While upholding the pro-poor leaning of the Indian Constitution, Justice Vivian Bose in Bidi Supply Co. vs Union of India and Others (1956) observed: “The Constitution is not for the exclusive benefit of governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the "butcher, the baker, and the candlestick maker". The Supreme Court, the guardian angel of the Constitution, is not conceived by the framers of the Constitution as an ivory tower high away from "the butcher, the baker, and the candlestick maker". Rather, the Court has been conceived as their last refuge and the source of solace.
Jawaharlal Nehru said in the Constituent Assembly on 22 July 1947: “There will be no complete freedom as long as there is starvation, hunger, lack of clothing, lack of necessaries of life and lack of opportunity of growth for every single human being, man, woman and child in the country.” The Constitution has been conceived by masses and leaders as a Biblical Moses leading his long-enslaved tribe to a promised land of justice, liberty, equality, and fraternity. The judiciary in general and the Supreme Court, in particular, has the role of Jeshua in republican India -- entrusted with the responsibility to maintain the constitutional practices and to ensure that the rituals and life of the republic are performed according to the Law of Moses. Here lies the great burden of the Court -- to protect the weak and the oppressed. Justice Krishna Iyer performed this Jeshuaic duty by devising his unique liberation jurisprudence.
In defence of Les Misérables
Much ink is spent on liberation theology, but little on liberation jurisprudence. Liberation theology is a religious movement that arose in late 20th-century Roman Catholic Christendom that sought to apply religious faith by aiding the poor and oppressed through involvement in political and civic affairs. It stressed both heightened awareness of the “sinful” socioeconomic structures that cause social inequities and active participation in changing those structures. Likewise, liberation jurisprudence may be conceived as a jural movement for championing the cause of the oppressed through legal and judicial interventions. While liberation theology perceived the skewed socioeconomic structure as ‘sinful’, liberation jurisprudence treated the socio-political maladies as ‘unjust’ and endeavored to dismantle the unjust social structure. Justice Krishna Iyer acted as the Gustavo Gutiérrez of India’s liberation jurisprudence.
Public Interest Litigation or Social Action Litigation has been the thunderbolt (Vajra) in the robed hands of liberation jurisprudence in India. PIL has been a unique legal phenomenon that has significantly transformed the landscape of legal activism and social justice in India. The history of PIL in India can be traced back to the Krishna Iyer era in the Supreme Court when the judiciary began to embrace it as a sharp tool to address public concerns and the rights of the nation’s have-nots.
Justice Krishna Iyer in his Human Rights and Inhuman Wrongs (2001) quoted Robert Ingersoll, the great American lawyer: “From the sand-shrouded Egypt, from the marble wilderness of Athens, and from every fallen, crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded upon injustice can permanently stand”. It is Krishna Iyer’s profound understanding of history that made him aggressively intolerant towards injustice, mainly injustice against the hapless lot. He rightly held the view that once the foundation of justice is shaken and humans without rights are trampled by the powers that be, the whole edifice of the nation would soon implode.
Justice Iyer was equally concerned about the historically subjugated womenfolk. He asserted: “Speaking of equality before the law what is desiderated is not a mechanical or formal but dynamic jurisprudence of non-discrimination where gender is no disability and unfoldment of personality suffers no inhibition because of sex.” Krishna Iyer laments the deplorable plight of the woman folk despite high platitudes in parchment: “High standards, highfalutin diction! But how vicious is the scenario of gender discrimination and human rights hypocrisy in the land of Sita sentenced to life and Sati sentenced to incinerated death? Alas, women everywhere face the Sita-Sati syndrome.”
Opening the Forbidden City of Justice
The Indian layman has always been in a Kafkaesque situation. Franz Kafka's short story Before the Law is a parable that uses a surreal situation to comment on the legal system and the pursuit of justice. The story's gated law suggests that the legal system's complex processes prevent it from being useful for the average person. Likewise, India’s judicial forbidden city was inaccessible for lesser mortals and open only for the mandarins. Justice Iyer opened the gates of the judicial castle wide for the oppressed and the needy. He proclaimed in Akhil Bharatiya Soshit Karamchari Sangh vs Union Of India And Ors (1980): “Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'.”
In Fertilizer Corporation Kamgar Union v. Union of India (1980), Justice Krishna Iyer devised ‘Epistolary Jurisdiction’ and held that the technical procedure had to be relaxed to meet the ends of justice. Mere letters addressed to the Court can be treated as a writ petition in cases where there is a glaring violation of the basic rights of the citizen. The epistolary jurisdiction has enabled the Constitutional Courts in India to treat a letter by a person or on behalf of an aggrieved, telegram, or an article in the newspaper as a writ petition.
In Moti Ram & Ors vs State of Madhya Pradesh (1978), Krishna Iyer quoted Anatole France: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”. He lamented on this caricature of equal justice under the law, whereby the poor are priced out of their liberty. Then Krishna Iyer rightly observed: “If a mason and millionaire were treated alike, egregious inequality is an inevitability.” Justice Iyer always had a soft corner for a mason, not for a millionaire.
Father figure in Bench
Justice Krishna Iyer had a highly caring attitude towards another weaker segment -- Oliver Twist-like children, abandoned by their parents and criminalized by society. In Satto & Others vs State Of U.P (1979), he pointed out: “The penal pharmacopeia of India, in tune with the reformatory strategy currently prevalent in civilized criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency.”
Equality enshrined in the Constitution, Krishna Iyer’s talisman, has become a lifeless promise as inequality is growing at a galloping pace in India. According to the Oxfam report Survival of the Richest: The India Story (2023), the top 1% of the population owns a whopping 40% of the nation’s wealth, whereas the bottom 50% has a meager 4.8%. While the republic becomes a fiefdom of billionaires and the poor are stigmatized as pariahs, Krishna Iyerian jurisprudence has a greater relevance in today’s India.
Kahlil Gibran’s Prophet asks the judge:
“What penalty lay you upon him who slays in the flesh yet himself slain in the spirit?
And how prosecute you him who in action is a deceiver and oppressor, yet who also is aggrieved and outraged?
And how shall you punish those whose remorse is already greater than their misdeeds?”
These are soul-searching questions for judges of all times. Justice Krishna Iyer was a rare judge who dared to address and have the wisdom to answer these perennial questions.
(Faisal C.K. is Deputy Law Secretary to the Government of Kerala. Views are personal. Email: faisal.chelengara10@gmail.com)
