The architects of the India Constitution perceived that, for the Republic to survive, the Constitution must be Supreme. They also realised that the supremacy of the Constitution depends upon an independent judiciary—one with power to resolve disputes between the States, between the State and the national governments, and, most importantly, between individuals and government. However, in recent years, the Indian Supreme Court has been subjected to much ill-informed and native criticism. “To distrust the judiciary,” Honore Balzac once said, “marks the beginning of the end of society.”1 My object here is not to defend the Supreme Court against these attacks, but to pay tribute to one of its members, Mr Justice V.R. Krishna Iyer, who retired recently, after a little over seven years of distinguished service on the Court. While aware of the storms that raged about the Court, he welcomed disinterested criticism which stirs in the Court a continual awareness of its accomplishments and failures. Justice Krishna Iyer, however, though of the Court as an “institution” and tried hard to reconcile divergent views where he believed their expression would injure the institutional character of the Court; he acted not simply to improve the Court’s image, but, rather, to give strength to the rule of law.
It has often been remarked that Indians are the most litigious people in that every great issue is transformed into a question of law. The Judge is exalted as Lawgiver and Prophet in the Temple of Justice. He must have the wisdom of Solomon, the moral vision of Isaiah, the analytic power of Socrates, the intellectual creativity of Aristotle, the humanity of Lincoln and Gandhi, and the impartiality of the Almighty. Measured by these expectations every judge is something of a disappointment. But Justice Krishna Iyer understood the nature of the challenge. A study of his over 300 published opinions and numerous extra-curricular writings2 reveals a picture which is truly unique; they attest to the eloquent constancy with which he has placed his imprimatur on the principles of individual liberty and political equality. Any socially conscious judge, especially in a developing country like India, needs to be resourceful, versatile, and experimental, in relating human problems to a complex background of modernity and tradition. Mr Justice Brandeis once said that a lawyer who has not studied economics and sociology is apt to become a public enemy. Mr Justice Cardozo went further. The law was always a jealous mistress; but nowadays, said Cardozo, she has become “insatiate in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less”.3 Unusually well versed in this Cardozian Kamasutra, Justice Krishna Iyer’s experience—a former politician, legislator, administrator, one-time minister, judge of the High Court of Kerala, member of the Law Commission of India—seems to come vibrantly alive in his Supreme Court judgments.4
Like Lord Denning5 in England and the late Mr Justice Douglas6 of the United States Supreme Court Justice Krishna Iyer has been the champion of the underdog—“the little man”—in securing him justice—social, economic and political. How sensitive his antennae are to what the ordinary man thinks is best illustrated in his recent book, Some Half-Hidden Aspects of Indian Social Justice (1980), where he articulates the idea of social justice, as contrasted with the concept of formal justice according to which it was sufficient that the rich and the poor were equal before the law and which ignored the stark reality of economic bargaining power. The State has enlarged its functions; government departments wield wide powers which of necessity restrict individual freedom and, though well-intentioned, may cause harm and distress to the citizen. In Justice Krishna Iyer’s view, in modern Indian society the scales must be kept even by the courts—citadels of justice—not only between man and man but also between the citizen and the State.
Thus, in a recent case,7 he found it distressing that the State, ignoring the constitutional mandate of equal justice to the indigent, sought reversal of the order of the High Court of Haryana which had rightly extended the pauper provisions to auto-accident claims. He was incensed that the State, instead of acting on social justice and generously setting the legitimate claim of a widow and a daughter for the killing of the sole bread-winner by a State transport bus, should be fighting like a “cantankerous litigant even by avoiding adjudication through the device of asking for court-fee from the pathetic [victims]”.8
In yet another case,9 he chastised the Rajasthan State Road Transport Corporation for its absence of a “sense of safety, accountability and operational responsibility” and regretted the “callous” and “unconscionable” attitude of many State-owned monopolies. The Corporation should have sympathised with the victims of the accident rather than tenaciously resisting the claim on flimsy grounds: “What is needed is not callous litigation but greater attention to the efficiency of service, including insistence on competent, cautious and responsible driving.”10
Justice Krishna Iyer has been very skilful in harnessing the potential of an existing decision to support the egalitarian result he seeks to accomplish. One example is the recent Maneka Gandhi11 interpretation that Article 21 (“[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”) mandates that “the procedure must be reasonable and fair and not arbitrary or capricious”, which overturned the seminal Gopalan case (1950)12 and its progeny. This, in effect, converts Article 21 into a due process clause.
The long-term ramification of this iconoclastic decision13 needs to be watched circumspectly for a variety of reasons. First, the Court relied on a truncated clarification of Gopalan in the Bank Nationalisation case.14. Second, the Court ignored that the word “liberty” in Article 21 was qualified by the word “personal” deliberately to avoid so wide an interpretation as might include even the freedoms conferred by Article 19. Third, couched in negative language, obviously Articles 20, 21 and 22 cannot include the freedoms conferred in Article 19; it would be incongruous to suppose that freedoms denied to non-citizens by Article 19 are nonetheless available to non-citizens under Article 21. Fourth, the Maneka interpretation seriously collides with the unambiguous intention of the framers of the Constitution who preferred the more definite phrase “procedure established by law” in place of “due process” clause, for the power of judicial review implied in the due process clause was thought not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the elected representatives of the nation) but also threw an unfair burden on the judiciary.15 Fifth, the new interpretation renders Article 22(1) virtually otiose. Admittedly, Maneka could have been decided on narrower grounds without endowing Article 21 with the sweep of an Aladdin’s Lamp,16 for the Supreme Court, in view of its great responsibility, should be reluctant to reach beyond the case at hand in formulating the principles of decision.
Indeed, carried away with the exuberance of Maneka, the Court, and particularly Justice Krishna Iyer, has nursed the renaissance of substantive due process, as the new interpretation of Article 21 has been extended to include rights to speedy trial,17 free legal service,18 bail,19 at least one appeal,20 and the horizons of this extension appear limitless. Recently, the extended this broad sweep of Article 21, to prohibit the jailing of delinquent debtors for the recovery of debts for to “be poor in this land of Daridra Narayana … is no crime”.21 “True,” observed Krishna Iyer in a recent case, “our Constitution has no ‘due process’ clause …, but in this branch of law, after [Bank Nationalisation] and Maneka Gandhi the consequence is the same.”22 That “due process” can be the tool of an activist judiciary raises recurring questions about the proper sources of judicial interpretation and about the proper role of the judiciary in a democracy.
Some recent decisions of the Supreme Court in general and of Justice Krishna Iyer in particular have highlighted the hitherto neglected field of prison jurisprudence.23 The issue of prison conditions and environment has emerged as one of the predominant themes of correctional philosophy, raising questions concerning inmates’ rights and the blight of prison life. For lawful imprisonment limits the constitutional rights of prisoners and pre-trial detainees but does not eliminate their rights entirely: “Imprisonment does not spell farewell to fundamental rights although, by a realistic reappraisal, courts will refuse to recognise the full panoply of Part III [fundamental rights] enjoyed by a free citizen.”24
Courts for many years followed a “hands-off” policy towards prisoners’ rights, choosing instead to rely on prison officials’ expertise and declining to interfere with internal prison administration. But, in Charles Sobraj v. Superintendent, Central Jail, Tihar25 Justice Krishna Iyer delineated the scope of prisoners’ constitutionally protected rights, delivering a coup de grace to the “hands-off” doctrine and “take-over” theory. In his view, the Supreme Court will intervene with prison administration “when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner [but will decline to do so] where lesser matters of institutional order and management … are alone involved”.26 In determining whether a constitutional violation has occurred, the Court will give broad recognition to legitimate prison interests in maintaining security and order and in promoting prisoner rehabilitation. And, unless acting to remedy constitutional violations, the Court is not to become enmeshed in the minutiae of prison operations.27 Justice Krishna Iyer has aggressively intervened to ensure that constitutional and “statutory” principles are not forgotten in the treatment of prisoners and that the time-honoured image of the Supreme Court as the palladium of civil liberties is not blunted. Justice Krishna Iyer’s decisions28 contain a scathing indictment of our prisons, which are often filthy, grossly overcrowded institutions where inmates are denied adequate food, medical attention and provisions for personal hygiene, are constantly subjected to violence from other inmates and guards, and are confined under brutal and dehumanising conditions which impede rehabilitation. (This is largely because governments are unwilling to devote a greater share of scarce resources to the improvement of living conditions for the incarcerated.) The tactic logic of his decisions29 will rightly require the protection of prisoners from abuses such as racial discrimination,30 the constant danger of assault by other inmates,31 solitary confinement,32 excessive corporal punishment,33 harsh and degrading jobs,34 arbitrary decisions regarding prison discipline and punitive transfers,35 unjustifiable restrictions on the right to practice religion, read, speak, and correspond,36 and receive legitimate visitors.37 In a recent case, Prem Shankar Shukla v. Delhi Administration38, he banned a routine handcuffing of prisoners as “a constitutional mandate” and declared the distinction between classes of prisoners as obsolete: “[I]t is arbitrary and irrational to classify prisoners into ‘B’ class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equality.”39
While recognising that handcuffs could be used “where the person is desperate, rowdy or … involved in non-bailable offence”40, Justice Krishna Iyer required that even “in [these] extreme circumstances [where] handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law”.41 To prevent further constitutional deprivations, Justice Krishna Iyer has ordered forms of relief not normally required by the Constitution but nevertheless necessary given the circumstances if the Court’s efforts are to be successful. Thus, going beyond the Court’s traditional role, Justice Krishna Iyer has shown a predilection for ordering sweeping institutional reforms of the overall living conditions in the challenged prison, by arguing that Article 21 is the jurisdictional root for this legal liberalism.42 Only an overwhelming orientation to result seems to explain such an approach.
One is greatly impressed, and deeply moved, by Justice Krishna Iyer’s remarkable combination of dedicated human feeling with a judicial resourcefulness nothing short of virtuosity in advocating the development of a new sentencing culture, harmonising the needs of crime prevention and humanisation, in accordance with the “[c]onstitutional karuna [mercy] … injected [by Articles 14, 19(5) and 21] into incarcerator strategy to produce prison justice”.43 The rehabilitative ideal thus explains his aversion to capital punishment44 and the imposition of long and punitive periods of incarceration in virtually all areas of criminal behaviour45 (except, perhaps, for white collar offences46). The underlying rationale is that these crimes—of passion or violence—are the unwilled acts of an accused, products as they are of a decadent social environment, deprivation and a host of related causes. As such, consistent with the concepts of “[k]aruna, daya, prema and manavata [—] concepts of spiritualised humanism secularly implicit in our constitutional preamble”.47 the primary purpose of prison sentence is “hospital setting and psychic healing, not traumatic suffering”48 and that “correctional strategy is integral to social defence which is the final justification for punishment of the criminal.”49
It appears, however, that Justice Krishna Iyer would not extend the same degree of correctional sensitivity to white collar criminals and to those violating strict liability offences.50 For example, in Pyarali K. Tejani v. Mahadeo Ramchandra Dange51 where the accused argued that he believed in good faith that there was no cyclamate in the scented supari sold (induced by the warranty) and honestly did not know that saccharin was contraband (the rules thereof having been changed frequently), Justice Krishna Iyer tartly replied: “It is trite law that in food offences strict liability is the rule not merely under the Indian [Prevention of Food Adulteration Act, 1954] but all the world over.”52 Relying on a passage from American Jurisprudence,53 he stressed that nothing more than actus reus was needed where regulation of private activity in vulnerable areas like public health was intended: “[I]ntention to commit a breach of statute need not be shown. The breach in fact is enough.”54 True, the protection and welfare of the society were the paramount concerns that Justice Krishna Iyer invoked in favour of strict liability, but, surely the recognition of a bona fide mistake especially in view of the ever-changing rules contrabanding and discontrabanding saccharin would not have been incompatible with correctional goals. Would not a procedure that fails to allow a proof of bona fide mistake and callous governmental inactivity in publicising the relevant regulations properly fall short of the requirement of Maneka Gandhi?55
The role of strict liability in combating socio-economic offences has received unqualified support in the judgments of Justice Krishna Iyer. This is further revealed in Kisan Trimbak v. State of Maharashtra56 were the accused, pleading guilty to storing for sale adulterated buffalo milk (with 16.3 per cent fat deficiency and 17.8 per cent added water) and also for misbranding it as cow milk, successfully persuaded the trial court to treat them leniently, because their large family of fifteen survived on paltry profits from their small restaurant. The trial court fined them nominally adding that the adulteration, being only of water, “was not injurious to human health”. Justice Krishna Iyer, affirming the High Court’s enhancement of punishment to six months imprisonment plus monetary fine of Rs 500 each, condemned the “magisterial indulgence [leniency] when society is the victim and the stakes are human health, and, perhaps, many lives [and recognised] that the mandate of humanist jurisprudence is sometimes harsh”.57 Analysing the reasons underlying the imposition of absolute liability for food adulteration, Justice Krishna Iyer observed:
“Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal, even if the particular offence is committed with an unsuspecting mens. To take risks, in the name of very gullible dealers or very ignorant distributors, when the consequences may spell disaster on innocent victims, few or many, is legislative lackadaisical conduct, giving the wildest hostage to fortune. So it is that mens rea is excluded and the proof of actus [reus] is often enough. The story of small restaurateurs unwittingly vending milk, as is alleged here, is irrelevant to culpability.”58
Not only this, Justice Krishna Iyer has severely criticised the use of “plea bargaining,” “plea negotiation”, and “trading out”—in an overt or covert form—in the disposition of economic offences. Thus, in Murlidhar Meghraj Loya v. State of Maharashtra59 where the accused was sentenced to a fine of Rs 500 upon quickly pleading guilty to an offence of food adulteration, in Justice Krishna Iyer’s olfactory sense the whole process in the trial court strongly smacked of a tripartite consensual agreement reminiscent of the “plea-bargaining” procedures:
“It is idle to speculate on the virtue of negotiated settlements … in the United States, but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society’s interests by opposing society’s decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.”60
Justice Krishna Iyer has almost consistently exhibited a predisposition toward the doctrine of strict liability in the realm of socio-economic and other regulatory legislation61 and has tabooed subtle technicalities of law for protecting and furthering social welfare:
“Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefitting accused persons and defeating criminal statutes calculated to protect the public health and the nation’s wealth.”62
This judicial engineering leads one to ask: How should our Supreme Court judges determine hard cases—not just in constitutional matters. After all, the Supreme Court should not be a mere switching station for efficient disposition of cases but rather a forum for the thoughtful and wise elucidation of national law and policy. By the time any non-constitutional case reaches the Supreme Court there are generally two fairly respectable views of what the law should be, how a statute should be interpreted, how a common law rule should be manicured. There seem to be three approaches, none of them mutually exclusive: First is the recognition that, given the democratic nature of our nation, the view of Parliament as to what is constitutional is worthy of the highest respect. A second view would be to accord certainty and predictability very high priorities in constitutional interpretation. Previous decisions of the Supreme Court, unless manifestly wrong, should be retained and in no event overturned on a slender majority. Changes should be evolved from the principles inherent in previous decisions. The judge should seek to apply not his own view of what the Constitution means, but rather that derived from the principles of construction and interpretation previously established. Thirdly, it may be argued that a judge’s task being to apply the Constitution and not the judicial decisions, he should always examine the Constitution afresh and, in the light of his own philosophy, develop his principles to interpret it.
All three approaches are defensible. Justice Krishna Iyer clearly prefers the third, as do some other judges. Most lawyers would consider the second approach most appropriate in that a judge must resist all temptations to implement his personal vision of the just society—except to the extent that his vision is consistent with the law as it evolves in response to social changes. This self-restraint is the very soul of judicial impartiality. Ideally, the losing party should feel that he is not the victim of the court, but simply the object of a process that is the same for all. The first approach of deference to Parliament is not one favoured by many judges. Most use a mixture of the second and third approaches, drawing on precedent when it suits them.63
Oftentimes, Justice Krishna Iyer has been relatively more deferential to the legislative intent: “A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect to the intention of the legislature.”64 Thus, he has gone into the travaux pre-paratoires—legislative background and objects of statutes dealing with such diverse issues as prohibition,65 rent control,66 contempt jurisprudence,67 labour-management relations,68 sentencing69—to discover the true objective of the enactment, but the overriding concern is his unabashed objective of a achieving a socially desirable result. “Until specific legislative mandates emerge from Parliament, the court may mould the old but not make the new law. ‘Interstitially, from the molar to the molecular’ is the limited legislative role of the court as Justice Holmes said… .”70 This approach, perhaps acknowledging the undemocratic character of judicial review, cautions the judge to exercise great self-restraint when confronted with opportunities to sit in judgment on the policy decisions of elected officials.
But for the passionate intensity of an unswerving commitment to a view-point that inspires him to resort to ornate phraseological flourishes (uncommon in conventional legal expression) and marshalling of abundant literature (even though a potpourri of unsynthesised disjecta membra), Justice Krishna Iyer’s reasoning would retain a vigour it will be difficult to controvert. Unfortunately, a virtual absence of any meaningful tradition of judicial biographies in India inhibits any search for shaping influences as to why a truly progressive, hauntingly compelling, courangeous and result-oriented judge—who is certainly not oblivious or averse to the great craft of precision71 and the vice of prolixity72—should find himself caught up in the web of these very infirmities? The few extant biographies, notably by Dr Vidya Dhar Mahajan, are mostly in the form of uncritical—and oftentimes sychophantic—adorations of the jurists involved.73 As such, they are not instructive enough in offering any meaningful insights into the outlook and philosophy of the judge on various facets of judicial process and decision-making.
On the contrary, in the United States, a tradition of such steadily growing up studies has progressed from simple biographies74 to studies relating to “role analysis” of judicial behaviour75 to highly-controversial studies penetrating the secrecy of the judicial process76 to a recent psychobiography of a distinguished judge, The Enigma of Felix Frankfurter (1981),77 by Professor H.N. Hirsch. American legal realism—which began to be influential in the 1920s and continues to dominate jurisprudential thinking to this day—highlighted that judges were people whose opinions reflected their individual passions, their group biases, their economic self-interest and their political preferences.78 For example, drawing heavily upon the psychodynamic theories of such analysts as Erik H. Erikson79 and Karen Horney,80 Professor Hirsch attempts to penetrate the psyche of one of the most interesting, complex and controversial personalities ever to grace the United States Supreme Court Bench, “perhaps the most influential jurist of the twentieth century”.81 If such a psychobiography were available for a judge like Justice Keishna Iyer—and he would be a fascinating subject for a psychobiography—we would perhaps be aided in understanding the “philosophy”, “writing style”, “value orientations” by knowing more about the man, the judge and the philosopher.
Though personally vehemently critical of judicial grandiloquence in any form,82 we would regard it equally unjust to let it alone become a barrier to recognising the great contributions—ideational as well as functional—of a truly sincere judge, for the lines between “illuminating judicial prose” and “a novel style of expression” are tenuous and often blurred. In defence to a judicial tenure—illustrious for its marked candour, bold creativity, correctional humanism, and a missionary zeal to do justice—the linguistic profligacies of Justice Krishna Iyer could be viewed by a grateful legal profession as a tolerable flirtation with glossary and words—a lyrical romance not being easily amenable to setling down to some cooler form of regard: “Umra to bitee hai ishak butan me Momin, ub aakhari wakt me kya khak Muslman honge.”
Regrettably, nevertheless, a counterproductive debate has engaged the wits of a distinguished judge of the Supreme Court, Mr Justice Tulzapurkar,83 and the author of a well-known commentary on the Constitution of India, Mr H.M. Seervai.84 Could the learned Justice, may one ask, not have voiced his admittedly understandable concerns to his “esteemed brother” Justice Krishna Iyer privately rather than using the embarrassing medium of a judicial opinion? What is even more revealing is that a discussion of such issues constitutes an ideé mâitresse of constitutional law, sometimes with the malicious pleasure of the self-righteous. The latest to intrude in this controversy in Mr Justice O. Chinnappa Reddy, presumably, in defence of his erstwhile colleague, which is equally regrettable.85
This apostolic apoplexy aside, it should be recognised en passant that judged by ideal standards, the writing style of a good number of Supreme Court judges is not the model of excellence. Apart from the intellectual limitations of particular judges, this malady is exacerbated because our judges are monstrously overworked, having little or no time to revise their draft opinions either to make them concise or linguistically flawless. (Pascal once apologised to one of his friends for writing a long letter, but pleaded lack of time to write a short one. Paradoxical though it may seem, it takes much longer to write a short piece.) More particularly, a virtual absence of written briefs and arguments—in preference to endless and oftentimes somnolent arguments86—has deprived the judges of any assistance in the preparation of their opinions—opinions that are as invulnerable and persuasive as they can be made by research, reflection, collaboration, criticism and accommodation. The case-load of the Supreme Court presents a truly formidable problem for the effective performance of that function. The ability to write precisely but powerfully is essential; a judge chained to his case-load cannot develop what Mr Justice Frankfurter aptly called “the spacious reflection so indispensable for wise judgment”.87
The very flamboyance of Justice Krishna Iyer’s style may obscure his merit and his significance. Spurning judicial caution, he drafted his pronunciamentos with grand broad strokes, sometimes with so relatively little regard for the case at hand that he could be accounted something less or even something other than a judge. Justice Krishna Iyer was the fighting-crusading lawyer, contentious to a fault. Thus, impatience with social injustices invariably led him to infuse his judgments with lavish obiter dicta, presumably, to sensitise the government into taking remedial steps, either for the amelioration of the conditions of prisoners,88 juvenile delinquents,89 and deserted wives,90 enactment of a nationwide no-fault scheme,91 defining and further elucidating what is an “industry,”92 victim reparation,93 eradication of corruption,94 adoption of class actions,95 independence of the judiciary,96 rent control,97 introduction of non-judicial modes of dispute settlement,98 electoral law reform,99 effective access to justice;100 and the need to explore new techniques for solving and dissolving the perpetual crises in human relations—whether those techniques be found in law, social welfare programmes, economics, criminology,101 or transcendental meditation.102 The sweep of his concerns is thus immense.
Despite the fact that on the whole the work of the Supreme Court is commendably done, unfortunate and unintended dicta can oftentimes spawn regrettable results in the lower courts or lead to uncertainty in the planning of the public and private sectors. To some extent this malady is controlled by the canon of precedent which pays less heed to unnecessary comments of judges than the actual holdings of cases. But in the Indian context, strictly speaking, the technique raises problems in that some Supreme Court obiter dicta may bind lower courts. But Justice Krishna Iyer’s deep humanism and irrepressible desire to do justice overrode such considerations.
Within the confining brevity of the foregoing fragmented sampling the extraordinarily variegated contribution of Justice Krishna Iyer can hardly by encapsulated, requiring as it does a full book-length treatment. But one thing is clear. Justice Krishna Iyer rejected the austerity and detachment traditionally imposed upon a judge; he never became a prisoner of dogma but gave legal vitality to new approaches over the widest spectrum of social ills. Thus, an activist sense of responsibility for the goals of laws and a proclivity to play policy-maker have been the hallmarks in the judicial universe of Justice Krishna Iyer. His justification is that judicial activism strengthens Indian democracy, particularly when the courts are spurred by the conviction that legislative processes and administrative agencies have failed to bring society closer to the meaning of its constitutional values. The magnitude of his contribution to the law through the human and perceptive exegesis of the text of the Constitution is enormous, enduring and widely acknowledged. Moreover, the jurist is an accomplished scholar and one cannot help but admire his judicial statesmanship (he rarely wrote a dissent), his depth of concern for humanity, his broad social vision, his eclectic knowledge of law, literature, history, philosophy, and the social sciences, and his Solomonic wisdom.103
Note: This Article was first published in Supreme Court Cases (1981) 4 SCC J-38.It has been reproduced with the kind permission of Eastern Book Company.
* B.A., M.A., LL.B., LL.M. (Rajasthan); LL.M., S.J.D. (Harvard); Faculty of Law, University of New South Wales, Kensington (Sydney), N.S.W. 2033, Australia. EDITOR’S NOTE: A former editor of LAWASIA, Professor Sharma is currently spending his sabbatical at Harvard Law School and at the law firm of Hale and Dorr in Boston, Mass., U.S.A.