Two Supreme Court judges on nine-judge Bench refer to CJI’s ‘harsh’ criticism of Krishna Iyer in a ‘proposed judgment’

Justice Nagarathna says judges should not follow the practice of decrying past judges; Justice Dhulia says the criticism could have been avoided

Two Supreme Court judges on the nine-member Bench headed by Chief Justice of India D.Y. Chandrachud, which held that not all private property is material resources of the community, quoted a “harsh” observation made by the Chief Justice about Justice V.R. Krishna Iyer in a “proposed judgment”.

Justice Iyer was a former apex court judge whose humanism and reforms in criminal justice are considered legendary. His coinage ‘bail is the rule, jail is the exception’ is still assiduously quoted in Supreme Court judgments.

Both Justices B.V. Nagarathna and Sudhanshu Dhulia, in separate opinions, referred to a “proposed judgment” of the Chief Justice’s which, according to them, had observed that “The Krishna Iyer doctrine does a disservice to the broad and flexible spirit of the Constitution”.

The majority judgment pronounced by the Chief Justice, for himself and seven other members of the Bench, and published on the Supreme Court website on Tuesday (November 5, 2024), does not contain the “disservice” remark. The published judgment authored by the Chief Justice, however, referred to ”The Krishna Iyer Doctrine” with regard to laying down “a preference of economic and social policy”. The CJI, in his final opinion, said the court must not tread into the domain of economic policy.

Usually, draft opinions are circulated among the members of a Bench. It is rare for judges to quote from a “proposed” judgment.

Justice Nagarathna’s opinion said judges of posterity must not lose sight of the times in which past judges like Justice Iyer discharged their duties and the socio-economic policies that were pursued by the state in their time.

“Merely because of the paradigm shift in the economic policies of the state to globalisation, liberalisation and privatisation, compendiously called the ‘Reforms of 1991’, which continue to do so till date, cannot result in branding the judges of this court of the yesteryears ‘as doing a disservice to the Constitution’,” Justice Nagarathna wrote.

She said judges should not follow this practice of decrying past judges. The answer lay in meeting modern challenges by choosing only that part of the past wisdom apposite for the present without decrying those who served before them. “The institution of the Supreme Court of India is greater than individual judges, who are only a part of it at different stages of history of this great Country! Therefore, I do not concur with the observations of the Chief Justice in the proposed judgment,” Justice Nagarathna categorically said.

‘Fairness, equity’

Justice Dhulia, who authored the lone dissent on the Bench, referred to the criticism in the proposed judgment as “harsh, and could have been avoided”.

“The Krishna Iyer Doctrine, or for that matter the O. Chinnappa Reddy Doctrine, is familiar to all who have anything to do with law or life. It is based on strong humanist principles of fairness and equity. It is a doctrine which has illuminated our path in dark times,” Justice Dhulia reflected.

Justice Dhulia said judges like Justice Iyer were not only known for their intellect but, more importantly, for their empathy for the people, “as the human being was at the centre of their judicial philosophy”.

“In the words of Justice Krishna Iyer himself: “The courts too have a constituency — the nation — and a manifesto — the Constitution,” Justice Dhulia reminded.

Published - November 05, 2024 07:42 pm IST