Musings on The Constitution-XVIII Narasimhan Vijayaraghavan

Musings on The Constitution-XVIII
Narasimhan Vijayaraghavan

Khushal Talakshi Shah
The moment we talk of Making of The Constitution, the names that come to mind are Dr. Babasaheb Ambedkar, Jawaharlal Nehru, Sardar Patel, possibly B N Rau (the adviser to the Drafting Committee). And then we leapfrog to Granville Austin, the American professor, who for strange reasons, made it his life’s mission to pen its Biography. Austin write them in two parts, so to say, one: The Making of The Constitution. Two: The Working of It. But, anyone who cares to dig deep, indulge to the left, right, centre, above and below, the archives offer so many more names, umbilically intertwined in the making of the mother of all laws. Rarely, if ever, we get to know them even. They surface for a few lines in passing on Constitution or Republic Days alone.

What a pity, lawyers themselves are oblivious of even these names and as Justice V R Krishna Iyer bemoaned,
“Whoever cares for the framers. When we do not care for the Constitution, it would utter stupidity to expect to care for the forefathers. Whenever I indulge myself in the Federalist Papers in the US of A, I always believe that we have our own Benjamin Franklins, Thomas Jeffersons, James Madisons, John Adams’ et al. Alas, only to fringe elements like us in the boredom of my life, after tucking into as a Judge”.
One such character, christened a ‘rebel’ and possibly one, was K T Shah. He was a brilliant lawyer, sociologist, economist, the works. He is often remembered as the one, also a Bihari, who stood in the first Presidential elections against Bapu Rajendra Prasad, and secured 15.3% of the votes polled. Otherwise he is long lost forgotten genius. He deserves a top place among the pantheons of great, those associated in the making of our Constitution.
February 8th, 1947: Indian statesman Jawaharlal Nehru (1889 – 1964) moves the resolution for an independent republic in a historic moment at the Constituent Assembly in New Delhi.
K.T. Shah was an Indian economist, advocate and socialist best known for his active role as a member of the Constituent Assembly of India that was responsible for framing of the Indian Constitution. An alumnus of the London School of Economics and Gray’s Inn, he practiced as an advocate in Bombay from 1914. He was the main rival candidate in the first presidential election of Independent India, losing to Dr. Rajendra Prasad after securing 15.3% of votes. He died in March 1953.
“K.T. Shah was a live wire during the proceedings. There was no critical issue in which he did not intercede with amendments or suggestions. His continuous and repeated interventions helped enhance the value of the debates and contributed immensely to the making of our Constitution,” was the handsome compliment paid by B R Ambedkar. In fact, KT Shah was one member who unfailingly attended every session of the proceedings and the other members eagerly looked forward to see what K T Shah had to say on the introduced provision.

Inauguration of Rajya Sabha’s First Session on April 3rd, 1952
Just a week ago, Vice-President M Venkaiah Naidu wrote in The Hindu on the precept of practice of rajya Sabha as debated in the Constituent Assembly and how it came to be agreed. Juxtapose that with the nomination of the retired Chief Justice of India Ranjan Gogoi and the heat and dust it rightly generated. K T Shah had a huge say on this issue. His interventions were learned, critical and crisp. But records would reveal that more often than K T Shah’s proposal merely triggered a debate but rarely came to be accepted. “But it was his powerful expositions that helped chisel the provisions’ eulogised Sardar Patel.
While our Constitution was being framed, on 7 June 1949, K.T. Shah moved a proposal in the Constituent Assembly to include a provision in the Constitution that barred former Supreme Court and High Court Judges from being appointed to any executive office under the Union or State governments. He felt that this measure would protect separation of powers and judicial independence.
K T Shah reminded the Assembly that in the past, the executive had attempted to influence judicial officers with attractive executive postings. And this, he predicted, could get worse – because unlike before (colonial India) when executive positions were few, in independent India, there would be many. Further, Shah said that while the objectives of his proposal could be served by developing and adhering to precedent or convention, he found the issue critical enough to warrant a specific mention in the Constitution itself.
H.V. Kamath and Shibban Lal Saxena entered the debate and supported Shah. Kamath said:
…the Supreme Court in our country will have to arbitrate and adjudicate upon disputes-constitutional disputes between the Centre and the Units as well as between unit and unit. The Executive is interested in many of these questions and it is very likely-more often than not-that a particular matter which is coming up before the Supreme Court may be such vital importance and interest to the President or the Executive that they might like the Supreme Court to give a particular decision upon that matter…
Further, he wanted Judges in India to
‘Models of Judicial independence, fearless in their judgments and act without fear or favour of the State authorities or the Central authorities.’
Kamath viewed Shah’s proposal as a means to facilitate this.
The President of the Assembly then turned to B.R. Ambedkar, “Dr Ambedkar, do you wish to say anything about Prof. Shah’s motion?” Ambedkar began with a curt, “I regret that I cannot accept this amendment by Prof. Shah”. He then proceeded to state what the separation of powers meant to him, “A person holding judicial office should not hold an executive office simultaneously.”
Ambedkar was seen to be “insinuating Shah’s understanding of separation of powers and proposal to protect it was beside the point, It did not even cross Ambedkar’s mind that a sitting Judge might act in ways to obtain a desired outcome (executive or other appointments) for herself/himself for his/her post-retirement period.” Wrote an academician,

Ambedkar continued:
…The judiciary to a very large extent is not concerned with the executive: it is concerned with the adjudication of the right of the people and to some extent of the rights of the Government of India and the Units as such. To a large extent it would be concerned in my judgment with the rights of the people themselves in which the government of the day can hardly have any interest at all. Consequently the opportunity for the executive to influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing too far…
Ambedkar did not even believe that Executive ‘would poke its nose into Judiciary’. He was assuming that our men and women at the helm would be of such mettle and calibre .But HV Kamath and K T Shah saw it differently .It is not left to our imagination who has proved prescient.
One repeatedly resonating theme….
(Author is practising advocate in the Madras High Court)

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