When the hon’ble chief justice of India, HL Dattu, on Thursday last set up a special bench of the supreme court dedicated to the pursuit of social justice and related causes, little did he realise that he was penning down a most remarkable coincidence and a fitting tribute to justice VR Krishna Iyer.

Coming as it does just a day before the demise of legendary former supreme court justice Krishna Iyer, this move constitutes a fitting tribute to the memory of man who shall be remembered as much for his dedication to upholding the cause of the downtrodden in the country – evident in a judgeship strewn with some of the highlights of Indian judicial history – as he will be for a relatively short but luminous political career in the Kerala legislative assembly and the cabinet of EMS Namboodiripad, in which capacity he helped realise several important social legislations.

Justice Iyer served the cause of the underprivileged with distinction throughout his stellar career, and was renowned for his use of law as an instrument of social engineering in the tradition of the best minds of his profession. It would not be an exaggeration to state that his personal contribution to shaping the human rights jurisprudence of the country overrides that of any of his peers or successors, with the possible exception of justice PN Bhagwati.

The range of issues to be dealt with by the newly constituted bench, due to start operation on December 12, includes access to food for drought-hit people and prevention of premature deaths caused by lack of nutrition. The right to health figures on the agenda with the mandate to make access to medical care a reality irrespective of people’s financial capacity. The bench will also determine availability of night shelters for the homeless and the destitute. The move is expected to expedite the hearing of public interest litigations as the bench will exclusively deal with them, giving ample time to focus on issuing directions to the states and centre on various issues, and monitoring their implementation.

To understand the need for and implications of a development such as the institution of a separate social justice bench, historical context must be taken into view. The genesis of India as a republic and a democracy lay in the idea of a country that, by way of the institutions established under its constitution, would provide for the people under its mandate a social environment of the kind that would enable each individual to live a fulfilling existence. This meant providing citizens with equal opportunity in all aspects of life, whether social, economic, cultural or otherwise.

When circumstances became so that it was difficult to realise this vision, the judiciary took it upon itself to realise the ideology of the country’s founding fathers. The approach of the judiciary towards matters of social justice must be studied in the context of its evolution alongside that of the country’s economy, an approach that became popular in no short measure due to Justice Iyer’s efforts.

This gave rise to the phenomenon known as ‘judicial activism’ that can be described as a mechanism to curb legislative adventurism and executive tyranny when these are to the detriment of those persons these institutions are bound to serve, by way of enforcing constitutional limits; it was best exemplified by justice Iyer’s creative re-interpretation of the texts of both the constitution and the other laws in order to serve the needs of contemporary society.

Again, it was his achievement in no small part that the apex court has developed the concept of distributive justice out of Article 46 and observed that the constitutional mandates the state to provide socio-economic justice to minimise inequalities in opportunities and status by positively charging the state to distribute its largess to the weaker sections of the society. Aiding this endeavour is the structure of the constitution, wherein the precepts of social justice can be drawn from the preamble, fundamental rights, fundamental duties and the directive principles of state policy.

In this regard, some landmark judgments by justice Iyer are as follows:

-    The Shamser Singh case which interpreted the powers of the cabinet vis-à-vis the president, and the governors wherein it held that president and governors are bound to act on the aid and advice of the council of ministers except in certain situations, a principle that has since become a guiding light in delineating the boundaries of executive power and duty.

-    The Maneka Gandhi case that expanded the scope of Article 21 of the constitution (the right to life) to include the right to travel. This case laid down a fundamental principle that “procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary”, a principle that has helped bring many ancillary rights within the framework of fundamental rights.

-    The Sunil Batra case wherein the supreme court held that there can be no total deprivation of a prisoner's rights of life and liberty, and that safe keeping in jail custody is the limited jurisdiction of the jailer. It was further laid down that no "fetters" shall continue beyond day time and a prolonged continuance of bar-fetters shall be with the approval of the chief judicial magistrate or a sessions judge. This was in consonance with justice Iyer’s views that reformation, in contrast to deterrence, would by far increase the efficacy of the criminal justice system.

-    The Ratlam municipality case, in which Article 21 was interpreted as including the right to a wholesome environment and changed the whole approach of the courts in matters concerning environment.

The first few instances of such activism on part of the judiciary came with the Golak Nath case, where the supreme court, by a majority of six against five, laid down that the fundamental rights as enshrined in Part III of the constitution are immutable and beyond the reach of the amendatory process, thereby taking away the power of parliament to amend any provisioning Part III of the constitution. Later, in the Kesavananda Bharati case, the supreme court held by a majority of seven against six that vis-a-vis Article 368, Parliament has amending powers, but that these do not extend to alteration of the basic structure or framework of the constitution. These two cases constitute momentous occasions in Indian legal history and lead to the tradition of judicial review and censor of legislative and executive profligacies.

Because the apex court has developed the concept of distributive justice out of Article 46 and observed that the constitutional mandates the state to provide socio-economic justice to minimise inequalities in opportunities and status. It positively charges the state to distribute its largess, to the weaker sections of society envisaged in Article 46 to make socio-economic justice a reality. Aiding this endeavour is the structure of the constitution, wherein the precepts of social justice can be drawn from the preamble, fundamental rights, fundamental duties and the directive principles of state policy.

Judicial activism in India came into its own in the aftermath of the emergency period in which the then ruling administration suspended fundamental rights to suit its agenda. Perhaps the most important development in this regard has been the arrival of public interest litigation as an instrument of amelioration. With the socio-economic evolution of the country taking the direction that it did, it became essential to counter-balance the exclusion of low visibility groups from partaking in the fruits of progress. In 1982, justice PN Bhagwati correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”

-    In 1979, the apex court’s attention was directed to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to justice Krishna Iyer of the supreme court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the court passed orders for humane conditions in jails.


-    In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the supreme court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the supreme court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the court by a social activist organisation.

-    A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.

In dealing with such cases, the court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability.

Civil liberties and social justice be made the heart and soul of administration of justice – was reflected in the tireless efforts of Justice Iyer and followed by many who stepped into his shoes from time to time.

The condition of those affected by the Bhopal gas disaster, Uphaar Tragedy, 1984 riots and the hundreds of victims of ‘development’ in its many shades required special care in handling their concerns which prompted the supreme court to set up the social justice bench. This could not however have been better timed, coming a day before the crusader of social justice breathed his last – or should we say, he waited to see this a reality so he could depart in peace.

Justice VR Krishna Iyer: Rest in Peace.