A tribute to Justice Khanna … and much more

Today’s Hindu carries a piece where Justice Iyer pays tribute to his colleague, Justice HR Khanna. Unlike other tributes (some of which were featured on this blog earlier), Justice Iyer mentions those actions of Justice Khanna which did not meet with his approval, making for a more balanced, less hagiographic account. By emphasizing these mistakes, Justice Iyer humanizes the memory of Justice Khanna, making him seem more fallible, and therefore, even more inspiring to ordinary mortals. This reminded me of the experience of reading Rajmohan Gandhi’s excellent biography of his grandfather – exposing the warts and all of the Mahatma made him, at least for me, a more human, immediate and real presence than the saintly depictions I was fed on while growing up. Legal scholars and historians of the Supreme Court will find much in this piece to interest them. Justice Iyer mentions his own role in the events that led to the declaration of Emergency by Indira Gandhi, which in turn resulted in Justice Khanna’s famous dissent in the ADM Jabalpur case. While praising Justice Khanna, Justice Iyer draws a sharp contrast with what he sees as the dominant traits among contemporary judges: We have in this country, and elsewhere, pliable ‘brethren’ with pusillanimous loyalties, hidden communalisms, class biases and noxious overbearing and jejune jurisprudence on the Bench. Their social perspectives are malleable and high-brow, their character dubious and performance sicklied by the dependencia syndrome. Some judges do not write judgments at all, or delay their delivery for years. Khanna was a paradigm of judicial promptitude and probity. … Khanna would not bend or bow before executive supremacy although opportunism did appeal to a few senior progressives on the high bench. He was free from the imbecilities of assertive ego and the arrogance of Bench bravado. Those who read between the lines, will also get a clear picture of what Justice Iyer thought of some of his contemporaries, especially the more famous ones. I will freely admit that of late, I have become less enthusiastic about Justice Iyer’s public writings, which adopt a shrill tone along predictable lines, reiterating a larger critique which he has drummed home for several years now. While I admire his dogged campaign for these issues, the message had started sounding stale. Here, he shows how even at his advanced age, the old fires are still burning bright. I, for one, will certainly await his next piece with enthusiasm.

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  • With all due respect, I disagree with you. Reading through the article twice, I did not find anything about Justice Khanna that had not already been expressed by others.

    I would have loved to know something about Justice Khanna’s judicial philosophy: how it came out in various opinions culminating ultimately in his famous dissent. Surely, that dissent did not come out of the blue.

    What we do get are a couple of anecdotes, nothing more. And, of course, claims that Justice Iyer himself was of impeccable integrity: We are told how he (Justice Iyer) refused the then law minister’s request for a personal interview etc. etc.

    Notwithstanding his (Justice Iyer) claims to have “…a people-oriented social philosophy” – words that he attributes to Justice Khanna – the article is full of words and phrases like “logomachic” “ukase” “jejune” “pachydermic indifference” etc. Nothing if not highbrow, Justice Iyer 🙂

    Probably I am being unfair. As with you, I respect Justice Iyer’s campaign for human rights but I really do not care for his economic or political views. I’ll leave it at that.

    And while we are at it, can we know something more about Justices Ray, Chandrachud, Beg and Bhagwati who formed the majority opinion?

    Towards the end of the article, Justice Iyer says “Also, why did he, at an advanced age, accept lucrative arbitrations when doing justice to the office needed all your faculties?” What is being implied here? That Justice Khanna was senile? Anyway, if both parties to a dispute are willing to accept Justice Khanna as an arbitrator, then what is Justice Iyer’s problem?

  • No doubt, there has been a big chnage from judging of the eighties era to judiging right now. Krishna Iyer is undoubtedly a great judge, but he is a strong ideological judge. I find his criticism usually directed at judges sho do not share his ideology. It is not a judicial critique, but more of an ideological critique.
    If Justice Iyer can bend the Constitution to suit his ideology, so can other judges to suit their own ideology. Therein lies the virtue of adhering to some form of strict textual interpretation.

  • I enjoyed reading Justice Krishna Iyer’s tribute, which I generally found to be warm and personal. However, I thought it was a bit disingenous of him to suggest that Justice Khanna’s arbitral practice was a blemish on an otherwise most compelling judicial career. Another reader has pointed to the awkward phrasing that Justice Krishna Iyer used to make this point. What does “advanced age” have to do with the capacity to arbitrate effectively? Moreover, aren’t arbitral tribunals supposed to aid the legal system by resolving disputes that would otherwise clog the courts?

  • I can’t speak for Justice Iyer, but here are some responses that came to my mind as I read the comments. For me, the piece was interesting because, like most stimulating personalised accounts, it told me as much about the author as about the subject. Justice Iyer refers, intriguingly, to his own role in the Emergency by expressly mentioning the circumstances that occurred before he, acting as vacation judge, delivered a temporary reprieve to Indira Gandhi. Many people consider that act to be a blot on his own judicial career, and his making even a reference to that act was interesting for me, particularly because he doesn’t really try to justify his own actions. The fact that he chosen to emphasise the actions of Justice Khanna in the ADM Jabalpur case reminded me of his own role in that series of events, and I can’t help wondering if he has regrets about his own role. There are other such phrases throughout the piece, where he seems to be adverting to events and personalities beyond Justice Khanna. It may well be that, thanks to an overactive imagination in this case, I am attributing things to Justice Iyer which he does not mean to suggest, but there are bits in the piece which seem suggestive of broader issues. For a sampling, see the following sentences:

    “He ranks among the rare robed brethren of our age who could sacrifice high office for fine principle. … I found him free from personal ego and political ideologies. (This is interesting, because Justice Iyer has been unusually forthcoming about the ideological bases of his own judgments and one can construe this as a recognition of the problem of interposing one’s personal ideologies into judgments) … Essentially he was a democrat, open-minded and willing to listen, adjust and learn, and decide without Victorian vintage legalisms that are still regarded as hallmarks of learning. … Judges make history not by virtue of a long tenure or by pomp of office as Chief Justices. … His distinguished colleagues who blinked at the terror and horror of the Emergency were luminous jurists and became Chief Justices in due course, while the lone glorious dissenter sacrificed his future as Chief Justice.”

    Perhaps one needs to know the history and politics of the Court (as well as the typical style of judgment writing) during the period that Justice Iyer was on the bench to be able to fully appreciate the thrust of these comments. To those in the know, these are telling pointers.

    Suresh: your comment in particular reminded me that how one perceives a person’s views often depends on what one thinks of that person more generally. So, the fact that I approve of Justice Iyer’s views here does have something to do with the fact that I have sympathy for many of the causes that he espoused as a judge, and extra-judicially after his retirement. So, it is not surprising to me that his views are attacked, because people do not generally subscribe to his views on other matters. But, it seems to me that in paying tribute to Justice Khanna, Justice Iyer is not merely praising someone with whom he always agreed, but is trying to emphasise the judicial virtues which he thinks should be practiced by others. By recognising that Justice Khanna was “free from political ideologies” (a claim that the realist in me finds it hard to stomach), Justice Iyer may well be implicitly recognising a critique of his own judgments which were often perceived as the products of his political and spiritual ideologies. We can certainly debate whether those are good values or not, but it seems to me that Justice Iyer is perfectly entitled to express himself on what those virtues should be. Whether one finds the piece interesting or ‘useful’ is of course a purely subjective matter. It seems you didn’t, whereas I found much to chew on. That may well be a product of our own political views, tastes, base of information about – or interest in – the issues Justice Iyer is addressing, and other factors. As you say, perhaps we should leave it at that.

    As to the last comment, I agree with you that the phrasing is problematic, and Justice Iyer’s suggestions are un-diplomatic to say the least. However, I took Justice Iyer to be referring to the general trends in arbitration cases in Delhi. Based on my own experience of some of these cases, there are troubling signs about the way retired judges of the Supreme Court are chosen for arbitrations. You and Vikram have asked what “advanced age” has to do with handing some of these disputes. To me, there is something at issue, especially when you consider the fact that some of these arbitrations involve complex legal issues and millions of rupees. However much medical science may have achieved advances in controlling the effects of ageing, there is only so much that someone in his late 80s can do. You suggest that arbitrations involve voluntary decisions by clients. To quite an extent, their choice in these matters is restricted by the real-world considerations that the big firms which typically engage in these arbitrations factor into such decisions. Those familiar with the way high-profile arbitrations are conducted will tell you that there is something to be concerned about. In the press, there have been some stories about former judges having given conflicting opinions on the same case to different parties, and being appointed arbitrators even though they had offered opinions to one of the parties earlier, and about other arbitrations which were conducted along questionable lines. One also hears speculation about sitting judges being worried about their prospects on the arbitration circuit upon their retirement from the Supreme Court, and some have speculated whether this affects the way they respond to requests by some of the lawyers who appear before them. I took Justice Iyer to be drawing attention to these troubling facts, and suggesting that judges should consider the kind of cases they agree to be arbitrators for, after their retirement from the Supreme Court. These concerns, if left unchecked, can have substantial implications for the regular functioning of the Supreme Court.

    Vivek: I think I’ve referred to your point about ideology somewhat. I am not sure, however, that one can ever expect judges to abandon ideological stances in their judgments. When you mention your disdain for “strong” ideology, I take it that you have less objections to weaker forms creeping in, which I would argue is inevitable at some level. While I agree with you that we should be concerned about this phenomenon, and should worry about personal views being imposed through judgments, I am not sure imposing “strict textual interpretation” would solve the problems. Look, for instance, at the judges on the US Supreme Court who endorse the application of measures like textualism and originalism. Scalia, Roberts and Thomas are hardly the paragons of non-ideological judges.

  • Is the constitution value-neutral as Seervai says or does it subscribe to a particular philosophy as J.Iyer seems to believe? Does the addition of the word ‘socialist’ to the preamble enjoin the judiciary to slant its interpretations in a particular direction? It would be interesting to know what people think of this.

  • Since the issue of opinions about the much feted Krishna Iyer arose in various comments, I thought the following extract may be of some interest.

    Its from an excellent book called “Crisis in the Indian Judiciary” by Justice K.S. Hegde, published in October 1973. The book was written as a response to Mohan Kumaramangalam’s disingenuous justifications for Indira Gandhi’s packing of the Supreme Court with pliable judges, put forth in his own book, “Judicial Appointments”. This is what Hegde had to say about Iyer, J.:

    “Protests from the Bar, the opposition parties and the public appear to have had little effect on the Government. The Government does not appear to have altered its policy to have ‘committed’ judges in the Supreme Court. One of the recent appointments to the Supreme Court has been adversely commented upon by some of the members of the Bombay Bar. In a letter written to the press, they stated –

    “Justice Krishna Iyer’s career is well known and for facility of reference it is set out on the jacket of the collection of his articles published by the CPI’s publishing concern, People’s Publishing House. Justice Iyer was Minister for Law, Home, Irrigation and Power in the first Communist Ministry in Kerala (1957 to 1959) and has been deeply involved in democratic movements such as the Peace Council, Democratic Lawyer’s Association, Indo-Soviet, Indo-GDR and Indo-Cuban friendship organisations” (these are all well known communist front organisations)

    While on the Bench, he, in an article published in a Pro-CPI Journal, took it upon himself to support the 25th Amendment in breach of settled norms of judicial propriety. Sitting Judges are expected to refrain from commenting on particular legislations, lest their remarks embarassed them in the discharge of their judicial function. Such improprieties should be regarded as qualifications for promotions.

    It is understood that Chief Justice Sikri had objected to the appointment of Justice Iyer to the Supreme Court. It is strange that Justice Iyer’s appointment was first announced to the Press not from Rashtrapati Bhavan, but by the Chief Minister of Kerala. The Chief Minister appeared to have told the Press that before appointing Justice Iyer, he as well as the Governor of Kerala had been consulted, a procedure for which there is no support in the Constitution. All these show the way the wind blows.”

    In all fairness, I must admit I’m no fan of either Commies or their poster boys, but my own biases notwithstanding, I find it strange that while nowadays its fashionable to sing paeans of Krishna Iyer and his “people-centric approach”, there’s very little research or analysis about his political activities and manner of rise to the SC with CPI backing in the heyday of Indira’s most totalitarian phase – Samar Bansal

  • Dear Samar,

    Thanks for your inputs. As you note, many people had misgivings about the appointment of Justice Iyer to the SC. This is, in fact, quite well documented, and has often been commented on in constitutional literature in India.

    As I noted in my previous response, it is this past that cast a shadow on Justice Iyer’s issuance of the stay in Indira Gandhi’s favour. Justice Hegde wasn’t the only to comment unfavourably upon Justice Iyer’s appointment. Soli Sorabjee had, famously, issued a public speech upon Justice Iyer’s appointment expressing disquiet about the appointment of a politician (and one who had himself appointed several High Court judges, and was seen as very close to the powers that be in govt.) to the Bench. But, some of Justice Iyer’s most bitter critics had reason to revise their opinions of him by the time he retired from the SC. On that occasion, Sorabjee gave another speech saying how his fears had proved to be unfounded, and that Justice Iyer would go down as one of the most illustrious judges of the Court.

    Since you mention Justice Hegde, you should perhaps also mention that it is a bit ironic that such a criticism came from someone who had been criticised for precisely the same reason. Prior to his elevation as a High Court judge, Justice Hegde had been a Rajya Sabha MP for 5 years. His appointment as a High Court judge attracted some of the same criticism about politicians being appointed to the judiciary. During his time on the SC, as well, Justice Hegde was sometimes criticised for having issued “political” judgments. After he resigned upon being superseded, Justice Hegde took office as Lok Sabha speaker in 1977. Again, at least some people were concerned about the movement of people from the higher judiciary to politics, a concern which has sometimes come up in later years, when, for instance, former Chief Justice Rangnath Mishra became a Rajya Sabha MP.

    Arguably, their involvement in politics notwithstanding, both Justices Iyer and Hegde were outstanding SC judges based on an assessment of their judicial record. For historical reasons, we in India tend to be suspicious of people moving between politics and the judiciary. Yet, this is not a universally shared suspicion – some of the greatest American judges were active politicians before ascending to the bench, and some scholars believe that they made full use of their skills gained in politics in their judicial careers. A famous instance is that of the unanimous decision in Brown v. Board of Education, where Earl Warren was able to pull together an extremely divided court, thereby imparting to that decision greater stature by virtue of the unanimous views expressed in it. Justices Black, and Douglas are two other instances of American politicians who went on to be become influential judges. Across Europe, one finds many examples of politicians becoming judges of constitutional courts.

    I think I share your concern (if you are seeking to make a point beyond an attack on Justice Iyer) about politicians becoming judges. But, ultimately, judges will have to be judged on their record, and what we make of their judgments. The lesson from these historical precedents may well be that a blanket rule preventing anyone who has ever been involved in politics for a post in the higher judiciary, is not a good idea. Even as we maintain a suspicion that this is generally to be avoided, we may want to consider matters on a case-by-case basis.

    As to your dislike of “Commies” I suspect that this is a common tendency among people of the current generation in India. However, I think it is a point worth making that communists in India were not of the type that one associates with depictions in the standard Hollywood films from the Cold War era. I’m glad, however, that you take pains at setting your biases aside. Some people considered MK Nambyar a communist, and he certainly did defend the rights of prominent communists. Yet, some others consider him to be amongst the finest constitutional lawyers our apex Court has had a chance to hear from.

    Looking forward to more inputs in the future,