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 THE LAW OF HUMAN RIGHTS 1

HUMAN RIGHTS
CONSTITUTIONALISM AND RULE OF LAW:
CONTEMPORARY ISSUES AND CHALLENGES
( A Tribute to Late Justice Krishna Iyer )

Edited by ...
AZIMKHAN B. PATHAN
DEEPAK KUMAR SRIVASTAVA

Foreword by
PADMA VIBHUSHAN HON'BLE MR. JUSTICE M.N. VENKATACHALIAH
(Former Chief Justice of India, Former Chairman National Human Rights Commission,
Chairman National Commission to review the working of the Constitution)
2 THE LAW OF HUMAN RIGHTS

This book is under copyright. Subject to statutory exception and to

the provisions of relevant collective licensing agreements, no reproduction
of any part may take place without the written permission of the Editors
and Authors.

c AZIM B. PATHAN
c DEEPAK KUMAR SRIVASTAVA

ISBN : 9789382823551

First Edition : 2017

Published by : Satish Upadhyay, Satyam Law International

2/13, Ansari Road, Daryaganj, New Delhi-110 002, India

Phones : 0091-11-23242686, 23245698

Fax: 0091-11-23267131
Email : customercare@satyambooks.net
satyambooks@hotmail.com
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Printed in India
10 THE LAW OF HUMAN RIGHTS

CONTENTS
PART I
HUMAN RIGHTS, CONSTITUTIONALISM AND RULE OF LAW:
JUSTICE V. R. KRISHNA IYER’S FUTURISTIC APPROACH

1. Innovations and Refinements for Enhancing Humanism, Vibrancy

and Coherence of the Legal System: A Note on Justice V.R. Krishna
Iyer’s Judgments in Constitutional Law
Prof. (Dr.)Ishwara Bhatt………..................................................21
2. Hon’ble Justice V.R. Krishna Iyer: Thoughts on Corporates and
Commercial Laws
Dr. Vijay Kumar Singh…….....................................................…37
3. Human Rights Jurisprudence: A Tribute to the one and only
Legendary Justice Krishna Iyer
Prof. (Dr.) Venugopal B.S.…................................................……57
4. Justice V.R. Krishna Iyer: A Distinguished Jurist and Crusader of
Human Rights
Prof. (Dr.) Rashmi Oza………...............................................….75
5. Justice V. R. Krishna Iyer and Expansive Interpretation of
Fundamental Rights
Mr. Shailesh Kumar……….........................................................81
6. Diverse Facets of Article 21 of the Constitution of India and
Contribution of Justice V.R. Krishna Iyer to Constitutional
Jurisprudence : An Analysis
Adv. Riju Raj Jamwal…….....................................................….99
7. Justice Krishna Iyer, Workers’ Welfare and ‘Make in India’
Dr. Uday Shankar.....................................................................109
8. The Contribution of the Living Legend of Law in the
Administration of Justice
Dr. Deepak Kumar Srivastava...................................................119

PART II
CONTEMPORARY ISSUES OF HUMAN RIGHTS, CONSTITUTIONALISM
AND RULE OF LAW: CONCERNS AND SOLUTIONS

9. New Challenges to Human Rights and Ethical Values in Human

Rights Education
Prof. (Dr.) David Amborse…….........................................131
 THE LAW OF HUMAN RIGHTS 11

10. Constitutional Adjudication of Public Interest Litigation:

Predicaments and Promises in Access to Justice
Prof. (Dr.) Zafar M. Nomani………….......................................145
11. Constitution: As a Corruption Mechanism
Prof. (Dr.) Krishan Mahajan.......................................................153
12. “Nothing About Us Without Us”: A Study of Participatory
Democracy at Micro-Level
Prof. (Dr.) Gangotri Chakraborty……....................................…169
13. Evolving Aboriginal Land Claims and Rights in British Columbia,
Canada
Prof. (Dr.) Garry Fehr………......................................................179
14. Jurisdiction of National Green Tribunal Vis-a-Vis Environmental
Concerns: An Intriguing Question
Prof. (Dr.) A. P. Singh……….......................................................…..187
15. Currency Manipulations and Poverty: An International
Perspective
Mr. Ajit Kaushal and Prof. (Dr.) Tabrez Ahmad………........…. 201
16. Selective Abortions on Gender and Disability Perspective:
Contradictions in the New Human Rights Jurisprudence
Dr. Smitha Nizar……….....................................................................209
17. Violation of Borrower’s Right in Recovery of Loan under
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
Dr. K.B. Asthana………....................................................................229
18. Envirosprudence of Environment Impact Assessment Law
through the Prism of Right to Information in Environmental
Clearance and Decision Making
Dr. Azimkhan B. Pathan………..................................................….237
19. A Look through the Lens of Legal Pluralism: The Role of Judges
and the Paradigm of Trade-Related Aspects of Intellectual
Property Rights Agreement Compliant India
Mr. Krishna Deo Singh Chauhan………........................................253
 THE LAW OF HUMAN RIGHTS 19

PART I

HUMAN RIGHTS,
CONSTITUTIONALISM AND RULE OF
LAW: JUSTICE V. R. KRISHNA IYER’S
FUTURISTIC APPROACH
 THE LAW OF HUMAN RIGHTS 81

JUSTICE V.R. KRISHNA IYER AND EXPANSIVE

INTERPRETATION OF FUNDAMENTAL RIGHTS

Mr. Shailesh Kumar

INTRODUCTION

Padma Vibhushan1Vaidyanathpuram Rama Ayyar Krishna Iyer is a name

that has carved a niche for itself in both the social and legal fraternity.
Krishna Iyer has contributed hugely to the society and the legal fraternity
through his liberal interpretational skills, which in itself has become a
discourse in the arena of constitutional interpretation. It is worth
mentioning here at the very outset that his humanitarian expansive
interpretation of provisions of Part III of the Constitution of India is
unparalleled and cannot be aped in the near future.

V. R. KRISHNA IYER- AN ‘ADJECTIVE’ PERSONALITY

As Mahatma Gandhi has said that “You must be the change you wish to
see in the world”, Krishna Iyer was a person who has tried throughout his
life to be such change. He was a Karmyogi2, an intellectual, a pro-poor, a
crusading maverick3 and along with all these, as the literature world
considers him, a genius of vocabulary. Karmyogi, for his duty is life itself,
for his tireless efforts to the service of society and widening the horizon of
social-justice and his endless contribution as a judge and jurist; intellectual,
for he was praised as a ‘great intellectual and a great gentleman’, a man
who opened the court’s doors wider to the poor, the needy and the indigent,
and ‘helped humanize our legal system’4; a pro-poor, for he was quoted
being unabashedly pro-poor, pro-downtrodden, and pro-weaker sections

__________________________________________
* Research Scholar, M. Phil, Centre for the Study of Law and Governance (CSLG), Jawaharlal
Nehru University (JNU), New Delhi.
1.
The Highest Award next to Bharat Ratna, was conferred on him in the year 1999 by the then
President of India.
2..
M. P. R. Nair, K. T. Thomas, et. al. (eds.), Justice Krishna Iyer at 90, 142 (Universal Law Publishing
Co. Pvt. Ltd., Delhi, 2005) (K. M. Mathew in his speech at 87th Birthday felicitation of Justice
Krishna Iyer).
3.
George H. Gadbois, Jr., Judges of the Supreme Court of India (1950-1989), 212 (Oxford University
Press, New Delhi, 1st edn., 2011) ‘He has been termed as being a ‘crusading maverick’ on the
bench’.
4.
"Address presented to Hon’ble V. R. Krishna Iyer on his retirement from the Supreme Court”, 1 SCC
(Journal) 1-2 (1981).
82 THE LAW OF HUMAN RIGHTS

and the Supreme Court’s first openly socialist judge5; a crusading maverick,
for he was someone who exhibited great independence in thought and
action and was very unorthodox in his approach and at last a genius of
vocabulary, for he was, both praised and criticized for his ‘unjudicial
unenglish’ (the love of the long word & odd mintage) and the readers of
the law reports had never seen such vocabulary used before and were
compelled to expand their own vocabularies6.
As M. Scott Peck, one of the greatest American psychiatrist and a best-
selling author has said that:
The whole course of human history may depend on a change of heart in one
solitary and even humble individual- for it is in the solitary mind and soul of
the individual that the battle between good and evil is waged and ultimately
won or lost.7
Krishna Iyer has proved himself to be one such individual, following
his own mind and soul in an unorthodox way, thus changing the course of
human history in relation to the rights conferred on human beings which
were most fundamental in nature i.e. the Fundamental Rights. He helped
immensely in the conservation and to its much appraisal in expansion of
the Part III of the Constitution of India through his expansive and purposive
interpretation.
Apart from the US, India was the first major common law jurisdiction
to provide a central place for human rights in its constitutional system.8
And, for these human rights, which were a set of the sub-set of fundamental
rights to be preserved, India was in need of people such as Justice Krishna
Iyer for he has ensured that the central place given to these rights does not
go in vain and result in futility. He was one of such ‘People of India’, about
whom Hon’ble former Justice H. R. Khanna has quoted in one of his books
that:
If the Indian Constitution is our heritage bequeathed to us by our
founding fathers, no less are we, the ‘People of India’, the trustees and
custodians of the values which pulsate within its provisions! A Constitution
is not a parchment of paper, it is a way of life and has to be lived up to.9
__________________________________________
5.
Supra note 3 at p. 213.
6.
V. R. Krishna Iyer, Legally Speaking 318-319 (Universal Law Publishing Company Pvt. Ltd.,
New Delhi, 2003).
7.
In Memorium- Justice H. R. Khanna, Annual Report, 82 (High Court of Delhi, 2007-08).
8.
C. Raj Kumar and D. Chockalingam (eds.), Human Rights, Justice and Constitutional Empowerment
(Oxford University Press, New Delhi, 2nd Edition, 2010).
9.
Justice H. R. Khanna, Making of India’s Constitution, (Eastern Book Company, Lucknow, 2nd
, 2008).
 THE LAW OF HUMAN RIGHTS 83

He was one such judge who truly acted as a trustee and a custodian of
the very essence of the provisions of the fundamental rights. He is one
person who has considered the Constitution as a way of life and has
eternalized the very deep-rooted theme of it i.e. the social justice.

AN UNUSUAL COMMENCEMENT

It shall be very discombobulating to know that a judge and jurist of

such stature would have started his career aspiring to become a journalist
and his father urged him to become a lawyer.10 A well- acquainted and
proficient in English11, he enrolled as an advocate of the Madras High
Court in the year 1938. Since this time itself, he had a soft corner for the
browbeaten class and as his clientele included rich and poor, the huge fees
that he got from former was used by him to represent the latter at little or
no cost. But, he has not kept himself restricted to the territory of legal
fraternity.
As Aristotle has said in his book ‘Politics’ that” Man is by nature a
political animal”, Krishna Iyer not being an exception to this quote began
his career in politics in the year 1952. During these years, being a left-
party independent he has carved a niche for himself gaining recognition
as a committed socialist.12 When again he was elected to the Kerala
Legislative Assembly in the year 1957, he held many Ministries13.
While holding the law minister portfolio, Krishna Iyer initiated the
appointment of Anna Chandy, the first female high court judge in India’s
history.14 He also initiated the nation’s first comprehensive legal aid
programme. Moreover, his initiatives inter alia were reforms in prison not
found in other States, innovative irrigation & hydroelectric projects, & the
nation’s first master plan for water resources.After all this, no one has
thought that Krishna Iyer will again have face-off with the bar or rather
the bar will have a face-off with Krishna Iyer. But, to its contradiction he
returned to bar when that government was dismissed in 1959.

__________________________________________
10.
Supra note 3 at p. 210.
11.
Ibid., ‘He was elected editor of the English section of Annamalai Miscellany and was awarded the
Srinivasa Sastry prize for proficiency in English’.
12.
Supra note 3 at p. 211.
13.
Ibid., his tenure included being a home minister, minister for law, justice, irrigation, inland
navigation, power, prisons, social welfare, agriculture and cooperatives for the state of Kerala.
14.
Ibid.
84 THE LAW OF HUMAN RIGHTS

BAR AND BENCHES

After he returned to bar in 1959, his love for politics has not been
razed down completely under him as he again stood for election in the
year 1960 & 1965 but lost both the times. He started practicing mainly at
the Kerala High Court. But, after returning to bar, within a decade, in the
year 1968, he was appointed a permanent judge of the Kerala High Court.15
At the swearing in ceremony itself, he made clear what he planned to do
on the bench by stating that:
“He shall endeavour, in a humble measure, to be a judicial activist & treat
his career ahead as a fresh call to service in the cause of the Rule of law, which
not merely keeps the executive in leash but insists upon the basic and equal
right of every individual to a really free and good life.”16
Soon enough17 he was appointed as a member of the Law Commission
of India which paved the way for him to be sworn in as a Supreme Court
judge on 17 July, 1973 where he remained till 15th November, 1980.His
appointment was greeted by many lawyers with a chorus of boos, mainly
because of reputation as a leftist & to the belief that S. M. Kumaramangalam
(then Union Minister for Steel and Mines) was his patron. More so, his
appointment was protested by a gathering of 150 lawyers led by prominent
advocate Soli J. Sorabjee on the ground that he was a Marxist18 which he
considers as the monumental error which he has made.19
He was the Supreme Court’s first judge to depart emphatically from
the hoary inherited common law & seek to adapt it to Indian conditions.
He sought to employ the Constitution & the law as tools to achieve social
& economic justice for all Indians. That was something he has got in his
arsenal that the Indian Judiciary & consequently the Indian society have
treasured. Serving as Supreme Court judge for only 7 years and a few
months, those few years were sandwiched between many decades of
activism in the cause of human rights.20
The most significant component of the ‘access to courts’ and thereby
to justice is the concept of ‘standing’ which is otherwise referred to as the
principle of ‘locus standi’ in India. Lies in the relaxation of this integral
__________________________________________
15.
M. Hidayatullah, the then CJI, approved his appointment.
16.
V. R. Krishna Iyer, Wandering in many Worlds 161 (Pearson Education, Chennai, 2009).
17.
In September, 1971, just after 3 years on the Kerala bench and being about ninth in seniority.
18.
Upendra Baxi, Carnage, Craft & Contention: The Indian Supreme Court in the Eighties 27 (N. M.
Tripathi Pvt. Ltd., Bombay, 1985).
19.
Soli J. Sorabjee, “A man for all seasons: A tribute on his 90th birthday”, The Hindu, Nov. 16,
2004.
20.
Supra note 3 at pp. 213-215.
 THE LAW OF HUMAN RIGHTS 85

component of access jurisprudence, the genesis of Public Interest Litigation

or PIL. Justice Iyer (as he then was) came up with the concept of PIL
through liberal expansion of locus standi which resulted in accessing justice
comparatively easier and cheaper for the poor and indigent populace.21He
has inaugurated a different trend of jurisprudence of PIL and epistolary
process in the Ratlam Municipality case.22 He has also evolved a dynamic
concept of social justice along with laying down the foundation of poverty
jurisprudence. While being a part of the Supreme Court bench, he decided
the most politically sensational case, Mrs. Indira Gandhi’s election petition.
He kept himself busy changing the orthodox approach of the judiciary by
expanding the ambit of interpreting the provisions of fundamental rights.23

SOCIAL JUSTICE - WIDENING ITS HORIZONS

The social setting of justice and its place in our Constitution can be
better understood by indicating the words of Gandhiji. He has said that
‘India is a country of ‘chronic starvation’ and that there must be some solution
to this dehumanization’. Dr. Sarvepalli Radhakrishnan has once said that:
India must have a socio-economic revolution…to achieve the real satisfaction
of the fundamental needs of the common man…and a fundamental change in
the structure of Indian society.24
Dr. Radha krishnan gave this statement way back in the time when
our Constitution was being drafted. In this statement, he has emphasized
on socio-economic revolution for achieving satisfaction of the common
man’s fundamental needs and a fundamental structural change of Indian
society.
Justice Iyer was not of the kind who after finding problems around
him and knowing the solution, sits quite, closing his inner sense to let it
prevail. He had the excellence in understanding the need of the hour to
__________________________________________
21.
Supra note 16 at pp. 238-39.
22.
V. R. Krishna Iyer, Legally Speaking 320 (Universal Law Publishing Company Pvt. Ltd., New
Delhi, 2003).
23. He has broadened the ambit of fundamental rights in landmark cases like, Mumbai Kamagar
Sabha v. Abdul Thai, AIR 1976 SC 1455; Bangalore Water Supply & Sewerage Board v. A
Rajappa, AIR 1978 SC 548; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675; Akhil
Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, AIR 1981 SC 298; Municipal
Council, Ratlam v. Vardichand & Ors., (1980) 4 SCC 162; Mohinder Singh Gill v. Chief
Election Commissioner, AIR 1978 SC 851; Maneka Gandhi v. UOI, AIR 1978 SC 597; Charles
Shobraj v. Supdt., Central Jail, AIR 1978 SC 1514; In Re: S. Mulgaokar, AIR 1978 SC 727;
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192; C. B. Muthamma, IFS v. UOI & Ors.,
(1979) 4 SCC 260.
24.
Constitutional Assembly Debates, vol. 2, no. 1, pp. 269-73.
86 THE LAW OF HUMAN RIGHTS

bring heterodoxy to Supreme Court which needed a departure from archaic

principles, juristic orthodoxy, & colonial-cum-capitalist jurisprudence.25
The concept of social justice has been dealt in detail by him in his
judicial and extra-judicial writings. When the uncertainty arose as to what
exactly the term ‘industry’ encompasses within its scope in relation to the
Bangalore Water Supply26 case, he has said that whether the system is
capitalist or socialist, if friction and break-down afflict the smooth working
of an industry, flames of “strike” and “lock-out” will spoil or stall production
and victimize the society which is the ultimate beneficiary of the industrial
discipline and the consequent flow of goods and services. In the same case
he remarked in his ruling in support of an expansive definition of
‘industry27’ that the:
“working class, unfamiliar with the sophistications of definitions and shower
of decisions, unable to secure expert legal opinion, what with poverty pricing
them out of the justice market and denying them the staying power to withstand
the multi-decked litigative process, de facto is denied social justice if legal drafting
is vagarious, definitions indefinite and court rulings contradictory”28.
This was one of the most momentous decisions in this regard which
overruled numerous decisions29 such as the Safdarjung case, Solicitors’ case,
Gymkhana case, Delhi University case, Dhanrajgirji Hospital case and other
rulings whose ratio runs counter to the principles in this case and which
have kept on restrictions on the scope of ‘industry’. But, most importantly
this verdict simplified the task for the legislature by placing major issues
in the right perspective. Since, this edict was a result of the various disputes
arising in establishments that are not manufacturing industries but belong
to categories of hospitals, educational and research institutions,
Governmental departments, public utility services, professionals and clubs;
the definition of ‘industry’ under Section 2(j) of the Industrial Disputes
Act, 1947, was accordingly expanded by Justice Iyer as:
“…the term ‘industry’ will cover the establishments which involved
an employer-employee relationship, irrespective of the objectives of the

__________________________________________
25.
Supra note 16 at p. 166.
26.
A seven-judge bench presided over by Justice V. R. Krishna Iyer was constituted to examine
the definition of “industry” and lay down the law on the subject.
27.
Section 2(j), Industrial Disputes Act, 1947.
28.
Bangalore Water Supply & Sewerage Board v. A Rajappa, AIR 1978 SC 548.
29. Management of Safdarjung Hospital v. Kuldip Singh Sethi, 1970 (1) SCC 735; National Union
of Com mercial Employees v. M. R. Meher, AIR 1962 SC 1080; Madras Gymkhana Club
Employees’ Union v. Gymkhana Club, 1967 II LLJ 720; University of Delhi v. Ram Nath.
 THE LAW OF HUMAN RIGHTS 87

organization in question.”
It was Justice Iyer, who, without being moved of the effect of plethora
of Supreme Court decisions due to be overruled by this judgment, gave
the definition of ‘industry’ wider amplitude thus drafting a new definition
of the term ‘industry’ andprotecting the legitimate interests and democratic
rights of workers.
Again, a very grave question of law arose before the Supreme Court
that whether a Court can compel a statutory body to carry out its duties to
the community by constructing sanitation facilities. It was Justice Iyer who
on behalf of the Supreme Court ruled in the Ratlam Municipality30 case
that financial constraints didn’t absolve the municipality to provide
sanitation facilities to its residents, i.e. the slum dwellers thus broadening
the scope of use of Section 133 of Cr.P.C. to be used for removal of public
nuisance too. The Supreme Court through J. Krishna Iyer upheld the order
of the High Court and directed the Municipality to take immediate action
within its statutory powers to construct sufficient number of public latrines,
provide water supply and scavenging services, to construct drains, cesspools
and to provide basic amenities to the public. Further he said that, a
responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances cannot run away
from its principal duty by pleading financial inability. He has emphasized
that:
“…social justice is struggling to be born, Constitutional Organs must
midwife it.”
Even Article 21 i.e. the right to life and personal liberty, has been
considered by him as a part of social justice which starts in the womb of
the mother.31 His views show the Constitution as the storehouse of social
justice. His concept of social justice, unlike others, was relative, flexible
and dynamic in nature varying from place to place and in different time
frames. His concept of social justice has been described by him in
handsome words as:
“…social justice is a generous concept which assures to every member of the
society a fair deal. Any remedial injury, injustice, inadequacy or disability
suffered by a member, for which he is not directly responsible falls within the

__________________________________________
30.
Municipal Council, Ratlam v. Vardichand & Ors., (1980) 4 SCC 162.
31.
Shailja Chander and V.R. Krishna Iyer, Justice V.R. Krishna Iyer on Fundamental Rights and
Directive Principles (Deep and Deep Publications, Delhi, 1992).
32.
Ibid.
88 THE LAW OF HUMAN RIGHTS

liberal connotation of social injustice.”32

OPENING OUT SOUL33 OF THE CONSTITUTION OF INDIA-
DOCTRINE OF PIL & LIBERAL EXPANSION OF LOCUS STANDI

“Judges are not there simply to decide cases, but to decide them as they
think they should be decided, and while it may be regrettable that they cannot
always agree, it is better that their independence should be maintained and
recognized than that unanimity should be secured through its sacrifice.”34
In Indian legal system, PIL i.e. the Public Interest Litigation literally
means ‘litigation in the interest of public’. As, the doctrine of locus standi
holds that ordinarily a person can’t maintain a petition under Article 32 of
the Constitution of India unless he has been personally affected by
infringement of his right by the law or order complained of and the victim
shall, on violation of his or her rights, approach the court ‘in person’ under
Article 32, in the matter concerning social or public interest, the court
would allow any member of an organisation having a special interest in
the subject-matter to bring such petition thus giving way to the evolution
of concept of PIL.35 It is litigation introduced in a court of law, not by the
aggrieved party but by either the suo motu action of the Court or by any
other private party that may includemember of the public, a non-
governmental organization (NGO), an institution or an individual.
Justice Iyer never wanted the tyrant of ‘financial incapacity’ of a person
to come in between him and access to justice. That is why the seeds of the
concept of PIL were sown initially by Justice Iyer in the Mumbai Kamagar
Sabha36 case thus opening out the purview of Article 32 and interpreting
the provision in extended and widened way. It was followed by him in the
Sunil Batra (II)37 case, in which the Supreme Court has accepted a letter
written to it by Sunil Batra (an inmate of Tihar Prisons, near New Delhi)
complaining of inhuman torture in the jail. Later on it was initiated in his
last judgment too which was in the Akhil Bharatiya Soshit Karamchari
Sangh38 case, wherein an unregistered association of workers was permitted
to institute a writ petition under Article 32 of the Constitution for the

__________________________________________
33.
Dr. B. R. Ambedkar, Speech in the Constituent Assembly. (Article 32 of the Constitution of
India i.e. the ‘Right to Constitutional Remedies’ is the soul of the Constitution of India without
which the Constitution will become dead and non-living in nature)
34.
As observed by Hughes,C.J., in Alan Barth, Prophets with Honor 3-6 (1974).
35.
D. D. Basu, Constitutional Law of India 119 (Prentice-Hall of India Pvt. Ltd., New Delhi, 6th
Edition, 1991).
36.
Mumbai Kamagar Sabha v. Abdul Thai, AIR 1976 SC 1455.
37.
Sunil Batra (II) v. Delhi Administration, 1980 (3) SCC 488: AIR 1980 SC 1579.
38.
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, AIR 1981 SC 298.
 THE LAW OF HUMAN RIGHTS 89

redressal of common grievances that addressed the discrimination of

historically disadvantaged groups in matters of employment in the
railways.39 Later on he enunciated the reasons for liberalization of the rule
of locus standi in Fertilizer Corporation40 case as:
· Exercise of State power to eradicate corruption may result in
unrelated interference with individuals’ rights.
· Social justice warrants liberal judicial review administrative action.
· Restrictive rules of standing are antithesis to a healthy system of
administrative action.
· Activism is essential for participative public justice.
And therefore, it was said, that a public minded citizen must be given
an opportunity to move the court in the interests of the public in order to
ensure that Fundamental Rights shall not remain empty declarations of
the Constitution. Provisions related to Fundamental Rights, Directive
Principles and independent judiciary together provided a firm
constitutional foundation to the evolution of PIL in India and the ideal of
‘Public Interest Litigation’ was blossomed thereafter in many cases41.
Although, his expansive interpretation of Article 32 was criticized by
many being tagged as outreach of ‘Judicial Activism’, but, Justice Iyer,
rejecting the criticism of judicial activism, has stated that the judiciary has
stepped in to give direction due to executive inaction; laws enacted by
Parliament and the state legislatures for the poor since independence have
not been properly implemented. Thus, he expanded the way in which
locus standi was earlier understood. He said that the law of locus standi is
expansive. Wherever there is an injury which affects the people at large or
an individual, it is not a narrow issue. Anyone who is not a busy body and
who has sincere concern, is at home in court, when he sues to espouse a
community grievance or public cause.
This is the root rule of public interest litigation (PIL), ideologically
socialistic and paradigmatically sound. It is ‘We, the People of India’ who
have resolved to secure to all its citizens, justice, social and economic, and
liberty, equality and fraternity. To deny this collective faith is to defy the

__________________________________________
39.
V. R. Krishna Iyer, Dynamic Lawyering (Universal Law Publishing Co. Pvt. Ltd.,Delhi, 2009).
40.
Fertilizer Corporation v. Union of India, AIR 1981 SC 344.
4 1
S.P. Gupta and others v. Union of India, AIR 1982 SC 149; People’s Union v. Union of India, AIR.
1982 SC 1473; Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802; Mehta v. Union of India,
(1987) 1 SCC 395; Dr. Upendra Baxi (I) v. State of U.P., AIR 1987 SC 191; Citizens for Democracy
through its President v. State of Assam and Others, AIR 1996 SC 2193.
90 THE LAW OF HUMAN RIGHTS

republic’s foundation. He considered PIL as one of the most beautiful

transformational expansion of rule of locus standi and stated that:
“PIL is the incarnation of judicial activism in its people-oriented litigative
dimension and environmental preservation. Fiat justicia (‘let justice be done’)
becomes a living reality only if PIL becomes a pragmatic facility for the common
people.”
According to him, there is a profound political philosophy behind PIL,
which some learned brethren miss. Judicial allergy to PIL therapy acts as
legal pathology and betrays high-brow hostility unbecoming of our
constitutional instrumentality and the oath of office of judges. Every cause
has a martyr. He avowed that a judge who challenges PIL debunks the
Supreme Court’s democratic dimensions and has said that some judicial
neophytes and charlatan jurists at times make egregious errors during
their institutionally accountability-free incumbency. Thus, evoking Robert
Cover’s phrases42, it can be said that jurispathic dimensions of law were
being transformed and evolved into jurisgenerative ones.

A ROOSTER FOR THE DAWN OF PRISON REFORMS AND

RIGHTS OF PRISONERS

“When law ends tyranny begins; and history whispers, iron has never been
the answer to the rights of men.”43
It was in the year 1948, when the beginning of a lifetime passion for
prison reforms & the treatment of prisoners as human beings sprouted
deep inside Justice Iyer’s heart. And, it was this year itself, when he was in
the Cannanore Central Jail, that ‘the Sunil Batra jurisprudence was inscribed
in his soul, though delivered in the seventies in the Supreme Court as
judgments’.44
Prison justice and rights of prisoners has been an untouched stone
chiseled by Justice Iyer with the help of few of his pioneering substantive
and processual reasonable decisions45. And, in the post-Maneka era, in a
catena of cases, the Supreme Court has exposed the cruelty of the system
of Prison Administration in India, and has sought to humanize it and has
__________________________________________
42.
Robert Cover, “Violence and the Word” in Martha Minow, Michael Ryan et. al. (eds.) Narrative,
Violence and the Law: The Essays of Robert Cover 203-238 (Ann Arbor: The University of
Michigan Press, 1995).
43.
per Krishna Iyer, J., Charles Shobraj v. Supdt., Central Jail, AIR 1978 SC 1514.
44.
Supra note 16 at p. 66.
45.
Charles Shobraj v. Supdt., Central Jail, AIR 1978 SC 1514; Sunil Batra I, AIR 1978 SC 1675; Sunil
Batra v. Delhi Adm., AIR 1980 SC 1579 (II).
 THE LAW OF HUMAN RIGHTS 91

taken an active interest in seeking to improve a system which is cruel and

insensitive to human pain and suffering. And in this process, the scope of
Fundamental Right of personal liberty enshrined in Article 21 has been
broadened.46
Rights of prisoners along with the prison reforms have never been
taken so seriously and have never got such an attention and importance as
in the Charles Shobraj and Sunil Batra cases which led to dawn for prison
reforms and rights of prisoners. And, in this entire scenario, the one person
responsible and who acted as a rooster for this dawn was Justice Iyer. The
important interrogation that laid at the root of these twin writ petitions
was that:
‘Does a prison setting, ipso facto, out-law the rule of law, lock out the
judicial process from the jail gates and declare a long holiday for human rights
of convicts in confinement? And, whether imprisonment spell farewell to
fundamental rights?”
The issues projecting themselves out loudly were as follows:
· A juridictional dilemma between ‘hands off prisons’ and ‘take over
jail administration’,
· A constitutional conflict between detentional security and inmate
liberties, and
· The role of processual and substantive reasonableness in stopping
brutal jail conditions.
Both petitioners, Shobraj & Batra-one French and the other Indian,
one facing grave charges and the other under death sentence, share too
different shapes, the sailing and arrows of incarceratory fortune, but instead
of submitting to what they described as shocking jail injustice, challenged,
by separate writ petitions, such traumatic treatment as illegal. The heart
and soul of these twin petitions was the question, in spiritual terms,
“whether the prison system has a conscience in constitutional terms, whether
a prisoner, ipso facto, forfeits personhood to become a rightless slave of the
State?”,
And, in cultural terms,
“whether man-management of prison society can operate its arts by
‘zoological’ strategies?”

__________________________________________
46.
M. P. Jain, Indian Constitutional Law 1210 (LexisNexis, Butterworths Wadhwa, Nagpur, 6 th
Edition, 2010).
92 THE LAW OF HUMAN RIGHTS

Justice Iyer considered the Charles Shobhraj case as litigation with a

social dimension, and said that even in a blinkered adversary system, it
serves a larger cause than the limited lis before the court.
Again, Justice Iyer on behalf of the Supreme Court emphasized that
Article 21 means that ‘the law must be right, just and fair, and not arbitrary,
fanciful or oppressive. Otherwise, it would be no procedure at all and the
requirements of Article 21 would not be satisfied. If it is arbitrary it would
be violative of Article 14.47 Moreover, interpreting Article 20(2) he said
that a person under death sentence is held in jail custody so that he is
available for execution of the death sentence when the time comes. No
punitive detention can be imposed on him by jail authorities except for
prison offences. He is not to be detained in solitary confinement as it will
amount to imposing punishment for the same offence more than once
which would be violative of Article 20(2).48
It was further ruled that ‘bar fetters make a serious in-road on the
limited personal liberty which a prisoner is left with’. Such a punishment
can be imposed only to secure the ‘safe custody of the prisoner’ taking
into consideration ‘the character, antecedents and propensities of the
prisoner’.49 Widening the ambit of Article 14, the Court observed that the
treatment of a human being which offends human dignity, imposes
avoidable torture and reduces the man to the level of a beast, would certainly
be arbitrary and can be questioned under Article 14.50
And, alongside the expansive interpretation of Articles 14, 20(2) and
21, Justice Iyer was trenchantly critical of the punishments mentioned
here when he stated that:
“I hold that bar fetters are a barbarity generally and, like whipping,
must vanish…we hold that solitary confinement, cellular segregation and
marginally modified editions of the same process are inhuman and
irrational”.51
In later years, Sunil Batra case has been described by ‘Upendra Baxi’
as,
‘...the most significant decision on prison justice since the inception of

__________________________________________
47.
Sunil Batra I, AIR 1978 SC 1675, at p. 1732.
48.
Ibid., at p. 1731.
49.
Ibid., at p. 1734.
50.
Ibid., at p. 1735.
51.
Ibid. at p. 1720.
52.
Upendra Baxi, The Indian Supreme Court and Politics 238 (Eastern Book Company, Lucknow,
1980).
53.
Supra note 19.
 THE LAW OF HUMAN RIGHTS 93

the Supreme Court of India & the independence of India’.52

And once anti-Iyer, Justice Soli Sorabjee too couldn’t stop himself from
thanking his contribution by saying that:
“Thanks to Justice Krishna Iyer’s judgments `jail birds’ will no longer
have to rot under degrading and inhuman conditions.”53
DOCTRINE OF POST-DECISIONAL HEARING, EXPANSION
OF AMBIT OF ARTICLES 14, 19 AND ‘PERSONAL LIBERTY’

Since the inception of application of Article 21 in various cases after

the adoption of the Constitution of India, never had this provision been so
widely and expansively interpreted as in the Maneka Gandhi’s case. In the
past, in the Gopalan54case,it has been held that the right to personal liberty
under Article 21 means freedom from illegal or invalid imprisonment or
captivity of a person. However, the domain of Article 21 has been extended
by the Supreme Court in its subsequent decisions. In the Kharak Singh’s
case, the supreme court interpreted Article 21 to include all those freedoms
within the ambit of personal liberty which are not covered by Article 19,
i.e. the right to visit foreign countries & other places, right to privacy, right
to humane treatment to convicts etc. are included under right to personal
liberty. The most valuable expansive interpretation to the right to personal
liberty under Article 21 was brought in the Maneka Gandhi’s case.
The issue in the case was, whether the right to travel abroad and to be
issued a passport for that purpose was implicit within the ambit of ‘personal
liberty’. The case was to challenge the constitutional validity of section
10(3) (c) of the Passports Act, 1967 in relation to Articles 14, 19 and 21 of
the Constitution of India. The case involved an array of issues in relation to
the fundamental rights which were as follows:
· Whether the principle of natural justice and reasonableness
provided under Article 14 must apply to ‘procedure’ as contemplated under
Article 21?
· Whether the right to live under Article 21 is merely confined to
physical existence or does it include within its ambit the right to live with
human dignity?
· Whether Articles 14, 19 and 21 are inter-dependent and Article 21
is controlled by Article 19 and the concept of post-decisional hearing is
legally valid as far as rule of Audi Alteram Partem is concerned?
All these issues required an expansive and wider interpretation of
__________________________________________
54.
Maneka Gandhi v. UOI, AIR 1978 SC 597, at para. 103.
94 THE LAW OF HUMAN RIGHTS

fundamental rights, and all these were before a seven-judge bench of the
Supreme Court, Justice Iyer being one of them along with his other learned
brethren. Understanding the gravity of the issues he has said in his
judgment that:
“The frontiers and funeral of freedom, the necessities and stresses of national
integrity, security and sovereignty, the interests of the general public, public
order and the like figure on occasions as forensic issues. And, in such situations,
the contentious quiet of the court is the storm-center of the nation.”55
Signifying the importance of ‘personal liberty’ he stated that, the
freedom of movement is the very essence of our free society, setting us
apart. Like the right of assembly and the right of association, it often makes
all other rights meaningful -knowing, studying, arguing, exploring,
conversing, observing and even thinking. Thus, the curtailment of the
right to travel leads to suffering of all other rights, just as when curfew or
home detention is placed on a person.56 He finally said that:
“To frustrate Article 21 by relying on any formal adjectival statute,
however, flimsy or fantastic its provisions be, is to rob what the Constitution
treasures. Procedure which ideals with the modalities of regulating,
restricting or even rejecting a fundamental right falling within,
Article 21 has to be fair, not foolish, carefully designed to effectuate, not to
subvert, the substantive right itself. Thus understood, ‘procedure’ must
rule out anything arbitrary, freakish or bizarre. A valuable constitutional
right can be canalised only by civilised processes.”
In relation to the rule of Audi Alteram Aartem, he cited the observation
of Lord Denning, whom was he very fond of, that:
“Where a public officer has power to deprive a person of his liberty or
his property, the general principle is that it is not to be done without
hearing.”57
In interpreting and further expanding inter-dependency of Articles
14, 19 and 21, he said that, ‘it is a mark of interpretative respect for the
higher norms our founding fathers held dear in affecting the dearest rights
of life and liberty so to read Article 21 as to result in a human order lined
with human justice. And running right through Articles 19 and 14 is
present this principle of reasonable procedure in different shades. A certain
normative harmony among the articles is thus attained, and Article 21 bears
in its bosom the construction of fair procedure legislatively sanctioned’.

__________________________________________
55.
Ibid. at para. 100.
56.
Ibid. at para. 103.
 THE LAW OF HUMAN RIGHTS 95

Again widening the ambit of Article 14 he said that:

“…equality is the antithesis of arbitrariness and ex-cathedra ipse dixit
is the ally of demagogic authoritarianism”.
On the issue of rule of audi alteram partem, he supported the view
given by P. N. Bhagwati, J., thus evolving the concept of post-decisional
hearing, that the audi alteram partem rule is sufficiently flexible to permit
modifications and variations to suit the exigencies of myriad kinds of
situations which may arise. This circumstantial flexibility of the rule was
emphasized by Lord Reid58, when he said that he would be ‘sorry to see
this fundamental general principle degenerate into a series of hard and
fast rules’ and Lord Hailsham59, who observed that ‘the courts have taken
in increasingly sophisticated view of what is required in individual cases’.
It would not, therefore, be right to conclude that the this rule is excluded
merely because the power to impound a passport might be frustrated, if
prior notice and hearing were to be given to the person concerned before
impounding his passport.And, at the end Justice Krishna Iyer’s conclusion
in his concurring judgment was brilliant as he has said that:
“... the watershed between a police state and a people’s raj is located
partly through its passport policy. ... the policing of a people’s right of exit
or entry is fraught with peril to liberty unless policy is precise, operationally
respectful of recognized values and harassment proof.”60

CONTRIBUTIONS TO VARIOUS AREAS OF JURISPRUDENCE

In the year 1971, he was appointed as a member of the Central Law

Commission of which Gajendragadkar, former C. J., was the chairman.
While in the Commission, he was Chairman of an expert committee to
Report on Free Legal Aid to the poor. His Law Commission Report,
“Processual Justice to the People: Report of the expert committee on legal aid,
1973”,laid the foundation for poverty jurisprudence & is regarded a classic
on the topic.61 This Report was also the first comprehensive Free Legal Aid
Report in India. Later reports treated this as a source and today a national

__________________________________________
57.
Schmidt v. Secretary of State, (1969) 2 Ch. 149.
58.
Wiseman v. Someman, (1971) A.C. 297.
59.
Pearl-Berg v. Party, (1971) 1 L.R.728.
60.
Supranote 19.
61.
New Delhi: Department of legal affairs, Ministry of Law, Justice, and Company Affairs, Govt. of
India, 1974.
62.
Samsher Singh v. State of Punjab, AIR 1974 SC 2192.
96 THE LAW OF HUMAN RIGHTS

legislation has emerged. One of his greatest contributions to the

Constitutional Jurisprudence of India is his landmark judgment in Samsher
Singh62. Justice Iyer recognizes that:
“the President, like the King, has not merely been constitutionally
romanticized but actually vested with a pervasive and persuasive role” but “he
is not rival centre of power in any sense.”
Then in stentorian tones he declares the law to be that “the President
and Governor shall exercise their formal constitutional powers only upon
and in accordance with the advice of their Ministers save in a few well-
known exceptional situations like:
· the choice of Prime Minister (Chief Minister), restricted though
this choice is by the paramount consideration that he should
command a majority in the House;
· the dismissal of a Government which has lost its majority in the
House but refuses to quit office;
· the dissolution of the House where an appeal to the country is
necessitous.

EPILOGUE

No one is infallible, as Justice Iyer too was once accused of actively

helping communists in their violent activities & providing hideouts for
them, & was arrested on the grounds of ‘concocted lies & outrageous
distortions’ in May 1948.63 Moreover, he had been the only Supreme Court
judge to have been jailed by his own countrymen.64 But, none of these
unpleasant incidents or rather the adverse situations made him weak, and
all these acted as catalysts for his rise as an unorthodox, strong personality.
Nothing rankled Justice Iyer more than confronting injustice. To him
law was the instrument to secure social justice. And, if in this noble quest
he crossed rigid legalistic boundaries, so be it. And, it was him whose
judicial unorthodoxy has ultimately led to the advancement of social justice
and promotion of fundamental freedoms. His landmark verdicts on criminal
jurisprudence, giving a new dimension to human rights and the rule of
law in the 1980s, continue to have great relevance today.
Justice Iyer is a true doyen among jurists, who could put his distinct
mark in the social and political scenario, besides the judicial realm in our
__________________________________________
63.
Supra note 16 at p. 63
64.
Supra note 3 at p. 213.
65.
Supra note 19.
 THE LAW OF HUMAN RIGHTS 97

country. Justice Soli Sorabjee has described him as:

“He is a Man for all Seasons who has planted indelible footprints on the
sands of time.”65
His place among the most progressive & innovative judges of the Indian
Supreme Court is secure. He was driven by a clear vision of human dignity,
and a deep understanding of the imperatives & principles of social justice.
He has the courage & skills to turn these into a jurisprudence which has
been widely admired & borrowed.He has remained, till date the most
sought after judge, to be the protagonist or central subject of the literary
works of scholars across the entire country. And it is very much evident
from the fact that the world’s largest academic publisher Oxford University
Press has recently released a book on selected judgments of Justice Iyer.66
He has himself said that:
“Law is a social science & operates as an engineering adventure geared to
people’s material well-being. Though, our great principles and sublime values
are cultural casualties under ‘Westoxicated’ syndrome.”67
His different social philosophy has marked him as an unorthodox
socialistic, people-oriented jurisprudent, unbound by obsolete precedents
and fossil forensic praxis, innovating pragmatic processes and sensitizing
legal justice with substantive values.68 He gave a new dimension to Articles
in the Fundamental Rights Chapter which had hardly received attention
from the court. The rights against exploitation in Article 23 were, under
his stewardship, enforced and given meaning.69
He left Supreme Court only in the sense of a constitutional obligation
as his post-retirement years have been filled with an array of works relating
to human rights and its causes. As Harish Salve says, the Supreme Court
of India was ‘Krishnaiyerised’ to become the ‘Supreme Court for Indians.’70
Justice Krishna Iyer’s portrait should find a prominent place in every penal
institution as the benefactor of numerous prison inmates.71Even in his
older age he never compensated on his devotion to work for the
righteousness in the society with his new and unorthodox thoughts. His
soul got liberated on 4th December, 2014, a little short of a century72, but
__________________________________________
his jurisprudential
66.
inventions
Krishna Iyer’s judgments will live
to be published in thefor
formcenturies
of a book - to come.
‘Speaking for A
thelarger than
Bench: Selected
Judgments of Justice V. R. Krishna Iyer’, P. B. Sahasranaman, Times News 73 Network, May 20,
life & truly iconic figure, shall we ever see his likes again? Krishna
2012, available at: <http://articles.timesofindia.indiatimes.com/2012-05-20/kochi/ Iyer’s
lifetime can be aptly concluded(Visited
31788026_1_high-court-law-judge>, by quoting
on MayAlbert Einstein as follows:
17, 2015).
67.
C.Raj Kumar and D. Chockalingam (eds.), Human Rights, Justice and Constitutional Empowerment
“Humanity is going
(Oxford University Press, to need
New a substantially
Delhi, new way of thinking if it is to
2nd Edition, 2010).
68.
Supra
survive!” note 6 at p. 317.
69.
Fali S. Nariman, Justice V. R. Krishna Iyer’s contribution to the process of justice, Justice Krishna Iyer
at 90, 56 (Universal Law Publishing Company, 2005).
70.
Geeta Ramaseshan, The Krishna Iyer effect on the Supreme Court, Book Review, available at:
<http://www.hindu.com/br/2010/02/23/stories/2010022350051400.htm> (Visited on May 14, 2015).
71.
Supra note 19.
72.
V.R. Krishna Iyer was born on 15th November, 1915.
73.
Supra note 3 at p. 224.

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