WHY SHOULD GIRLS HAVE ALL THE FUN?

A glance into the gender biases and taboos faced by men

(Aswini Sankar R.S., Advocate, High Court of Kerala)

1. “Supporting men and boys” is the theme of this year’s International Men’s Day, which has been celebrated globally for the past twenty-six years. Yes, there is a time to talk about men and their issues too. Every year, November 19 is observed as International Men’s Day, and this year the focus encourages society to recognise the struggles of men and boys.

2. Feminism is often misunderstood, especially in Kerala, where the sarcastic term “Feminichi” is used to mock women who speak for equality. I once believed only women could be feminists, but that changed early in my legal career when, at an event organised by the Kerala Federation of Women Lawyers, His Lordship Mr. Justice Jayasankar Nambiar began his inaugural speech by saying, “I don’t know why I am chosen as the chief guest (paused and smiled), but I am pretty sure that I am a feminist.” That moment helped me realise that true feminists are those who stand for justice and dignity of women, and turning around to my personal life many are there including my father, brother, senior, husband etc, though men but not labelled as feminist. I have shared these thoughts, deviating from the subject here is to raise an important question: if those who speak for women’s rights are called feminists, what do we call those who speak for men’s rights, masculinists, “masculachan,” or is there no proper term at all? Perhaps the reason is that such individuals or movements are few.

3. The irony is striking. Most Indian laws were drafted by male-majority legislatures. Yet not a single law exists exclusively to protect men themselves. Yes they are, or at least they think they are self-sufficient and not vulnerable. Women and other vulnerable groups deserve legal protection; there is no doubt about that. But does that mean that men are immune to trauma, stigma, fear, exploitation, or abuse?

4. Society places countless expectations on men. From the moment he is born, a boy is given invisible responsibilities. Traditionally in India, a girl child was considered a “burden.” But burden to whom is the question. And the real burden of protecting and marriage of that girl fell on the man of the family. He was expected to earn, protect, support, and lead the household.

5. Ancient texts like the Manusmriti which are often interpreted to show how the women’s freedom is curtailed have another reading too.

"Pitah Rakshathi Koumare, Pati Rakshathi Youvanne, Puthro Rakshathi Vardaykye, Na sthree swathanthram arhati" is commonly quoted. They mean that, a women did not need freedom as the father protects in childhood, the husband protects in youth, and the son protects in old age. But what about man, is he enjoys the freedom? He is also tied up with the protection of mother, wife and child. The emotional weight and responsibility are carried by men at every stage.

6. The “fish fry story” became a trendy metaphor on social media after Malayalam actress Ms.Rima Kallingal shared an experience from her childhood few years back. She said that when she was around twelve, she felt upset seeing three pieces of fried fish being given to her brother and other male members of the family ignoring her because she is a girl. This, she said, marked the beginning of her awareness of gender discrimination. Society repeated this story many times but ignored the deeper background. Initially boys were fed more not because they were considered superior, but because they were expected to work outside, face the world, and protect the family. The men needed strength, food, and stamina for earlier physical works. Over many generations, this became a tradition, and tradition became unquestioned bias and now it become a custom and rule in Great Indian Kitchens.

7. Imagine a twin, a boy and a girl, born into the same family. The boy is almost automatically expected to protect the family, earn money, and shoulder responsibilities. The girl is expected to take care of the home and family members. Both roles come from gendered expectations. But often, the pressures 8. Another taboo is that men should not cry. Men should not show weakness. Men should not ask for help. This emotional suppression is one of the major reasons why India’s male suicide rate is much higher than that of any other gender. A man may break inside, but society does not permit him to show it.

9. If society truly wants women’s empowerment, then it must also empower men. Men should be taught to be self-sufficient, to cook, to take care of themselves, to manage a home, and to express emotions. Empowering men is not against women. It is simply human.

10. When we look into the legal field, the issues become even clearer. False accusations under rape laws are some of the most serious dangers faced by men today. Courts at all levels have recognised that sexual-offence laws can be misused. The Supreme Court has acknowledged misuse of rape laws in failed relationships. It is true that courts are more cautious in these matters. Many consensual relationships end in disputes and later turn into rape cases. Such allegations are sometimes used as bargaining tools during divorce or financial negotiations. Kerala courts have acquitted many innocent men in such cases. False POCSO cases during family disputes also deeply affect fathers, brothers, and other male relatives. Even a single false allegation can destroy a family, reputation, and career. Media trials begin long before actual trials. The introduction of Section 69 of the Bharatiya Nyaya Sanhita, dealing with sexual intercourse on a false promise to marry, has created more confusion. Its lack of clarity may make it open to misuse in many future cases.

11. Work pressure on men, combined with the expectation that they must provide financially, creates emotional overload. Even though cruelty under Section 13(1)(ia) of the Hindu Marriage Act is gender-neutral, the suffering of men is often invisible. Courts have recognised this. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court of India, held that mental cruelty includes humiliation, insults, and false allegations.

12. Multiple maintenance claims filed in different forums create confusion and a feeling of exclusion among men. Men often feel that legal remedies are always for women and never for them. At the same time, we must also recognise that even with protective laws, many women in India remain vulnerable and do require additional care and support.

13. In Manish Jain v. Akanksha Jain (2017) 15 SCC 801, the Supreme Court held that maintenance must be based on necessity, not luxury In Rajnesh v. Neha AIR 2021 SC 569, the Supreme Court recognised misuse of repeated maintenance litigation and ordered mandatory income affidavits from both sides. The Kerala High Court has also in various decisions that that maintenance cannot be used to harass the husband, and working wives cannot demand unreasonable maintenance.

14. The psychological impact on men is severe. False cases cause emotional stress. Many men experience anxiety, depression, and even suicidal thoughts due to marital litigation. Multiple cases create financial pressure. Social stigma affects them deeply. Many fathers lose meaningful relationships with their children because of custody decisions that still often favour mothers. But the truth is that a child’s memory of childhood is filled equally with love, care, and protection from the father. Many daughters grow up remembering how their father supported them, carried them, taught them, encouraged them, and protected them, sometimes more than what they received from their mother. So the idea that only mothers can care for a child in custody matters is not always true. A well-grown girl often remembers her father’s role with deep affection, which shows that fathers are equally important caregivers.

15. All genders are equal. All are humans. Everyone has the right to cry, to rest, to seek therapy, to be free from financial burden, and to be emotionally safe. The popular slogan “Men will be Men” can be understood in a healthier way; Men will be men, but not always financially overburdened, emotionally strained, or socially silenced men.

Res Judicata:Should Substantially the 'Same Issue'
Must Have Been'Adjudicated' in the Former Suit

(By Saji Koduvath, Advocate, Kottayam)

Abstract

The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter’, or a ‘similar issue’ in both suits.

The modern trend, in substance, requires the following:

      •  Substantially the ‘same issue’ must have been adjudicated in the former suit.

      •  Finding on the issue in the earlier suit must have been ‘necessary or essential‘.

      •  That is, the issue must have been heard and decided consciously.

      •  The parties should have had an opportunity to meet the contentions on the matter.

Section 11 of the Code of Civil Procedure deals with Res Judicata. It reads as under:

• “Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Res Judicata: The Issue Should Have Been ‘Necessary to be Decided’

In PMA Metropolitan v. Moran Mar Marthoma (1995 (2) KLT SN 28 (C.No.37) SC = AIR 1995 SC 2001), it is held as under :

• “57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Section 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“. There are two views in the matter.

Earlier Broader View : Sufficient if a Similar Issue Arises

In Gulabchand Chhotalal Parikh v. State of Bombay (1964 KLT OnLine 1329 (SC) = AIR 1965 SC 1153), it is held as under:      

•  “We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under Art.226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.”

In Abubakar Husein Mulani v. Jafar Ahmad Mulani, 2010-1 CivCC 324; 2010-1 MhLJ 243; 2010-6 RCR(Civ) 1008, it is observed as under:

• “In view of the settled legal position, the finding of the appellate Court in the said Appeal No.304/1984 would operate as a res judicata if a similar issue arises between the said plaintiffs and the defendant No.1 in future…”

In Nayan Bhebli v. Bhutnath Sardar, 2014-5 CHN 594, it is held as under:

• “It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance [Md. Ali v. Upendra 58 CLJ 196].”

In Mohd.Saeed v. Munnu Khan (AIR 2014 All.125), it is held as under:

• “Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Explan 4).

• “The subject-matter and the causes of actions of the two suits may be different but
the issues may be the same. Expln III refers to direct res judicata and Expln. IV to constru-ctive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance.”

In Ravi Azta v. Union of India (T.S.Chauhan, J.), ILR 2018-2 (HP) 129, it is observed as under:

•  “13. The doctrine of res judicata is applied to give finality to ‘lis’ and in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is ‘everything that may form an object of rights and includes an object, subject-matter or status; and res judicata literally means ‘a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Even otherwise, the provision of CPC, more particularly, those contained in Section 11 are not exhaustive and contain only the general principles of res judicata.”

Modern Trend (Stricter Approach): Substantially the Same Issue Must Have Been
Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘

In M. Siddiq v. Mahant Suresh Das (2019 (4) KLT OnLine 3190 (SC) = (2020) 1 SCC 1,
paras 439 and 446 are noteworthy. They read as under:

• 439. The applicability of Section 11 is premised on certain governing principles. These are:

.     •  (i) The matter directly and substantially in issue in the suit should have been
directly and substantially in issue in a former suit;

•  (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;

•  (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and

•  (iv) The Issue should have been heard and finally decided by the court in the former suit.

•  446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.

In Srihari Hanumandas Totala v. Hemant Vitha Kamat (2021 (4) KLT 796 (SC) = AIR 2021 SC 3802 = 2021-9 SCC 99), it was held as under:

•  “26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a former suit? Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.

•  Justice R.C,Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava (2003 (3) KLT OnLine 1263 (SC) =
(2004) 1 SCC 551), discussed the plea of res judicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the former suit, while adjudicating on the plea of res judicata:

•  “11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

•  xxx xxxxxx

• … Their Lordships of the Privy Council inKali Krishna Tagore v. Secretary of State for India in Council, (1887-88) 15 IA 186 : ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”

•  (See also:Prem Kishore v. Brahm Prakash (2023 KLT OnLine 1191 (SC) =
2023 SCC Online SC 356) =  2023-3 MLJ 200 (SC)) Conscious Adjudication of an Issue
alone Constitutes Res Judicata.

InErach  Boman  Khavar v. Tukaram Shridhar Bhat (2014 (1) KLT SN 13 (C.No.16) SC = (2013) 15 SCC 655), it is held that the doctrine of res judicata can only apply when there has been a conscious adjudication of the issue on the merits. It is held as under:

•  “39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation.” (Quoted in: Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited (2021 (5) KLT OnLine 1024 (SC) =  (2022) 2 SCC 401).

In Jamia Masjid v. K. V.  Rudrappa (D.Y. Chandrachud, Vikram Nath, Hima Kohli, JJ.), (2021 (5) KLT OnLine 1024 (SC) = AIR 2021 SC 4523; (2022) 9 SCC 225), the pragmatic approach to be adopted in this matter is laid down as under:

•  “In order to adjudicate on the applicability of the plea of res judicata vis-à-vis the first suit, it is necessary that we decide on the following three issues:

•  A. The scope of the first suit which was instituted under Section 92 of the CPC;

•  B. Whether the parties in the first suit and the instant proceedings are the same; and

•  C. Whether the issue of title over the suit property was conclusively decided in the first suit.”

ForRes Judicata – Adjudication of the Issue Must have been Material and Essential

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer (2000 (1) KLT OnLine 953 (SC) = 2000 (1) KLT OnLine 953 (SC(2000) 3 SCC 350), the Supreme Court held that to attract res judicata on an earlier fin 2000 (1) KLT ONLine 953 (SC) -ding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

•  Sajjadanashin Sayed v. Musa Dadabhai Ummer(2000 (1) KLT OnLine 953 (SC) = 2000) 3 SCC 350), is quoted and followed in:M.S. Ananthamurthy v. J. Manjula (Neutral Citation (2025 (2) KLT SN 28 (C.No 23) SC = 2025 KLT OnLine 1387 (SC) = 2025 INSC 273).

In Sajjadanashin, it is pointed out as under:

•  “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title wasessential to the judgment; but where the question of the right to possession was the only issue actually or necessary involved, the judgment is not conclusive on the question of ownership or title.”

Referring to Sajjadanashin Sayed, it is observed in Nand Ram v. Jagdish Prasad: (2020 (2) KLT OnLine 1179 (SC) =AIR 2020 SC 1884) that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

Referring toSajjadanashin Sayed, it is observed in Union of India v. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

See also:

•  Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment(2024 KLT OnLine 1871 (SC) = (2024) 8 SCC 11.

•  Srihari Hanumandas Totala v. Hemant Vithal Kamat (2021 (4) KLT 796 (SC) = AIR 2021 SC 3802; (2021) 9 SCC 99.

•  In Sajjadanashin Sayed v. Musa Dadabhai Ummer (2000 (1) KLT OnLine 953 (SC) = ((2000) 3 SCC 350) =  AIR 2000 SC 1238), it is observed as under:

•  “12. Matters Collaterally or incidentally in issue:

It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue.” If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.”

Conclusion

With regard to res judicata, the modern trend in law adopts a more technical approach, requiring actual adjudication of substantially the ‘same issue’ in both the former and the subsequent suits. In contrast, the earlier view was broader, holding that res judicata would be attracted if the matter was in issue ‘in substance’, even if not the same or substantially identical.

Medical Expenses as a Necessary Component of
Compensation under the Railway Claims Tribunal Act, 1987

(By M.B. Priyakumar, Advocate, M/s. M.S.Associates,  Ernakulam)
E-mail : pkmanghat1960@gmail.com     Mob.: 9446066787

Abstract

The Railway Claims Tribunal Act, 1987 (RCT Act) is a beneficial piece of social welfare legislation enacted to ensure speedy justice and fair compensation for victims of railway accidents and untoward incidents. A recurring legal issue concerns whether reimbursement of medical expenses incurred by injured passengers can be awarded under the statutory scheme, notwithstanding the absence of a specific head in the Schedule of the Compensation Rules, 1990.

This article argues that reimbursement of verified medical expenses is an essential component of compensation, supported by statutory language, welfare principles, judicial precedent — including the seminal Union of India v. Rina Devi (2018 (2) KLT 1060 (SC) and the overarching object of social insurance embodied in the RCT Act.

I. Introduction

The long title of the RCT Act describes it as an Act to inquire into and determine claims for compensation for death or injuries and for “matters connected therewith or incidental thereto.” This deliberate phraseology widens the scope of the Tribunal’s jurisdiction beyond rigid schedules, signalling legislative intent to empower the Tribunal to grant complete and just relief, including incidental matters that naturally arise from the injury.

Railway accidents and untoward incidents often entail significant medical expenses, which, if left uncompensated, frustrate the very purpose of a welfare-oriented compensation scheme. Thus, medical reimbursement is not an ancillary luxury but a core component of just compensation.

II. Compensation and the Meaning of “Matters Connected Therewith”

Compensation in law signifies restoration — to place the victim, as far as money can, in the position they would have been but for the injury. It is not confined to rigid statutory figures.

In the context of the RCT Act, the words “matters connected therewith or incidental thereto” must be given a liberal and purposive construction. Medical expenses are the most direct and immediate consequence of an accident injury; their exclusion would be contrary to legislative intent and to the principle that beneficial statutes should be liberally construed in favour of victims.

III. The Compensation Rules, 1990: Rules 3 and 4

The Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 operationalize the compensation framework:

Rule 3 lays down the scales of compensation for death and specific injuries.

Rule 4 provides: “Notwithstanding anything contained in Rule 3, the total compensation payable under that rule shall in no case exceed the ceiling limit in respect of any one person.”

Rule 4 is designed to protect the ceiling, not to prohibit recognition of legitimate heads of claim within that ceiling. Properly construed, verified medical expenses can and must be included within the ceiling prescribed by Rule 4. This interpretation preserves the ceiling while ensuring substantive justice.

IV. Principles of Natural Justice and Inherent Powers

Section 18 of the RCT Act mandates the Tribunal to be guided by the principles of natural justice. Denying reimbursement of medical expenses, despite their proven causal link with the accident, would amount to an incomplete and unjust form of compensation.

Moreover, Rule 44 of the Railway Claims Tribunal (Procedure) Rules, 1989 vests the Tribunal with inherent powers to pass such orders as are necessary “for the ends of justice or to prevent abuse of the process of the Tribunal.” Including medical reimbursement within compensation falls squarely within this protective jurisdiction.

V. Judicial Reasoning and Analogical Support

(a) Rathi Menon v. Union of India

In Rathi Menon v. Union of India (2001 (2) KLT 12 (SC) = (2001) 3 SCC 714). , the Supreme Court held that interest, though not expressly provided under the Act, could be awarded as it was incidental to compensation. If interest — a post-award component — can be implied within the scheme, then medical expenses, which are integrally linked to the injury itself, must necessarily be included.

(b) Union of India v. Rina Devi  (2018 (2) KLT 1060 (SC) = (2018) 3 SCC 1).

The Supreme Court in Union of India v. Rina Devi, laid down the law with great clarity:

The RCT Act and its Rules constitute a beneficial and welfare legislation, requiring liberal interpretation in favour of victims.

Compensation must be just, effective, and real, not illusory.

Ancillary and incidental reliefs, though not expressly enumerated, may be awarded if they are necessary to render compensation meaningful.

This judgment now stands as binding authority that welfare interpretation is the rule under the RCT Act. By analogy, verified medical expenses cannot be excluded, as they directly determine whether compensation is truly “just” within the meaning of Rina Devi.

VI. Welfare Legislation, Beneficial Interpretation, and Social Insurance Principles

The RCT Act functions as a social insurance mechanism wherein liability is strict, and compensation is predetermined to avoid prolonged litigation. As in other social welfare  legislations — such as the Employees’ Compensation Act or the Motor Vehicles Act — the guiding principle is protection of victims rather than safeguarding the exchequer.

A beneficial legislation must be interpreted liberally to extend relief and not restrict it. Courts have consistently held that in such statutes, any ambiguity must be resolved in favour of the beneficiary. The RCT Act is no exception. Medical expenses, being the most natural corollary of injury, are not only connected with but also inseparable from the concept of fair compensation.

VII. Conclusion

A purposive interpretation of the RCT Act, its Rules, and judicial precedents leads to the following conclusions:

1.    Medical expenses are a necessary and inseparable component of compensation, as they are incidental and directly connected with the injury.

2.    Rule 3 recognizes fixed scales; Rule 4 enforces the ceiling limit, but neither excludes reimbursement of medical bills.

3.    Section 18 and Rule 44 empower the Tribunal to ensure justice by including genuine medical expenses.

4.    Judicial precedents — Rathi Menon and most significantly Rina Devi — firmly support liberal, welfare-oriented construction to secure effective relief.

5.    As a form of social insurance, the RCT scheme must ensure victims are not burdened with medical expenses that flow directly from the accident.

Therefore, recognition of verified medical bills, subject to the statutory ceiling, is not only legally sustainable but also essential to fulfil the beneficent object of the RCT Act. Exclusion of such expenses would defeat both the spirit and letter of this social welfare legislation.

In Memoriam of the High Priest of Therapeutic Penology

(By Faisal C.K., Deputy Law Secretary, Government of Kerala and author of The
Supreme Codex: A Citizen’s Anxities and Aspirations on the Indian Constitution)
E-mail :faisal.chelengara10@gmail.com    Mob.: 9846937349

On his 110th birth Anniversary, we remember Justice V.R. Krishna Iyer as a jailbird-turned-judge who re-humanized the dehumanized prisoner through the vision of therapeutic penology.

For Justice V.R. Krishna Iyer, all humans were beloved “sputniks on Spaceship Earth,” irrespective of their race and rank, with justice being the precious fuel of that spaceship. Caged human beings were not monsters in his eyes, but spiritual patients. He emphatically held that prison justice is a part of social justice, and that not all prisoners are even criminals.

His conviction emanated from multiple sources: his rich experience as a lawyer, his role as Minister in charge of prisons in Kerala’s first cabinet, and his own experience as a “criminal” and prisoner. Fali S. Nariman, in God Save the Hon’ble Supreme Court (2018), observed: “Unlike any judge before or after him Krishna Iyer was a man with a past – he had a criminal record, a quasi-criminal status, and a political history! Way back in 1948, as a lawyer, he had protested against physical acts of torture by the Malabar police, which was then an acknowledged method of custodial interrogation. For this act, he was charge-sheeted — the charge being ‘giving legal assistance to communists’! He was found guilty and imprisoned for a month on this wholly fabricated charge.” This first-hand experience in jail moulded his philosophy of jail jurisprudence, which was rooted in karuṇā (compassion).

Innocence behind bars

Justice Iyer recognized that many languishing in prisons were innocent victims of a flawed criminal justice system. Some, like Edmond Dantès in Alexandre Dumas’ The Count of Monte Cristo, were wrongfully imprisoned due to conspiracy and corruption. Others, like Ivan Dmitrich Aksionov in Leo Tolstoy’s God Sees the Truth, But Waits, were falsely imprisoned for decades for crimes they did not commit, yet placed their trust in God.

History too is replete with such tragedies. In the United States, African American half-brothers Leon Brown and Henry McCollum were arrested in 1983 for the rape and murder of an 11-year-old girl. Both were sentenced to death, though Brown’s sentence was later reduced to life. They spent 31 years in prison before being exonerated in 2014, when DNA testing tied another person to the crime. These literary and historical episodes vindicate Krishna Iyer’s compassionate jail justice based on mercy and human dignity.

“Death to Death Sentence”

Passionately advocating for the abolition of capital punishment, Justice Iyer wrote in The Majesty of the Judiciary (2007): “I believe in India’s finer values and so advocate the altruist ahimsa of alternative life — life in jail. If he transforms his life, turns a new leaf, and becomes a Valmiki, the abolition of the death sentence refines the sentence into a good human. My thesis is from Macaulay to Mahatma.”

InDalbir Singh & Ors v. State of Punjab (1979 KLT OnLine 1084 (SC)), he declared: “Buddha and the Mahatma and in a world where humanity has protested against barbaric executions by State agencies even with forensic 'rites', Courts read the Code, not in judicial cloisters but in the light of societal ethos. Nor does the humanism of our Constitution holistically viewed subscribe to the hysterical assumption or facile illusion that a crime-free society will dawn if hangman and firing squads were kept feverishly busy.”

Gandhian penology

Krishna Iyer shared Mahatma Gandhi’s penal philosophy that punishments were inherently repugnant to ahimsa. For Gandhi, a wrongdoer must be sent to a penitentiary and given every chance to reform. Justice Iyer thus saw crime as a disease, to be treated rather than punished. In Dalbir Singh (1979), he emphasized that focusing solely on the crime while ignoring the criminal’s personal and social circumstances mutilates sentencing justice. While pronouncing judgment upon seven teenage Naxalites, he declared:

“Correctional treatment with rehabilitative orientation is an imperative of modern penology which has abandoned jus talionis. The therapeutic basis of incarceratory lifestyle is not unknown to Gandhian India because the Father of the Nation regarded a criminal as a morally aberrant patient. A hospital setting and humanitarian ethos must pervade our prisons if the retributive theory, which is but vengeance in disguise, is to disappear and deterrence as a punitive objective gain success not through the hardening practice of inhumanity inflicted on prisoners but by reforming and healing whereby the creative potential of the prisoner is unfolded.” (Lingala Vijay Kumar v. Public Prosecutor, 1978).

Even a notorious figure like Charles Sobhraj, he held, could not be deprived of innate human rights and dignity. In Charles Sobhraj v. Superintendent, Central Jail, Tihar (1978 KLT OnLine 1030 (SC)), he directed the removal of bar fetters, observing: “Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, this Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.”

Yoga, meditation, and human flourishing

Justice Iyer believed in healing prisons through inner transformation. In Rajendra Prasad v. State of U.P. (1979 KLT OnLine 1032 (SC)), he recommended Yoga: “Yoga,

in its many forms, seems to hold splendid answers. Meditational technology as a tool of criminology is a nascent-ancient methodology. The State must experiment. It is cheaper to hang than to heal, but Indian life —any human life—is too dear to be swung dead save in extreme circumstances.”

In Mohd. Giasuddin v. State of A.P. (1977 KLT OnLine 1201 (SC)), he suggested the practice of Transcen-dental Meditation, as propounded by Maharshi Mahesh Yogi, for the spiritual progress of prisoners.Oscar Wilde once wrote in The Ballad of Reading
Gaol: “The vilest deeds like poison weeds/Bloom well in prison-air/It is only what is good in Man/That wastes and withers there.”

Justice Krishna Iyer, a prisoner-turned-judge, yearned to change this appalling reality and did his part well. To this day, We, the People of India remain indebted to the “uncrowned Chief Justice of the People’s Court of India” (as Fali S. Nariman called him), for his unforgettable service to prisoners, the marginalized, and those languishing in condemned cells until the Day of Judgment.

 Shaktanam Bhooshanam Kshama

(By K. Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com        Ph.: 0484 - 2376428

The Apex Court has attained greater heights in gaining enhanced dignity and prestige in the graceful and magnanimous attitude it adopted in relation to a gross contempt committed by a legal practitioner in open court against the very head of the judiciary in the country. The decision to drop the proceedings indeed was judicial statesmanship, ignoring triflings.

The highest court has upheld the principle that contempt jurisdiction is not a sword but a shield. It cannot be exercised at the drop of a hat. Note the wise words of Justice Shri Krishna Iyer in the well-known Mulgaokarcase (1978 KLT OnLine 1045 (SC) = AIR 1978 SC 727):

“The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The court is willing to ignore, by a majestic liberalism, trifling and venial offenses.”

The jurisdiction in contempt, it is well-settled, is extraordinary and needs to be exercised only when it is must. It really is an exception to the principles of natural justice intrinsically embedded in our judicial ethos, since in contempt jurisdiction, the complainant, witness, and judge are all rolled into one. Common and ordinary people are sentenced to imprisonment, often for speaking the truth, under the very inscription of ‘Sathyameva Jayathe’ in court halls in a country in which a lowly washerman had the right to criticize the Raja-Patni and get away with it. Of the more than 100 crore people, only 1500-odd are under the protective umbrella of this enactment. Not even the Rashtrapati or Pradhan Mantri is afforded such special treatment.

Necessarily, therefore, the existence of such drastic power and its exercise, too frequently, will blunt the very special power.

It is not for nothing that Lord Denning, renowned throughout the legal world, once reacted to a news item in a London newspaper captioned “Lord Denning is an ass” – with a smile on his face, “May be I am one.”

Chief Justice Shri Beg in Mulgaokar (supra) said as follows:

“The judiciary cannot be immune from criticism, but when that criticism is based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it cannot be ignored.”

Undoubtedly, the lawyer concerned in the incident of shoe throwing at the Hon’ble Chief Justice had committed ex facie contempt. No lawyer worth the name should have behaved in that manner, bringing into ridicule not only the judiciary of which he is also a part but also the prestige and credibility of the entire legal profession in the country. Ordinarily, it constituted a grave and unpardonable assault on the judiciary to the view of crores of the litigant public in the country.