in the House of Lords, on 14th January 1985, quoted in a 6
Lord Denning s speech in the House of Lords, on 14th January 1985, quoted in a
book ‘A Dictionary of Legal Quotations book ‘A Dictionary of Legal Quotations
110 110
Equal Justice In Action Equal Justice In Action
The purpose and object of legal aid is to The purpose and object of legal aid is to
strengthen the hands of weak, where the destitute strengthen the hands of weak, where the destitute
should be felt with the existence of law and reinforced should be felt with the existence of law and reinforced
with the belief that their economic inability cannot with the belief that their economic inability cannot
be an obstructive factor in approaching the court of be an obstructive factor in approaching the court of
law for resolving their grievances. In an article ‘The law for resolving their grievances. In an article ‘The
philosophy of legal aid a preview’, Justice Krishna philosophy of legal aid a preview’, Justice Krishna
Iyer, explained, Iyer, explained,
‘Legal aid is equal justice in action, in the social, ‘Legal aid is equal justice in action, in the social,
economic and political fields. This means that law, as economic and political fields. This means that law, as
a tool must be used by everyone to abolish injustice a tool must be used by everyone to abolish injustice
and inequality and to ameliorate disabilities and inequality and to ameliorate disabilities
and soften sorrows. Law must strengthen the and soften sorrows. Law must strengthen the
hands of the weak to resist the oppressive strong, hands of the weak to resist the oppressive strong,
must transform society so that each according to must transform society so that each according to
his needs shall be ensured through the law. We his needs shall be ensured through the law. We
must remember this revolutionary content of law must remember this revolutionary content of law
as the might of the State to fight for the masses as the might of the State to fight for the masses
and curb the classes and establish a just society. and curb the classes and establish a just society.
In short, the legal movement is geared to the goal In short, the legal movement is geared to the goal
of the new constitution order. of the new constitution order.
Our justice is terribly cumbersome, expensively Our justice is terribly cumbersome, expensively
dilatory and cumulatively disastrous. The poor can dilatory and cumulatively disastrous. The poor can
never reach the court because of heavy court fees never reach the court because of heavy court fees
and the mystique and myth of legalities. The hier- and the mystique and myth of legalities. The hier-
archy of courts with appeals upon appeals puts archy of courts with appeals upon appeals puts
legal justice beyond the means of the poor profes- legal justice beyond the means of the poor profes-
sional service. Monopoly of the lawyer is too dear sional service. Monopoly of the lawyer is too dear
111 111
to be paid for by the poor. The Himalayan heaps to be paid for by the poor. The Himalayan heaps
of legislation, rules, notifications, regulations of legislation, rules, notifications, regulations
and bylaws make an erosion of rights by oversight and bylaws make an erosion of rights by oversight
and ignorance. Legal literacy is a condition precedent and ignorance. Legal literacy is a condition precedent
to the rule of law. It is depressing to know that to the rule of law. It is depressing to know that
participative law-making where the poor have a participative law-making where the poor have a
say, is unknown . say, is unknown .
112 112
Legal Aid - Incidental To Right Of Appeal Legal Aid - Incidental To Right Of Appeal
Under the Indian jurisprudence, preferring Under the Indian jurisprudence, preferring
an appeal against the verdict of the court is a an appeal against the verdict of the court is a
constitutional and statutory right bestowed upon constitutional and statutory right bestowed upon
the litigant. Provision for free legal service to be the litigant. Provision for free legal service to be
made for the appellant to file an appeal, was made for the appellant to file an appeal, was
the direction paved made by the Supreme Court the direction paved made by the Supreme Court
in Madhav Hayawadenaroa Hoskot vs State of in Madhav Hayawadenaroa Hoskot vs State of
Maharashtra1. Maharashtra1.
It was a case wherein the accused was convicted It was a case wherein the accused was convicted
by the Sessions Court and his conviction was confirmed by the Sessions Court and his conviction was confirmed
and sentence was enhanced by the High Court, by an and sentence was enhanced by the High Court, by an
order in November, 1973. But a Special Leave Petition order in November, 1973. But a Special Leave Petition
was made to the Supreme Court after a lapse of was made to the Supreme Court after a lapse of
four years. For this unusual delay the appellant four years. For this unusual delay the appellant
assigned a reason stating that he was not served assigned a reason stating that he was not served
with a copy of the judgment of the High Court, with a copy of the judgment of the High Court,
through prison authorities. The prison authorities through prison authorities. The prison authorities
denied the allegation but did not produce any copy denied the allegation but did not produce any copy
of acknowledgment to show the service copy of of acknowledgment to show the service copy of
judgment. Justice Krishna Iyer specifically made judgment. Justice Krishna Iyer specifically made
an observation about the prisoners surviving at an observation about the prisoners surviving at
the mercy of prison bars and held that Article 21 of the mercy of prison bars and held that Article 21 of
Constitution is an impressive tool to promote legal Constitution is an impressive tool to promote legal
awareness and provide legal aid. awareness and provide legal aid.
Inter alia, he reserved his statements by remarking Inter alia, he reserved his statements by remarking
that if a sentenced prisoner is unable to prefer appeal that if a sentenced prisoner is unable to prefer appeal
including a SLP for want of legal assistance, the including a SLP for want of legal assistance, the
1
AIR 1978 SC 1548; 1978 3 SCC 544 1
AIR 1978 SC 1548; 1978 3 SCC 544
113 113
court has implicit power under Article 14, 21 and court has implicit power under Article 14, 21 and
39(A) of Constitution to assign counsel for doing 39(A) of Constitution to assign counsel for doing
justice. The Supreme Court may also assign counsel justice. The Supreme Court may also assign counsel
for the sentenced prisoner under implied power for the sentenced prisoner under implied power
in Article 142 and that, the state is duty bound in Article 142 and that, the state is duty bound
to cause service of judgment copy of the convicted to cause service of judgment copy of the convicted
person and shall inform where the appeal lies. person and shall inform where the appeal lies.
For rendering complete justice to indigent prisoners For rendering complete justice to indigent prisoners
by way of legal assistance at the cost of the State by way of legal assistance at the cost of the State
is a necessary ingredient as to the right of appeal2. is a necessary ingredient as to the right of appeal2.
The above directions issued in the year 1978, have The above directions issued in the year 1978, have
now been embedded in the Legal Service Authority now been embedded in the Legal Service Authority
Act, 1987(LSA), highlighting the empanelment of Act, 1987(LSA), highlighting the empanelment of
lawyers to make regular visit to prison and making lawyers to make regular visit to prison and making
provisions in the Taluk, District, State and National provisions in the Taluk, District, State and National
level Legal Service Authorities to conduct and defend level Legal Service Authorities to conduct and defend
cases and other provisions to make the indigent cases and other provisions to make the indigent
litigants approach the court of law to avail benefits litigants approach the court of law to avail benefits
of justice. The pre-LSA decisions of Justice Krishna of justice. The pre-LSA decisions of Justice Krishna
Iyer on legal aid to poor litigants would only reinforce Iyer on legal aid to poor litigants would only reinforce
his stance as a pioneer in legal aid laws and movement his stance as a pioneer in legal aid laws and movement
in India. in India.
2
By Simon James and Chantal Stebbings, 'Legal Quotation', Universal Law Publishing 2
By Simon James and Chantal Stebbings, 'Legal Quotation', Universal Law Publishing
Co. Pvt. Ltd (2010) page 109 Co. Pvt. Ltd (2010) page 109
114 114
Doctrine of Loser - Pay all And Suitor's Doctrine of Loser - Pay all And Suitor's
Fund Fund
Law suits for trivial disputes and appeals with Law suits for trivial disputes and appeals with
hyper technical pleas, very often cause delay in hyper technical pleas, very often cause delay in
the final adjudication of amassing cases. In some the final adjudication of amassing cases. In some
cases, court fee and counsel’s fee would be higher cases, court fee and counsel’s fee would be higher
than that of the amount claimed by the parties. The than that of the amount claimed by the parties. The
litigative addiction of the parties is the main cause litigative addiction of the parties is the main cause
for such cases and for their further proceedings for such cases and for their further proceedings
including appeals, revision, reviews etc. The case of including appeals, revision, reviews etc. The case of
The Trustees of the Port of Bombay vs The Premier The Trustees of the Port of Bombay vs The Premier
Automobiles Ltd1 is one such case which slowly Automobiles Ltd1 is one such case which slowly
sailed up to the Supreme Court by a special leave. sailed up to the Supreme Court by a special leave.
Two nationalized institutions, that is, the Port Trust Two nationalized institutions, that is, the Port Trust
and an insurance company indulged in a legal and an insurance company indulged in a legal
battle for a small cause involving a paltry claim of battle for a small cause involving a paltry claim of
Rs.1,142.42. Both the institutions fought for about Rs.1,142.42. Both the institutions fought for about
fifteen years. It was a case about non-delivery of fifteen years. It was a case about non-delivery of
consignment of one bundle out of 53 bundles of consignment of one bundle out of 53 bundles of
mild steel plates. In the consignment booked and mild steel plates. In the consignment booked and
delivered, one of its bundles was allegedly missing delivered, one of its bundles was allegedly missing
in September 1959. But the law suit for damages in September 1959. But the law suit for damages
came to an end only on February 1974. Since there came to an end only on February 1974. Since there
was a question of limitation involved in the case, it was a question of limitation involved in the case, it
had reached up to the Apex Court. had reached up to the Apex Court.
Justice Krishna Iyer stated the judgment with a Justice Krishna Iyer stated the judgment with a
painful observation, “It is a side light that the judicial painful observation, “It is a side light that the judicial
process has limped along for 15 years to decide in process has limped along for 15 years to decide in
1
1974 4 SCC page 710 1
1974 4 SCC page 710
115 115
this small, single –point commercial cause, whether a this small, single –point commercial cause, whether a
little over seven months to come to court was too late”. little over seven months to come to court was too late”.
Quoting the observation of Justice Lord Delvin, he Quoting the observation of Justice Lord Delvin, he
remarked that “Delay in dispensing justice is in itself remarked that “Delay in dispensing justice is in itself
an act of injustice”. an act of injustice”.
116 116
Litigative Credibility Litigative Credibility
The appeal was allowed by the Supreme Court, The appeal was allowed by the Supreme Court,
advising the public institution to maintain ‘litigative advising the public institution to maintain ‘litigative
credibility’. The attitude of resorting to pleading credibility’. The attitude of resorting to pleading
technical pleas or defeating honest claims would make technical pleas or defeating honest claims would make
the public institution convict themselves of untrust the public institution convict themselves of untrust
worthiness out of their own mouth by resorting worthiness out of their own mouth by resorting
to such defences. It commented, “A public carrier to such defences. It commented, “A public carrier
dissuades private parties from suing by its promises dissuades private parties from suing by its promises
of search for lost articles and finally pleads of search for lost articles and finally pleads
helplessness, it is doubtful morality to non-suit solely helplessness, it is doubtful morality to non-suit solely
on grounds of limitation, a plaintiff who is taken in on grounds of limitation, a plaintiff who is taken in
by seaming responsible representation only to find by seaming responsible representation only to find
himself fooled by his credibility”. himself fooled by his credibility”.
The above instruction from the Supreme Court The above instruction from the Supreme Court
is an important guideline for public institutions is an important guideline for public institutions
involved in the carriage business. For loss of goods, involved in the carriage business. For loss of goods,
requesting the consignor with promise of search for requesting the consignor with promise of search for
lost articles and finally pleading helplessness, would lost articles and finally pleading helplessness, would
only tarnish the good will and reputation. It is the only tarnish the good will and reputation. It is the
legitimate expectation of Justice Krishna Iyer that legitimate expectation of Justice Krishna Iyer that
the public institution should maintain ‘litigative the public institution should maintain ‘litigative
credibility’ before the courts and gain the confidence credibility’ before the courts and gain the confidence
and trust of the public by keeping its promises. and trust of the public by keeping its promises.
In this case, yet another important innovative In this case, yet another important innovative
principle on ‘cost’, as laid down by Justice Krishna principle on ‘cost’, as laid down by Justice Krishna
Iyer, would replace the old doctrine of “Loser-Pay- Iyer, would replace the old doctrine of “Loser-Pay-
All’. All’.
117 117
“Cost” is an inevitable litigative burden imposed “Cost” is an inevitable litigative burden imposed
upon a party who fails before the court. The Code of upon a party who fails before the court. The Code of
Civil Procedure, 1908 made it a mandatory duty for Civil Procedure, 1908 made it a mandatory duty for
the adjudicating court to impose cost upon a party the adjudicating court to impose cost upon a party
who loses in the legal battle. The court shall assign who loses in the legal battle. The court shall assign
a reason in writing for non-awarding of cost to a a reason in writing for non-awarding of cost to a
party, in whose favour the relief is granted as prayed party, in whose favour the relief is granted as prayed
for. Therefore, cost is an incidental consequence for. Therefore, cost is an incidental consequence
of litigation. In other words, the party who loses before of litigation. In other words, the party who loses before
a court of law has to bear the cost of litigation. a court of law has to bear the cost of litigation.
Another aspect of the ‘cost’ is that the person Another aspect of the ‘cost’ is that the person
who institutes a lawsuit for a justifiable reason who institutes a lawsuit for a justifiable reason
and valid cause, against an industry or institution, and valid cause, against an industry or institution,
might encounter financial constraints so as to face might encounter financial constraints so as to face
the rich bodies. In pursuance of which, Justice the rich bodies. In pursuance of which, Justice
Krishna Iyer suggested the ‘Suitor fund scheme’. Krishna Iyer suggested the ‘Suitor fund scheme’.
In the decision in State Bank of India vs In the decision in State Bank of India vs
N.Sundaramony1, the employer bank, undaunted N.Sundaramony1, the employer bank, undaunted
by a double defeat at both tiers in the High by a double defeat at both tiers in the High
Court, preferred an appeal before the Supreme Court, preferred an appeal before the Supreme
Court. The only ground was that there was no Court. The only ground was that there was no
retrenchment of employee within the meaning retrenchment of employee within the meaning
of Section 2(oo) of the Industrial Disputes of Section 2(oo) of the Industrial Disputes
Act, 1947 and consequently the employee Act, 1947 and consequently the employee
was ineligible to the statutory compensation. was ineligible to the statutory compensation.
The Division Bench of the High Court held that the The Division Bench of the High Court held that the
employee was entitled to retrenchment compensation, employee was entitled to retrenchment compensation,
which not having been paid would cause the termination which not having been paid would cause the termination
invalid. But, the employer bank was not willing to invalid. But, the employer bank was not willing to
1
1974 4 SCC page 710 1
1974 4 SCC page 710
118 118
wind up the litigation. It dragged its employee to wind up the litigation. It dragged its employee to
the Apex Court to face the appeal. the Apex Court to face the appeal.
Justice Krishna Iyer, considered the plight of the Justice Krishna Iyer, considered the plight of the
poor employee who was dragged by his employer poor employee who was dragged by his employer
in to a continuous litigation and in the process, in to a continuous litigation and in the process,
thereby paying a considerable sum towards cost of thereby paying a considerable sum towards cost of
litigation. The Supreme Court observed that one of litigation. The Supreme Court observed that one of
the party is weak; being a worker, the cost must the party is weak; being a worker, the cost must
come out of public funds. The State shall constitute come out of public funds. The State shall constitute
a ‘Suitor’s fund’ which will take care of hardship and a ‘Suitor’s fund’ which will take care of hardship and
public interest in the area of necessary litigation. public interest in the area of necessary litigation.
In the era of public interest litigation (PIL) if such In the era of public interest litigation (PIL) if such
funds are available the public spirited volunteers funds are available the public spirited volunteers
and whistle blowers can seek more judicial remedies and whistle blowers can seek more judicial remedies
for the welfare of the people through PIL. The whistle for the welfare of the people through PIL. The whistle
blowers or the applicant for PIL need not hesitate blowers or the applicant for PIL need not hesitate
to bear the cost of litigation in the matters relating to bear the cost of litigation in the matters relating
to public welfare. to public welfare.
The idea of ‘Suitor’s fund’ was, for the first time The idea of ‘Suitor’s fund’ was, for the first time
expressed and suggested in the Bombay port trust expressed and suggested in the Bombay port trust
case. The Court for the purpose of laying down the case. The Court for the purpose of laying down the
correct law in a controversial situation referred the correct law in a controversial situation referred the
decisions in UK by Lord Reid and the “Evershed decisions in UK by Lord Reid and the “Evershed
Committee” Report. As per the said Report in England Committee” Report. As per the said Report in England
the Attorney General should be empowered to issue the Attorney General should be empowered to issue
a certificate for the use of public fund for appeals a certificate for the use of public fund for appeals
to the House of Lords where issues of outstanding to the House of Lords where issues of outstanding
public importance are involved. The observation public importance are involved. The observation
made in Para 66 of the Bombay Port Trust Case is, made in Para 66 of the Bombay Port Trust Case is,
“Maybe, a scheme for a suitors fund to indemnify “Maybe, a scheme for a suitors fund to indemnify
119 119
the costs as recommended by a Sub-Committee of the costs as recommended by a Sub-Committee of
Justice is the answer, but these are matters for the Justice is the answer, but these are matters for the
consideration of the Legislature and the Executive. consideration of the Legislature and the Executive.
We mention them to show that the law in this branch We mention them to show that the law in this branch
cannot be rigid. We have to make compromises cannot be rigid. We have to make compromises
between pragmatism and equity and modify the Loser between pragmatism and equity and modify the Loser
-Pays-All (LPA) doctrine by exercise of a flexible -Pays-All (LPA) doctrine by exercise of a flexible
discretion. The respondent in this case need not be discretion. The respondent in this case need not be
martyr for the cause of the uncertainty of law under martyr for the cause of the uncertainty of law under
Section 87 of the Act, particularly when the appellant Section 87 of the Act, particularly when the appellant
wins on a point of limitation (The trial court had held the wins on a point of limitation (The trial court had held the
appellant guilty of negligence). In these circumstances, appellant guilty of negligence). In these circumstances,
we direct that the parties do bear their costs throughout. we direct that the parties do bear their costs throughout.
Subject to this, we allow the appeal .” Subject to this, we allow the appeal .”
This observation and suggestion for constitution This observation and suggestion for constitution
of the ‘suitor’s fund’ in India would reflect the judicial of the ‘suitor’s fund’ in India would reflect the judicial
vision and the commitment that the financially vision and the commitment that the financially
weak should not suffer again for establishing his weak should not suffer again for establishing his
rights through judicial forums. These noble ideas in rights through judicial forums. These noble ideas in
creating access to justice to the financially disabled creating access to justice to the financially disabled
and weaker sections was given way to in the year of, and weaker sections was given way to in the year of,
earlier to the 42nd amendment which introduced earlier to the 42nd amendment which introduced
Article 39(A) in the Constitution of India. The need Article 39(A) in the Constitution of India. The need
to create a constitutional mechanism to help the to create a constitutional mechanism to help the
poor people to approach the court of law and avail poor people to approach the court of law and avail
justice have exposed in both the decisions cited justice have exposed in both the decisions cited
herein by Justice Krishna Iyer, a decade before the herein by Justice Krishna Iyer, a decade before the
constitutional amendments. Both decisions have constitutional amendments. Both decisions have
elaborately dealt with the cost of litigation and the elaborately dealt with the cost of litigation and the
duties of the institutions to maintain their name, duties of the institutions to maintain their name,
120 120
good will, regulation etc., by avoiding lawsuits on good will, regulation etc., by avoiding lawsuits on
flimsy ground and for trivial claims. The unbearable flimsy ground and for trivial claims. The unbearable
burden of cost of litigation was viewed in a burden of cost of litigation was viewed in a
pragmatic context. pragmatic context.
6 6
MUTHAMMA - MANGNUM OPUS MUTHAMMA - MANGNUM OPUS

ON MISOGYNY ON MISOGYNY
Where be Rectitude in ‘Him can - her cannot”? Where be Rectitude in ‘Him can - her cannot”?
Gender Representation in judiciary - in light of reforms Gender Representation in judiciary - in light of reforms
and pleas and pleas
Rescue homes for women - an initiative Rescue homes for women - an initiative
A plea for gender justice A plea for gender justice
Relief post mehr and maintenance for Muslim women Relief post mehr and maintenance for Muslim women
Empowering enactments and aborted attempt Empowering enactments and aborted attempt
MUTHAMMA - MAGNUM OPUS MUTHAMMA - MAGNUM OPUS
ON MISOGYNY ON MISOGYNY
'T he darkest places in hell are reserved for

those who maintain their neutrality in times
of moral crisis.’ - Dante Aligheiri
'T he darkest places in hell are reserved for
those who maintain their neutrality in times
of moral crisis.’ - Dante Aligheiri
Winnowing veracity of verses round the globe, Winnowing veracity of verses round the globe,
the United Nations report reveals how women the United Nations report reveals how women
-hood is oppressed and levied upon with copious -hood is oppressed and levied upon with copious
exploitation round the world – This report, as stated exploitation round the world – This report, as stated
by Dan Brown in his book - ‘Inferno’, reveals stark and by Dan Brown in his book - ‘Inferno’, reveals stark and
dangerous realities that exist in the contemporaneous dangerous realities that exist in the contemporaneous
domain for the women. In this newfangled era, domain for the women. In this newfangled era,
women constitute half of the global population and women constitute half of the global population and
ha1ve been involved in almost two-thirds of the ha1ve been involved in almost two-thirds of the
work hours contributed. However, when it concerns work hours contributed. However, when it concerns
proceeds dissemination, the fairer sex receives only proceeds dissemination, the fairer sex receives only
one tenth of the world income and owns less than one tenth of the world income and owns less than
one percent of the global property, a figure which one percent of the global property, a figure which
is startling to say the least. Despite of depression, is startling to say the least. Despite of depression,
exploitation, insecurity, indiscrimination and sexual exploitation, insecurity, indiscrimination and sexual
harassment in the work place, women are forced to harassment in the work place, women are forced to
work and earn for survival due to incessant financial work and earn for survival due to incessant financial
necessities, poverty and for myriad other reasons2. necessities, poverty and for myriad other reasons2.
1
Dan Brown, Inferno, Bantam Press, London (2013) 1
Dan Brown, Inferno, Bantam Press, London (2013)
2
Note. ‘Misogyny means hatred or dislike of women. It is the central part of sexist 2
Note. ‘Misogyny means hatred or dislike of women. It is the central part of sexist
prejudice and ideology. In a patriarchal society, affording inferior status to women prejudice and ideology. In a patriarchal society, affording inferior status to women
and providing limited access to power and decision making is a one of the manifest and providing limited access to power and decision making is a one of the manifest
forms of misogyny. ‘Gender ide’ (or more precisely ‘femicide ), abductions, abortions, forms of misogyny. ‘Gender ide’ (or more precisely ‘femicide ), abductions, abortions,
bride burning and crimes against woman are the grievous forms of misogyny. bride burning and crimes against woman are the grievous forms of misogyny.
123 123
In today’s scenario, women provide a healthy In today’s scenario, women provide a healthy
contribution to varied sectors of work ranging contribution to varied sectors of work ranging
from the unorganized sector to the diversified from the unorganized sector to the diversified
uniformed service units3. The business process uniformed service units3. The business process
outsourcing setups, professional sports and all outsourcing setups, professional sports and all
other careers are now brimming with women, other careers are now brimming with women,
contributing to their growth and development contributing to their growth and development
with immense passion, zeal and dexterity. All with immense passion, zeal and dexterity. All
these workers are not restricted to any particular these workers are not restricted to any particular
strata and have been contributing dynamically strata and have been contributing dynamically
in skilled labour as well as in administrative in skilled labour as well as in administrative
positions in the higher echelons of the units. It is positions in the higher echelons of the units. It is
appealing to note that increasing number of women appealing to note that increasing number of women
self-help groups (SHG), small scale industries, micro self-help groups (SHG), small scale industries, micro
food processing units etc., are being founded and food processing units etc., are being founded and
run by women, demonstrating their prowess in a run by women, demonstrating their prowess in a
plethora of entrepreneurial ventures. plethora of entrepreneurial ventures.
The Constitution of India embraces the substantive The Constitution of India embraces the substantive
equality approach as provided under Article 15(1) equality approach as provided under Article 15(1)
(3). As stated in Article 15 of the Constitution, ‘the (3). As stated in Article 15 of the Constitution, ‘the
State shall not discriminate against any citizen on State shall not discriminate against any citizen on
grounds only religion race, caste, sex, place of birth grounds only religion race, caste, sex, place of birth
or any other’. It empowers the State to undertake or any other’. It empowers the State to undertake
affirmative action for women so as to ensure the affirmative action for women so as to ensure the
guarantee of equality between the genders and guarantee of equality between the genders and
work towards women development. However, it is work towards women development. However, it is
unfortunate that these constitutional measures are unfortunate that these constitutional measures are
grossly ignored and one such example of it is that grossly ignored and one such example of it is that
of the ultra-vires provision introduced in the Indian of the ultra-vires provision introduced in the Indian
3
U.N. Report, 1980 as quoted by Justice V.R. Krishna Iyer in ‘Declining judicial cul- 3
U.N. Report, 1980 as quoted by Justice V.R. Krishna Iyer in ‘Declining judicial cul-
ture and other essays , SOCO TRUST, Madurai (1994) page 64 ture and other essays , SOCO TRUST, Madurai (1994) page 64
124 124
Foreign Service (Conduct of Discipline) Rules, 1961. Foreign Service (Conduct of Discipline) Rules, 1961.
The Indian Administrative Services (IAS), The Indian The Indian Administrative Services (IAS), The Indian
Police Services (IPS) and The Indian Foreign Services Police Services (IPS) and The Indian Foreign Services
(IFS) form a trinity among the public service works (IFS) form a trinity among the public service works
that are immensely admired and constitute a dream that are immensely admired and constitute a dream
career for a number of brilliant and dynamic youths. career for a number of brilliant and dynamic youths.
However, an unbelievable and atrocious rule which However, an unbelievable and atrocious rule which
expressly encourages gender discrimination had expressly encourages gender discrimination had
been in existence in foreign careers until it was struck been in existence in foreign careers until it was struck
down by Justice Krishna Iyer. The long standing down by Justice Krishna Iyer. The long standing
hostile practice of discrimination against women hostile practice of discrimination against women
that prevailed in foreign services was challenged by that prevailed in foreign services was challenged by
one Miss Muthmma4. Being a senior member of the one Miss Muthmma4. Being a senior member of the
IFS, Miss Muthmma was denied promotion to Grade IFS, Miss Muthmma was denied promotion to Grade
I of IFS on illegal and unconstitutional grounds. She I of IFS on illegal and unconstitutional grounds. She
had to face the consequences of being a woman and had to face the consequences of being a woman and
thus, suffered discrimination at her workplace, a thus, suffered discrimination at her workplace, a
prima facie unethical and unconstitutional code of prima facie unethical and unconstitutional code of
conduct at the behest of women. conduct at the behest of women.
As a matter of fact, even at the very threshold when As a matter of fact, even at the very threshold when
the petitioner qualified for the Union Public Services the petitioner qualified for the Union Public Services
at the time of her interview, the Chairman of the at the time of her interview, the Chairman of the
U.P.S.C. tried to persuade (dissuade) the petitioner U.P.S.C. tried to persuade (dissuade) the petitioner
from joining the Foreign Services. Thereafter on from joining the Foreign Services. Thereafter on
subsequent occasions, he personally informed the subsequent occasions, he personally informed the
petitioner that he had used his influence as Chairman petitioner that he had used his influence as Chairman
to give minimum marks in her viva. At the time of to give minimum marks in her viva. At the time of
admittance into the Foreign Services, the petitioner admittance into the Foreign Services, the petitioner
was also required to give an undertaking that was also required to give an undertaking that
4
Muthamma vs Union of India, 1979 4 SCC 260; AIR 1979 SC 1868 4
Muthamma vs Union of India, 1979 4 SCC 260; AIR 1979 SC 1868
125 125
if she were to get married, she would have to resign from if she were to get married, she would have to resign from
the service. Therefore, a woman in foreign services the service. Therefore, a woman in foreign services
cannot get married without the consent of the cannot get married without the consent of the
departments and post wedlock, she is not entitled departments and post wedlock, she is not entitled
to remain in the said service. to remain in the said service.
Taking cognizance of the provisions of Rule 8(2) Taking cognizance of the provisions of Rule 8(2)
of the IFS (C&D) Rules 1961, which reads as: of the IFS (C&D) Rules 1961, which reads as:
‘Rule 8(2): In cases where sub-rule (1) does not ‘Rule 8(2): In cases where sub-rule (1) does not
apply, a woman member of the service shall obtain apply, a woman member of the service shall obtain
the permission of the Government in writing the permission of the Government in writing
before her marriage is solemnized. At any time after before her marriage is solemnized. At any time after
the marriage, a woman member of the Service the marriage, a woman member of the Service
may be required to resign from service, if the may be required to resign from service, if the
Government is satisfied that her family and domestic Government is satisfied that her family and domestic
commitments are likely to come in the way of commitments are likely to come in the way of
the due and efficient discharge of her duties as the due and efficient discharge of her duties as
a member of the service.” Where on the other a member of the service.” Where on the other
hand, Rule 18(4) stated that “No married woman hand, Rule 18(4) stated that “No married woman
shall be entitled as of right to be appointed to the shall be entitled as of right to be appointed to the
service.” service.”
Justice Krishna Iyer, in a landmark judgment Justice Krishna Iyer, in a landmark judgment
in order to protect and enhance gender equality, in order to protect and enhance gender equality,
pronounced the Rules to be ‘manifest misogynist pronounced the Rules to be ‘manifest misogynist
in Foreign Services’ (See, Para 4 of the judgment) in Foreign Services’ (See, Para 4 of the judgment)
and described the rules framed by the executive and described the rules framed by the executive
as ‘surrogate to parliament’ and attributed the as ‘surrogate to parliament’ and attributed the
misogynous posture to ‘the masculine culture’. Justice misogynous posture to ‘the masculine culture’. Justice
Iyer expressed his concern over the aforementioned Iyer expressed his concern over the aforementioned
matter through this case and his anguish was reflected matter through this case and his anguish was reflected
through his strongly condemning words. through his strongly condemning words.
126 126
It is worthy to skim through these provisions It is worthy to skim through these provisions
where discrimination against women in traumatic where discrimination against women in traumatic
transparency is manifest. If a woman member shall transparency is manifest. If a woman member shall
obtain the permission of the government before she obtain the permission of the government before she
marries, it must be noted that the same risk is run marries, it must be noted that the same risk is run
by government if a male member gets married. If by government if a male member gets married. If
the family and domestic commitments of a woman the family and domestic commitments of a woman
member of the service is deemed to come in the way member of the service is deemed to come in the way
of efficient discharge of duties, a similar situation of efficient discharge of duties, a similar situation
may also arise in the case of a male member. Such may also arise in the case of a male member. Such
a gross distinction only reflects how the bias in a gross distinction only reflects how the bias in
the society lies. In these days of nuclear families, the society lies. In these days of nuclear families,
inter-continental marriages and unconventional inter-continental marriages and unconventional
behavior, one fails to understand the naked bias behavior, one fails to understand the naked bias
against the gentler of the species. Rule 18 of the against the gentler of the species. Rule 18 of the
Indian Foreign Service (Recruitment Cadre, Sen- Indian Foreign Service (Recruitment Cadre, Sen-
iority and Promotion) Rules, 1961, run in the same iority and Promotion) Rules, 1961, run in the same
prejudicial strain. prejudicial strain.
Prima facie, this rule is in defiance of Article 16 Prima facie, this rule is in defiance of Article 16
of the Constitution. If a married man has a right, a of the Constitution. If a married man has a right, a
married woman, other things being equal, stands married woman, other things being equal, stands
on no worse footing. This misogynous posture is a on no worse footing. This misogynous posture is a
hangover of the masculine culture of manacling the hangover of the masculine culture of manacling the
weaker sex; forgetting how our struggle for national weaker sex; forgetting how our struggle for national
freedom was also a battle against woman’s thralldom. freedom was also a battle against woman’s thralldom.
Freedom is indivisible, so is justice. That our founding Freedom is indivisible, so is justice. That our founding
faith enshrined in Articles 14 and 16 of the Constitution faith enshrined in Articles 14 and 16 of the Constitution
should have been tragically ignored vis-a-vis half of should have been tragically ignored vis-a-vis half of
India’s humanity, viz., our women, is a sad reflection India’s humanity, viz., our women, is a sad reflection
on the distance between Constitution in the book and on the distance between Constitution in the book and
127 127
law in action. And if the executive as the surrogate law in action. And if the executive as the surrogate
of parliament makes rules in the teeth of Part III, of parliament makes rules in the teeth of Part III,
especially when high political office even diplomatic especially when high political office even diplomatic
assignment has been filled by women, the inference assignment has been filled by women, the inference
of die-hard allergy to gender parity is inevitable. of die-hard allergy to gender parity is inevitable.
The decision in Muthamma (1979) would project The decision in Muthamma (1979) would project
an important but disturbing fact that inequality an important but disturbing fact that inequality
and inequity is ubiquitous and prevailing in all and inequity is ubiquitous and prevailing in all
phases, layers of life. Woman hood is suffering from phases, layers of life. Woman hood is suffering from
subjugations not only in villages but also in the subjugations not only in villages but also in the
highly educated and ultra-rich upper layers. Some highly educated and ultra-rich upper layers. Some
of the interesting developments taken place in the of the interesting developments taken place in the
‘Muthamma case’ are worthy for consideration and ‘Muthamma case’ are worthy for consideration and
that would help in identifying the abortive efforts that would help in identifying the abortive efforts
made to prevent the rendering of comprehensive made to prevent the rendering of comprehensive
justice to the victims of masculine prejudice. justice to the victims of masculine prejudice.
When the case was sub-judice before the Supreme When the case was sub-judice before the Supreme
Court, the petitioner ‘Muthamma’ was promoted Court, the petitioner ‘Muthamma’ was promoted
and appointed as Ambassador of India to Hague. and appointed as Ambassador of India to Hague.
Subsequently, it was argued that the writ petition Subsequently, it was argued that the writ petition
has become infructuous. However, analyzing the has become infructuous. However, analyzing the
issue from a broader perspective, Justice Krishna issue from a broader perspective, Justice Krishna
Iyer viewed the other aspects of the case and took Iyer viewed the other aspects of the case and took
up the ‘Surviving grievance’ of the writ petitioner up the ‘Surviving grievance’ of the writ petitioner
into accord; which was that during the period when into accord; which was that during the period when
she was denied a rightful promotion, some officials she was denied a rightful promotion, some officials
from a junior cadre got promoted and thus, created from a junior cadre got promoted and thus, created
a scenario wherein there still existed seniority a scenario wherein there still existed seniority
complications. Therefore, directions were issued to complications. Therefore, directions were issued to
the Union government for review of her seniority and the Union government for review of her seniority and
128 128
to provide necessary recognition of the petitioner on to provide necessary recognition of the petitioner on
basis of her seniority merits in Grade II. basis of her seniority merits in Grade II.
While deciding the case on its merits, Justice While deciding the case on its merits, Justice
Krishna Iyer has observed that promotions and Krishna Iyer has observed that promotions and
elevations in the official life in India is a ‘rat race’ elevations in the official life in India is a ‘rat race’
and acquiring seniority is nothing short of a religious and acquiring seniority is nothing short of a religious
reverence. Understanding these perspectives, he reverence. Understanding these perspectives, he
directed the government for immediate elimination directed the government for immediate elimination
of gender discriminations provisions from the service of gender discriminations provisions from the service
statutes without waiting for any ad hoc inspiration statutes without waiting for any ad hoc inspiration
through writ petitions or gender charity. He is seen through writ petitions or gender charity. He is seen
to note that development of India depends upon the to note that development of India depends upon the
due recognition and respect that the society renders due recognition and respect that the society renders
towards woman. Freedom would be meaningless towards woman. Freedom would be meaningless
if a female is fettered with political, economic and if a female is fettered with political, economic and
social discrimination. In his views, social discrimination. In his views,
“India can never really be free until the last “India can never really be free until the last
Indian is free. And Indians, except by political Indian is free. And Indians, except by political
fiction, can never be free until last mother, sister fiction, can never be free until last mother, sister
and daughter is free5”. and daughter is free5”.
5
Justice V.R. Krishna Iyer, ‘Declining judicial culture and other essays', SOCO TRUST, 5
Justice V.R. Krishna Iyer, ‘Declining judicial culture and other essays', SOCO TRUST,
Madurai (1994) page 54 Madurai (1994) page 54
129 129
Where Be The Rectitude in Where Be The Rectitude in
'Him Can - Her Cannot?' 'Him Can - Her Cannot?'
The judgment delivered by the Supreme Court The judgment delivered by the Supreme Court
in Muthamma case (1979) was the curtain raiser in Muthamma case (1979) was the curtain raiser
in gender jurisprudence. Through Justice Krishna in gender jurisprudence. Through Justice Krishna
Iyer’s erudite and logical jurisprudence, this case Iyer’s erudite and logical jurisprudence, this case
helped a highly qualified lady suffering in the gallows helped a highly qualified lady suffering in the gallows
of misogyny and gender bias to rise beyond and attain of misogyny and gender bias to rise beyond and attain
her right of progressing in her chosen field through her right of progressing in her chosen field through
merit and not be restrained by hollow societal merit and not be restrained by hollow societal
impediments of bias and disparity against women. impediments of bias and disparity against women.
This pronouncement can be compared and put in This pronouncement can be compared and put in
equal footing to the opinion of Lord Denning in Nagle equal footing to the opinion of Lord Denning in Nagle
vs Feilden1 in which a club had refused license to a vs Feilden1 in which a club had refused license to a
lady trainer of horses, because she was a woman. lady trainer of horses, because she was a woman.
Nagle, a lady who trained horses applied to the Nagle, a lady who trained horses applied to the
Jockey Club for a license, however, met refusal on Jockey Club for a license, however, met refusal on
the grounds of being a woman. The club argued that the grounds of being a woman. The club argued that
the members of a trading or professional association the members of a trading or professional association
were like a social club. They had unrestricted power were like a social club. They had unrestricted power
to admit or refuse admission, to any person as they to admit or refuse admission, to any person as they
deemed fit. In support of their arguments, they relied deemed fit. In support of their arguments, they relied
upon a case from 1825 concerning certain import upon a case from 1825 concerning certain import
functions of the court. However, Lord Denning2 functions of the court. However, Lord Denning2
in his opinion stated: in his opinion stated:
“In this case the plaintiff alleged that the “In this case the plaintiff alleged that the
stewards of the Jockey Club make a practice of stewards of the Jockey Club make a practice of
1
Nigela vs Feilden (1966 2 QB 633) 1
Nigela vs Feilden (1966 2 QB 633)
2
Lord Denning, The Discipline of Law, page 162. 2
Lord Denning, The Discipline of Law, page 162.
130 130
refusing any woman trainer who applies for a refusing any woman trainer who applies for a
license, she is refused because she is a woman, license, she is refused because she is a woman,
and for no other reason. The practice is so uniform and for no other reason. The practice is so uniform
that it amounts to an unwritten rule. The only that it amounts to an unwritten rule. The only
way she can get round it is to get her head lad way she can get round it is to get her head lad
to apply. The license is granted to him, not to her. to apply. The license is granted to him, not to her.
It seems to me that this unwritten rule may well It seems to me that this unwritten rule may well
be said to be arbitrary and capricious. It is not be said to be arbitrary and capricious. It is not
as if the training of horses could be regarded as as if the training of horses could be regarded as
an unsuitable occupation for a woman, like that an unsuitable occupation for a woman, like that
of jockey or speedway-rider. It is an occupation of jockey or speedway-rider. It is an occupation
in which woman can and do engage in most suc- in which woman can and do engage in most suc-
cessfully. It may not be “vocation” within the Sex cessfully. It may not be “vocation” within the Sex
Disqualification (Removal) Act 1919, but still it is Disqualification (Removal) Act 1919, but still it is
an occupation which any woman can do as well an occupation which any woman can do as well
as men; and there would seem to be no reason as men; and there would seem to be no reason
why they should be excluded from it”. why they should be excluded from it”.
‘Wise men think alike’, this famous saying rightly ‘Wise men think alike’, this famous saying rightly
comes to the mind as we analyze this judgment in light comes to the mind as we analyze this judgment in light
of Justice Krishna Iyer’s judgment in Muthamma3. of Justice Krishna Iyer’s judgment in Muthamma3.
As the injustice in the society was deterring Muthamma As the injustice in the society was deterring Muthamma
the aforementioned case of Nigela (1966) was no the aforementioned case of Nigela (1966) was no
different as she faced obstructions for the sole different as she faced obstructions for the sole
rationale that she was a woman and none of her rationale that she was a woman and none of her
qualifications or skills mattered when put against qualifications or skills mattered when put against
her biggest flaw of being a woman in a patriarchal her biggest flaw of being a woman in a patriarchal
society. Both these legends of law have worked with society. Both these legends of law have worked with
great effect to eliminate the evils of sexist prejudice great effect to eliminate the evils of sexist prejudice
prevailing in the society. Both the cases are to be prevailing in the society. Both the cases are to be
3
Muthamma vs Union of India (1979 4 SCC 260: AIR 1979 SC 1868) 3
Muthamma vs Union of India (1979 4 SCC 260: AIR 1979 SC 1868)
131 131
read and studied comparatively to understand and read and studied comparatively to understand and
appreciate the commitment that both the ‘living appreciate the commitment that both the ‘living
legends’ have had in the elimination of discriminations legends’ have had in the elimination of discriminations
and empowerment of women. and empowerment of women.
132 132
Gender Representation In Judiciary - In Gender Representation In Judiciary - In
Light of Reforms and Pleas Light of Reforms and Pleas
In the Muthamma case, Justice V.R. Krishna In the Muthamma case, Justice V.R. Krishna
Iyer had administered bitter medicine to the elite Iyer had administered bitter medicine to the elite
executives and diplomats to cure the male made executives and diplomats to cure the male made
disease of masculine prejudice. Prior to that when disease of masculine prejudice. Prior to that when
he was a minister in Kerala, that is, during the he was a minister in Kerala, that is, during the
pre-collegium days, he played a pivotal role and pre-collegium days, he played a pivotal role and
paved way for Kerala to have its first woman judge, paved way for Kerala to have its first woman judge,
Smt. Anna Chandy. He has vividly recalled his extra Smt. Anna Chandy. He has vividly recalled his extra
judicial service to the judiciary by opening an judicial service to the judiciary by opening an
account for woman representation in the State's account for woman representation in the State's
highest judiciary, in his autobiography, highest judiciary, in his autobiography,
“What is the percentage of women in the superior “What is the percentage of women in the superior
judicial service in India? It is perhaps less than judicial service in India? It is perhaps less than
one per cent. I was insistent as the Law Minister one per cent. I was insistent as the Law Minister
that Kerala should have a woman judge in the that Kerala should have a woman judge in the
form of Hon'ble Anna Chandy. What proportion form of Hon'ble Anna Chandy. What proportion
of women is there in the legislatures? I blush to of women is there in the legislatures? I blush to
say; next to nothing. In the profession, gender say; next to nothing. In the profession, gender
representation is pitifully low. Until equality becomes representation is pitifully low. Until equality becomes
a reality for womanhood we are denying the a reality for womanhood we are denying the
massive contribution of talented women in the massive contribution of talented women in the
progress of India. If the nation is to rise to its progress of India. If the nation is to rise to its
full status, Ganga must be as hallowed as the full status, Ganga must be as hallowed as the
Himalayas, masculine terrorism should submit Himalayas, masculine terrorism should submit
to egalitarian humanism and then the plenary to egalitarian humanism and then the plenary
human resources of India will manifest in the human resources of India will manifest in the
march of progress. Even spiritually speaking, march of progress. Even spiritually speaking,
133 133
motherhood has a high place in Indian system motherhood has a high place in Indian system
although the aggressive male abuses the female although the aggressive male abuses the female
by rape and other crimes1". by rape and other crimes1".
1
Justice V.R. Krishna Iyer, Wandering in Many Worlds, page-187. 1
Justice V.R. Krishna Iyer, Wandering in Many Worlds, page-187.
134 134
Rescue Homes for Women - An Initiative Rescue Homes for Women - An Initiative
As a minister in charge of social welfare, Justice As a minister in charge of social welfare, Justice
Iyer started rescue homes for women to rehabilitate the Iyer started rescue homes for women to rehabilitate the
women who were forced into anti-social ways. There women who were forced into anti-social ways. There
was a big push given to progressive polices for re– was a big push given to progressive polices for re–
orientation and re-integration of women and juveniles orientation and re-integration of women and juveniles
in conflict with law. He has stated in his autobiography in conflict with law. He has stated in his autobiography
that the relief and reformatory measures “instead that the relief and reformatory measures “instead
of torturing an offender putting him in prison and causing of torturing an offender putting him in prison and causing
torture can awaken the finer side of the person”. He has torture can awaken the finer side of the person”. He has
also stated that, also stated that,
“Humanism has many dimensions. Prison rescue “Humanism has many dimensions. Prison rescue
homes and juvenile homes are theatres where social homes and juvenile homes are theatres where social
retrieval will pay dividends1”, thus, illustrating the retrieval will pay dividends1”, thus, illustrating the
‘Penal–Prison’ philosophy of Justice V.R.Krishna ‘Penal–Prison’ philosophy of Justice V.R.Krishna
Iyer. Iyer.
1
Ibid. 1
Ibid.
135 135
A Plea of Gender Justice A Plea of Gender Justice
In his book, ‘Declining judicial culture and other In his book, ‘Declining judicial culture and other
essays', Justice Krishna Iyer discusses the plight essays', Justice Krishna Iyer discusses the plight
of Indian women which has been stated as follows: of Indian women which has been stated as follows:
“The proclaiming of Indian woman's condition “The proclaiming of Indian woman's condition
is that she is a slave; trapped in bonded labour, is that she is a slave; trapped in bonded labour,
bought-sold, raped and murdered, pained through bought-sold, raped and murdered, pained through
eve teasing and dowry demands and even burnt eve teasing and dowry demands and even burnt
for it, employment is excluded to her, she is for it, employment is excluded to her, she is
pushed to the lower rungs in her profession and pushed to the lower rungs in her profession and
barred from entering or gaining promotions in barred from entering or gaining promotions in
various fields of industry, science and technology. various fields of industry, science and technology.
With one of the highest maternal mortality rates in With one of the highest maternal mortality rates in
the world, even motherhood has become a curse the world, even motherhood has become a curse
for women in India. Even government land grants for women in India. Even government land grants
are made in favour of men and the land reform are made in favour of men and the land reform
laws empower the male head to choose the lands laws empower the male head to choose the lands
for the family”1. for the family”1.
Social justice is a much maligned phrase for Indian Social justice is a much maligned phrase for Indian
woman even in 1990 and in these times where the woman even in 1990 and in these times where the
society is cradled in centuries of retrograde policies society is cradled in centuries of retrograde policies
and biases against women, Justice V.R. Krishna Iyer and biases against women, Justice V.R. Krishna Iyer
is a crusader for women rights with unparalleled is a crusader for women rights with unparalleled
contributions. contributions.
1
Justice V.R. Krishna Iyer, Declining Judicial Cultures and Other Essays, SOCO 1
Justice V.R. Krishna Iyer, Declining Judicial Cultures and Other Essays, SOCO
TRUST Madurai (1994) page-54 TRUST Madurai (1994) page-54
136 136
Relief Post Mehr and Maintenance for Relief Post Mehr and Maintenance for
Muslim Women Muslim Women
Gender justice occupies a pivotal palette Gender justice occupies a pivotal palette
in Indian criminal jurisprudence. In reference to in Indian criminal jurisprudence. In reference to
that, Justice Krishna Iyer made various important that, Justice Krishna Iyer made various important
observations in the decision of Somnath vs State of observations in the decision of Somnath vs State of
Haryana1. Haryana1.
Contrary to public opinion that he was too Contrary to public opinion that he was too
lenient in imposing rigid and rigorous sentence lenient in imposing rigid and rigorous sentence
of imprisonment for the offenders in the name of of imprisonment for the offenders in the name of
humane approach (in a case of bride burning), he humane approach (in a case of bride burning), he
politely rejected the arguments to discredit the dying politely rejected the arguments to discredit the dying
declaration and confirmed the conviction with the declaration and confirmed the conviction with the
above observation. This decision outshone his above observation. This decision outshone his
conviction to do substantial justice to the weaker conviction to do substantial justice to the weaker
sections while ignoring the hyper technical legal sections while ignoring the hyper technical legal
obstructions. obstructions.
Justice Krishna Iyer has made sincere efforts in the Justice Krishna Iyer has made sincere efforts in the
Bench to uphold the rights guaranteed and the reliefs Bench to uphold the rights guaranteed and the reliefs
provided in the law for women. In the amendment provided in the law for women. In the amendment
introduced in Chapter IX of CrPC in 1974, the new introduced in Chapter IX of CrPC in 1974, the new
provisions enable women to claim maintenance provisions enable women to claim maintenance
from their father or husband. It is an introduction from their father or husband. It is an introduction
of provisions relating to substantial gender rights in of provisions relating to substantial gender rights in
the procedural law. Within a short span, those laws the procedural law. Within a short span, those laws
were tested before the Courts and women who were were tested before the Courts and women who were
victims of neglect by their husbands and driven out victims of neglect by their husbands and driven out
from the matrimonial houses were subjected to just from the matrimonial houses were subjected to just
1
AIR 9180 SC 1226 : 1980 3 SCC 301 1
AIR 9180 SC 1226 : 1980 3 SCC 301
137 137
interpretations of the religious laws by the courts. interpretations of the religious laws by the courts.
Prior to the Shah Bano Case2, two important cases Prior to the Shah Bano Case2, two important cases
on the liability of a Muslim husband to his divorced on the liability of a Muslim husband to his divorced
wife were decided by the Supreme Court and both wife were decided by the Supreme Court and both
the judgments were penned by Justice Krishna Iyer. the judgments were penned by Justice Krishna Iyer.
The decision in Fazlunbi vs K Khader Vali3 is a classic The decision in Fazlunbi vs K Khader Vali3 is a classic
literature on the maintenance. It was described literature on the maintenance. It was described
that Sections 125-127 in CRPC are secular in that Sections 125-127 in CRPC are secular in
character and deliberately designed to protect the character and deliberately designed to protect the
destitute woman. The words in the judgment would destitute woman. The words in the judgment would
inspire confidence in the minds of poor women, who inspire confidence in the minds of poor women, who
are neglected by their life partners: are neglected by their life partners:
‘The Code of Criminal Procedure (Sub-section ‘The Code of Criminal Procedure (Sub-section
125-127) is a secular code deliberately designed 125-127) is a secular code deliberately designed
to protect destitute women, who are victims of to protect destitute women, who are victims of
neglect during marriage and after divorce. It is neglect during marriage and after divorce. It is
rooted in the State’s responsibility for the welfare rooted in the State’s responsibility for the welfare
of women and children and is not confined to of women and children and is not confined to
members of any religion or region, but the whole members of any religion or region, but the whole
community of womanhood. Secondly, Muslim Law community of womanhood. Secondly, Muslim Law
shows its reverence for the wife in the institution shows its reverence for the wife in the institution
of Mehar (dower). It is neither dowry nor price for of Mehar (dower). It is neither dowry nor price for
marriage. We may sum up and declare the law marriage. We may sum up and declare the law
fool-proof: fool-proof:
1. Section 127 (3) (b) has a setting. Scheme and 1. Section 127 (3) (b) has a setting. Scheme and
a purpose and no talaq of the purpose different from a purpose and no talaq of the purpose different from
the sense is permissible in statutory construction. the sense is permissible in statutory construction.
2. The payment of an amount, customary or oth- 2. The payment of an amount, customary or oth-
erwise, contemplated by the measure must inset the erwise, contemplated by the measure must inset the
2
AIR 1985 SC 945 2
AIR 1985 SC 945
3
AIR 1980 SC1730: 1980 4 SCC 125 3
AIR 1980 SC1730: 1980 4 SCC 125
138 138
intent of preventing destitution and providing a sum intent of preventing destitution and providing a sum
which is more or less the present worth of the monthly which is more or less the present worth of the monthly
maintenance allowances the divorce may need maintenance allowances the divorce may need
until death or remarriage overtake her. The policy until death or remarriage overtake her. The policy
of the law abhors neglected wives and destitute of the law abhors neglected wives and destitute
divorcees and section 127(3) (b) takes care to avoid divorcees and section 127(3) (b) takes care to avoid
double payment one under custom at the time of double payment one under custom at the time of
divorce and another under section 125. divorce and another under section 125.
3. Whatever the facts of a particular case, the 3. Whatever the facts of a particular case, the
Code, by enacting sections 125 to 127, charges Code, by enacting sections 125 to 127, charges
the court with the humane obligation of enforcing the court with the humane obligation of enforcing
maintenance or its just equivalent to ill-used wives maintenance or its just equivalent to ill-used wives
and cast away ex-wives, only if the women has and cast away ex-wives, only if the women has
received voluntarily a sum, at the time of divorce, received voluntarily a sum, at the time of divorce,
sufficient to keep her going according to the sufficient to keep her going according to the
circumstances of the parties. circumstances of the parties.
4. Neither personal laws nor other salvationary 4. Neither personal laws nor other salvationary
pleas will hold against the policy of public law pervading pleas will hold against the policy of public law pervading
section 127(3)(b) as much as it does section 125. So, section 127(3)(b) as much as it does section 125. So,
a farthing is neither a substitute for a fortune nor a farthing is neither a substitute for a fortune nor
naïve consent equivalent to intelligent acceptance. naïve consent equivalent to intelligent acceptance.
The husband in the Fazlunbi case, apparently The husband in the Fazlunbi case, apparently
drew a salary of Rupees one thousand and above drew a salary of Rupees one thousand and above
per month, however, deserted both his wife and per month, however, deserted both his wife and
single child. The deserted wife’s claim maintenance single child. The deserted wife’s claim maintenance
amount for her and the child, was opposed by the amount for her and the child, was opposed by the
husband, who in turn resorted to the plea of ‘talaq’ husband, who in turn resorted to the plea of ‘talaq’
along with a return of the mehar amount of Rupees along with a return of the mehar amount of Rupees
five hundred, in addition to the payment of Rupees five hundred, in addition to the payment of Rupees
seven hundred and fifty towards maintenance for seven hundred and fifty towards maintenance for
three iddat period. Justice Krishna Iyer rejected three iddat period. Justice Krishna Iyer rejected
the plea of the husband and held that the return the plea of the husband and held that the return
139 139
of mehar amount will not empower the husband to of mehar amount will not empower the husband to
disown his matrimonial liability to maintain his wife disown his matrimonial liability to maintain his wife
and children. The judgment fastened the husband and children. The judgment fastened the husband
with the liability to his wife even after return of the with the liability to his wife even after return of the
said mehar amount. said mehar amount.
Ergo, what we perceive here is Justice Krishna Ergo, what we perceive here is Justice Krishna
Iyer’s foundation of maintenance jurisprudence in Iyer’s foundation of maintenance jurisprudence in
the decision penned down in Bai Tahira vs Ali Hussain the decision penned down in Bai Tahira vs Ali Hussain
Fissalli Chothia ( AIR 1979 SC 362 : (1979) 2 SCC Fissalli Chothia ( AIR 1979 SC 362 : (1979) 2 SCC
316) The only just construction of this section is 316) The only just construction of this section is
that the Parliament intends divorcees to be bereft of that the Parliament intends divorcees to be bereft of
double benefits. If the first payment by way of mehar double benefits. If the first payment by way of mehar
or ordained by custom has reasonable relation to the or ordained by custom has reasonable relation to the
object, is a capitalized substitute for the order under object, is a capitalized substitute for the order under
Section 125 and not mathematically, rather fairly Section 125 and not mathematically, rather fairly
-then Section 127(3)(b) subserves relieves the obligor, -then Section 127(3)(b) subserves relieves the obligor,
not pro tanto but wholly. The purpose of the payment not pro tanto but wholly. The purpose of the payment
under any customary or personal law must be to under any customary or personal law must be to
obviate destitution of the divorcee and to provide obviate destitution of the divorcee and to provide
her with wherewithal so as to maintain herself. her with wherewithal so as to maintain herself.
It is manifest that the whole scheme of Section It is manifest that the whole scheme of Section
127(3) (b) is to recognize and acknowledge the 127(3) (b) is to recognize and acknowledge the
substitute maintenance arrangement by lump sum substitute maintenance arrangement by lump sum
payment organized by the custom of the community payment organized by the custom of the community
or the personal law of the parties. There must be a or the personal law of the parties. There must be a
rational relation between the sum so paid and its rational relation between the sum so paid and its
potential as provision for maintenance. To interpret potential as provision for maintenance. To interpret
otherwise is to stultify the project. Law is a dynamic otherwise is to stultify the project. Law is a dynamic
mechanism and its meaning cannot be pedantic but mechanism and its meaning cannot be pedantic but
purposeful. The proposition, therefore, is that no purposeful. The proposition, therefore, is that no
140 140
husband can, under the provisions of Section 127 husband can, under the provisions of Section 127
(3)(b) claim absolution from this obligation under (3)(b) claim absolution from this obligation under
Section 125, towards a divorced wife, except on Section 125, towards a divorced wife, except on
proof of payment of a sum stipulated by customary proof of payment of a sum stipulated by customary
or personal laws, whose quantum is more or less or personal laws, whose quantum is more or less
sufficient to do duty for maintenance allowance. sufficient to do duty for maintenance allowance.
The conclusion we therefore reach is that the appeal The conclusion we therefore reach is that the appeal
should be allowed and it was thereby allowed, and should be allowed and it was thereby allowed, and
the order of the Trial Court was restored. the order of the Trial Court was restored.
141 141
Empowering Enactments and Aborted Empowering Enactments and Aborted
Attempt Attempt
‘Home is the girl’s prison and the woman’s ‘Home is the girl’s prison and the woman’s
work house.’ -George Bernard Shaw work house.’ -George Bernard Shaw
Mounting on gender dispositions, it is well Mounting on gender dispositions, it is well

established that its exploitation is omnipresent. established that its exploitation is omnipresent.
England as a country is weighed as one set of well England as a country is weighed as one set of well
educated citizenry. The legislations enacted by the educated citizenry. The legislations enacted by the
powerful parliament conveyed upon the husband powerful parliament conveyed upon the husband
dominion over his wife. Interestingly, Lord Denning dominion over his wife. Interestingly, Lord Denning
has described those statutes as laws that were has described those statutes as laws that were
oblivious to the converse precept that the husband oblivious to the converse precept that the husband
was to love and cherish his wife. On the contrary, was to love and cherish his wife. On the contrary,
the magnanimous protector was authorized to be the magnanimous protector was authorized to be
a tyrant. a tyrant.
It was said in the old books that he might keep It was said in the old books that he might keep
her by force within the bounds of duty and might her by force within the bounds of duty and might
exert assault on her, subject, however, to cruelty exert assault on her, subject, however, to cruelty
and violence. The glass put upon this by the common and violence. The glass put upon this by the common
man was that he might beat her but only with a man was that he might beat her but only with a
stick not thicker than his thumb1. It was the power stick not thicker than his thumb1. It was the power
provided to men to dominate the women under provided to men to dominate the women under
the laws in UK. The laws sponsored by the UK for the laws in UK. The laws sponsored by the UK for
administration of colonial India also had the flavor administration of colonial India also had the flavor
of woman bondage with masculine complex. Article of woman bondage with masculine complex. Article
372 of the Constitution made under the light of the 372 of the Constitution made under the light of the
pre-constitutional laws promulgated by the parliament pre-constitutional laws promulgated by the parliament
of the UK, existed until altered or repealed or of the UK, existed until altered or repealed or
1
Lord Denning, The Changing Law, Universal Law Publishing Co. Ltd (2010) page 79. 1
Lord Denning, The Changing Law, Universal Law Publishing Co. Ltd (2010) page 79.
142 142
amended by a competent legislature or other competent amended by a competent legislature or other competent
authorities. Therefore, even after commencement authorities. Therefore, even after commencement
of the Constitution, those laws continued to in the of the Constitution, those laws continued to in the
statute books of India. Justice V.R.Krishna Iyer statute books of India. Justice V.R.Krishna Iyer
made committed and sincere efforts to repeal some made committed and sincere efforts to repeal some
of the outdated laws that evaluated women with of the outdated laws that evaluated women with
discriminatory ideas and inequalities. However, his discriminatory ideas and inequalities. However, his
virtuous endeavors were made to see their collapse virtuous endeavors were made to see their collapse
as the religious fundamentalism and masculine as the religious fundamentalism and masculine
mighty power caused hurdles in his ways to enact mighty power caused hurdles in his ways to enact
myriad women welfare legislations. myriad women welfare legislations.
I take this opportunity to recall a small anecdote. I take this opportunity to recall a small anecdote.
While I was the law minister of Kerala way back in 1957- While I was the law minister of Kerala way back in 1957-
59, I brought about two Bills as a project to counter 59, I brought about two Bills as a project to counter
the intricacies of dowry and to make inheritance the intricacies of dowry and to make inheritance
for Christian women at par with men of Travancore for Christian women at par with men of Travancore
and Cochin – places where Christian succession and Cochin – places where Christian succession
deprived women of equality with men. The church deprived women of equality with men. The church
opposed my Bills, the Muslim joined the opposition, opposed my Bills, the Muslim joined the opposition,
and ludicrous as it may seem, the opposition was and ludicrous as it may seem, the opposition was
antithetical of my views as if it were a religious antithetical of my views as if it were a religious
duty of theirs to differ. Eventually, I was forced to duty of theirs to differ. Eventually, I was forced to
withdraw the Bills. On these lines, I deem it fit to withdraw the Bills. On these lines, I deem it fit to
conclude that even on such pressing situations conclude that even on such pressing situations
encountered in due course of his judicial career, encountered in due course of his judicial career,
Justice Iyer has not only penned down and pronounced Justice Iyer has not only penned down and pronounced
women empowering judgments, but has also written women empowering judgments, but has also written
extra judicial columns as a legislator and has made extra judicial columns as a legislator and has made
an attempts to repeal the rules that stood against an attempts to repeal the rules that stood against
women2. women2.
Justice V.R. Krisha Iyer, ‘Woman Unbound' , SOCO TRUST, Madurai (1985) page 44.
2
Justice V.R. Krisha Iyer, ‘Woman Unbound' , SOCO TRUST, Madurai (1985) page 44.
2
7 7
EDIGA ANNAMMA – PENLALOGICAL EDIGA ANNAMMA – PENLALOGICAL

SOLUTION FOR PUNITIVE - DILEMMA SOLUTION FOR PUNITIVE - DILEMMA
Facts and Lineaments of the Case Facts and Lineaments of the Case
Conscious of Fallibility Conscious of Fallibility
Pool of Doubt - Criticisms Against the Judgment Pool of Doubt - Criticisms Against the Judgment
Tbe deadly quandary Tbe deadly quandary
Soft justice syndrome Soft justice syndrome

EDIGAANNAMMA- EDIGAANNAMMA-
PENLALOGICAL SOLUTION PENLALOGICAL SOLUTION
FOR PUNITIVE - DILEMMA FOR PUNITIVE - DILEMMA
T roweling the extant provisions of

the present Code of Criminal Procedure,
T roweling the extant provisions of
the present Code of Criminal Procedure,
1974 (Act II of 1974), a substantial change 1974 (Act II of 1974), a substantial change
stands discernable – the incorporation of awards of stands discernable – the incorporation of awards of
Capital Punishment under Section 354 (3), which Capital Punishment under Section 354 (3), which
states: states:
When the conviction is for an offence punishable When the conviction is for an offence punishable
with dealt or, in the alternative, with imprisonment with dealt or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, awarded, and, in the case of sentence of death,
the special reasons for such sentence. the special reasons for such sentence.
Before the amendment through Act 26 of 1955, Before the amendment through Act 26 of 1955,
the legislation prescribed a death sentence to a person the legislation prescribed a death sentence to a person
convicted for murder and imposed a considerable convicted for murder and imposed a considerable
degree of lesser sentence for reasons, as required, degree of lesser sentence for reasons, as required,
to be recorded in writing. Thus, positioning the to be recorded in writing. Thus, positioning the
veto upon the judge to pronounce a death penalty veto upon the judge to pronounce a death penalty
upon an accused, whose guilt has been proven upon an accused, whose guilt has been proven
without any doubt in the eyes of the law, devoid without any doubt in the eyes of the law, devoid
of any form of hesitation or qualms. On the other of any form of hesitation or qualms. On the other
145 145
hand, the judge has to assign special reasons to hand, the judge has to assign special reasons to
spare the guilty from the gallows and to impose spare the guilty from the gallows and to impose
life imprisonment instead. This makes it easier to life imprisonment instead. This makes it easier to
judge a matter proceeding to the award of capital judge a matter proceeding to the award of capital
punishment on an offender, but rather tough to punishment on an offender, but rather tough to
award life imprisonment. award life imprisonment.
In consideration of the above issues, Justice In consideration of the above issues, Justice
Krishna Iyer decoded the case in Ediga anamma vs Krishna Iyer decoded the case in Ediga anamma vs
State of Andhra Pradesh (AIR 1974 SC 799; 1974 State of Andhra Pradesh (AIR 1974 SC 799; 1974
SCR (3) 329). The judgment was delivered on 11th SCR (3) 329). The judgment was delivered on 11th
February 1974, with fixation of refulgence on the February 1974, with fixation of refulgence on the
provisions of the Code of Criminal Procedure 1973 provisions of the Code of Criminal Procedure 1973
(as amended by Act 1 of 1974 and came into force (as amended by Act 1 of 1974 and came into force
on 1st April 1974). Justice Krishna Iyer confirmed on 1st April 1974). Justice Krishna Iyer confirmed
the conviction, however, with a marginal vaccination the conviction, however, with a marginal vaccination
which dissolved the death sentence and substituted which dissolved the death sentence and substituted
it with a life sentence for the offender. it with a life sentence for the offender.
This decision, through its sound reasoning, has This decision, through its sound reasoning, has
unveiled various dimensions and justifications that unveiled various dimensions and justifications that
could be utilized in advocating for lesser punishment could be utilized in advocating for lesser punishment
instead of the death sentence. One such cardinal instead of the death sentence. One such cardinal
cause that has engendered from this judgment is cause that has engendered from this judgment is
the principle of “Conscious of Fallibility” which has the principle of “Conscious of Fallibility” which has
led to the dilution of death penalty. led to the dilution of death penalty.
146 146
Facts and Lineaments of the Case Facts and Lineaments of the Case
Dating back through pages of certitude, Ediga Dating back through pages of certitude, Ediga
Anamma was a rustic young woman from a rural Anamma was a rustic young woman from a rural
region of Andhra Pradesh. She was impelled out region of Andhra Pradesh. She was impelled out
of her husband’s house by her father-in-law, and of her husband’s house by her father-in-law, and
since then, advanced hers as well as her only child’s since then, advanced hers as well as her only child’s
sustenance through her parents, with whom she sustenance through her parents, with whom she
continued living post compulsion. After a while, continued living post compulsion. After a while,
she committed a premeditated, astutely planned she committed a premeditated, astutely planned
murder of another young woman, namely Anusya, murder of another young woman, namely Anusya,
and her child, Nirmala. The reason forwarded was and her child, Nirmala. The reason forwarded was
that of stiff rivalry between her, and the murdered that of stiff rivalry between her, and the murdered
woman, for the affection of an illicit lover. woman, for the affection of an illicit lover.
It is an admitted fact that the accused, although It is an admitted fact that the accused, although
married, was conniving illicit relations with a shepherd married, was conniving illicit relations with a shepherd
and upon subsequent discovery of malicious relations and upon subsequent discovery of malicious relations
between her paramour and another woman by between her paramour and another woman by
the name Anusya, furthered her intent to commit the name Anusya, furthered her intent to commit
the said murder. The trial court after considering the said murder. The trial court after considering
the facts and evidence came to a conclusion that the facts and evidence came to a conclusion that
the said Ediga Anamma was guilty of the offence the said Ediga Anamma was guilty of the offence
of murder as well as for screening the evidence. of murder as well as for screening the evidence.
The court awarded death sentence for murder and The court awarded death sentence for murder and
life sentence for secreting evidence. Thereafter, an life sentence for secreting evidence. Thereafter, an
appeal by the accused and a referred trial under appeal by the accused and a referred trial under
the Cr.P.C came up before the Division Bench of the Cr.P.C came up before the Division Bench of
the High Court, where the guilt of the accused was the High Court, where the guilt of the accused was
affirmed and the sentence, upheld. A jail appeal affirmed and the sentence, upheld. A jail appeal
came up before the Bench of the Supreme Court came up before the Bench of the Supreme Court
147 147
consisting of Justice V.R.KrishnaIyer, Sarkaria, consisting of Justice V.R.KrishnaIyer, Sarkaria,
Ranjit Singh JJ. Justice Krisha Iyer handed down Ranjit Singh JJ. Justice Krisha Iyer handed down
the judgment on behalf of the Bench. He held that the judgment on behalf of the Bench. He held that
the judgment of the High Court was well-considered the judgment of the High Court was well-considered
and covered all relevant evidences. While Justice and covered all relevant evidences. While Justice
Iyer confirmed the conviction, he set-aside the death Iyer confirmed the conviction, he set-aside the death
sentence awarded against the offender and imposed, sentence awarded against the offender and imposed,
on the contrary, a life sentence. on the contrary, a life sentence.
148 148
Conscious of Fallibility Conscious of Fallibility
It is of paramount relevance that for the proof of It is of paramount relevance that for the proof of
guilt, the Court is mandated to undergo a ‘punitive guilt, the Court is mandated to undergo a ‘punitive
dilemma’ so as to allot the right quantum of sentence dilemma’ so as to allot the right quantum of sentence
upon the offender. It is synonymous to a cadence upon the offender. It is synonymous to a cadence
ebbed by every court in the sentencing process. In ebbed by every court in the sentencing process. In
the case at hand, this particular punitive dilemma the case at hand, this particular punitive dilemma
that we speak of, was dealt with detail and thereafter, that we speak of, was dealt with detail and thereafter,
comprehensive guidelines were also laid down for comprehensive guidelines were also laid down for
awarding just, fair, proper and adequate sentence to awarding just, fair, proper and adequate sentence to
the person whose guilt was proved. It is imperative the person whose guilt was proved. It is imperative
to mention that the modern principles of penology to mention that the modern principles of penology
relating to quantifiers for awarding sentence are relating to quantifiers for awarding sentence are
quoted and discussed in the judgment. quoted and discussed in the judgment.
Modern penology regards crime and criminal Modern penology regards crime and criminal
as equally material when the right sentence has to as equally material when the right sentence has to
be picked out, although in our procedural system, be picked out, although in our procedural system,
there is neither any comprehensive provision, nor there is neither any comprehensive provision, nor
adequate machinery for collection and presentation adequate machinery for collection and presentation
of the social and personal data of the culprit to the of the social and personal data of the culprit to the
extent required in the verdict on sentence. However, extent required in the verdict on sentence. However,
prospective provisions in the Criminal Procedure prospective provisions in the Criminal Procedure
Code, 1973, about to come into force in postremo, Code, 1973, about to come into force in postremo,
finds the Parliament to have wisely written into the finds the Parliament to have wisely written into the
law a post-conviction stage when the Judges shall law a post-conviction stage when the Judges shall
“hear the accused on the question of sentence and “hear the accused on the question of sentence and
then pass sentence on him according to law.” (Section then pass sentence on him according to law.” (Section
235 and Section 248) 235 and Section 248)
149 149
The case on hand has to be disposed of under The case on hand has to be disposed of under
the present Code and we have to fall back upon the the present Code and we have to fall back upon the
method of judicial hunch in imposing or avoiding method of judicial hunch in imposing or avoiding
capital sentence, aided by such circumstances as capital sentence, aided by such circumstances as
are present on the record introduced for the purpose are present on the record introduced for the purpose
of proving guilt. Justice Krishna Iyer has appreciated of proving guilt. Justice Krishna Iyer has appreciated
the amendments (introduced in Cr.P.C in 1973) the amendments (introduced in Cr.P.C in 1973)
about the post-conviction hearing of accused on the about the post-conviction hearing of accused on the
question of sentence to be passed by the court. He is question of sentence to be passed by the court. He is
of the view that it is a scientific method and would of the view that it is a scientific method and would
make the Court aware of all crucial values material make the Court aware of all crucial values material
and necessary to consider in course of determining and necessary to consider in course of determining
the actual sentence. the actual sentence.
Justice Krishna Iyer’s benchmark judgment in the Justice Krishna Iyer’s benchmark judgment in the
Ediga case, on post-conviction mechanism is regarded Ediga case, on post-conviction mechanism is regarded
a stellar masterpiece in legal jurisprudence. a stellar masterpiece in legal jurisprudence.
It has, inter alia, penned down a series of quantifiers It has, inter alia, penned down a series of quantifiers
under relevance while concluding on the quantum under relevance while concluding on the quantum
of sentence. of sentence.
1. The social and personal factors of the 1. The social and personal factors of the
offenders; offenders;
2. Weapon used for the offence; 2. Weapon used for the offence;
3. Helpless or hapless situation of the victim 3. Helpless or hapless situation of the victim
4. Manner or mode of commission of crime and 4. Manner or mode of commission of crime and
other marginal facts are the factual to be studied and other marginal facts are the factual to be studied and
analyzed by the courts to impose proper sentence, analyzed by the courts to impose proper sentence,
in accordance with law. in accordance with law.
A legal policy on life or death cannot be marooned A legal policy on life or death cannot be marooned
for ad hoc mood or individual predilection and ergo, for ad hoc mood or individual predilection and ergo,
150 150
becomes crucial our necessity to objectify to the extent becomes crucial our necessity to objectify to the extent
possible, abandoning retributive ruthlessness, possible, abandoning retributive ruthlessness,
amending the deterrent creed and accenting the amending the deterrent creed and accenting the
trend against the extreme and irrevocable penalty trend against the extreme and irrevocable penalty
of putting out life. In the case extant, the criminal’s of putting out life. In the case extant, the criminal’s
social and personal factors are less harsh, her social and personal factors are less harsh, her
feminity and youth, her unbalanced sex, expulsion feminity and youth, her unbalanced sex, expulsion
from the conjugal home and the very facet of her from the conjugal home and the very facet of her
motherhood individually and inconclusiveness motherhood individually and inconclusiveness
account for the cumulative marginal facts and account for the cumulative marginal facts and
circumstances, thereby tending towards an award circumstances, thereby tending towards an award
of life imprisonment. of life imprisonment.
We realize the speculative nature of the correlation We realize the speculative nature of the correlation
between the crime and the punishment in this case, as between the crime and the punishment in this case, as
in many others, and the ‘conscious of fallibility’ dilutes in many others, and the ‘conscious of fallibility’ dilutes
the death penalty. On these lines, the very idea of the death penalty. On these lines, the very idea of
rendering quick punishment of a life term as more rendering quick punishment of a life term as more
deterrent than leisurely judicial death award with deterrent than leisurely judicial death award with
liberal interposition of executive clemency, is not liberal interposition of executive clemency, is not
an extraneous consideration. The same accounts an extraneous consideration. The same accounts
for the genesis of the idea that stricter checking on for the genesis of the idea that stricter checking on
illicit weapons by the police deters better as social illicit weapons by the police deters better as social
defence against murderous violence than a distant defence against murderous violence than a distant
death sentence. All of these collectively amount death sentence. All of these collectively amount
as components in a Court’s verdict on the form of as components in a Court’s verdict on the form of
punishment. In the Ediga case, Justice Krishna punishment. In the Ediga case, Justice Krishna
Iyer has referred and relied upon precedents and Iyer has referred and relied upon precedents and
external aids inclusive of the materials on penology external aids inclusive of the materials on penology
and sentencing policy process1. A plain reading of and sentencing policy process1. A plain reading of
1
The YALE LAW JOURNAL Vol 82, California Reporter, Capital punishment by 1
The YALE LAW JOURNAL Vol 82, California Reporter, Capital punishment by
Thorstn sellin .P. See also, It is of firm belief in the United Kingdom that once it is Thorstn sellin .P. See also, It is of firm belief in the United Kingdom that once it is
151 151
the text of the Ediga case would not only reflect his the text of the Ediga case would not only reflect his
conviction on abolition of death sentence, but also conviction on abolition of death sentence, but also
outshine his illustrious legal acumen along with outshine his illustrious legal acumen along with
the unmistakable art of arguing in support of the the unmistakable art of arguing in support of the
subject. subject.
of regard that the offender ought to lose his life, it is thereby effectuated, however, if of regard that the offender ought to lose his life, it is thereby effectuated, however, if
reasons to believe on the contrary prevails, the abolition of death sentence is carried reasons to believe on the contrary prevails, the abolition of death sentence is carried
further without regret. further without regret.
152 152
Pool of Doubt - Criticisms Against the Pool of Doubt - Criticisms Against the
Judgment Judgment
The decision in Ediga case, which dissolved the The decision in Ediga case, which dissolved the
death sentence on substitution of life sentence, created death sentence on substitution of life sentence, created
a debate in the legal fraternity, and an exemplar a debate in the legal fraternity, and an exemplar
view was beheld by the then Chief Justice of India, view was beheld by the then Chief Justice of India,
who was of the opinion that the judgment was an who was of the opinion that the judgment was an
erroneous verdict. In his defense, Justice Krishna erroneous verdict. In his defense, Justice Krishna
Iyer was seen to revert, Iyer was seen to revert,
‘Throughout my career in the Apex Court, even ‘Throughout my career in the Apex Court, even
major issues like the death sentence, received major issues like the death sentence, received
short shrift as it were. In Ediga Anamma's case short shrift as it were. In Ediga Anamma's case
and Rajendraprasad's case, the parameters for and Rajendraprasad's case, the parameters for
death sentence were made so liberal in favor of death sentence were made so liberal in favor of
the prisoner, that death sentence was as well the prisoner, that death sentence was as well
banned. Once after I had pulled down the death banned. Once after I had pulled down the death
sentence in Ediga Annamma’s case, Chief Justice sentence in Ediga Annamma’s case, Chief Justice
A.N.Rau wondered whether I had done something A.N.Rau wondered whether I had done something
unconstitutional. I explained to him that even if unconstitutional. I explained to him that even if
the death sentence was technically constitutional, the death sentence was technically constitutional,
it should be applied in the rarest of rare cases- a it should be applied in the rarest of rare cases- a
position which was upheld by a five judge bench position which was upheld by a five judge bench
later. Indeed, Lord Scarman, the notable judge later. Indeed, Lord Scarman, the notable judge
of Great Britain after two big decisions against of Great Britain after two big decisions against
death sentence in a privy council case, wrote a death sentence in a privy council case, wrote a
personal letter to me that he was deeply moved personal letter to me that he was deeply moved
by my pronouncements on the point1. by my pronouncements on the point1.
1 V.R. Krishna Iyer, Wandering in many worlds, page-191. 1 V.R. Krishna Iyer, Wandering in many worlds, page-191.
153 153
The outcome of the Ediga case, invited the attention The outcome of the Ediga case, invited the attention
of the world on sentencing jurisprudence and has, of the world on sentencing jurisprudence and has,
since then, been the guiding star on awarding adequate since then, been the guiding star on awarding adequate
sentence after considering the various factors of crime sentence after considering the various factors of crime
and the criminals. To say the least, his scrupulous and the criminals. To say the least, his scrupulous
judicial pronouncement in this instance magnetized judicial pronouncement in this instance magnetized
him into global lime light. him into global lime light.
154 154
The Deadly Quandary The Deadly Quandary
A batch of three criminal appeals preferred by A batch of three criminal appeals preferred by
the accused person against whom capital penalty the accused person against whom capital penalty
was imposed, came up before the Supreme Court was imposed, came up before the Supreme Court
in Rajendra Prasad vs. State of UP (AIR 1979 SC in Rajendra Prasad vs. State of UP (AIR 1979 SC
916; 1979 (3) SCC 646). Following the case, Justice 916; 1979 (3) SCC 646). Following the case, Justice
Krishna Iyer made a clarion call and remarked, Krishna Iyer made a clarion call and remarked,
‘Section 302 is mum; it is on the judges to venture ‘Section 302 is mum; it is on the judges to venture
to speak, because Courts must sentence per diem.' to speak, because Courts must sentence per diem.'
Justice Iyer has made profound assertions that Justice Iyer has made profound assertions that
the Indian Penal Code and the Code of Criminal the Indian Penal Code and the Code of Criminal
Procedure are ‘Sister Codes’ . To say the least, they Procedure are ‘Sister Codes’ . To say the least, they
are distressingly interwoven into the texture of are distressingly interwoven into the texture of
sentencing. Section 367 of the foregoing Cr.P.C., sentencing. Section 367 of the foregoing Cr.P.C.,
1898, and its reincarnation in Section 354 of the 1898, and its reincarnation in Section 354 of the
Code of 1973, has its own set of impact on the Code of 1973, has its own set of impact on the
interpretation of Section 302 of the IPC. The entire interpretation of Section 302 of the IPC. The entire
history of amendments to the Cr.P.C and the Bills history of amendments to the Cr.P.C and the Bills
tabled before the Houses of parliament for abolition tabled before the Houses of parliament for abolition
of death penalty and other related literature were of death penalty and other related literature were
revised in this instance. revised in this instance.
The discussion and findings of the said decision The discussion and findings of the said decision
is not beyond the ambit and scope of the facts and is not beyond the ambit and scope of the facts and
law involved in the appeals. It has made clear that law involved in the appeals. It has made clear that
the constitutionality of death sentence provided the constitutionality of death sentence provided
for the offence of murder under section 302 IPC is for the offence of murder under section 302 IPC is
not the issue in dispute. Affirming the rationale in not the issue in dispute. Affirming the rationale in
Jagmohan Singh vs State of UP (1973 (2) SCR 541) Jagmohan Singh vs State of UP (1973 (2) SCR 541)
155 155
that the capital punishment is not against Article that the capital punishment is not against Article
19 of the Indian Constitution, the judgment read: 19 of the Indian Constitution, the judgment read:
‘As judges we are not concerned with the morale ‘As judges we are not concerned with the morale
or ethics of punishment. It is but our duty to or ethics of punishment. It is but our duty to
administer the law as it is and not to say what administer the law as it is and not to say what
it should be. It is not the intention of the Court to it should be. It is not the intention of the Court to
curtail the scope of death sentence under Section curtail the scope of death sentence under Section
302 by a process of judicial construction inspired 302 by a process of judicial construction inspired
by our personal views. The question whether the by our personal views. The question whether the
scope of the death sentence should be curtailed or scope of the death sentence should be curtailed or
not, is one for the Parliament to decide. The matter not, is one for the Parliament to decide. The matter
is essentially of political expediency and as such, is essentially of political expediency and as such,
it is the concern of statesmen and therefore, it is the concern of statesmen and therefore,
properly the domain of legislature, nor the properly the domain of legislature, nor the
judiciary’. judiciary’.
Inasmuch as the criticism against Justice Inasmuch as the criticism against Justice
Krishna Iyer is concerned, it is as futile to level Krishna Iyer is concerned, it is as futile to level
animadversion of him exceeding judicial limits animadversion of him exceeding judicial limits
in commuting the death sentence. A reading in commuting the death sentence. A reading
of the entire text of the decisions in Ediga and of the entire text of the decisions in Ediga and
Rajendra Prasad would prove that his rationale Rajendra Prasad would prove that his rationale
on commuting sentence of imprisonment of on commuting sentence of imprisonment of
life from that of capital punishment was lidded life from that of capital punishment was lidded
with compelling footing and congruent with compelling footing and congruent
comprehensions, while promoting the ideas of comprehensions, while promoting the ideas of
Baccaria1. The forestalling of crime rather than Baccaria1. The forestalling of crime rather than
punishment2 was the pith of his pronouncement. punishment2 was the pith of his pronouncement.
1
Marchese De cessare Bonesena Baccaria, founded the movement for abolition of 1
Marchese De cessare Bonesena Baccaria, founded the movement for abolition of
death penalty and against torture, in 1764 in Italy. death penalty and against torture, in 1764 in Italy.
2
See, ‘An Essay on crimes and punishmentAcademic reprints, Stanord, 2
See, ‘An Essay on crimes and punishmentAcademic reprints, Stanord,
California,1953. California,1953.
156 156
He believed on the code of promptness in He believed on the code of promptness in
punishment, where punishment was inevitable. punishment, where punishment was inevitable.
Interestingly, the doctrine of ‘Individualisation of Interestingly, the doctrine of ‘Individualisation of
punishment’3, that is, to declare punishment of punishment’3, that is, to declare punishment of
the individual rather than the crime committed the individual rather than the crime committed
by him, was promulgated by him through this by him, was promulgated by him through this
judgment. Justice Iyer stood staunchly against judgment. Justice Iyer stood staunchly against
the retributive theory of punishment and has the retributive theory of punishment and has
often remarked in his extra-judicial writings often remarked in his extra-judicial writings
that ‘An eye for an eye will make the entire world that ‘An eye for an eye will make the entire world
blind'; Gandhiji s philosophy that ‘God alone take blind'; Gandhiji s philosophy that ‘God alone take
life because he alone gives it' has made indelible life because he alone gives it' has made indelible
impact on Justice Krishna Iyer. Amassing such impact on Justice Krishna Iyer. Amassing such
views, Justice Iyer became a crusader against views, Justice Iyer became a crusader against
death penalty, keeping an eye not to reduce the death penalty, keeping an eye not to reduce the
sentence or acquittal mechanically or blindly on sentence or acquittal mechanically or blindly on
the ground of mercy or compassion4. the ground of mercy or compassion4.
3
Note. The doctrine of ‘Individualisation of punishment is a development of the neo- 3
Note. The doctrine of ‘Individualisation of punishment is a development of the neo-
classical school of the revolutionary period in France. classical school of the revolutionary period in France.
4
Refer topic ‘Exemption from humane softness , in this Book 4
Refer topic ‘Exemption from humane softness , in this Book
157 157
Soft Justice Syndrome Soft Justice Syndrome
In a case of fabrication of academic testimonials, In a case of fabrication of academic testimonials,
the minimum sentence of simple imprisonment of the minimum sentence of simple imprisonment of
one day, awarded by the Session Court, was heavily one day, awarded by the Session Court, was heavily
condemned by the Supreme Court, as the sentencing condemned by the Supreme Court, as the sentencing
process against white collar offender was scandalized process against white collar offender was scandalized
by the ‘soft justice syndrome.’ by the ‘soft justice syndrome.’
In the case of Madhave Hayawdeanarao Hoskot In the case of Madhave Hayawdeanarao Hoskot
vs State of Maharashtra1, a reader from an university vs State of Maharashtra1, a reader from an university
claimed to be a holder of award of Ph.D., from Karnataka claimed to be a holder of award of Ph.D., from Karnataka
University and consequently approached a block maker University and consequently approached a block maker
in Bombay and placed orders for embossing seals in Bombay and placed orders for embossing seals
and other documents. The reader, without reading and other documents. The reader, without reading
the necessary courses, deliberately performed the necessary courses, deliberately performed
act to ‘counterfeit degrees’ and ‘concoction of certificate.’ act to ‘counterfeit degrees’ and ‘concoction of certificate.’
In the fine language of Justice V.R.Krishna Iyer it was In the fine language of Justice V.R.Krishna Iyer it was
a ‘Degree-Hungry community’ that offered a happy a ‘Degree-Hungry community’ that offered a happy
haunting ground for professionals in the fine art haunting ground for professionals in the fine art
of ‘fabrication of academic distinctions.’ The reader of ‘fabrication of academic distinctions.’ The reader
became a qualified academician of M.sc., Ph.D., became a qualified academician of M.sc., Ph.D.,
with false and forged educational certificates. The with false and forged educational certificates. The
block maker in Bombay, however, being a bonafide block maker in Bombay, however, being a bonafide
citizenry, reported pre-emptive information to the citizenry, reported pre-emptive information to the
police, who in turn made the reader face a criminal police, who in turn made the reader face a criminal
case of ‘white-collar’ nature. The Sessions Court, case of ‘white-collar’ nature. The Sessions Court,
in such a case of heinous crime of concoction in such a case of heinous crime of concoction
of certificates slapped a soft sentence of simple of certificates slapped a soft sentence of simple
imprisonment till the rising of court and some imprisonment till the rising of court and some
1
1978 SC 1548 ; 1978 (3) SCC 544 1
1978 SC 1548 ; 1978 (3) SCC 544
158 158
amount of fine. The State preferred an appeal for amount of fine. The State preferred an appeal for
enhancement of sentence. The reader also carried enhancement of sentence. The reader also carried
his case to the High Court by way of an appeal his case to the High Court by way of an appeal
against conviction and sentence. The High Court against conviction and sentence. The High Court
after careful consideration of the case and its merits, after careful consideration of the case and its merits,
dismissed the appeals by the reader and allowed the dismissed the appeals by the reader and allowed the
plea of the State and imposed rigorous imprisonment plea of the State and imposed rigorous imprisonment
for three years. for three years.
However, dissatisfied with the sentence of However, dissatisfied with the sentence of
imprisonment, the reader preferred a SLP before the imprisonment, the reader preferred a SLP before the
Supreme Court of India. It was heard by a Bench Supreme Court of India. It was heard by a Bench
consisting of Justice V.R. Krishna Iyer, Justice consisting of Justice V.R. Krishna Iyer, Justice
P.A.Desai, and Justice O. Chinnappa Reddy JJ. P.A.Desai, and Justice O. Chinnappa Reddy JJ.
On behalf of the Bench Justice, Krishna Iyer spoke On behalf of the Bench Justice, Krishna Iyer spoke
against the soft approach of the Session Court. He against the soft approach of the Session Court. He
declared that such a softness shown in favour of declared that such a softness shown in favour of
fabrication of academic records would stultify social fabrication of academic records would stultify social
justice and camouflage the needed severity with justice and camouflage the needed severity with
naïveleniency. The other side of this reader’s episode naïveleniency. The other side of this reader’s episode
would depict a different picture of prison. The reader would depict a different picture of prison. The reader
preferred the SLP after a lapse of four years as he preferred the SLP after a lapse of four years as he
could not get a copy of the order from the High Court could not get a copy of the order from the High Court
through prison authorities. Thus, he served more than through prison authorities. Thus, he served more than
the full term of sentence in prison. The non-service the full term of sentence in prison. The non-service
of free copy of the judgment upon the reader, in prison of free copy of the judgment upon the reader, in prison
was the fact that caused the reader to approach was the fact that caused the reader to approach
the Supreme Court with enormous delay. the Supreme Court with enormous delay.
The anguish expressed by Justice Krishna Iyer The anguish expressed by Justice Krishna Iyer
against the irrational leniency and illogic softness against the irrational leniency and illogic softness
by the Sessions Court, would be another classic by the Sessions Court, would be another classic
159 159
example for his sentencing policy and in which example for his sentencing policy and in which
case he has drawn the distinction among offences case he has drawn the distinction among offences
and imposed punishment in accordance with basic and imposed punishment in accordance with basic
principles of social justice. principles of social justice.
160 160
8 8
CRUSADE AGAINST LETHAL CRUSADE AGAINST LETHAL

LEAF AND LIQUOR LEAF AND LIQUOR
Dry days in wet weeks Dry days in wet weeks

161 161
CRUSADE AGAINST LETHAL CRUSADE AGAINST LETHAL

LEAF AND LIQUIR LEAF AND LIQUIR
‘‘M uch of the twentieth century

Christian era (CE), especially its
latter half, stands justly hailed as
‘‘M uch of the twentieth century
Christian era (CE), especially its
latter half, stands justly hailed as
the “Age of Human Rights”. No preceding century the “Age of Human Rights”. No preceding century
in human history witnessed such a profusion of in human history witnessed such a profusion of
human rights enunciations on a global scale. Never human rights enunciations on a global scale. Never
before has the language of human rights supplanted before has the language of human rights supplanted
all other ethical languages. No previous all other ethical languages. No previous
century witnessed the proliferation of endless century witnessed the proliferation of endless
normativity of human rights standards as a normativity of human rights standards as a
core aspect of the politics of intergovernmental core aspect of the politics of intergovernmental
desire1”. desire1”.
Soliciting bulk of whole enchilada as a matter of Soliciting bulk of whole enchilada as a matter of
right is synonymous to being an order of the day. right is synonymous to being an order of the day.
In some occasions public policy of the State in the In some occasions public policy of the State in the
interest of common men s felicity would be a hurdle interest of common men s felicity would be a hurdle
in safeguarding the right of an individual. On such in safeguarding the right of an individual. On such
a right claimed by an individual, to be in possession a right claimed by an individual, to be in possession
of a right before the court of law, has raised the of a right before the court of law, has raised the
eyebrows of many. The State of Maharashtra, under eyebrows of many. The State of Maharashtra, under
its alcohol de-addiction policy has raised the legal its alcohol de-addiction policy has raised the legal
age limit for alcohol intake from twenty-one years to age limit for alcohol intake from twenty-one years to
twenty-five years. A ‘public spirited volunteer’ filed twenty-five years. A ‘public spirited volunteer’ filed
a public interest litigation (PIL) challenging the age a public interest litigation (PIL) challenging the age
Upendra Baxi, The future of Human Rights, Oxford –India (2012) page 1
1
Upendra Baxi, The future of Human Rights, Oxford –India (2012) page 1
1
162 162
limit for consumption of alcohol on the ground that limit for consumption of alcohol on the ground that
it infringes the civil right and freedom to drink2. it infringes the civil right and freedom to drink2.
The petitioner argued that if the State is at The petitioner argued that if the State is at
dissent to the consumption of alcohol, in line of dissent to the consumption of alcohol, in line of
drugs including heroin and cocaine, then cloaking drugs including heroin and cocaine, then cloaking
a blanket ban on the same is preposterous. But, a blanket ban on the same is preposterous. But,
having allowed the alcohol to be sold in the State having allowed the alcohol to be sold in the State
sponsored shops and subsequently imposing heavy sponsored shops and subsequently imposing heavy
taxation on them, the State should be bereft of taxation on them, the State should be bereft of
capricious powers to enact any law that enhances the capricious powers to enact any law that enhances the
age limit for consumption from twenty-one years to age limit for consumption from twenty-one years to
twenty-five years. It is irrational to the extent that if twenty-five years. It is irrational to the extent that if
an individual possesses the intellectual set of mind to an individual possesses the intellectual set of mind to
marry at the age of eighteen, to enter into a contract, marry at the age of eighteen, to enter into a contract,
and even cast a vote in elections, then the said and even cast a vote in elections, then the said
individual cannot be said to be deprived of his mental individual cannot be said to be deprived of his mental
capacity to consume liquor. The petitioner contented capacity to consume liquor. The petitioner contented
that in a democracy, drinking is a right and an that in a democracy, drinking is a right and an
inalienable civil liberty. The argument advanced inalienable civil liberty. The argument advanced
against the impugned order of enhancement of against the impugned order of enhancement of
age limit to drink liquor was challenged upon the age limit to drink liquor was challenged upon the
aforementioned grounds on September 2011. aforementioned grounds on September 2011.
It is imperative to draw attention towards Article It is imperative to draw attention towards Article
47 of the Constitution of India, which asserts that, 47 of the Constitution of India, which asserts that,
‘the State shall endeavor to bring about prohibition ‘the State shall endeavor to bring about prohibition
of consumption, except for medical purposes of of consumption, except for medical purposes of
intoxicating drinks and of drugs which are intoxicating drinks and of drugs which are
injurious to health! However the prohibition injurious to health! However the prohibition
2 Forbes India (23 August, 2013) available at <www.forbesindia.com> last visited on 2 Forbes India (23 August, 2013) available at <www.forbesindia.com> last visited on
September 15, 2014 September 15, 2014
163 163
policies, inter alia, are being challenged on various policies, inter alia, are being challenged on various
grounds – one of which contends that consuming grounds – one of which contends that consuming
liquor is a basic and civil right. It is difficult to liquor is a basic and civil right. It is difficult to
describe whether it is the awareness on basic describe whether it is the awareness on basic
rights among the people or adverse impact of rights among the people or adverse impact of
the undue awareness; however, it is manifest the undue awareness; however, it is manifest
through precedents that every subject under through precedents that every subject under
the sunlight becomes a matter for legal scrutiny the sunlight becomes a matter for legal scrutiny
under the ostensible guise of right and liberty. under the ostensible guise of right and liberty.
Justice Krishna Iyer, being an ardent teetotaler Justice Krishna Iyer, being an ardent teetotaler
and antithetical to the consumption of liquor and and antithetical to the consumption of liquor and
tobacco in any form or any manner, believes that tobacco in any form or any manner, believes that
intoxicating liquor as a beverage serves a palette intoxicating liquor as a beverage serves a palette
to pauperism, degradation and crime. It renders to pauperism, degradation and crime. It renders
circulation of malevolence than benevolence. In his circulation of malevolence than benevolence. In his
extra-judicial writings and lectures, he has often extra-judicial writings and lectures, he has often
urged that liquor is the root cause for all crimes urged that liquor is the root cause for all crimes
and evil. Most of his days in his post-retirement and evil. Most of his days in his post-retirement
life dedicated to a crusade in support of prohibition life dedicated to a crusade in support of prohibition
policy and against the abolition of alcohol and tobacco policy and against the abolition of alcohol and tobacco
consumption. consumption.
164 164
Dry Days In Wet Weeks Dry Days In Wet Weeks
When a writ petition1 against the closure of When a writ petition1 against the closure of
wine shops for two days (Tuesday and Friday) per wine shops for two days (Tuesday and Friday) per
week came up before Justice Iyer in the Supreme week came up before Justice Iyer in the Supreme
Court, he described alcohol as a ‘deleterious Court, he described alcohol as a ‘deleterious
substance’ and the wine shop owners as ‘merchants substance’ and the wine shop owners as ‘merchants
of intoxicants’. The State Government of Punjab under of intoxicants’. The State Government of Punjab under
the Punjab Exercise Act and Liquor License (Second the Punjab Exercise Act and Liquor License (Second
Amendment) Rules declared holidays for two Amendment) Rules declared holidays for two
days every week. The licensed liquor shop owners days every week. The licensed liquor shop owners
challenged the constitutionality of the declaration of challenged the constitutionality of the declaration of
holidays and the action to close shops for two days holidays and the action to close shops for two days
of every week was coined as ‘State’s half-hearted of every week was coined as ‘State’s half-hearted
prohibitionist gesture.’ To quote, the judgment prohibitionist gesture.’ To quote, the judgment
concluded with a hopeful expectation, ‘May we concluded with a hopeful expectation, ‘May we
hopefully expect the State to bear true faith and hopefully expect the State to bear true faith and
allegiance to that Constitutional orphan Article 47.’ allegiance to that Constitutional orphan Article 47.’
The judgment in Kaushal case would reflect The judgment in Kaushal case would reflect
the idea, principle and policy of prohibition to be the idea, principle and policy of prohibition to be
adopted by the welfare states in compliance with the adopted by the welfare states in compliance with the
mandatory constitutional premises. It is a classic mandatory constitutional premises. It is a classic
literature insisting liquor free world and illustrating literature insisting liquor free world and illustrating
the evils of consumption with the quotable quotes. the evils of consumption with the quotable quotes.
The plea of right to trade guaranteed by the The plea of right to trade guaranteed by the
constitution, arbitrariness in announcement by constitution, arbitrariness in announcement by
executives and unexpected loss of income that executives and unexpected loss of income that
would occur to the owners of wine shops after their would occur to the owners of wine shops after their
collective investment of huge sum and subsequent collective investment of huge sum and subsequent
P N Kaushal vs Union of India AIR 1978 SC 1457 : 1979 (1) SCR 122
1
P N Kaushal vs Union of India AIR 1978 SC 1457 : 1979 (1) SCR 122
1
165 165
closure of the undertakings, was put forth by the closure of the undertakings, was put forth by the
counsels in the case. counsels in the case.
Justice Krishna Iyer quoted the great quote Justice Krishna Iyer quoted the great quote
of William Howard, Federal judge, the USA and of William Howard, Federal judge, the USA and
convinced the litigants by drawing the line between convinced the litigants by drawing the line between
the ‘Lawyer’s law and Judge’s justice' on the one the ‘Lawyer’s law and Judge’s justice' on the one
hand and ‘Life s reality and sobriety’ on the other hand and ‘Life s reality and sobriety’ on the other
hand. The reason assigned by him to write a hand. The reason assigned by him to write a
judgment in favour of the pro-prohibition is a principle judgment in favour of the pro-prohibition is a principle
declared by the American Bar Association (ABA) declared by the American Bar Association (ABA)
that, that,
‘If the law is but the essence of common-sense, ‘If the law is but the essence of common-sense,
the protests of many average-men may evidence the protests of many average-men may evidence
defect in a legal conclusion though based on defect in a legal conclusion though based on
the nicest legal reasoning and profoundest the nicest legal reasoning and profoundest
learning.' learning.'
A plain reading of the decision in Kaushal case A plain reading of the decision in Kaushal case
would make it an impression that it is an analyzed would make it an impression that it is an analyzed
study on evils of liquor besides embarking upon a study on evils of liquor besides embarking upon a
decision on legal pleas and principles. Justice Iyer decision on legal pleas and principles. Justice Iyer
rejected the justification of consumption of liquor rejected the justification of consumption of liquor
(Malt does more than Milton can) with culmination (Malt does more than Milton can) with culmination
of proven scientific reasons (such as, ‘when the of proven scientific reasons (such as, ‘when the
wine is in, the wit is out’). The text of the judgment wine is in, the wit is out’). The text of the judgment
is indeed an incredible creative manifestation on is indeed an incredible creative manifestation on
the liquor policies that prevailed in India, and the the liquor policies that prevailed in India, and the
long history of the liquor licensing was narrated long history of the liquor licensing was narrated
in his own impressive style, sui generis in its own in his own impressive style, sui generis in its own
panache. panache.
166 166
In the Kaushal case, proximity between crime In the Kaushal case, proximity between crime
and intoxication was considered beyond the scope and intoxication was considered beyond the scope
of that writ, however, the declaration of holidays of that writ, however, the declaration of holidays
was justified with paradigm from eminent leader’s was justified with paradigm from eminent leader’s
biography and anecdotes. The great sayings of biography and anecdotes. The great sayings of
Mahatma Gandhi and George Bernard Shaw, the Mahatma Gandhi and George Bernard Shaw, the
provocative teetotalers were incorporated by Justice provocative teetotalers were incorporated by Justice
Krishna Iyer in support of his decision. To justify Krishna Iyer in support of his decision. To justify
the closure of liquor shops atleast two days every the closure of liquor shops atleast two days every
week and to upheld the decision of the State was week and to upheld the decision of the State was
rational, various literatures, inter alia, were referred rational, various literatures, inter alia, were referred
and relied upon by Justice Krishna Iyer2. and relied upon by Justice Krishna Iyer2.
Interestingly, he was also found to quote Jack Interestingly, he was also found to quote Jack
Hobbs, the celebrated cricketer, who said that ‘The Hobbs, the celebrated cricketer, who said that ‘The
enemy to success on the cricket field is the drinking enemy to success on the cricket field is the drinking
habit.’ The judgment is not merely an adjudication of habit.’ The judgment is not merely an adjudication of
a writ petition but an innovative study of imposition a writ petition but an innovative study of imposition
of prohibition by the States and its right to raise of prohibition by the States and its right to raise
the revenue. It is also a creative judicial product the revenue. It is also a creative judicial product
on evils of alcoholism, consisting and insisting on on evils of alcoholism, consisting and insisting on
moral values. moral values.
According to Justice Krishna Iyer, alcoholism According to Justice Krishna Iyer, alcoholism
and terrorism are interlinked evils. He has thus and terrorism are interlinked evils. He has thus
said, said,
‘There is global apprehension of terrorism but ‘There is global apprehension of terrorism but
if the liquor habit is utterly abolished along with if the liquor habit is utterly abolished along with
narcotic consumption, terrorism will die a natural narcotic consumption, terrorism will die a natural
2
Such as, Encyclopedia of the Social Sciences vol. J-II, Society and the Criminal by 2
Such as, Encyclopedia of the Social Sciences vol. J-II, Society and the Criminal by
M J Sethna 3rd edition, Society, crime and the Criminal Career by Don. C Gibbons, M J Sethna 3rd edition, Society, crime and the Criminal Career by Don. C Gibbons,
Reports of the Study Team on Prohibition Crime in a Complex Society by Richard D Reports of the Study Team on Prohibition Crime in a Complex Society by Richard D
Knudten, etc. Knudten, etc.
167 167
death since drunken violence most often trigger death since drunken violence most often trigger
deadly attacks3.’ deadly attacks3.’
In his writings, Justice Iyer made profound In his writings, Justice Iyer made profound
recollections of great leaders who, inter alia, were recollections of great leaders who, inter alia, were
teetotalers, inclusive of Abraham Lincoln, Mahatma teetotalers, inclusive of Abraham Lincoln, Mahatma
Gandhi, Bernard Shaw, Dr Johnson and other Gandhi, Bernard Shaw, Dr Johnson and other
leaders. In an article ‘Beware, the golden leaf is the leaders. In an article ‘Beware, the golden leaf is the
lethal leaf’, Justice Krishna Iyer4, has made a clarion lethal leaf’, Justice Krishna Iyer4, has made a clarion
call with a famous saying that ‘You shall know the call with a famous saying that ‘You shall know the
truth, and the truth shall make you free.’ truth, and the truth shall make you free.’
He has indeed voiced concerns before the He has indeed voiced concerns before the
governments to refrain from subjecting ‘wealth before governments to refrain from subjecting ‘wealth before
health’ and to profess refusal of sale of tobacco health’ and to profess refusal of sale of tobacco
products. The ‘cigarette smoke’ depicted in a products. The ‘cigarette smoke’ depicted in a
beautiful language of James, is often reproduced beautiful language of James, is often reproduced
by Justice Krishna Iyer, in his writing against the by Justice Krishna Iyer, in his writing against the
tobacco, which reads as: tobacco, which reads as:
“A custom loathsome to the eye, hateful to the “A custom loathsome to the eye, hateful to the
nose, harmful to the brain, dangerous to the lungs; nose, harmful to the brain, dangerous to the lungs;
and the black, stinking fume thereof, nearest and the black, stinking fume thereof, nearest
resembling the horrible stygian smoke of the pit resembling the horrible stygian smoke of the pit
that is bottomless”. that is bottomless”.
In one of his other extra-judicial writings, Justice In one of his other extra-judicial writings, Justice
Iyer traced the history of ban on tobacco from Iyer traced the history of ban on tobacco from
Cochin. The astonishing fact was placed that the Cochin. The astonishing fact was placed that the
teachers were empowered to monitor and enforce teachers were empowered to monitor and enforce
3
Justice Krishna Iyer, The Indian Law Dynamic Dimensions of the Abstract, Universal 3
Justice Krishna Iyer, The Indian Law Dynamic Dimensions of the Abstract, Universal
Law Publishing, Delhi (2009) page 336. Law Publishing, Delhi (2009) page 336.
4
Justice Krishna Iyer, Declining Judicial Culture and Other Essays, SOCO Trust, Ma- 4
Justice Krishna Iyer, Declining Judicial Culture and Other Essays, SOCO Trust, Ma-
durai 1994 page 20 durai 1994 page 20
168 168
the law that a person under eighteen years of age the law that a person under eighteen years of age
were not to handle, or found to be in possession were not to handle, or found to be in possession
and use of any tobacco products. and use of any tobacco products.
‘Legislation is a powerful weapon in the battle ‘Legislation is a powerful weapon in the battle
against tobacco. Piecemeal laws are no use and against tobacco. Piecemeal laws are no use and
are easily circumvented. A comprehensive Code is are easily circumvented. A comprehensive Code is
needed, enforceable in phases and in selected areas. needed, enforceable in phases and in selected areas.
It is interesting that the Maharajah of Cochin was It is interesting that the Maharajah of Cochin was
the first ruler in India to regulate as early as 1920, the first ruler in India to regulate as early as 1920,
the use of tobacco. Those below eighteen years the use of tobacco. Those below eighteen years
were prohibited and even school teachers were were prohibited and even school teachers were
empowered to enforce the said law5.’ empowered to enforce the said law5.’
So far as we perceive, Justice Iyer has remained So far as we perceive, Justice Iyer has remained
as a discernable and revered member of the society, as a discernable and revered member of the society,
vouching for the abolishment of alcoholism on vouching for the abolishment of alcoholism on
absolute humanitarian grounds. Even so, post absolute humanitarian grounds. Even so, post
retirement from the Supreme Court, he has addressed retirement from the Supreme Court, he has addressed
his concerns in myriad of seminars in support of his concerns in myriad of seminars in support of
prohibition policy apropos alcohol consumption and prohibition policy apropos alcohol consumption and
has also indulged in the task of educating about has also indulged in the task of educating about
the citizenry on the evils of alcoholism among the the citizenry on the evils of alcoholism among the
youths. youths.
5
Ibid at page 27 5
Ibid at page 27
9 9
CHAMPION OF THE CHAMPION OF THE

CELEBRATED RIGHT TO CELEBRATED RIGHT TO
INFORMATION INFORMATION
CHAMPION OF THE CHAMPION OF THE
CELEBRATED RIGHT TO CELEBRATED RIGHT TO
INFORMATION INFORMATION
Intelligence without information is an Intelligence without information is an

illusion and even as information without illusion and even as information without
absorption is a deception of absorption is a deception of
erudition1 erudition1
- Justice V.R.Krishna Iyer - Justice V.R.Krishna Iyer
T he right to information was gloriously

christened as ‘Celebrated Right’ by the
T he right to information was gloriously
christened as ‘Celebrated Right’ by the
Supreme Court in Bihar Public Service Supreme Court in Bihar Public Service
Commission VS Saiyed Hussian Abbas Rizwi 2, Commission VS Saiyed Hussian Abbas Rizwi 2,
because, to a citizen, without a right to access to because, to a citizen, without a right to access to
assess the actions of the authorities and elect- assess the actions of the authorities and elect-
ed representatives, the democracy would serve ed representatives, the democracy would serve
no purpose. Right to information increases the no purpose. Right to information increases the
people’s participation in governance and bestows people’s participation in governance and bestows
accountability upon the governing bodies and accountability upon the governing bodies and
machineries. India, now a largest democratic country, machineries. India, now a largest democratic country,
was a colony for more than three centuries. Since was a colony for more than three centuries. Since
independence, the people got an inalienable right independence, the people got an inalienable right
to self-governance and the democracy provided a to self-governance and the democracy provided a
concomitant right to know, upon its citizens. The concomitant right to know, upon its citizens. The
1
Jusice V R Krishna Iyer, in the preface of the book, Freedom of Information, Eastern 1
Jusice V R Krishna Iyer, in the preface of the book, Freedom of Information, Eastern
Book Company, Lucknow,1990. Book Company, Lucknow,1990.
2
(2012) 13 SCC 61 2
(2012) 13 SCC 61
171 171
independence that the people attained in the year independence that the people attained in the year
1947 is not only from the colonial bondage but also 1947 is not only from the colonial bondage but also
from the suffocation of Official Secrecy Acts. from the suffocation of Official Secrecy Acts.
The iron curtain between the people and public The iron curtain between the people and public
bodies would keep the citizen in darkness at noon. bodies would keep the citizen in darkness at noon.
Therefore, there has been continuous demand for Therefore, there has been continuous demand for
this right, from the dawn of the twentieth century. this right, from the dawn of the twentieth century.
What is now called as right to information was What is now called as right to information was
known as ‘freedom of information’ in 1950s. During known as ‘freedom of information’ in 1950s. During
its first session in 1946, the UN General Assembly its first session in 1946, the UN General Assembly
adopted Resolution 59(1), which stated: adopted Resolution 59(1), which stated:
‘Freedom of information is fundamental human ‘Freedom of information is fundamental human
right and …. the touchstone of all the freedom to right and …. the touchstone of all the freedom to
which the UN is consecrated.’ which the UN is consecrated.’
The language used in the UN Resolution would The language used in the UN Resolution would
refer the free flow of information among the people refer the free flow of information among the people
rather than more specific idea of a right to access rather than more specific idea of a right to access
information held by public bodies. information held by public bodies.
In India, the Constitution does not provide In India, the Constitution does not provide
explicit protection for the right to know. However, explicit protection for the right to know. However,
the Supreme Court, for the first time in State the Supreme Court, for the first time in State
of Punjab vs Sukhdev Singh (AIR 1961 SC 493) of Punjab vs Sukhdev Singh (AIR 1961 SC 493)
observed that the public authorities should disclose observed that the public authorities should disclose
the information from public records and documents the information from public records and documents
maintained by them. The sole test to be applied by maintained by them. The sole test to be applied by
the authorities claiming privilege should be injury the authorities claiming privilege should be injury
to the public interest caused by such disclosure. to the public interest caused by such disclosure.
Subsequently, in 1981 in a case popularly Subsequently, in 1981 in a case popularly
known as Judges transfer case3 (S P Gupta Vs Union known as Judges transfer case3 (S P Gupta Vs Union
of India) the Apex Court was pleased order the disclosure of India) the Apex Court was pleased order the disclosure
3
(1981) scc supp 87 3
(1981) scc supp 87
172 172
of information which pertains to non-appointment of information which pertains to non-appointment
and transfer of certain judges, from its own records and transfer of certain judges, from its own records
including all correspondence between the law minister including all correspondence between the law minister
and the Chief justice of India and Chief Justices of and the Chief justice of India and Chief Justices of
Delhi and Patna. Delhi and Patna.
After two decades of these historic verdicts by the After two decades of these historic verdicts by the
Supreme Court, The Right to Information Act, (Act Supreme Court, The Right to Information Act, (Act
22 of 2005) was enacted and came in to effect on 21st 22 of 2005) was enacted and came in to effect on 21st
day of June, 2005. But, Justice V.R.Krishna Iyer day of June, 2005. But, Justice V.R.Krishna Iyer
has been raising his voice against ‘social suffocation’ has been raising his voice against ‘social suffocation’
of information without communication. The both of information without communication. The both
trends in cosmos of human rights ‘Explosion of trends in cosmos of human rights ‘Explosion of
information and exclusion from information’ are information and exclusion from information’ are
elaborately dealt in many of his extra-judicial works. elaborately dealt in many of his extra-judicial works.
Among his post retirement prolific writings, Freedom Among his post retirement prolific writings, Freedom
of Information is classic treatise on Right to of Information is classic treatise on Right to
Information. It is perhaps a first book on RTI in India Information. It is perhaps a first book on RTI in India
and created the awareness about the necessity and and created the awareness about the necessity and
importance of RTI with global and legal perspectives. importance of RTI with global and legal perspectives.
It consist of contentious articles on access to It consist of contentious articles on access to
information, consequences of it denial, historical information, consequences of it denial, historical
survey, jurisprudence of communication & public survey, jurisprudence of communication & public
information and the justice dimensions of disclosure information and the justice dimensions of disclosure
of information. According to Justice V.R.Krishna of information. According to Justice V.R.Krishna
Iyer, RTI denotes right to truth. It is an integral Iyer, RTI denotes right to truth. It is an integral
to fundamental freedoms and the illiteracy is the to fundamental freedoms and the illiteracy is the
obstructing factor. He traced the origin of RTI from obstructing factor. He traced the origin of RTI from
the Vedic and spiritual message that ‘Lead us from the Vedic and spiritual message that ‘Lead us from
untruth to truth’ If the truth is made as casualty untruth to truth’ If the truth is made as casualty
with a mala fide intention then the information with a mala fide intention then the information
173 173
becomes ‘Disinformation’. If the consummated skill becomes ‘Disinformation’. If the consummated skill
of unscrupulous elements interferes in the name of of unscrupulous elements interferes in the name of
censorship it would become ‘Misinformation’. The censorship it would become ‘Misinformation’. The
information withheld without disclosure to the people information withheld without disclosure to the people
has been termed as ‘Informational Imperialism’. has been termed as ‘Informational Imperialism’.
The sublime thoughts sowed as seeds by Justice The sublime thoughts sowed as seeds by Justice
V.R.Krishna Iyer are sober, pragmatic and essential V.R.Krishna Iyer are sober, pragmatic and essential
for transparency in governance and accountability for transparency in governance and accountability
in action. in action.
‘Truth does not dawn but born of discussion ‘Truth does not dawn but born of discussion
of public affairs. A culture of open society and of public affairs. A culture of open society and
legacy of free information alone can build a band legacy of free information alone can build a band
of free people Knowledge is power but information of free people Knowledge is power but information
is the fuel of knowledge’ is the fuel of knowledge’
- Justice V R Krishna Iyer - Justice V R Krishna Iyer
174 174
10 10
LAWYER'S CASE - LAWYER'S CASE -

WAGES OF SIN WAGES OF SIN
Exemption to Human Softness Exemption to Human Softness
Moral Scavenging Operation Moral Scavenging Operation
Deterrent Punishment Against Corruption Deterrent Punishment Against Corruption

175 175
LAWYER'S CASE - WAGES OF LAWYER'S CASE - WAGES OF

SIN SIN
“The Law should not be seen to sit by limply, “The Law should not be seen to sit by limply,
while those who defy it go free, and those who while those who defy it go free, and those who
seek protection lose hope” seek protection lose hope”
-Jennison vs Baker (1972) 2QB521 -Jennison vs Baker (1972) 2QB521
I
t is well – estabilished under the law, that
the advocate is an Officer of the Court and
I
t is well – estabilished under the law, that
the advocate is an Officer of the Court and
belongs to a privileged sector of society. The belongs to a privileged sector of society. The
litigant is privileged to select and engage an advocate litigant is privileged to select and engage an advocate
of his discretion, remunerate him through mutual of his discretion, remunerate him through mutual
agreement and heed confidence that his lawyer agreement and heed confidence that his lawyer
would proceed with the case, considering his interest would proceed with the case, considering his interest
as the top most priority. The Supreme Court in Rafiq as the top most priority. The Supreme Court in Rafiq
vs Munshilal2 has held that vs Munshilal2 has held that
“Under our Presence adversary legal system “Under our Presence adversary legal system
where the parties generally appear their advocates, where the parties generally appear their advocates,
the obligation of the parties is to select advocate, the obligation of the parties is to select advocate,
brief him, pay the fees demanded by him and then brief him, pay the fees demanded by him and then
trust the learned advocate to do the rest of the trust the learned advocate to do the rest of the
things. The party may be a villager, or may belong to things. The party may be a villager, or may belong to
a rural area and may have no knowledge of court’s a rural area and may have no knowledge of court’s
1
Referred in Bal Kishan Giri Vs. State of U.P.(2014) 7 SCC 280 1
Referred in Bal Kishan Giri Vs. State of U.P.(2014) 7 SCC 280
2
(1981) 2 SCC 788 (Paragraph 3) 2
(1981) 2 SCC 788 (Paragraph 3)
176 176
procedure after engaging a lawyer, the party may procedure after engaging a lawyer, the party may
remain supremely confident that the lawyer will remain supremely confident that the lawyer will
look after his interest”. look after his interest”.
The relationship between a lawyer and his client is The relationship between a lawyer and his client is
fiduciary in nature and the communication between fiduciary in nature and the communication between
them protected as Privileged Communication under them protected as Privileged Communication under
Sections 126 and 129 of the Indian Evidence Act, Sections 126 and 129 of the Indian Evidence Act,
1872. The Modern Criminal Jurisprudence of many 1872. The Modern Criminal Jurisprudence of many
countries recognized the rule of fair trial, whereby countries recognized the rule of fair trial, whereby
every person, however guilty he may be, is entitled every person, however guilty he may be, is entitled
to defend the charges leveled against him through a to defend the charges leveled against him through a
counsel cannot properly defend the accused person counsel cannot properly defend the accused person
unless he is privy to absolute truth from his client. It unless he is privy to absolute truth from his client. It
is not against professional ethics to defend a person is not against professional ethics to defend a person
known to be guilty, because, it is the duty of prosecuting known to be guilty, because, it is the duty of prosecuting
agency to prove the charges beyond all reasonable agency to prove the charges beyond all reasonable
doubts. That being shown, unless the communication doubts. That being shown, unless the communication
between the counsel and his client is protected from between the counsel and his client is protected from
disclosures, one of the valuable rights of the accused disclosures, one of the valuable rights of the accused
– services of the counsel or pleader, stands lost. – services of the counsel or pleader, stands lost.
The obligation stated in these provisions of Indian The obligation stated in these provisions of Indian
Evidence Act continues even after employment has Evidence Act continues even after employment has
ceased. Such is the privilege enjoyed by a lawyer ceased. Such is the privilege enjoyed by a lawyer
that renders him more accountable and responsible that renders him more accountable and responsible
to his client, court and the society at large. Such an to his client, court and the society at large. Such an
obligation further reinforces the lawyer’s responsibility obligation further reinforces the lawyer’s responsibility
to remain honest and truthful to his client and to remain honest and truthful to his client and
accountable to the court and society. It is his integrity accountable to the court and society. It is his integrity
and legal acumen and character that would put him and legal acumen and character that would put him
in high pedestal of society and it is only through his in high pedestal of society and it is only through his
177 177
modest and genuine qualities and best abilities as modest and genuine qualities and best abilities as
counsel that a client entrusts upon him his faith counsel that a client entrusts upon him his faith
to litigate his cause. to litigate his cause.
On the country, however, an illustration of legal On the country, however, an illustration of legal
sham was perceived in the case of V.C Rangadurai sham was perceived in the case of V.C Rangadurai
vs D.Gopalan3 , where the lawyer had duped his vs D.Gopalan3 , where the lawyer had duped his
client, a hearing impaired aged about seventy client, a hearing impaired aged about seventy
years old, along with his wife, by neglecting to file years old, along with his wife, by neglecting to file
suits on two promissory notes, even after receipt suits on two promissory notes, even after receipt
of amount towards the court fees and the fees of amount towards the court fees and the fees
due for his service. due for his service.
His appeal came up before the Bench of three His appeal came up before the Bench of three
Judges in Supreme Court and Justice Krishna Iyer Judges in Supreme Court and Justice Krishna Iyer
prescribed an unorthodox, experimental type penalty prescribed an unorthodox, experimental type penalty
within the parameters of law. It was described by him within the parameters of law. It was described by him
as a 'therapeutic touch and correctional twist' that as a 'therapeutic touch and correctional twist' that
may bear rehabilitative impact. In paragraph 6 of his may bear rehabilitative impact. In paragraph 6 of his
judgement, he has made it clear that punishment judgement, he has made it clear that punishment
is compulsory and mandatory for professional is compulsory and mandatory for professional
misconduct. However, he has applied the reformatory misconduct. However, he has applied the reformatory
theory and state thus, theory and state thus,
'But, as we have explained at the start, every 'But, as we have explained at the start, every
punishment, however; has a functional duality punishment, however; has a functional duality
– deterrence and correction. Punishment for – deterrence and correction. Punishment for
professional misconduct is no exception to this professional misconduct is no exception to this
social justice test in the present case, therefore, social justice test in the present case, therefore,
from the punitive angle, the deterrent component from the punitive angle, the deterrent component
persuades us not to interfere with the suspension persuades us not to interfere with the suspension
from practice reduced benignly at the appellate from practice reduced benignly at the appellate
3
(1979) 1 SCC 308: AIR 1979 SC 281 3
(1979) 1 SCC 308: AIR 1979 SC 281
178 178
level to one year. From the correctional angle, a level to one year. From the correctional angle, a
gesture from the Court may encourage the appellant gesture from the Court may encourage the appellant
to turn a new page. He is not too old to mend his to turn a new page. He is not too old to mend his
ways. He has suffered a litigative ordeal, but more ways. He has suffered a litigative ordeal, but more
importantly he has a career a head. To give him importantly he has a career a head. To give him
an opportunity to rehabilitate himself by changing an opportunity to rehabilitate himself by changing
his ways, resisting temptations and atoning for the his ways, resisting temptations and atoning for the
serious delinquency, by a more zealous devotion to serious delinquency, by a more zealous devotion to
people, causes like legal aid to the poor, may be a people, causes like legal aid to the poor, may be a
step in the correctional direction”. step in the correctional direction”.
Justice Krishna Iyer expressed his anguish Justice Krishna Iyer expressed his anguish
against the lawyer, who is guilty of gross professional against the lawyer, who is guilty of gross professional
misconduct and in his words. misconduct and in his words.
'A middle – aged man, advocate by profession, 'A middle – aged man, advocate by profession,
has grossly misconducted himself and deceived a has grossly misconducted himself and deceived a
common client. Going by precedent, the suspension common client. Going by precedent, the suspension
from practice for one year was none too harsh. Sharp from practice for one year was none too harsh. Sharp
practice by members of noble professions deserves practice by members of noble professions deserves
even disbarment. The wages of sin is death'. even disbarment. The wages of sin is death'.
It is his firm view that the legal profession is a ' It is his firm view that the legal profession is a '
profession for the people'. It’s nobility as a profession profession for the people'. It’s nobility as a profession
remains so long as the members maintain their remains so long as the members maintain their
commitment to the integrity and service to the commitment to the integrity and service to the
community. Therefore, to protect the nobility of the community. Therefore, to protect the nobility of the
profession, he modified the punishment imposed profession, he modified the punishment imposed
upon the delinquent by the Bar Council of India, upon the delinquent by the Bar Council of India,
thus stating, thus stating,
'we have therefore sought to adapt the punishment 'we have therefore sought to adapt the punishment
of suspension to serve two purposes – injury and of suspension to serve two purposes – injury and
179 179
expiation. We think the ends of justice will be served best expiation. We think the ends of justice will be served best
in this case by directing suspension, plus a provision in this case by directing suspension, plus a provision
for reduction on an undertaking to this court to for reduction on an undertaking to this court to
serve the poor for a year. Both are orders within this serve the poor for a year. Both are orders within this
court’s power. Tamil Nadu has a well – run free legal court’s power. Tamil Nadu has a well – run free legal
aid programme with which the Governor and Chief aid programme with which the Governor and Chief
Justice of the State are associated. The State Legal Justice of the State are associated. The State Legal
Aid Board, working actively with two retired judges Aid Board, working actively with two retired judges
of the High Court at the head, may use the services of the High Court at the head, may use the services
of the appellant keeping a close watch on his work of the appellant keeping a close watch on his work
and relations with poor clients, if he applies to the and relations with poor clients, if he applies to the
Legal Aid Board for giving him such an opportunity, Legal Aid Board for giving him such an opportunity,
after getting this courts order as provided below. after getting this courts order as provided below.
Independent of that, as a token of our inclination to Independent of that, as a token of our inclination to
allow the appellant to become people minded in his allow the appellant to become people minded in his
profession, we reduce the suspension from practice profession, we reduce the suspension from practice
up to the 14th August 1979. up to the 14th August 1979.
With the next Independence Day we hope the With the next Independence Day we hope the
appellant will inaugurate a better career slough off appellant will inaugurate a better career slough off
old bad habits. If the appellant gives an undertaking old bad habits. If the appellant gives an undertaking
that he will work under any official legal aid body that he will work under any official legal aid body
in Tamil Nadu and and convinces the Chairmen of in Tamil Nadu and and convinces the Chairmen of
the State Legal Aid Board, Tamil Nadu, to accept the State Legal Aid Board, Tamil Nadu, to accept
his services in any specific place where currently his services in any specific place where currently
there is an on – going project, produces a certificate there is an on – going project, produces a certificate
on behalf from the Board, and gives an ndertaking on behalf from the Board, and gives an ndertaking
to this Court that he will do only free legal aid for to this Court that he will do only free legal aid for
the year as reasonably directed by the Board (and the year as reasonably directed by the Board (and
shall not during that period accept any private shall not during that period accept any private
180 180
engagement) his period of suspension shall stand engagement) his period of suspension shall stand
terminated with effect from January 26, 1979. terminated with effect from January 26, 1979.
As a condition precedent to his moving his court As a condition precedent to his moving his court
he must pay (and produce a receipt) Rs. 2,500/- to he must pay (and produce a receipt) Rs. 2,500/- to
the victim of the misconduct, Atonement cannot be the victim of the misconduct, Atonement cannot be
by mere paper pledges byt by actual service to the by mere paper pledges byt by actual service to the
people and reparation for the victim. That is why we people and reparation for the victim. That is why we
make this depature in the punitive part of our order. make this depature in the punitive part of our order.
Innovation within the frame work of the law is of Innovation within the frame work of the law is of
the essence of the evolutionary process of juridical the essence of the evolutionary process of juridical
development. From that angle, we think it proper to development. From that angle, we think it proper to
make correctional experiment as a super – addition make correctional experiment as a super – addition
to punitive infliction. Therefore, we make it clear to punitive infliction. Therefore, we make it clear
that our action is less a precedent that a portent.' that our action is less a precedent that a portent.'
A comprehensive analysis of this decision would A comprehensive analysis of this decision would
travel to show that the complete and comprehensive travel to show that the complete and comprehensive
justice was done to all parties including the victim justice was done to all parties including the victim
to whom the delinquent was directed to pay Rs. to whom the delinquent was directed to pay Rs.
2,500/- towards mesne for misconduct. Above all, 2,500/- towards mesne for misconduct. Above all,
an opportunity was given to the young lawyer to an opportunity was given to the young lawyer to
rehabilitate himself. This penal sanction for the rehabilitate himself. This penal sanction for the
professional misconduct also serves the purpose in professional misconduct also serves the purpose in
preserving professional ethics. The judgments handed preserving professional ethics. The judgments handed
down by Justice Krishna Iyer have humanized the down by Justice Krishna Iyer have humanized the
legal system in India, with the amalgamation of mercy, legal system in India, with the amalgamation of mercy,
compassion and consortium. It is, however, compassion and consortium. It is, however,
paradoxical to state that he was lenient and lean towards paradoxical to state that he was lenient and lean towards
the wrong doers in respective of gravity of crime. the wrong doers in respective of gravity of crime.
In V.C Rangadurai case, three primary principles In V.C Rangadurai case, three primary principles
of penology have been promulgated by him, dealing of penology have been promulgated by him, dealing
181 181
with curative but not cruel punishment that has with curative but not cruel punishment that has
designed in the social settings of the legal profession, designed in the social settings of the legal profession,
punishment for professional misconduct is no punishment for professional misconduct is no
exception to the social justice test and that exception to the social justice test and that
misconduct deserves condign punishment. It reveals misconduct deserves condign punishment. It reveals
that in the name of innovation, he has not advocated that in the name of innovation, he has not advocated
against punishment but has expected that the against punishment but has expected that the
punishment should cuse rehabilitative impact punishment should cuse rehabilitative impact
upon the guilty. Mere deterrence would not serve upon the guilty. Mere deterrence would not serve
the purpose of prevention of crime: the reformatory the purpose of prevention of crime: the reformatory
theory of punishment has been promoted through theory of punishment has been promoted through
his punishment has been promoted through his his punishment has been promoted through his
pronouncement, him being against death sentence pronouncement, him being against death sentence
but not blindly opposed to every sentence. but not blindly opposed to every sentence.
182 182
Exemption to Human Softness Exemption to Human Softness
It
is paradoxical assessment that Justice It
is paradoxical assessment that Justice
Krishna Iyer was too lenient towards the offenders. Krishna Iyer was too lenient towards the offenders.
He was against the imposition of minimum or He was against the imposition of minimum or
lesser sentence upon the economic offenders. In a lesser sentence upon the economic offenders. In a
decision in Balakrishna chhaganlal Soni vs State decision in Balakrishna chhaganlal Soni vs State
of West Bengal1 the accused person was found in of West Bengal1 the accused person was found in
possession of gold bars, charged and convicted under possession of gold bars, charged and convicted under
the customs Act, 1962. The trial Court imposed a the customs Act, 1962. The trial Court imposed a
‘flee-bite sentence’ fine of Rs.1000/-. The appeal ‘flee-bite sentence’ fine of Rs.1000/-. The appeal
came up before the Supreme Court, where Justice came up before the Supreme Court, where Justice
Krishna Iyer handed down the judgment, stating. Krishna Iyer handed down the judgment, stating.
‘Guilt being established, the fifth act of the tragedy ‘Guilt being established, the fifth act of the tragedy
is reached at the social and economic offences which is reached at the social and economic offences which
stand on a graver footing in respect of punishment. stand on a graver footing in respect of punishment.
The appellant’s advocate pleads in elimination of The appellant’s advocate pleads in elimination of
the imprisonment that gold of considerable value the imprisonment that gold of considerable value
has been confiscated, that his client has gone out of has been confiscated, that his client has gone out of
business (his license having been cancelled) and the business (his license having been cancelled) and the
possibility of further mischief is absent; seven years possibility of further mischief is absent; seven years
of criminal proceedings have been a long ordeal of criminal proceedings have been a long ordeal
deterrent enough to inhibit future anti- social deterrent enough to inhibit future anti- social
adventures, and some jail term has already been adventures, and some jail term has already been
undergone. Counsel submits that his client will undergone. Counsel submits that his client will
now turn a new leaf if he is not returned to prison. now turn a new leaf if he is not returned to prison.
We decline to be moved by this dubious prospect. We decline to be moved by this dubious prospect.
The new horizons in penal treatment with hopeful The new horizons in penal treatment with hopeful
hues of correction and rehabilitation are statutorily hues of correction and rehabilitation are statutorily
embodied in India in some special enactments; but embodied in India in some special enactments; but
crimes professionally committed by deceptively crimes professionally committed by deceptively
1
(1974) 4 SCC 567 : AIR 1974 SC 120 1
(1974) 4 SCC 567 : AIR 1974 SC 120
183 183
respectable members of the community by inflicting respectable members of the community by inflicting
severe trauma on the health and wealth of the nation severe trauma on the health and wealth of the nation
– and the numbers of this neo-criminal tribe are rapidly – and the numbers of this neo-criminal tribe are rapidly
escalating from a deterrent exemption to human escalating from a deterrent exemption to human
softness in sentencing. The penal strategy must be softness in sentencing. The penal strategy must be
informed by social circumstances, individual factors informed by social circumstances, individual factors
and the character of the crime. India has been facing and the character of the crime. India has been facing
an economic crisis and gold smuggling has had a an economic crisis and gold smuggling has had a
disastrous impact on the state’s efforts to stabilize disastrous impact on the state’s efforts to stabilize
the country’s economy. Smugglers. Hoarders, the country’s economy. Smugglers. Hoarders,
adulterators and others of their ilk have been busy adulterators and others of their ilk have been busy
in their under- world , because the lagal hardware in their under- world , because the lagal hardware
has not been able to halt the invisible economic has not been able to halt the invisible economic
aggressor inside. The ineffectiness of prosecutions aggressor inside. The ineffectiness of prosecutions
in arresting the wave of white – collar crime must in arresting the wave of white – collar crime must
disturb the judge’s conscience. disturb the judge’s conscience.
While we agree that penal treatment should be While we agree that penal treatment should be
tailored to the individual, in the extreme category tailored to the individual, in the extreme category
of professional economic offenders, incarceration is of professional economic offenders, incarceration is
peculiarly potent, when all is said done, the offences peculiarly potent, when all is said done, the offences
for which the appellant has been convicted are typical for which the appellant has been convicted are typical
of respectable racketeers who, tempted by the heavy of respectable racketeers who, tempted by the heavy
pay – off face the perils of the law and hope that they pay – off face the perils of the law and hope that they
could smuggle on a large and even if stuck by the could smuggle on a large and even if stuck by the
court they could get away with a light blow. court they could get away with a light blow.
In conclusion, the plea of the advocate was rejected In conclusion, the plea of the advocate was rejected
as a “dubious prospect”. And it was his idea of declaring as a “dubious prospect”. And it was his idea of declaring
that white collar offenders are “neo – criminal tribes” that white collar offenders are “neo – criminal tribes”
and they are causing damage and loss to the wealth and they are causing damage and loss to the wealth
of the nation, therefore, not being entitled to humane of the nation, therefore, not being entitled to humane
softness in sentencing. softness in sentencing.

184 184
Moral Scavenging Operation Moral Scavenging Operation
In
the international women’s year of 1975, In
the international women’s year of 1975,
Justice Krishna Iyer was disturbed to hear case of Justice Krishna Iyer was disturbed to hear case of
Chitan J Vaswani vs State of West Bengal1 under Chitan J Vaswani vs State of West Bengal1 under
the Suppression of immoral Traffic in women and the Suppression of immoral Traffic in women and
Girls Atct.1956. the tragic story, narrated by his Girls Atct.1956. the tragic story, narrated by his
pen that: pen that:
“The scene is the Isias Bar, 15 Free School “The scene is the Isias Bar, 15 Free School
Street, Calcultta. A hall of enhagement extends Street, Calcultta. A hall of enhagement extends
nocturnal invitation to have a nice time with svelte nocturnal invitation to have a nice time with svelte
sylps. The entrance fee is but paltry Rupees Fifteen sylps. The entrance fee is but paltry Rupees Fifteen
Per man and inside is served animating liquor. Per man and inside is served animating liquor.
Scantily clad female flesh of sweet seventeen or Scantily clad female flesh of sweet seventeen or
thereabouts flit about or sit on laps, to the heady thereabouts flit about or sit on laps, to the heady
tune of band music. They solicit camal custom, tune of band music. They solicit camal custom,
and the willings male victims pay Rupees thirty, and the willings male victims pay Rupees thirty,
choose whol they fancy drink together and, taking choose whol they fancy drink together and, taking
leave of decencies, indulge in promiscuous sexual leave of decencies, indulge in promiscuous sexual
exercise legally described as operation prostitution. exercise legally described as operation prostitution.
The stage is busy with many men and girls moving The stage is busy with many men and girls moving
into rooms, lavatories and chambers. The curtain into rooms, lavatories and chambers. The curtain
rises and a raiding party of police and excise officers rises and a raiding party of police and excise officers
surprise this erotic company drowned in drink and surprise this erotic company drowned in drink and
damsels”. damsels”.
The West Bengal police charged against the The West Bengal police charged against the
accused persons. Further, the magistrate, upon accused persons. Further, the magistrate, upon
satisfaction that the premises were used as brothel, satisfaction that the premises were used as brothel,
passed an order of eviction under Section 18 of the passed an order of eviction under Section 18 of the
1
AIR 1975 SC 2473 : (1975) 2 SCC 829 1
AIR 1975 SC 2473 : (1975) 2 SCC 829
185 185
Act. It was challenged by the occupier of the said Act. It was challenged by the occupier of the said
premises. It was held that law is for the welfare of the premises. It was held that law is for the welfare of the
people and no rule would protect the occupier from people and no rule would protect the occupier from
vacating the premises, which was used for illegal vacating the premises, which was used for illegal
purposes. The Magistrate has power to apply this purposes. The Magistrate has power to apply this
“Preventive Provision” to ensure moral hygiene in the “Preventive Provision” to ensure moral hygiene in the
locality. Justice Krishna Iyer did not show leniency locality. Justice Krishna Iyer did not show leniency
against the offenders and ignored the technicalities, against the offenders and ignored the technicalities,
etymological and literary interpretation. The Court etymological and literary interpretation. The Court
has held that, has held that,
“The home truth that legislation is for the people “The home truth that legislation is for the people
and must, therefore, be plain enough has hardly been and must, therefore, be plain enough has hardly been
realized by our lawmakers judges, looking at statues realized by our lawmakers judges, looking at statues
which are forced to play a linguistic game, guessing which are forced to play a linguistic game, guessing
the general legislative purpose and straining the general legislative purpose and straining
at semantics. In the present case we have had to reach at semantics. In the present case we have had to reach
the conclusion against the appellants by broadening the conclusion against the appellants by broadening
the dimensions of Hayden’s case. Importing a the dimensions of Hayden’s case. Importing a
context – purpose teleological approach. There are context – purpose teleological approach. There are
many canons of statutory construction, but the many canons of statutory construction, but the
golden rule is that are no golden rules – if we may golden rule is that are no golden rules – if we may
borrow a Shavian epigram. borrow a Shavian epigram.
The observation made therein would reflect the The observation made therein would reflect the
respect and regard Justice Iyer bears for the women and respect and regard Justice Iyer bears for the women and
the sincere efforts he made to safe guard the woman the sincere efforts he made to safe guard the woman
– hood from flesh trade. The laws should protect – hood from flesh trade. The laws should protect
the women from exploitation and for eradications the women from exploitation and for eradications
of ‘wine-cum-women’ supplying culture, which of ‘wine-cum-women’ supplying culture, which
reflected women as the cheapest commodity in the reflected women as the cheapest commodity in the
market. Justice Iyer rightly concluded by saying, market. Justice Iyer rightly concluded by saying,
186 186
“It is highly crucial to tighten up this statute and “It is highly crucial to tighten up this statute and
permit ourselves a few concluding observations. permit ourselves a few concluding observations.
May be there are other provisions of the Act which May be there are other provisions of the Act which
have contributed to its dismal failure in the field have contributed to its dismal failure in the field
and the legislature must, in the International year and the legislature must, in the International year
of women, protect the virtue of the weaker sex from of women, protect the virtue of the weaker sex from
the purchasing power of the takers of virginity the purchasing power of the takers of virginity
who sip every flower and change every hour. No who sip every flower and change every hour. No
nation, with all its boasts, and all its hopes, can nation, with all its boasts, and all its hopes, can
ever morally be clean till all its woman are really ever morally be clean till all its woman are really
free – free to live without sale of their young flesh to free – free to live without sale of their young flesh to
lascivious wealth or commercializing their luscious lascivious wealth or commercializing their luscious
figures. India. To redeem this gender justice and figures. India. To redeem this gender justice and
to proscribe prostitution where by rich men buy to proscribe prostitution where by rich men buy
poor women through houses of vice, has salved its poor women through houses of vice, has salved its
social conscience by enacting the Act. But the law social conscience by enacting the Act. But the law
is so ill – drafted and lacunose that few who follow is so ill – drafted and lacunose that few who follow
“ the mast ancient profession in the world” have “ the mast ancient profession in the world” have
been frightened into virtue and the customers of been frightened into virtue and the customers of
wine – cum-women are catered to respectable in wine – cum-women are catered to respectable in
bars, hotels and night – clubs in sophisticated and bars, hotels and night – clubs in sophisticated and
subtle ways, especially in our cities. subtle ways, especially in our cities.
187 187
Deterrent Punishment Against Deterrent Punishment Against
Corruption Corruption
Corruption, coupled with its aftermath Corruption, coupled with its aftermath
consequences often diagnosed as an incurable cancer consequences often diagnosed as an incurable cancer
to the nation. It ruins the people rendering them to the nation. It ruins the people rendering them
with a sense of absolute insecurity of their propects. with a sense of absolute insecurity of their propects.
Corruption in public life, public sector and in all Corruption in public life, public sector and in all
levels of Government machinery is the root cause levels of Government machinery is the root cause
for disorder in society. Our judiciary owes a role for disorder in society. Our judiciary owes a role
in eradication of orruption, by imposing derrent in eradication of orruption, by imposing derrent
punishment on the corrupt officials. An official punishment on the corrupt officials. An official
from the sale tax department found guilty of taking from the sale tax department found guilty of taking
bribe. Knocked the doors of the Supreme Court, and bribe. Knocked the doors of the Supreme Court, and
Justice Krishne Iyer rightly refused to interfere with Justice Krishne Iyer rightly refused to interfere with
the quantum of punishment slapped on him. The the quantum of punishment slapped on him. The
reason assigned by him in Suresh Chandra Vs. State reason assigned by him in Suresh Chandra Vs. State
of Gujarat1 is the hope of a hundred in hiding; I of Gujarat1 is the hope of a hundred in hiding; I
refuse leave, sanguine that judicial relentlessness in refuse leave, sanguine that judicial relentlessness in
this area may helps sweep clean our Public Services, this area may helps sweep clean our Public Services,
both at the higher and lower echelons’. both at the higher and lower echelons’.
The above reason assigned in the Suresh The above reason assigned in the Suresh
Chandra Case to reject the plea of the offender Chandra Case to reject the plea of the offender
would reflect the legal crusade against corruption would reflect the legal crusade against corruption
and zero tolerance of corruption in any level of and zero tolerance of corruption in any level of
administrative machinery. This judgment poses a administrative machinery. This judgment poses a
warning to corrupt officials and makes it clear that warning to corrupt officials and makes it clear that
a person found guilty of corruption is not entitled a person found guilty of corruption is not entitled
to enjoy the benevolent provisions of penology, but to enjoy the benevolent provisions of penology, but
1
(1976) 1 SCC 654 : AIR 1976 SC 2462 1
(1976) 1 SCC 654 : AIR 1976 SC 2462
188 188
liable to bear the rigorous contours of punishment. liable to bear the rigorous contours of punishment.
It is a strong message to the corrupt officials, from It is a strong message to the corrupt officials, from
the judgments of justice Krishna Iyer, that economic the judgments of justice Krishna Iyer, that economic
offenders are economic terrorists and they have offenders are economic terrorists and they have
been dealt with the iron hands of law. They are not been dealt with the iron hands of law. They are not
entitled to mercy and sympathy on any grounds is entitled to mercy and sympathy on any grounds is
his penal philosophy. In his autobiography, justice his penal philosophy. In his autobiography, justice
Krishna Iyer is seen to remark, Krishna Iyer is seen to remark,
“farewell to death sentence is my final conviction. “farewell to death sentence is my final conviction.
Perhaps a minimal exception may be made in the case Perhaps a minimal exception may be made in the case
of bloodthirsty economic mafia, who inflict starvation, of bloodthirsty economic mafia, who inflict starvation,
rape, robbery and other anti-social offences on whole rape, robbery and other anti-social offences on whole
communities”. communities”.
189 189
11 11
RATLAM - A ROAD MAP FOR RATLAM - A ROAD MAP FOR

CIVIC JURISPRUDENCE CIVIC JURISPRUDENCE
Peoples Forum Peoples Forum

RATLAM - A ROAD MAP FOR RATLAM - A ROAD MAP FOR
CIVIC JURISPRUDENCE CIVIC JURISPRUDENCE
Of life and its liberties, we must see that there Of life and its liberties, we must see that there
is civic honesty, civic cleanliness, civic good sense is civic honesty, civic cleanliness, civic good sense
in our home administration of city, state and in our home administration of city, state and
nation nation
-Theodore Teddy Roosevelt -Theodore Teddy Roosevelt
R ousing our sense of civic correspondence,

Ratlam as a city in the Northwestern part
R ousing our sense of civic correspondence,
Ratlam as a city in the Northwestern part
of Malwa region in Madhya Pradesh stands as the of Malwa region in Madhya Pradesh stands as the
classic reference. Historically known as the city of classic reference. Historically known as the city of
Rathnapuri, it was once a princely town. Under Rathnapuri, it was once a princely town. Under
the British Raj, the State was ruled by the clan of the British Raj, the State was ruled by the clan of
Suryavansha Rathores. Post independence, Ratlam Suryavansha Rathores. Post independence, Ratlam
saw its developmental process and became a developing saw its developmental process and became a developing
city, in which new roads and other civic installations city, in which new roads and other civic installations
came up. It saw its growth and at the same time, came up. It saw its growth and at the same time,
couldn’t obliterate the fact that it still remained as an couldn’t obliterate the fact that it still remained as an
area where prosperity and poverty lived as strange area where prosperity and poverty lived as strange
bed fellows. There were diametrically opposite bed fellows. There were diametrically opposite
scenarios that the rich people have had bungalows scenarios that the rich people have had bungalows
and the poor lived on pavements and littered the and the poor lived on pavements and littered the
streets with human excreta because they used streets with human excreta because they used
roadsides as ostensible lavatories in the absence of roadsides as ostensible lavatories in the absence of
public facilities. The public spirited citizens of the public facilities. The public spirited citizens of the
191 191
city of Ratlam raised their voice against deleterious city of Ratlam raised their voice against deleterious
inaction of the callous municipal council, a civic body inaction of the callous municipal council, a civic body
of representatives and executives. The pedestrians of representatives and executives. The pedestrians
and poor people have turned path – finders for justice and poor people have turned path – finders for justice
and participated in the process. They travelled from and participated in the process. They travelled from
the Magistrate Court to the Supreme Court for the Magistrate Court to the Supreme Court for
environmental justice. It was a first of its kind incident environmental justice. It was a first of its kind incident
where the common men made sincere efforts from where the common men made sincere efforts from
invoking Section 133 Cr PC to facing a case (SLP) invoking Section 133 Cr PC to facing a case (SLP)
before the Supreme Court of India.1 before the Supreme Court of India.1
The physical features of the subject matter of The physical features of the subject matter of
lis have been depicted by the learned magistrate, lis have been depicted by the learned magistrate,
in his order as follows: in his order as follows:
“New Road, Ratlam is a very important road and “New Road, Ratlam is a very important road and
so many prosperous and educated persons are living so many prosperous and educated persons are living
on this Road. On the southern side of this Road some on this Road. On the southern side of this Road some
houses are situated and behind these houses and houses are situated and behind these houses and
attached to the college boundary, the Municipality attached to the college boundary, the Municipality
had considered a road and this new Road touches had considered a road and this new Road touches
the Government College and its boundary. Just the Government College and its boundary. Just
in between the said area a dirty Nala is flowing in between the said area a dirty Nala is flowing
which is just in the middle of the main road, i.e. which is just in the middle of the main road, i.e.
New Road. In this stream (nala) many a time dirty New Road. In this stream (nala) many a time dirty
and filthy water of Alcohol Plant having chemical and filthy water of Alcohol Plant having chemical
and obnoxious smell,is also released for which the and obnoxious smell,is also released for which the
people of that locality and general pubic have face people of that locality and general pubic have face
most obnoxious smell. This Nala also produces filth most obnoxious smell. This Nala also produces filth
which causes a bulk of mosquitoes breeding. On which causes a bulk of mosquitoes breeding. On
this very southern side of the said road a few days this very southern side of the said road a few days
1
AIR 1980 SC 1622 1
AIR 1980 SC 1622
192 192
back municipality has also constructed a drain but back municipality has also constructed a drain but
it has not constructed it completely, leaving the it has not constructed it completely, leaving the
construction in between and some of the parts the construction in between and some of the parts the
drain has not at all been constructed. Because of drain has not at all been constructed. Because of
this, the dirty water of half constructed drain and this, the dirty water of half constructed drain and
septic tank flows on the open land of applicants, septic tank flows on the open land of applicants,
where due to insanitation and non–removel of the where due to insanitation and non–removel of the
obstructed earth. The water is accompanied in the obstructed earth. The water is accompanied in the
pits and it also creates dirt and pungent odor and pits and it also creates dirt and pungent odor and
produces mosquitoes in large quantities. This water produces mosquitoes in large quantities. This water
also goes to nearby houses and causes harm to also goes to nearby houses and causes harm to
them. For this very reason the applicants and the them. For this very reason the applicants and the
other people of that locality are unable to live and other people of that locality are unable to live and
take rest respective houses. This is also injurious take rest respective houses. This is also injurious
to health. to health.
A large area of this locality is having slums A large area of this locality is having slums
where no facility of lavatories is supplied by the where no facility of lavatories is supplied by the
municipality. Many such people live in these slums municipality. Many such people live in these slums
and relieve their lateral dirt on the bank of drain and relieve their lateral dirt on the bank of drain
or on the adjacent land. This way an open latrine or on the adjacent land. This way an open latrine
is created by these people. This creates heavy dirt is created by these people. This creates heavy dirt
and mosquitoes. The drains constructed in other and mosquitoes. The drains constructed in other
part of this Mohalla are also not proper, it does not part of this Mohalla are also not proper, it does not
channel the flow of water properly, making it all the channel the flow of water properly, making it all the
way more obnoxious. The Malaria Department of the way more obnoxious. The Malaria Department of the
state of M.P also pays no attention in this direction. state of M.P also pays no attention in this direction.
The non-applicants have not managed the drains, The non-applicants have not managed the drains,
Nallahs and Naliyan properly and due to incomplete Nallahs and Naliyan properly and due to incomplete
construction the non-applicants have left no outlet construction the non-applicants have left no outlet
for the rain water. Owing to above reasons the water for the rain water. Owing to above reasons the water
193 193
is accumulated on the main road obstructing passage is accumulated on the main road obstructing passage
way to houses, which are often frequented by snakes way to houses, which are often frequented by snakes
and scorpions in large numbers. This also causes and scorpions in large numbers. This also causes
financial loss to the people of this area. The road financial loss to the people of this area. The road
constructed by Nagarpalika is on a higher level and constructed by Nagarpalika is on a higher level and
due to this, this year more water entered the houses due to this, this year more water entered the houses
of this locality and caused more harm and loss to of this locality and caused more harm and loss to
the houses. This way, all works done by the non the houses. This way, all works done by the non
– applicants i.e. construction of drain, canal and – applicants i.e. construction of drain, canal and
road, come within the purview of public nuisance. road, come within the purview of public nuisance.
The non- applicants have given no response to the The non- applicants have given no response to the
difficulties of the applicants, and non- applicants difficulties of the applicants, and non- applicants
are careless in their duties towards the public, are careless in their duties towards the public,
for which without any reason the applicants are for which without any reason the applicants are
facing the intolerable nuisance. In this relation facing the intolerable nuisance. In this relation
the people of this locality submitted their returns, the people of this locality submitted their returns,
notices and have given their personal apperance notices and have given their personal apperance
also to the non-applicants are shirking from their also to the non-applicants are shirking from their
responsibilities and are trying to avoid their duty by responsibilities and are trying to avoid their duty by
showing others who are responsible for the same, showing others who are responsible for the same,
whereas all the non- applicants are responsible for whereas all the non- applicants are responsible for
the public nuisance”. the public nuisance”.
The Magistrate who heard the case, passed an The Magistrate who heard the case, passed an
order directing the municipality for removal of all order directing the municipality for removal of all
public nuisance, management of the drains to be public nuisance, management of the drains to be
completed and the flow of water in the drains to be completed and the flow of water in the drains to be
made without obstructions, closure and filling up of made without obstructions, closure and filling up of
the big pits and earthen drains, sprinkling of DDT the big pits and earthen drains, sprinkling of DDT
by malaria control department for eradication of by malaria control department for eradication of
194 194
mosquitoes and coverage of big Nala to control the mosquitoes and coverage of big Nala to control the
overflow in the rainy season. overflow in the rainy season.
Against the said order of the Magistrate the Against the said order of the Magistrate the
Municipality preferred an appeal the Additional Municipality preferred an appeal the Additional
Sessions Judge, who set aside the order of the Sessions Judge, who set aside the order of the
Magistrate. Consequently, the people were driven to Magistrate. Consequently, the people were driven to
the High Court for their legal remedy. The High Court the High Court for their legal remedy. The High Court
reversed the order of the Additional Sessions Judge reversed the order of the Additional Sessions Judge
and restored the order of the Magistrate. However, and restored the order of the Magistrate. However,
the Municipality, dissatisfied with the order of the the Municipality, dissatisfied with the order of the
High Court, filed a Special Leave Petition (SLP) High Court, filed a Special Leave Petition (SLP)
before the Supreme Court, which came up before before the Supreme Court, which came up before
the Bench consisting of Justice V.R.Krishna Iyer the Bench consisting of Justice V.R.Krishna Iyer
and justice O.Chinnappa Reddy, Justice Krishna and justice O.Chinnappa Reddy, Justice Krishna
Iyer handed down the classic judgement on civic Iyer handed down the classic judgement on civic
jurisprudence, comprehensively dealing with the jurisprudence, comprehensively dealing with the
ambit. Scope and application of section 133, Cr.PC., ambit. Scope and application of section 133, Cr.PC.,
remedy on failure of complying with the direction remedy on failure of complying with the direction
of Magistrate, powers of Magistrate and the duties of Magistrate, powers of Magistrate and the duties
of the Municipal Council, along with provisions for of the Municipal Council, along with provisions for
the locus standi of local residents. the locus standi of local residents.
While considering the power to pass an order While considering the power to pass an order
for removal of public nuisance under Section 133 of for removal of public nuisance under Section 133 of
Cr.P.C Justice Krishna Iyer has quoted Vivian Grey. Cr.P.C Justice Krishna Iyer has quoted Vivian Grey.
Book Chapter 7 Benjamin Disraeli, and explained it Book Chapter 7 Benjamin Disraeli, and explained it
as “All power is a trust that we are accountable for its as “All power is a trust that we are accountable for its
exercise - that from the people and for the people, all exercise - that from the people and for the people, all
springs and all must exist”. Further, the Plea raised springs and all must exist”. Further, the Plea raised
before the High Court by the Municipality that the before the High Court by the Municipality that the
owners of houses had gone to that locality, on their owners of houses had gone to that locality, on their
195 195
own choice with eyes open and therefore could not own choice with eyes open and therefore could not
complain if human excreta, flowing dirt, stench and complain if human excreta, flowing dirt, stench and
mosquitoes brooded and multiplied in the area. mosquitoes brooded and multiplied in the area.
These arguments assembled by justice Iyer as ‘ugly These arguments assembled by justice Iyer as ‘ugly
plea’ were countered with statements that reinforced plea’ were countered with statements that reinforced
the fact that a public body is constituted for the the fact that a public body is constituted for the
principal statutory duty of ensuring sanitation principal statutory duty of ensuring sanitation
and health cannot outrage the court by such ‘ugly and health cannot outrage the court by such ‘ugly
plea'. The Judgment commenced with the following plea'. The Judgment commenced with the following
and explained the importance of the court’s power and explained the importance of the court’s power
to force the public bodies, thus explaining. to force the public bodies, thus explaining.
‘The key question we have to answer is whether ‘The key question we have to answer is whether
by affirmative action a court can compel a statutory by affirmative action a court can compel a statutory
body to carry out its duty to the community by body to carry out its duty to the community by
constructing sanitation facilities at great cost and on constructing sanitation facilities at great cost and on
a time – bound basis. At issue is the coming of age a time – bound basis. At issue is the coming of age
of that branch of public law bearing on community of that branch of public law bearing on community
actions and the court’s power to force public bodies actions and the court’s power to force public bodies
under public duties to implement specific plans in under public duties to implement specific plans in
response to public grievances”. response to public grievances”.
Justice P.D. Desai, healing it as historic judgment, Justice P.D. Desai, healing it as historic judgment,
remarked “Ratlam Municipality’s case records a remarked “Ratlam Municipality’s case records a
historic judgment. On further appeal to the Supreme historic judgment. On further appeal to the Supreme
Court, it was held that decency and dignity are Court, it was held that decency and dignity are
non- negotiable facets of human right and are first non- negotiable facets of human right and are first
charge on local self-governing bodies. A responsible charge on local self-governing bodies. A responsible
municipality constituted for the precise purpose of municipality constituted for the precise purpose of
preserving public health cannot run away from its preserving public health cannot run away from its
principal duty by pleading financial inability and principal duty by pleading financial inability and
196 196
such inability. If any cannot validly exonerate the such inability. If any cannot validly exonerate the
municipality from its statutory liability”. municipality from its statutory liability”.
Ratlam is unique in many ways in the sense that Ratlam is unique in many ways in the sense that
it is one of the earliest efforts by the Indian Judiciary it is one of the earliest efforts by the Indian Judiciary
to ensure a clean urban environment. It has held to ensure a clean urban environment. It has held
that decency and dignity are non- negotiable facets that decency and dignity are non- negotiable facets
of human rights. The plea of lack of fund’ perverse of human rights. The plea of lack of fund’ perverse
expenditure logic’ made by the state was dismissed expenditure logic’ made by the state was dismissed
as not enterainable and it is the power of magistrate as not enterainable and it is the power of magistrate
to remove the public nuisance and in case of failure to to remove the public nuisance and in case of failure to
imposing penal provision on municipal authorities, imposing penal provision on municipal authorities,
it should be made known to public. Above all for it should be made known to public. Above all for
the first time, the supreme Court appreciated the the first time, the supreme Court appreciated the
'community orientation of public interest litigation’ 'community orientation of public interest litigation’
by relaxing the traditional individualism of locus by relaxing the traditional individualism of locus
standi. The strict test by lacus standi was dispenced standi. The strict test by lacus standi was dispenced
with, and a strong reason assigned that ‘the with, and a strong reason assigned that ‘the
truth is that a few profound issues of processual truth is that a few profound issues of processual
jurisprudence of great strategic significance to own jurisprudence of great strategic significance to own
legal system face us, and we must zero – in on them legal system face us, and we must zero – in on them
as they involve problems of assess of justice for the as they involve problems of assess of justice for the
people beyond the blinkered rules of standing of people beyond the blinkered rules of standing of
British Indian vintage’. British Indian vintage’.
The foundation laid down in the case for ‘locs The foundation laid down in the case for ‘locs
standi’ was late widened in the Fertilizer Corporation standi’ was late widened in the Fertilizer Corporation
kamgar case where Mr.P.B. Sahasranamam, Senior kamgar case where Mr.P.B. Sahasranamam, Senior
Advocate of Kerala High Court and author of ‘ oxford Advocate of Kerala High Court and author of ‘ oxford
Hand Book on Environmental law’ described the Hand Book on Environmental law’ described the
judgment in Ratlam case as ‘ Magna Carta’ of judgment in Ratlam case as ‘ Magna Carta’ of
environmental jurisprudence. In an article title environmental jurisprudence. In an article title
197 197
“Ratlam to Reality”, he explained in detail how the “Ratlam to Reality”, he explained in detail how the
Ratlam inference has been followed by various High Ratlam inference has been followed by various High
Court in India. Lahore and other countries2. Court in India. Lahore and other countries2.
2
A Surfiet tribute to India's greatest living judge- Justice V.R.Krishna Iyer -Page 2
A Surfiet tribute to India's greatest living judge- Justice V.R.Krishna Iyer -Page
240 240
198 198
People's Forum People's Forum
Amongst the approximately seven hundred Amongst the approximately seven hundred
and forty five judgment penned down by justice and forty five judgment penned down by justice
Krishna Iyer in course of his judgeship, the ‘Ratlam Krishna Iyer in course of his judgeship, the ‘Ratlam
deliberation’ has caused greater and effective impact, deliberation’ has caused greater and effective impact,
as it has institutionalized the Apex Court forum as it has institutionalized the Apex Court forum
of law as the people’s court. It saved a way for the of law as the people’s court. It saved a way for the
community at large, for just and fair solution for community at large, for just and fair solution for
environmental and ecological causes. He has admitted environmental and ecological causes. He has admitted
that it is a creative contribution to constitutional that it is a creative contribution to constitutional
development. Indeed, Ratlam is not an instant or development. Indeed, Ratlam is not an instant or
extempore judgment delivered in 1979 on hearing extempore judgment delivered in 1979 on hearing
plea of the public for removal public nuisance, plea of the public for removal public nuisance,
but the roots of the Ratlam precepts were there in but the roots of the Ratlam precepts were there in
Tellicherry. The autobiography explains how the Tellicherry. The autobiography explains how the
Supreme Court has become a people’s forum on Supreme Court has become a people’s forum on
accepting the plea of people. accepting the plea of people.
' Swaying through my personal recollections, ' Swaying through my personal recollections,
I may hold the court as a great instruments through I may hold the court as a great instruments through
my rulings such as the one in Ratlam Municipality my rulings such as the one in Ratlam Municipality
case. The Court became a people’s forum and history case. The Court became a people’s forum and history
will pay a tribute to the judicature. Many jurists have will pay a tribute to the judicature. Many jurists have
often considered the Ratlam Muicipality case as a often considered the Ratlam Muicipality case as a
creative constribution to constitutional development. creative constribution to constitutional development.
However, the principles laid down there have been However, the principles laid down there have been
but a small beginning. An anecdote of 1940 vintage but a small beginning. An anecdote of 1940 vintage
is the root of the Ratlam ruling. Once when I was is the root of the Ratlam ruling. Once when I was
a young lawyer at Tellicherry, one Mr. J.L. Wood, a young lawyer at Tellicherry, one Mr. J.L. Wood,
ICS, was the judicial Magistrate A landroind from ICS, was the judicial Magistrate A landroind from
199 199
cannanore went to him in the wee hours of dawn cannanore went to him in the wee hours of dawn
and complained that his tenant, a hostile hotelier, and complained that his tenant, a hostile hotelier,
had closed the door through which the scavenger had closed the door through which the scavenger
could enter the landlord’s house and clean the toilet could enter the landlord’s house and clean the toilet
because the landlord and tenant had been on rough because the landlord and tenant had been on rough
terms with the other. Consequently, the lanflord’s terms with the other. Consequently, the lanflord’s
house was stinking and scavenging was immediately house was stinking and scavenging was immediately
necessary for him to continue substance. necessary for him to continue substance.
He narrated his helplessness and sought aid under He narrated his helplessness and sought aid under
183, Cr.P.C. Mr. Wood was moved by his plight. 183, Cr.P.C. Mr. Wood was moved by his plight.
He drove at Cannanore, verified the fact and found He drove at Cannanore, verified the fact and found
the situation intolerable. He ordered the opening of the situation intolerable. He ordered the opening of
the door right there so the scavenger could enter. the door right there so the scavenger could enter.
I appeared for the tenant and pleaded with the I appeared for the tenant and pleaded with the
Magistrate that such drastic orders could not be Magistrate that such drastic orders could not be
passed without a hearing. Mr. wood gave me a passed without a hearing. Mr. wood gave me a
wooden response that he had been privy to the wooden response that he had been privy to the
gross violation and under section 133 of Cr. P.C. He gross violation and under section 133 of Cr. P.C. He
had the power to grant immediate remedy for the had the power to grant immediate remedy for the
sake of health and justice. No writ could give such sake of health and justice. No writ could give such
justice if legal formalities obstructed judicial action. justice if legal formalities obstructed judicial action.
Though I lost the case, my conscience responded Though I lost the case, my conscience responded
to the sense of justice if legal formalities obstructed to the sense of justice if legal formalities obstructed
judicial action. Though I lost the case, my conscience judicial action. Though I lost the case, my conscience
responded to the sense of justice delivered by Mr. responded to the sense of justice delivered by Mr.
Wood. I have come to understand the intricacies Wood. I have come to understand the intricacies
involved in upholding that the life of law is not logic involved in upholding that the life of law is not logic
but experience. I learnt the lesson of public nuisance but experience. I learnt the lesson of public nuisance
and the law, although I lost my case without and the law, although I lost my case without
adequate audi alteram partem. One may lose a adequate audi alteram partem. One may lose a
200 200
legal battle but win a social war. That is story of legal battle but win a social war. That is story of
Ratlam. That insignificant Cannanore case, decided Ratlam. That insignificant Cannanore case, decided
by a mere joint Magistrate, was the seed which by a mere joint Magistrate, was the seed which
blossomed forty years later into a leading case on blossomed forty years later into a leading case on
environmental law decided by a Bench over which I environmental law decided by a Bench over which I
presided by accident. Whatever legal event occurred presided by accident. Whatever legal event occurred
in his early days caused indelible mark in this heart in his early days caused indelible mark in this heart
later. While dealing with similar situation he has later. While dealing with similar situation he has
produced a literature on that subject and prescribed produced a literature on that subject and prescribed
panasea for the prolonged peril. panasea for the prolonged peril.
The decision in Sunil Batra that opened the The decision in Sunil Batra that opened the
windows of prison to fill with fresh air is also an" windows of prison to fill with fresh air is also an"
expression of his experiment in a sojourn behind the expression of his experiment in a sojourn behind the
iron bars of prison it is narrated in his autobiography iron bars of prison it is narrated in his autobiography
that ‘Decades later, I became a judge of the Supreme that ‘Decades later, I became a judge of the Supreme
Court and wrote the Sunil Batra Judgment dealing Court and wrote the Sunil Batra Judgment dealing
with prison conditions. It was humanism writ at large. with prison conditions. It was humanism writ at large.
The Sunil Batra jurisprudence, though delivered The Sunil Batra jurisprudence, though delivered
in the seventies in the Supreme Court as judgment, in the seventies in the Supreme Court as judgment,
was inscribed in my soul in 1948 in the Cannanore was inscribed in my soul in 1948 in the Cannanore
Central Jail. He who has never lost his personal Central Jail. He who has never lost his personal
liberty does not known life in its entirety1’. liberty does not known life in its entirety1’.
During his early years of beings a lawyer, Krishna During his early years of beings a lawyer, Krishna
Iyer was detained under preventive detention, Iyer was detained under preventive detention,
because he appeared for A.K. Gopalan and another because he appeared for A.K. Gopalan and another
leader of the communist party. The then chief minister leader of the communist party. The then chief minister
of Madras Province. Sri Omandur Ramasamy Reddiar, of Madras Province. Sri Omandur Ramasamy Reddiar,
had direct his detention personally. Sri Madhaven had direct his detention personally. Sri Madhaven
Menon, a Minister back then, had supported and Menon, a Minister back then, had supported and
1
Justice V.R.Krishna Iyer, wandering in many worlds. Page 173. 1
Justice V.R.Krishna Iyer, wandering in many worlds. Page 173.
201 201
explained the lucrative practice in law of Krishna explained the lucrative practice in law of Krishna
iyer and helped him to come out from prison. In the iyer and helped him to come out from prison. In the
meanwhile, Krishna iyer happened to be prisonor meanwhile, Krishna iyer happened to be prisonor
and had undergone insufferable incarceration for and had undergone insufferable incarceration for
thirty days. The unjust detention of thirty days thirty days. The unjust detention of thirty days
made him suffer from untold sorrows, sacrificing his made him suffer from untold sorrows, sacrificing his
freedom and liberty. This hindsight was one of the freedom and liberty. This hindsight was one of the
reasons for the outcome of the landmark judgment reasons for the outcome of the landmark judgment
in Sunil Batra’s Case. The vast, versatile and unique in Sunil Batra’s Case. The vast, versatile and unique
experience he had in his personal life, political experience he had in his personal life, political
career and legal profession and the knowledge on career and legal profession and the knowledge on
various political and social ideologies he acquired various political and social ideologies he acquired
helped him to produce valuable judicial products. helped him to produce valuable judicial products.
It is the reason why his pronouncement have gotten It is the reason why his pronouncement have gotten
socio – legal ideological flavor with pragmatic spirit. socio – legal ideological flavor with pragmatic spirit.
References And Selected Bibliography References And Selected Bibliography
 Dr. Justice P.N. Bhagwati, ‘Death Penalty - An Affront to  Dr. Justice P.N. Bhagwati, ‘Death Penalty - An Affront to
Human Rights’, SOCO Trust, Madurai (VRDP Salem) 2011 Human Rights’, SOCO Trust, Madurai (VRDP Salem) 2011
 Dr. Justice P.N. Bhagwati, ‘My Tryst with Justice’, Universal  Dr. Justice P.N. Bhagwati, ‘My Tryst with Justice’, Universal
Law Publishing, New Delhi, 2013 Fali. S. Nariman, „Before My Law Publishing, New Delhi, 2013 Fali. S. Nariman, „Before My
Memory Fades - An Autobiography , Hay House India 2010 Memory Fades - An Autobiography , Hay House India 2010
 Fali. S. Nariman, ‘The State of the Nation’, Hay House  Fali. S. Nariman, ‘The State of the Nation’, Hay House
India, 2013 India, 2013
 Iyer, Justice V.R.Krishna, ‘Wandering in many worlds: An  Iyer, Justice V.R.Krishna, ‘Wandering in many worlds: An
Autobiography’, Pearson Education: Delhi, First Impression Autobiography’, Pearson Education: Delhi, First Impression
2009 2009
 Iyer, Justice V.R. Krishna, ‘Off the Bench’, Universal law  Iyer, Justice V.R. Krishna, ‘Off the Bench’, Universal law
Publishing Pvt Ltd, New Delhi (2009) Publishing Pvt Ltd, New Delhi (2009)
 Iyer, Justice V.R. Krishna, ‘Declining Judicial Culture and  Iyer, Justice V.R. Krishna, ‘Declining Judicial Culture and
Other Essays’, SOCO Trust, Madurai, TN, First Edition, 1994 Other Essays’, SOCO Trust, Madurai, TN, First Edition, 1994
 Iyer, Justice V.R. Krishna, ‘Freedom of Information’ , East-  Iyer, Justice V.R. Krishna, ‘Freedom of Information’ , East-
ern Book Company, Lucknow, 1990 Iyer, Justice V R Krishna, ‘A ern Book Company, Lucknow, 1990 Iyer, Justice V R Krishna, ‘A
Constitutional Miscellany , Eastern Book Company, Lucknow, Constitutional Miscellany , Eastern Book Company, Lucknow,
1986 1986
 Iyer, Justice V.R.Krishna, ‘Minorities, Civil Liberties and  Iyer, Justice V.R.Krishna, ‘Minorities, Civil Liberties and
Criminal Justice’, People s Publishing House, New Delhi Criminal Justice’, People s Publishing House, New Delhi
 Iyer, Justice V.R.Krishna, ‘Environmental Protection and  Iyer, Justice V.R.Krishna, ‘Environmental Protection and
Legal Defence’, Sterling Publishers Pvt. Ltd., New Delhi, 1992 Legal Defence’, Sterling Publishers Pvt. Ltd., New Delhi, 1992
 Iyer, Justice V.R.Krishna, ‘Death & After’, Konark Publishers  Iyer, Justice V.R.Krishna, ‘Death & After’, Konark Publishers
Pvt. Ltd., New Delhi, 2012 Pvt. Ltd., New Delhi, 2012
 Iyer, Justice V.R.Krishna, ‘Equal Justice and Forensic  Iyer, Justice V.R.Krishna, ‘Equal Justice and Forensic
Process- Truth and Myth’, Eastern Book Company, Lucknow, Process- Truth and Myth’, Eastern Book Company, Lucknow,
1986 1986
 Iyer, Justice V R Krishna, ‘In search of Social Justice’,  Iyer, Justice V R Krishna, ‘In search of Social Justice’,
Jagrut Bharat, Dharwad, 1986 Jagrut Bharat, Dharwad, 1986
 Iyer, Justice V R Krishna, ‘The Indo – Sri Lankan Accord  Iyer, Justice V R Krishna, ‘The Indo – Sri Lankan Accord
203 203
– An Appraisal’, Indo-Sri Lankan Friendship Society, Madurai, – An Appraisal’, Indo-Sri Lankan Friendship Society, Madurai,
1988 1988
 Iyer, Justice V.R.Krishna, ‘The Law and the Urban Poor  Iyer, Justice V.R.Krishna, ‘The Law and the Urban Poor
in India’, B.R.Publishing Corporation, Delhi, 1988 in India’, B.R.Publishing Corporation, Delhi, 1988
 Iyer, Justice V.R.Krishna, ‘Salvaging Democracy, Some  Iyer, Justice V.R.Krishna, ‘Salvaging Democracy, Some
Reflections’, Konark Publishers Pvt.Ltd., New Delhi, 1990 Reflections’, Konark Publishers Pvt.Ltd., New Delhi, 1990
 Iyer, Justice V.R.Krishna, ‘Woman Unbound, A plea for  Iyer, Justice V.R.Krishna, ‘Woman Unbound, A plea for
Gender Justice’, SOCO Trust, Madurai, 1985 Iyer, Justice V.R. Gender Justice’, SOCO Trust, Madurai, 1985 Iyer, Justice V.R.
Krishna, ‘Turning Point Judgments’, Universal Law Publishing, Krishna, ‘Turning Point Judgments’, Universal Law Publishing,
New Delhi, 2014 New Delhi, 2014
 Iyer, Justice V.R.Krishna, ‘The Indian Law, Dynamics  Iyer, Justice V.R.Krishna, ‘The Indian Law, Dynamics
Dimension of the Abstract’, Universal Law Publishing, New Dimension of the Abstract’, Universal Law Publishing, New
Delhi, 2009 Delhi, 2009
 Iyer, Justice V.R.Krishna, ‘The Court & the Common Man’,  Iyer, Justice V.R.Krishna, ‘The Court & the Common Man’,
University of Madras, 1983 University of Madras, 1983
 Iyer, Justice V.R.Krishna, ‘The Dialectics Dynamics of  Iyer, Justice V.R.Krishna, ‘The Dialectics Dynamics of
Human Rights in India’, Yesterday, Today and Tomorrow’, Human Rights in India’, Yesterday, Today and Tomorrow’,
Eastern Law Book House, New Delhi, 1999 Eastern Law Book House, New Delhi, 1999
 Iyer, Justice V.R.Krishna, ‘In Social Justice in Crisis’,  Iyer, Justice V.R.Krishna, ‘In Social Justice in Crisis’,
Affiliated East-West Press, Madras, 1983 Affiliated East-West Press, Madras, 1983
 Iyer, Justice V.R.Krishna, ‘Lecturer, Sarada Krishna  Iyer, Justice V.R.Krishna, ‘Lecturer, Sarada Krishna
Satgamaya Foundation for Law & Justice’, Cochin, Kerala, 2012 Satgamaya Foundation for Law & Justice’, Cochin, Kerala, 2012
 Iyer, Justice V.R.Krishna, ‘Letters & Lecturers of an  Iyer, Justice V.R.Krishna, ‘Letters & Lecturers of an
anguished soul (V R Krishna Iyer, Speaks and Writes)’, SOCO anguished soul (V R Krishna Iyer, Speaks and Writes)’, SOCO
Trust, Madurai Trust, Madurai
 Justice K.Chandr u, ‘Living Le gend and Labour  Justice K.Chandr u, ‘Living Le gend and Labour
Jurisprudence’, SOCO Trust, Madurai, 2014 Jurisprudence’, SOCO Trust, Madurai, 2014
 Justice V R Krishna Iyer s 80th Birthday Souvenir SOCO  Justice V R Krishna Iyer s 80th Birthday Souvenir SOCO
Trust, Madurai, 1995 Trust, Madurai, 1995
 Lord Denning, ‘The Discipline of Law’, Lexis Nexis,  Lord Denning, ‘The Discipline of Law’, Lexis Nexis,
Butterworths (Indian Reprint) 2014 Lord Denning, ‘The Butterworths (Indian Reprint) 2014 Lord Denning, ‘The
Changing Law’, Universal Law Publishing, New Delhi, 2010 Changing Law’, Universal Law Publishing, New Delhi, 2010
P.B.Sahasranaman, (Ed), Speaking for the Bench , Oxford, P.B.Sahasranaman, (Ed), Speaking for the Bench , Oxford,
New Delhi, 2012 New Delhi, 2012
204 204
 P.B.Sahasranaman, ‘A surfeit of Tribute to India s Greatest  P.B.Sahasranaman, ‘A surfeit of Tribute to India s Greatest
Living Judge, Justice V R Krishna Iyer – A festschrift’, Universal Living Judge, Justice V R Krishna Iyer – A festschrift’, Universal
Law, 2013 Law, 2013
 Upendra Baxi, ‘The Future of Human Rights’ , Oxford  Upendra Baxi, ‘The Future of Human Rights’ , Oxford
India, 2008 V.Lakshmanan, ‘An Avantgarde , LARK, Tiruppur, India, 2008 V.Lakshmanan, ‘An Avantgarde , LARK, Tiruppur,
Tamil Nadu, 2014 Tamil Nadu, 2014
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genius’, C.Sitaraman Co. Pvt. Ltd. Chennai Zia Mody, ‘10 genius’, C.Sitaraman Co. Pvt. Ltd. Chennai Zia Mody, ‘10
Judgments that changed India’, Shobha De books, New Delhi Judgments that changed India’, Shobha De books, New Delhi
2013 2013
TABLE OF CASESE TABLE OF CASESE
A A
ADM Jabalpur Vs. Shivkant Shukla AIR 1976 SC 1207 ADM Jabalpur Vs. Shivkant Shukla AIR 1976 SC 1207
Ankush Shivaji Gaikwad Vs. State of Maharashtra 2013(6) SCC 770: Ankush Shivaji Gaikwad Vs. State of Maharashtra 2013(6) SCC 770:
2013 AIR SC 2454 2013 AIR SC 2454
B B
Bal Krishan Giri Vs. State of UP (2014) 7 SCC 280 Bal Krishan Giri Vs. State of UP (2014) 7 SCC 280
Balakrishna chhaganlal Soni Vs. State of West Bengal (1974) 4 SCC 567 : Balakrishna chhaganlal Soni Vs. State of West Bengal (1974) 4 SCC 567 :
AIR 1974 SC 120 AIR 1974 SC 120
Bihar Public Service Commission Vs. Saiyed Hussain Abbas Rizwi Bihar Public Service Commission Vs. Saiyed Hussain Abbas Rizwi
(2012) 13 SCC 61 (2012) 13 SCC 61
Bai Tahira Vs. Ali Hussain Fissalli Chotia (AIR 1979 SC 362:(1979) 2 Bai Tahira Vs. Ali Hussain Fissalli Chotia (AIR 1979 SC 362:(1979) 2
SCC 316) SCC 316)
C C
C.B.Muthamma Vs. Union of India 1979 4 SCC 260: AIR 1979 SC 1868 C.B.Muthamma Vs. Union of India 1979 4 SCC 260: AIR 1979 SC 1868
Chitan J Vaswani Vs. State of West Bengal AIR 1975 SC 2473 :1976 Chitan J Vaswani Vs. State of West Bengal AIR 1975 SC 2473 :1976
SCR (2) 300 SCR (2) 300
D D
Dr. Kasi Iyer Vs. State of Kerala (1966) Cr. L. J. 1445 Dr. Kasi Iyer Vs. State of Kerala (1966) Cr. L. J. 1445
E E
Ediga Anamma Vs. Stateof A.P., (1974) 4 SCC 443 Ediga Anamma Vs. Stateof A.P., (1974) 4 SCC 443
F F
Fazlunbi Vs. K Khader Vali (AIR 1980 SC1730: 1980 4 SCC 125) Fazlunbi Vs. K Khader Vali (AIR 1980 SC1730: 1980 4 SCC 125)
G G
Gurgaon Gramin Bank Vs. Smt.Khazani and Another (AIR 2012 SC Gurgaon Gramin Bank Vs. Smt.Khazani and Another (AIR 2012 SC
2881:(2012) 8 SCC 781) 2881:(2012) 8 SCC 781)
J J
Jolly George Verghese Vs. The Bank of Cochin (AIR 1980 SC 470 ; 1980 Jolly George Verghese Vs. The Bank of Cochin (AIR 1980 SC 470 ; 1980
SCR (2) 913) SCR (2) 913)
Jennison Vs. Baker (1972) 2QB52 Jennison Vs. Baker (1972) 2QB52
K K
Kesavananda Bharathi judgement (AIR 1973 SC 1461) Kesavananda Bharathi judgement (AIR 1973 SC 1461)
Kuruvilla Chandy Vs. Hassan Bava Rawthar (1969 KLT 402; 1969 KLR Kuruvilla Chandy Vs. Hassan Bava Rawthar (1969 KLT 402; 1969 KLR
177) 177)
206 206
L L
Lalmani Vs. Bejai Ram (AIR 1934 All 840) Lalmani Vs. Bejai Ram (AIR 1934 All 840)
Life Insurance Corporation of India Vs. D.J.Bahadur 1980 AIR 2181: Life Insurance Corporation of India Vs. D.J.Bahadur 1980 AIR 2181:
1981 SCR (1) 1083 1981 SCR (1) 1083
M M
Maneka Gandhi Vs. Rani Jethmalani (AIR 1979 SC 468:1979 4 SCC 167) Maneka Gandhi Vs. Rani Jethmalani (AIR 1979 SC 468:1979 4 SCC 167)
Madhav Hayawadenaroa Hoskot Vs. State of Maharastra (AIR 1978 SC Madhav Hayawadenaroa Hoskot Vs. State of Maharastra (AIR 1978 SC
1548; 1978 3 SCC 544) 1548; 1978 3 SCC 544)
Maru Ram Vs. Union of India AIR 1980 SC page 2147 ; (1981) 1 SCC Maru Ram Vs. Union of India AIR 1980 SC page 2147 ; (1981) 1 SCC
page 107 page 107
M.H.Hoskot Vs. State of Maharashtra (1978) 3 SCC 544 M.H.Hoskot Vs. State of Maharashtra (1978) 3 SCC 544
Muncipal Council, Ratlam Vs. Vardhichand AIR 1980 SC 1622 Muncipal Council, Ratlam Vs. Vardhichand AIR 1980 SC 1622
N N
Nigela Vs. Feilden (1966 2QB 633) Nigela Vs. Feilden (1966 2QB 633)
O O
Oma Vs. State of TamilNadu (2013) 3SCC 440 Oma Vs. State of TamilNadu (2013) 3SCC 440
P P
P.N.Eswara Iyer Vs. Supreme Court of India, (1980) 4 SCC 680 P.N.Eswara Iyer Vs. Supreme Court of India, (1980) 4 SCC 680
P N Kaushal Vs. Union of India (AIR 1978 SC 1457 : 1979(1) SCR 122) P N Kaushal Vs. Union of India (AIR 1978 SC 1457 : 1979(1) SCR 122)
P.S.R. Sadhanantham Vs. Arunachala, (1980) 3 SCC 141 P.S.R. Sadhanantham Vs. Arunachala, (1980) 3 SCC 141
Prabhakar Rao N.Malwe Vs. State of Andhra Pradesh (AIR 1965 SC Prabhakar Rao N.Malwe Vs. State of Andhra Pradesh (AIR 1965 SC
1827 : 1965 SCR (3) 743) 1827 : 1965 SCR (3) 743)
Pitchaiah Sarma Vs. G.C.Veerayya AIR 1961 Andhra Pradesh 420 Pitchaiah Sarma Vs. G.C.Veerayya AIR 1961 Andhra Pradesh 420
R R
Rafiq Vs. Munshilal (1981) 2 SCC 788 (Paragraph 3) Rafiq Vs. Munshilal (1981) 2 SCC 788 (Paragraph 3)
S S
Shah Bano Begum Vs. Mohd. Ahmed Begum (AIR 1985 SC 945) Shah Bano Begum Vs. Mohd. Ahmed Begum (AIR 1985 SC 945)
Somnath vs State of Haryana (AIR 9180 SC 1226:1980 3 SCC 301) Somnath vs State of Haryana (AIR 9180 SC 1226:1980 3 SCC 301)
Smt Maneka Gandhi AIR 1979 SC 468 : 1979 4 SCC 167 Smt Maneka Gandhi AIR 1979 SC 468 : 1979 4 SCC 167
S P Gupta Vs. Union of India (1981 Supp SCC 87) S P Gupta Vs. Union of India (1981 Supp SCC 87)
State of Haryana Vs. Smt. Darshana Devi (AIR 1979 SC page 855; 19790 State of Haryana Vs. Smt. Darshana Devi (AIR 1979 SC page 855; 19790
2 SCC page 236) 2 SCC page 236)
State Bank of India Vs. N.Sundaramony (AIR 1976 SC 1111; 1976 1 State Bank of India Vs. N.Sundaramony (AIR 1976 SC 1111; 1976 1
SCC 822) SCC 822)
State of Haryana Vs. Darshana Devi (1979) 2 SCC 236 State of Haryana Vs. Darshana Devi (1979) 2 SCC 236
207 207
State of Kerala Vs N.M.Thomas (1976) 2 SCC 310 State of Kerala Vs N.M.Thomas (1976) 2 SCC 310
Subh Karam Singh Vs. Kedar Nath (AIR 1941 All 314) Subh Karam Singh Vs. Kedar Nath (AIR 1941 All 314)
Suresh Chandra Vs. State of Gujarat (1976) 1 SCC 654 : AIR 1976 SC 2462 Suresh Chandra Vs. State of Gujarat (1976) 1 SCC 654 : AIR 1976 SC 2462
T T
T. Arivanandam vs. T.V.Satyapal (AIR 1977 SC 2421; (1977) 4 SCC 467) T. Arivanandam vs. T.V.Satyapal (AIR 1977 SC 2421; (1977) 4 SCC 467)
The Trustees of the Port of Bombay Vs. The Premier Automobils Ltd., The Trustees of the Port of Bombay Vs. The Premier Automobils Ltd.,
1974 4 SCC page 710 1974 4 SCC page 710
Ridge Vs. Bladwin, U.K.[1964] AC 40 [1963] Ridge Vs. Bladwin, U.K.[1964] AC 40 [1963]
V V
Vincent Panikulangara Vs. V.R.Krishna Iyer (1983 KLT 829;1983 (2) Vincent Panikulangara Vs. V.R.Krishna Iyer (1983 KLT 829;1983 (2)
ILR (Kerala) 626) ILR (Kerala) 626)
V.C.Rangadurai Vs. D.Gopalan (1979) 1 SCC 308 : AIR 1979 SC 281 V.C.Rangadurai Vs. D.Gopalan (1979) 1 SCC 308 : AIR 1979 SC 281
Index Index
A A
aam admi 78 aam admi 78
Abraham Lincoln, 167 Abraham Lincoln, 167
accidents 85, 87, 88, 91, 92 accidents 85, 87, 88, 91, 92
adjudication 18, 23, 44, 59, 61, 77, 97, 114, 166 adjudication 18, 23, 44, 59, 61, 77, 97, 114, 166
A K Gopalan 19 A K Gopalan 19
amendment 67, 99, 104, 119, 136, 144 amendment 67, 99, 104, 119, 136, 144
Apex Court 28, 39, 43, 61, 62, 67, 80, 114, 118, 152, 171 Apex Court 28, 39, 43, 61, 62, 67, 80, 114, 118, 152, 171
appeal 60,87,102,112,113,116, 117, 118, 119, 140, 146, 158 appeal 60,87,102,112,113,116, 117, 118, 119, 140, 146, 158
appearance 25, 27 appearance 25, 27
Articles 89, 126 Articles 89, 126
B B
Bar 19, 22, 24, 28, 30, 31, 37, 39, 45, 46, 66, 67, 76, 108,165 Bar 19, 22, 24, 28, 30, 31, 37, 39, 45, 46, 66, 67, 76, 108,165
Bench 19, 22, 24, 27, 30, 31, 34, 37, 41, 42, 43, 45, 51, 57, Bench 19, 22, 24, 27, 30, 31, 34, 37, 41, 42, 43, 45, 51, 57,
65, 66, 67, 68, 74, 80, 86, 91, 93, 100, 117, 136, 146, 65, 66, 67, 68, 74, 80, 86, 91, 93, 100, 117, 136, 146,
147, 158, 202, 203 147, 158, 202, 203
C C
California 54, 150, 155 California 54, 150, 155
Capital Punishment 144 Capital Punishment 144
cause of justice 45, 47, 66, 106 cause of justice 45, 47, 66, 106
civic jurisprudence 194 civic jurisprudence 194
Civil 46, 53, 65, 87, 90, 93, 94, 117, 202 Civil 46, 53, 65, 87, 90, 93, 94, 117, 202
Civil Prison 93 Civil Prison 93
code of 99, 124, 156 code of 99, 124, 156
compassion of justice 93 compassion of justice 93
compensatory relief 89 compensatory relief 89
Conduciveness In Court 71 Conduciveness In Court 71
confidence 24, 43, 45, 71, 116, 137 confidence 24, 43, 45, 71, 116, 137
constitutional values 31 constitutional values 31
contemnor 42 contemnor 42
correctional twist 177 correctional twist 177
costs 58, 65, 119 costs 58, 65, 119
courage 23, 46 courage 23, 46
court fee 86, 87, 90, 103 court fee 86, 87, 90, 103
courts 9,12,24,25,46,48,51,53,54,57,58,59,61,62,63,64,67,70,71,77, courts 9,12,24,25,46,48,51,53,54,57,58,59,61,62,63,64,67,70,71,77,
85, 89, 97, 99, 101, 103, 104, 105, 110, 116, 137, 149 85, 89, 97, 99, 101, 103, 104, 105, 110, 116, 137, 149
209 209
creamy layer 34 creamy layer 34
criminal 12,51,57,58,63,98,99,100,101,107,136,148,150,154,157 criminal 12,51,57,58,63,98,99,100,101,107,136,148,150,154,157
Criminal 46, 47, 48, 99, 100, 137, 144, 145, 148,154, 166, 202 Criminal 46, 47, 48, 99, 100, 137, 144, 145, 148,154, 166, 202
Critique 17, 38 Critique 17, 38
cultural enrichment 74 cultural enrichment 74
D D
dark area of trial 48 dark area of trial 48
discernments 32 discernments 32
Disinformation 173 Disinformation 173
Doctrine of Loser-pay all 102 Doctrine of Loser-pay all 102
Doctrine of Loser-pay all and suitor’s fund 102 Doctrine of Loser-pay all and suitor’s fund 102
E E
economic justice 93 economic justice 93
Ediga anamma 145 Ediga anamma 145
eloquent arguments 47 eloquent arguments 47
English 2, 34, 35, 36, 37 English 2, 34, 35, 36, 37
Equal justice 104 Equal justice 104
erudition 170 erudition 170
Evershed Committee 118 Evershed Committee 118
Evidence Act 47, 48, 50 Evidence Act 47, 48, 50
execution of a decree 93 execution of a decree 93
extortionary rate of interest 36 extortionary rate of interest 36
extra-legal journey 82 extra-legal journey 82
extra-legal reasons 82 extra-legal reasons 82
F F
fair trial 50, 71 fair trial 50, 71
Fali S Nariman 22, 28 Fali S Nariman 22, 28
fault liability 87, 88, 91 fault liability 87, 88, 91
foreign jurists 51 foreign jurists 51
fragility 41 fragility 41
Freedom of Information 170, 172, 202 Freedom of Information 170, 172, 202
friendly foreign relations 77 friendly foreign relations 77
frivolous suits 53, 56 frivolous suits 53, 56
fundamental rights 23, 44, 98 fundamental rights 23, 44, 98
G G
gender discrimination 124 gender discrimination 124
Gender justice 136 Gender justice 136
210 210
George Bernard Shaw 141, 166 George Bernard Shaw 141, 166
Giri 24 Giri 24
Govinda Menon 47 Govinda Menon 47
grievances 71, 103, 110 grievances 71, 103, 110
H H
High Court 4,8,9,12,15, 18, 20, 22, 24, 27, 31, 38, 39, 40, 41, High Court 4,8,9,12,15, 18, 20, 22, 24, 27, 31, 38, 39, 40, 41,
42, 44, 46, 47, 49, 51, 57, 58, 59, 64, 65, 87, 96, 112, 42, 44, 46, 47, 49, 51, 57, 58, 59, 64, 65, 87, 96, 112,
117, 146, 147, 158 117, 146, 147, 158
higher judiciary 45 higher judiciary 45
humanity 12, 32, 126 humanity 12, 32, 126
human tragedy 85 human tragedy 85
I I
ill-informed criticism 41 ill-informed criticism 41
imprisonment 64, 94, 136, 144, 145, 150, 155, 157, 158 imprisonment 64, 94, 136, 144, 145, 150, 155, 157, 158
Indian Penal Code 47, 65, 154 Indian Penal Code 47, 65, 154
Information 170, 172, 202 Information 170, 172, 202
Informational Imperialism 173 Informational Imperialism 173
ingenuous interpretations 37 ingenuous interpretations 37
investigation officer 47 investigation officer 47
J J
Johnson 167 Johnson 167
judgment debtor 93, 96 judgment debtor 93, 96
judicial construction 81, 155 judicial construction 81, 155
judicial vision 22, 119 judicial vision 22, 119
jurisprudence 27,35,36,51,64,68,78,89,90,98,112,129,136,139,149, jurisprudence 27,35,36,51,64,68,78,89,90,98,112,129,136,139,149,
153, 172 153, 172
jurisprudential articulation 30 jurisprudential articulation 30
K K
Kamal Hassan 21 Kamal Hassan 21
Kanyakumari 21 Kanyakumari 21
Kashmir 21 Kashmir 21
Kerala 15,19,20,22,24,27,34,39,40,41,46,47,48,132,142,203 Kerala 15,19,20,22,24,27,34,39,40,41,46,47,48,132,142,203
Kumbhakonam 36 Kumbhakonam 36
L L
language 20,33,34,35,37,62,91,93,157,161,167,171 language 20,33,34,35,37,62,91,93,157,161,167,171
Law Commission of India 20, 57 Law Commission of India 20, 57
211 211
LAWYER'S CASE 13, 174, 175 LAWYER'S CASE 13, 174, 175
legal aid 30,90,98,104, 105, 106, 107, 108, 109, 110, 112, 113 legal aid 30,90,98,104, 105, 106, 107, 108, 109, 110, 112, 113
legal fraternity 15, 32, 38, 42, 152 legal fraternity 15, 32, 38, 42, 152
Legal Services 108 Legal Services 108
Legislative Assembly 19 Legislative Assembly 19
life 11,19,20,21,31,32, 39, 41, 45, 68, 78, 79, 82, 83, 98, 127, life 11,19,20,21,31,32, 39, 41, 45, 68, 78, 79, 82, 83, 98, 127,
128, 137, 144, 145, 146, 147, 149, 150, 151, 152, 155, 128, 137, 144, 145, 146, 147, 149, 150, 151, 152, 155,
156, 163 156, 163
litigation 30,53,54, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 87, litigation 30,53,54, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 87,
103, 117, 118, 119, 120, 161 103, 117, 118, 119, 120, 161
Litigative Bankruptcy 68 Litigative Bankruptcy 68
LITIGATIVE CREDITABILITY 116 LITIGATIVE CREDITABILITY 116
litigative expenses 103 litigative expenses 103
living legend of law 22 living legend of law 22
locus standi 68 locus standi 68
longevity of litigation 63, 68 longevity of litigation 63, 68
Loser-Pay-All’ 116 Loser-Pay-All’ 116
lucrative practice 46 lucrative practice 46
M M
magna carta 77 magna carta 77
Mahatma Gandhi 166, 167 Mahatma Gandhi 166, 167
Maneka Gandhi 53, 71, 74, 77, 78, 79, 80, 82 Maneka Gandhi 53, 71, 74, 77, 78, 79, 80, 82
masculine culture 125, 126 masculine culture 125, 126
Mc Donald 54 Mc Donald 54
Mercy 97 Mercy 97
minister 68, 132, 134, 142, 172 minister 68, 132, 134, 142, 172
misogynist 125 misogynist 125
Mobile courts 70 Mobile courts 70
Modern penology 148 Modern penology 148
money decrees 93, 97 money decrees 93, 97
Moral Scavenging 174, 184 Moral Scavenging 174, 184
Motor Vehicle Act 85, 86, 88, 89, 90 Motor Vehicle Act 85, 86, 88, 89, 90
Municipality 191, 194, 195, 198 Municipality 191, 194, 195, 198
Muthamma 124, 127, 129, 130, 132 Muthamma 124, 127, 129, 130, 132
N N
Nagle 129 Nagle 129
no fault liability 91 no fault liability 91
nugatory claims 54 nugatory claims 54
212 212
O O
orthodox jurisprudence 68 orthodox jurisprudence 68
P P
paltry disputes 54 paltry disputes 54
pedestrians 91 pedestrians 91
penalty 21, 80, 97, 144, 145, 150, 154, 155, 156 penalty 21, 80, 97, 144, 145, 150, 154, 155, 156
penological therapeutics 101 penological therapeutics 101
permissible 41, 137 permissible 41, 137
permissible criticism 41 permissible criticism 41
P.N. Bhagwati 75, 80, 106, 202 P.N. Bhagwati 75, 80, 106, 202
poverty jurisprudence 35 poverty jurisprudence 35
Precautionary measures 71 Precautionary measures 71
Precedent 40 Precedent 40
prime legislations 47 prime legislations 47
Prison Reforms 20 Prison Reforms 20
Procedural Prolixity 62 Procedural Prolixity 62
Procedure 47,48,53,65,90,94,99,100,117, 137, 144, 145, 148, 154 Procedure 47,48,53,65,90,94,99,100,117, 137, 144, 145, 148, 154
professional misconduct 177,180,181 professional misconduct 177,180,181
prohibition policy 163, 168 prohibition policy 163, 168
public interest 18, 30, 77, 118, 161, 171 public interest 18, 30, 77, 118, 161, 171
public order 76 public order 76
punitive dilemma 148 punitive dilemma 148
R R
Raymond Wacks 54 Raymond Wacks 54
Registrar of the High Court 57 Registrar of the High Court 57
researchers 46 researchers 46
reservation 34 reservation 34
revision 25, 47, 62, 114 revision 25, 47, 62, 114
right to information 170, 171 right to information 170, 171
right to travel 82 right to travel 82
Rule of Law 23 Rule of Law 23
S S
Sahasranamam 196 Sahasranamam 196
salient feature 18 salient feature 18
sessions case 46 sessions case 46
SHOOT AT SIGHT 13, 52 SHOOT AT SIGHT 13, 52
SNOW HILL ARREARS 70 SNOW HILL ARREARS 70
social justice 7, 8, 27, 29, 30, 31, 44, 89, 105, 106, 158, 159 social justice 7, 8, 27, 29, 30, 31, 44, 89, 105, 106, 158, 159
213 213
social suffocation 172 social suffocation 172
SOFT JUSTICE SYNDROME 157 SOFT JUSTICE SYNDROME 157
soul 7, 17, 31, 32, 64, 75, 104, 203 soul 7, 17, 31, 32, 64, 75, 104, 203
suitors fund 118 suitors fund 118
Sun Light Innovation 52 Sun Light Innovation 52
Supreme Court 6, 15, 18, 20, 28, 30, 34, 35, 38, 40, 42, 44, Supreme Court 6, 15, 18, 20, 28, 30, 34, 35, 38, 40, 42, 44,
45, 59, 61, 62, 63, 64, 65, 67, 74, 75, 77, 78, 80, 86, 45, 59, 61, 62, 63, 64, 65, 67, 74, 75, 77, 78, 80, 86,
93, 99, 104, 106, 107, 108, 112, 113, 114, 116, 117, 11 93, 99, 104, 106, 107, 108, 112, 113, 114, 116, 117, 11
8, 127, 129, 137, 146, 154, 157, 158, 164, 168, 170, 17 8, 127, 129, 137, 146, 154, 157, 158, 164, 168, 170, 17
1, 172 1, 172
swearing in ceremony 22 swearing in ceremony 22
T T
Tellicherry 19, 46 Tellicherry 19, 46
therapeutic touch 177 therapeutic touch 177
top creamy layer 34 top creamy layer 34
Traditional crimes 100 Traditional crimes 100
travel abroad 74, 75, 82 travel abroad 74, 75, 82
trivial claims 62, 120 trivial claims 62, 120
U U
Unaided Justice 13 Unaided Justice 13
unexamined witnesses 47, 48 unexamined witnesses 47, 48
V V
vakkalatnama 26 vakkalatnama 26
Vexatious Litigant List' 54 Vexatious Litigant List' 54
vexatious litigation 54, 59 vexatious litigation 54, 59
Vexatious litigation 53 Vexatious litigation 53
victims of crime 98 victims of crime 98
VICTIMS VOICE 73, 84 VICTIMS VOICE 73, 84
Virumandi 21 Virumandi 21
vituperative 41 vituperative 41
V.R.Krishna Iyer 2, 4, 11, 12, 15, 35, 37, 40, 157, 172 V.R.Krishna Iyer 2, 4, 11, 12, 15, 35, 37, 40, 157, 172
W W
wages of sin 178 wages of sin 178
well-informed criticism 41 well-informed criticism 41
Z Z
Zia Mody 77, 204 Zia Mody 77, 204
214 214

Voice of The Populist Jurisprudent (L.s.sathyamurthy)

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SOCIETY FOR COMMUNITY ORGANISATION TRUST

Justice Bhagwati Bhavan, 143, Lake View Road,

Language -English Language -English

Edition -First Edition -First

Reprint - June 2018 Reprint - June 2018

Size of the book -1 x 8 size Size of the book -1 x 8 size

Printed area -18 x 10.5 Printed area -18 x 10.5

Printing points -12 Printing points -12

No.of pages 214 No.of pages 214

No.of copies -1000 No.of copies -1000

Binding -Section Bind Binding -Section Bind

Donation -Rs.100 Donation -Rs.100

ADMIRER’S APOLOGIA ADMIRER’S APOLOGIA

PUBLISHERS NOTE PUBLISHERS NOTE

During the course of discussion During the course of discussion

Justice N.Kirubakaran himself a humanitarian Justice N.Kirubakaran himself a humanitarian

We sincerely acknowledge our thanks to We sincerely acknowledge our thanks to

A.Mahaboob Batcha A.Mahaboob Batcha

Admirer's Apolozia .......6 Admirer's Apolozia .......6

Publisher's Note ......11 Publisher's Note ......11

Victim's Voice ......85 Victim's Voice ......85

Ediga - Annamma - Penlalogical Solution Ediga - Annamma - Penlalogical Solution

Champion of the Celebrated Right to Champion of the Celebrated Right to

JUSTICE V.R.KRISHNA IYER - A COLOSSAL JUSTICE V.R.KRISHNA IYER - A COLOSSAL

A soul - Satisfying Experience A soul - Satisfying Experience

JUSTICE V.R.KRISHNA IYER - JUSTICE V.R.KRISHNA IYER -

I ndia as a country is prorated its locus as

Autobiography, page 161 Autobiography, page 161

Autobiography, page 161 Autobiography, page 161

FRIVOLOUS SUITS-SHOOT AT SIGHT FRIVOLOUS SUITS-SHOOT AT SIGHT

Global perspectives Global perspectives

FRIVOLOUS SUITS - SHOOT FRIVOLOUS SUITS - SHOOT

'T he process of justice should not harass

OF LIFE AND ITS OF LIFE AND ITS

The Nascence of Human Rights The Nascence of Human Rights

"Perceived from an alternate angle,

Animal Welfare Board of India vs Nagaraja (2014) 7 SCC 1 para 72

VICTIM'S VOICE VICTIM'S VOICE

No-Fault Liability No-Fault Liability

VICTIM'S VOICE VICTIM'S VOICE

R oadway casualties are a major cause

India as a subcontinent is bestowed with India as a subcontinent is bestowed with

UNAIDED JUSTICE SEEKERS UNAIDED JUSTICE SEEKERS

Equal Justice in action Equal Justice in action

Litigative Credibility Litigative Credibility

UNAIDED JUSTICE UNAIDED JUSTICE

Quite discernible is the palpability of

MUTHAMMA - MANGNUM OPUS MUTHAMMA - MANGNUM OPUS

A plea for gender justice A plea for gender justice

'T he darkest places in hell are reserved for

Mounting on gender dispositions, it is well Mounting on gender dispositions, it is well

EDIGA ANNAMMA – PENLALOGICAL EDIGA ANNAMMA – PENLALOGICAL

Soft justice syndrome Soft justice syndrome

T roweling the extant provisions of

CRUSADE AGAINST LETHAL CRUSADE AGAINST LETHAL

Dry days in wet weeks Dry days in wet weeks

CRUSADE AGAINST LETHAL CRUSADE AGAINST LETHAL

‘‘M uch of the twentieth century

CHAMPION OF THE CHAMPION OF THE

Intelligence without information is an Intelligence without information is an

T he right to information was gloriously

LAWYER'S CASE - LAWYER'S CASE -

Exemption to Human Softness Exemption to Human Softness