M.K. Nambyar belongs to that rare breed of men - original, creative and illustrious and whose contribution to the making and development of law was truly outstanding. This December 18 marks the 50th anniversary of his passing. It is appropriate that we remember him, his great life and work which is both a model and an inspiration and pay tribute to his sacred memory.
Meloth Krishnan Nambyar was born on January 1, 1898, in village Chemnad in North Kerala. He had his primary education at the Government Primary School near home and the Puthiyakotta Mission School. He did his SSLC and Intermediate from St. Aloysius, Mangalore in 1914 and 1916 respectively. He then joined the Government Arts College, Kumbakonam and obtained his B.A. degree in 1919. Thereafter he took his law degree – B.L. from the Madras Law College where he had a distinguished academic career winning several medals. Nambyar was an apprentice under the renowned lawyer Sir C.P. Ramaswami Iyer. In early 1924 he joined the Bar and set up practice at Mangalore.
From the District Bar to the All India Bar, from the District Court in Mangalore to the Apex Court was a long and incredible journey, nevertheless very true. How he ultimately came to occupy the centre stage in the Supreme Court and make invaluable contribution to the evolution and development of our Constitutional Law is the story of M.K. Nambyar-the saga of his life and work.
There was nothing extraordinary in the first few years. Clients came to him with civil and criminal cases and life went on at a steady pace. Then Nambyar was engaged for the plaintiff in a hotly contested civil suit involving his family where the dispute centred round the right of redemption of a usufructory mortgage. The suit was decreed by the trial court. The Madras High Court dismissed the appeal where Nambyar appeared along with Sir Alladi Krishnaswami Ayyar for the respondent-plaintiff. The matter was carried further in appeal to the Privy Council and that took Nambyar to England to instruct counsel appearing for the respondent. Having gone to England he decided to stay back and pursue higher studies in 1931-33. He did his LLM in Constitutional Law and International Law from the London School of Economics where he stood first and he was called to the Bar from Lincoln's Inn. His foresight in choosing Constitutional Law as the subject for his Master's Degree is really admirable in as much as he foresaw that with the Independence movement gaining ground a Constitution would be framed for free India. Nambyar appeared along with P.V. Subba Rao for the respondents before the Privy Council in the family case, judgement in which is reported in Ambu Nair v. Kelu Nair, AIR 1933 PC 167.
Returning from U.K., Nambyar's practice picked up though it was still at the district level in Mangalore. Between 1933 and 1938 Nambyar forged ahead at the Bar. Then for about a decade from 1938 he was Government Pleader and Public Prosecutor at Mangalore handling both civil and criminal cases with quiet ability. That was immediately after the 1937 elections under the Government of India Act and Rajaji was the Premier of the erstwhile Madras Province. In 1947 when he had completed his third term Nambyar declined an extension and shifted his practice to the High Court, joining the Madras Bar in September 1947, and the best was yet to come. This was essentially at the invitation of P. Govinda Menon who was elevated to the Madras High Court in July, 1947. Menon asked Nambyar to go over to Madras and take up all his briefs. Nambyar accepted the invitation and the challenge. The rest is history. He flowered as a constitutional lawyer and became one of the leading and most distinguished in that field. Right from the inception of the Constitution he was associated with landmark cases involving the basic freedoms and fundamental rights guaranteed under the Constitution.
It is said that while he was practising at Mangalore, Nambyar aspired to join the subordinate judiciary. That did not happen and though it might have been disappointing then, what a future beckoned him! As Sri Aurobindo said: When thou art able to see how necessary is suffering to final delight, failure to utter effectiveness, retardation to lasting rapidity, then thou mayest begin to understand something, however dimly and faintly of God's working.
Nambyar, a migrant from the mofussil, with his quiet dignity, deep humility and mellowed wisdom rubbed shoulders with the front rank lawyers of Madras and soon joined their ranks securing a unique position for himself as a leading constitutional lawyer and jurist. He commanded a large and lucrative practice in the Madras High Court particularly in cases relating to nationalisation of transport.
When he shifted his practice to Madras in 1947, Nambyar was considered an excellent criminal lawyer. It was when he infused constitutional law into one of the early cases he argued in the Madras High Court that Barrister V.G. Row noting his command over that branch of law requested him to appear in the Supreme Court in Gopalan's case. Thus it was that almost immediately after the Constitution came into force and some leaders of the Communist Party, including A.K. Gopalan, were detained preventively, Nambyar appeared in the Supreme Court in Gopalan's case (A.K. Gopalan v. State of Madras, AIR 1950 SC 27) on behalf of the petitioner challenging his preventive detention and enunciated the legal position regarding the right to life and personal liberty. Curiously enough the full name of the petitioner was Ayilliath Kuttieri Gopalan Nambiar. The question at issue was detention without trial and that involved interpretation of Articles 14, 19, 21 and 22 of the Constitution and their interplay. The case was a cause celebre and the underlying issue was intensely emotive. The Supreme Court was conscious of their task to interpret the Constitution especially the precise ambit of fundamental rights and the permissible restrictions and limitations on them. As Nambyar expounded his arguments and cited comparative case law, the court room seemed to be spellbound; with no interruptions or questions, the silence was broken only by Nambyar's voice and the rustling of the pages of the law reports. It was his contention that there were certain 'immutable principles of justice' which could not be over-ridden by any man made law and that Art. 22 which spoke of preventive detention could not be read in isolation but has to be seen with other rights guaranteed by Arts.19 and 21. Every law had to respect and conform to basic principles of justice and no legislature could enact a 'lawless law' was the theme and cornerstone of his argument. He lost the case but the seeds for future development and growth were sown. His persuasive advocacy, however, resulted in section 14 of the Preventive Detention Act, 1950 being struck down as unconstitutional.
Commenting on the decision Nambyar remarked: “Almost at the inception of the Constitution, at the very threshold of its life, one of the main articles declaring life and liberty as fundamental rights became still born.” Nambyar had a creative bent of mind and his research in Gopalan's case was extremely original and classic. As Setalvad notes in his autobiography Chief Justice Kania rightly acknowledged in the judgement the Court's indebtedness to Nambyar for his assistance in interpreting the true meaning of the relevant clauses of the Constitution. This was the precursor of his many such appearances in the Supreme Court and his remarkable role in the interpretation and forward march of the Constitution. The mischief of the decision was not to be laid at rest for more than two decades. That process began with the Bank Nationalisation case (Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564 and proceeded with Shambu Nath Sarkar v. State of W.B., AIR 1973 SC 1425; Haradhan Shah v. State of W.B., AIR 1974 SC 2154; and Khudiram Das v. State of W.B., AIR 1975 SC 550 and finally the ghost of Gopalan was exorcised in Maneka Gandhi v. Union of India, AIR 1978 SC 597 more than a quarter of a century later. The original view that fundamental rights are water tight compartments has given place to the theory that each of the fundamental rights is not a series of isolated points but a rational continuum of the legal concept of liberty and Arts 14, 19, 21 form a vital triology whose ethos informs one another.
It is interesting to know that during the same time as Gopalan's case, Nambyar was defending the son of the erstwhile Maharaja of Cochin and other politicians before a Special Judge in a criminal case. He was commuting between Cochin and Delhi in Dakotas, the flight taking 6-7 hours. These cases, it may be said, gave him great publicity and exposure and his future as one of the leading lawyers in the country was assured. There was no looking back after Gopalan. He was very much sought in the Supreme Court and many High Courts. He, however, resisted all temptations of shifting to Delhi though he would frequently go to the Supreme Court and to various other High Courts to argue important constitutional cases.
Nambyar, thereafter, appeared and argued many cases touching upon various fundamental and constitutional rights including the freedom of trade, commerce and intercourse. Reference must be made to C.G. Menon, Express Newspapers, Kerala Education Bill, West Ramnad Electric Distribution Company, Deepchand, Privy Purses, Bennett Coleman, which are some of the cases argued by him involving different aspects of Constitutional Law. Chief Justice S.R. Das invited Nambyar to become a judge of the Supreme Court. But Nambyar who was already 60 declined the offer. For about a quarter of a century after the birth of the Constitution and the Supreme Court he was one of the pre-eminent Constitutional lawyers who helped to build the edifice of our Constitutional law. Shri Venugopal rightly calls him the Constitutional colossus.
Apart from Gopalan the other equally important and stellar performance of Nambyar and perhaps his most significant contribution in the field of Constitutional Law was in I. C. Golak Nath v. State of Punjab, AIR 1967 SC 1643. There he propounded the doctrine of implied limitations on the power of Parliament to amend the Constitution—that the amending power is not absolute but is subject to the limitation that exercise of the power of amendment cannot result in destroying the essential features of the Constitution or damaging it. This was based on and inspired by the theory expounded by a distinguished German jurist and scholar, Dr. Dieter Conrad, Head of the Department of Law of the South Asia Institute of the University of Heidelberg, Germany. Professor Conrad propounded the theory based on the German experience in a lecture that he delivered on Implied Limitations of the Amending Power to the Law Faculty of the Benares Hindu University in February, 1965. It showed his far-sightedness apart from deep study and erudition.
It is said that Nambyar wrote to Dr. Conrad in October, 1966 seeking his permission to use the manuscript of his lecture as part of his argument before the Supreme Court in Golak Nath case. The Professor whole- heartedly agreed, however, stipulating that the whole manuscript may be presented to the Court. The theory was vigorously put forward in Golak Nath, but though it was observed that there was considerable force in the argument, the Court did not express any opinion in that regard and the case was decided on a narrower basis. “The seed that was planted by Dr. Conrad, adopted in the arguments (of the redoubtable Nambyar) in the Golak Nath case was brought to flower and fruition (by the impassioned advocacy and forensic brilliance of Palkhivala) in the Fundamental Rights case [His Holiness Kesavananda Bharati Sripadgalvaru v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225]. It may be interesting to know that very many years thereafter Prof. Conrad delivered a lecture on Basic Structure of the Constitution and Constitutional Principles at the Indian Law Institute, New Delhi on April 2, 1996.
The great Constitutional lawyer and visionary that he was, he wrote in an unpublished article, The Contours of the Constitution, “Every system of government that is born of revolution, violent or non-violent, bears the indelible impress of the impulses of its being. It mirrors the struggles of the past in its provisions to ensure the security of the future. It represents the aspirations, achievements and ambitions of a people. No constitution is merely a collection of clauses or the handiwork of skilled draftsmanship. It is an organic growth springing from the forces of the natural vitality, and changing in colour and content in the process of time.”
To generations who have passed their lives in the law 'his is truly clarum et venerabile nomen.' Nambyar's original thinking, creative genius and distinguished contribution are clearly reflected in the cases he conducted and argued. Judges write memorable judgments and lay down the law. But in one sense they shine with a reflected glory. Lawyers help them in their work with their arguments. The great judgments of Chief Justice Marshall, it is said, are the arguments of Daniel Webster reiterated. It is to be emphasised that viewing judgments as the product of the judges' scholarship and craftsmanship alone is an incomplete narrative of the impact of advocacy on judicial decisions. The role and contribution of counsel in the development of law and judicial decision making cannot be overlooked or under estimated. The lawyer's voice is reflected in the analysis of the contentions advanced in the case. Nambyar's part and contribution in this regard has been remarkable. While some of the propositions he enunciated were not accepted at that point of time, they came to be accepted later and judges propounded the ideas and views of Nambyar and spoke and wrote his language. It is indeed significant and remarkable that Nambyar's arguments and the theories he propounded in Gopalan as well as Golaknath were subsequently accepted by the Supreme Court which is a tribute to his scholarship and vision.
It may also be said that he was at his best in elucidating legal principles and helping in the shaping of the law when analogies were equivocal and precedents silent. His vast experience, his deep scholarship and his phenomenal industry coupled with a keen and incisive legal mind showed a dedication to law which was difficult to match. Hero of many legal battles and cause celebres, he was a noble warrior who bore his scars and honours with a philosophic indifference. His professional conduct and integrity were impeccable. When he cited a judgment and passages in that which supported his contention, he also made sure to bring to the court's notice anything in the judgment which might not be in his favour or advance his contention. A lawyer of great intellectual integrity and professional discipline, he was intensely liked and respected by the Bar and the Bench.
Nothing, perhaps, brings out more of his personality than a letter he wrote, two weeks prior to his passing, to his son, Shri Venugopal when the son opened his new chambers on December 4, 1975: “God bless all of you - and the building and the office- and may it grow into a prosperous and upright lawyer's office.”
As a counsel M.K. Nambyar was calm and collected. He would not get ruffled or lose his composure. His arguments were not aggressive, they were always dignified and restrained but he drove home the point like an arrow hitting the mark. He would allow the judge time to think over and put him questions so that he was sure that the judge had understood his arguments. He made path breaking research in the law. All his cases were argued after a thorough study. All the efforts that went in the preparation were evident during its presentation. Judges heard him with respect. Untiring in his efforts and diligent in his approach he was a remarkable practitioner. He would work on a brief and hold conferences for twenty days and argue the case for just twenty minutes. Till the case was actually argued, he would be working on it, changing and refining his propositions, their presentation and order. He would go on adding and refining every evening to attain perfection, as far as humanly possible. He was careful and meticulous in his language and presentation, committed to the traditional style of advocacy. He was a representative of a great tradition and a symbol of sustained excellence.
We are told that at the height of his practice Nambyar was handling five to six final hearing matters everyday in different courts- arguments in each lasting for about 45-60 minutes. He used to have a few dates noted on the docket and that was enough for him to put across the point along with the citations which he had noted.
M.K. Nambyar had academic attainments and was a scholar. He delivered lectures and wrote a number of articles and research papers for legal periodicals in India and abroad, particularly on various aspects of Constitutional and Administrative Law. To mention some of them: In 1938, he delivered the Sundaram Iyer- Krishnaswami Iyer Endowment Lectures under the auspices of the Madras University on the Outlawry of War. In 1949 he published a very illuminating article in the Madras Law Journal on the constitutional limitations of a legislation of the U.P. Government which had been struck down by the Federal Court. He was a student all his life. Long ago Nambyar authored a book on Distribution of Legislative Powers which is considered a classic treatment of the subject. Towards the end of his life he started writing a book on Fundamental Rights- a topic close to his heart. It was progressing slowly because he would go on changing and revising trying to attain perfection. His ailment and demise left it unfinished. As a Western philosopher said, “If you want to have total perfection in what you want to do, then you cannot do anything.”
Nambyar had a slight stoop referring to which Niren De the then Attorney General said in the obituary reference in the Supreme Court- that the stoop was, perhaps, due to the burden his intellect bore than to any physical disability, the range of which intellect can be fairly ascertained from his arguments reflected in the judgements of courts. He looked more like an absent minded professor than the great lawyer and advocate he was. And Chief Justice A.N. Ray said that Nambyar was by nature of a scholastic bent of mind, he belonged to that school of lawyers who are guided by dignity and discipline in professional life.
While in Golaknath the Court accepted his stand that the impugned law was unconstitutional, it enunciated and applied the doctrine of prospective overruling, that is, the judgement would operate only prospectively. In an interview a journalist asked him about that novel procedure and doctrine. Inspite of his best efforts he was not able to remember it and the journalist reminded him of it- prospective overruling. Nambyar laughed and said that if one does not like something one tends to forget it. It seems he was never able to reconcile himself to that doctrine.
It is said that once Nambyar had asked his junior to find an authority for a particular proposition that an unintelligible order passed by a quasi judicial authority could be quashed by a writ of certiorari. No direct authority was found and the junior gave him a case reported in the All England Reports. He had a hearty laugh reading it. Next day in Court Nambyar told the judge (probably Justice Rama Prasad Rao in the Madras High Court) that he had asked his junior to get a case law on the point and he had ably got one directly on the point. So saying he read out the relevant passage smilingly: "When the proposition is very obvious, it will be difficult to get a case law on it". Everyone in the court including the judge was amused and enjoyed the situation.
Nambyar was a gracious person, pleasant and soft spoken and full of kindness and courtesy. An outstanding feature of his character was his generosity towards the junior members of the Bar for whom he had a passionate concern and whom he greatly encouraged and guided. He was a hard task master and expected his juniors to be well up in law but he always showered great affection on them and encouraged them at every available opportunity. Even when a junior stated something untenable he would quietly say- why not look at it this way and I think you will agree with me that what you are saying is not correct. He was one of the pioneers in Madras who started giving decent fees to juniors.
His chamber was a nursery for young legal talent. He trained and reared a band of accomplished lawyers. Apart from his son, Venugopal, other juniors include P. Chidambaram, M.N. Krishnamani and C.S. Vaidyanathan who started with Nambyar and was perhaps his last junior.
Nambyar was a simple man who enjoyed the simple innocent things and pleasures of life. It is said that he liked the South Indian Idli very much and one day in a relaxed manner he is said to have remarked- Do you know of all the food items which one I like the most? It is Idli! How delicious? How fine? How harmless! And yet how simple! A healthy man can take it and even a sick person can take it. To see, recognize and appreciate beauty even in the small things of life is an attribute of greatness. Nambyar possessed it. He was not a club going type of a person. He had no time for such high level recreation.
Being successful in any walk of life is sometimes considered synonymous with amassing a lot of material wealth and is measured by that yardstick. It is otherwise assessed by the long range impact that a person brings to bear upon society-upon men and matters around him. He did not fit into the first description. Judged by the second criterion Nambyar's success was tremendous. When he appeared in a case and argued Nambyar had not only the client and his immediate success in mind; he was conscious of the greater and more important role- he was assisting in shaping and laying down the law for an expanding future and making his contribution to constitutionalism and the rule of law. He would always remind us that the ultimate guardians of our liberties are we the people themselves who have to be very vigilant and in this the lawyers have a vital role to play as movers of people and mobilisers of opinion.
Nambyar was a true believer in God-spiritual in the real sense. Apart from anything else, a piece that he wrote Life-A Lawyer's View bears it out.
“.......No one for a moment can minimise the importance of human endeavour in the march of events, whether in courts of law or elsewhere. By thought, word and deed man shapes the course of the future. His life is largely his own making. And not merely his own life, but even the world around him in which he moves and has his being shaped by his aspiration, his ambition and achievements.
And yet through the web of life of each one of us runs an unseen thread, which shoots an unexpected ray into the pattern of our existence. The turning points in one's life have often been fashioned by formative forces, of something unforeseen, something unaccountable, something inexplicable, beyond our reach and beyond our comprehension. Life to me is still a mystery. My will is my own. My acts are of course mine. I sit in the frail bark of my body and steer with all my might. But I find I am neither the master of my vessel nor the captain of its decisive direction. For, the momentum of its movements has often been gathered from the impact of the unknown.”
M.K. Nambyar passed away in Madras on Thursday, December 18, 1975. He was 78. As the Attorney General, Niren De, said at the Full Court Reference, 'Until his death he was, perhaps, the most erudite Constitutional Lawyer in the country. As a man, Nambyar was the embodiment of modesty, humility, kindness and courtesy in all aspects of life.'
To perpetuate his memory and serve to inspire the future generations, various endowments have been created like M.K. Nambyar Memorial Lectures and M.K. Nambyar Chairs in Constitutional Law and Studies at different universities. Inaugurating the Memorial Lectures at Madras, Justice Krishna Iyer said: “When he (M.K. Nambyar) came to Madras, it coincided with the Independence of the country and shortly after the Constitution came and India awoke to a new order, to a new human order, where constitutionalised civilisation became the essential of culture. M.K. Nambyar said, 'I take you through the pathless wood,' and exhibited an amount of passionate scholarship. I say it is not one of those scholarships like tepid tap water; if you open the tap water, it flows. No, not that way. He was committed. There was a commitment about him in the garb of fundamental rights. He fought the case not for the ideology of his client who was a Communist but for the ideology of human rights which found expression in Part III...................I am totally lost in admiration for his complete commitment to the human cause.”
M.K. Nambyar had most of the qualities of a good lawyer and a good human being: Honesty, courage, industry, eloquence, judgement and to crown all that, utter humility. He was truly great. “The greatness of a great man very often lies in small things and how he treats small people.”
It is indeed heartwarming that the great legacy of this most outstanding lawyer is continued by his illustrious son, Shri K.K. Venugopal who occupied with distinction the highest law office-Attorney General for India.
It may truly be said of him as is inscribed on the tomb of an eminentkl Italian Renaissance political philosopher, “So great a name no praise can match.” Nambyar's place as a lawyer, jurist and constitutionalist in the rank of the immortals is secure. The love and respect with which we light his memory is a measure of his greatness both as a lawyer and a man.
Author is Senior Advocate, Supreme Court of India. Views Are Personal.