Musings on the Constitution-LXXI Narasimhan Vijayaraghavan Epilogue

Musings on the Constitution-LXXI
Narasimhan Vijayaraghavan
Epilogue

Let us allow Soli Sorabjee’s daughter- Zia Mody- to take over here,
“The then Chief Justice of India, S.M. Sikri was due to retire a day after the decision in Kesavananda —on 25 April 1973; the government was yet to announce his successor. As per convention, the senior-most judge of the Supreme Court is generally appointed as the Chief Justice of India; were this convention followed, the Chief Justiceship would have been accorded to Justice Shelat followed by Justices Grover and Hegde. However, angered with the Kesavananda decision, the government superseded these three judges who had ruled against it in Kesavananda. Instead, it appointed Justice A.N. Ray, who had ruled in its favour, as the Chief Justice of India. This undermined the longstanding practice of appointing the senior-most judges of the Supreme Court. Justices Shelat, Grover and Hegde resigned in protest and the Indira Gandhi government’s attempt at muzzling judicial independence in the lead-up to the Emergency began in right earnest.”

In 1975, in the midst of the national Emergency declared by the Indira Gandhi-led Congress government, the Chief Justice of India A.N. Ray constituted a thirteen-judge bench to review the Supreme Court’s decision in Kesavananda .The bench to hear the review assembled on 10th and 11th Nov,1975 and Nani Palkhivala led the battery of lawyers with readiness to tangle with the Executive/Legislature ‘trying to browbeat the Judiciary’ as Arun Shourie said decades later.

And what a nerve tingling couple of days, it turned to be. No formal petition for review was filed. It was suggested that the Attorney General Niren De had orally Mentioned the need for a ‘review’ .Despite no clarity as to ‘who’ sought the review and in what ‘manner’, Nani Palkhivala, the constitutionalist was at his quintessential best. He rose to dizzy heights in mocking at the attempt for review. He was furious with the dubious and devious ways adopted. But, his forte was the Constitution and he was at ‘his persuasive and eloquent best’ as Justice V R Krishna Iyer said.

It appears on the 11th Nov, 1975, Nani Palkhivala insisted on knowing who had moved the Review ‘in such a serious matter’. It was Emergency days. Newspaper reporting was not permitted. News only filtered out in driblets and continue to from the actors on that day. There was animated discussion among the Judges to know ‘the origins of the review’. Chief Justice A N Ray, Indira Gandhi’s chosen nominee wondered whether it was the State of Madras who made the move. It was then that Advocate General of Madras State Govind Swaminathan rose to his full height and beyond and clarified to the eternal gratitude of the entire nation, “No, not us. No such petition has been moved”. That was a body blow from which the secretly and hastily constituted review bench could not recover.

To get back to Soli Sorabjee’s daughter,
“The bench was dissolved after two days of hearings and much of what transpired was shrouded in secrecy. The reporting of courts’ judgements by the press was also restricted at the time. Only those lawyers and judges who were present in the courtroom at that time, therefore, could give accounts of what had occurred. Austin has described this disintegration of the bench (which was to review Kesavananda) as ‘the most critical moment’ for the Constitution and Supreme Court since the original decision in Kesavananda. One of the principal arguments for the review of Kesavananda was that the basic structure doctrine was nebulous, and every judge had different opinions about what the doctrine encompassed. The Supreme Court rightly chose uncertain democracy over certain tyranny.”

Research indicates that on 10th and 11th Nov,1975, there was back and forth arguments from the side of the Government led by the Attorney General and the original petitioners in the Kesavanand Bharati petition. This was a new and a different bench as several had retired. Justice V R Krishna Iyer was now part of this new bench.
Piecing together the versions of Soli Sorabjee, Andhyarjuna, other advocates and reports over the years, it appears that Nani Palkhivala got a glorious opportunity to string together a .more forceful argument, after over two years of the judgment in vogue.
“The oral exchanges between the Bench and Bar seemed to suggest that the Chief Justice was reduced to a minority of one. The absence of any formal review petition, in writing, and disowning of any such review sought for by the Madras State, the Chief Justice was left with little option than to dissolve the bench on Nov 12th, 1975 with a mumbled and swallowed statement,”
as Nani Palkhivala called it, in one of his Budget speeches. The judges rose and left the First Court Hall never to return till today, to meet for the supposed review petition that was never filed but heard but never pronounced upon. This was some constitutional fact that bettered any fiction you could ever conceive of.
And mind you, there is no official record in the Supreme Court of India on these proceedings and that says it all for the fall in standards depicted from the captain of Judiciary. What a fall, my countrymen, even as Nani Palkhivala rose and rose.

Excuse me, we have not yet talked of the rise and rise of Nani Palkhivala in Kesavananda Bharati. Who better to turn to than,

“For dearest Soli, who has done so much to uphold the sanctity of the Constitution”
as Nani Palkhivala wrote on 4th Dec,1974, and signed two Nani books presented to Soli Sorabjee, which he ‘treasures the most’.
“Palkhiwala shared the thinking of Thomas Jefferson who said, “Some men look at Constitutions with sanctimonious reverence and deem them like the Ark of the Covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment…I am certainly not an advocate for frequent and untried changes in laws and Constitution…But I know that the laws and Institutions must go hand in hand with the progress of human mind….As new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also and keep pace with the times.”
Palkhivala appreciated the wise words of Pandit Nehru who expressed the same thought in felicitous language ‘A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable…as society changes, as conditions change, we amend it in the proper way.’
What outraged Palkihvala was the tinkering with the Constitution by the politicians, its frequent amendment as if it were a Municipal Licensing Act or the Drugs Act, the failure to preserve the integrity of our constitution against many hasty and ill-considered changes, the fruits of passion and ignorance. His firm belief was that Parliament’s amending power is not absolute, the amending power is subject to inherent and implied limitations, which do not permit Parliament to destroy any of the essential features of the Constitution and thereby damage the basic structure of the Constitution.

The zenith of Palkhivala’s fame and forensic success was in persuading the Supreme Court to accept the basic structure doctrine, which it did by a majority in Kesavananda Bharati case. I vividly remember the early morning conference the two of us had those days in his room at Oberoi Hotel, New Delhi. Both of us were in our pyjamas. At one such conference, I nervously suggested the argument about inherent limitations on the amending power based on certain articles which I had read in the US Law Journals. He grasped the point, but was not quite convinced. A few hours later, in the Supreme Court, he expounded the doctrine brilliantly. The labour and efforts which were put in the case were tremendous. The range of our research was far and wide. I remember the volumes of the Constituent Assembly Debates, which I went through in order to prepare a ‘short note’ for Nani. He did not like long and verbose submissions. To my mind, Kesavananda Bharati was Pallhivala’s greatest contribution to our Constitutional jurisprudence. The judgement has been a salutary check on Parliament’s tendency to ride roughshod over Fundamental Rights and its insatiable appetite to encroach upon Fundamental Rights…Nani, however was at his forensic best in is arguments before the bench which was specially Constituted to reconsider Kesavananda Bharati. In the words of Justice H R Khanna, ‘On the bench, the heights of eloquence to which Palkhivala had risen have seldom been equalled and never been surpassed in the history of the Supreme Court.”

As one winds down on these Musings with 71 episodes, in line with the 71st Republic Day on the anvil, it has been a worthy journey for me. Yes, the Pandemic virus surely was not to blame, even if no one owes anything to it. A journey like no other. For Nani Palkhivala, the Constitution was his mother, father, everything. He breathed its values. He allowed us to breathe free and it in a shape our forefathers dreamed of it and Dr. B R Ambedkar so passionately weaved it into shape, with his brothers and sisters.
We recently celebrated Nanabhoy Ardeshir Palkhivala’s centenary. He did India and constitutionalism proud. But he died a disconsolate man. He could not see the India of his dreams. To quote Soli Sorabjee again,
“Regrettably, we live in times when there are no men and women to match our Himalayan peaks, when there is a crisis of moral leadership, when our political system and our public life have more hypocrites, wheeler-dealers, schemers and cowards than at any time in our history…Palkhivala was deeply upset, indeed depressed at the catastrophic decline in values in our public life. The onslaught of materialism and its effects on our youth bothered him very much. He was anguished at the deterioration which had set in our institutions. He felt that corruption, which in some cases had not spared the Judiciary, while independence he had staunchly defended was illustrative of the incredible debasement of our national character.
He lamented that the ‘Bar is more commercialised than ever before. Today the law is looked upon, not as a learned profession but as a lucrative one.’ He stressed the need to educate our lawyers better and not to produce; unethical illiterates in our law colleges, who have no notion of what public good is’. He feared that our country was on a long slide towards darkness and obscurantism with no visible solution and sign of hope. His mission was to launch a movement for the regeneration of values and to maintain and revive idealism in the youth of our country.”
To quote Nani himself, who was appropriately christened as ‘God’s Gift to India’ by C.Rajagopalachari,
‘Remember, the Constitution was meant to constitute the nation. India is like a donkey carrying a sack of gold- the donkey does not know what it is carrying but is content to go along with the load on its back.’

Surely, I began worse than a donkey. Not even aware that the sack was filled and full. I accidentally got to cast a peep into it. It was bewildering, beautiful, bountiful and brilliant .Hence, after a constitutional pilgrimage, we cannot be moaning and mourning. Our Constitution is the soul of the nation. It cannot be anything but be for the good of and in the nation’s future. Nani would not like us to take the morose way to close. For he had an abiding faith in our forefathers, who gave the Constitution to us We The People.
Let Nani Palkhivala, the saviour of our Constitution, have the last word of optimism, as only he could.

“I have deep faith in the existence of a force that works in the affairs of men and nation. You may call it chance or accident, destiny or God. Higher Intelligence or the Immanent. Principle. Each will speak in his own tongue.”

(Author is practising advocate in the Madras High Court)