"They were put to a test and found wanting."– Times of India, January 7, 1978.
"They were put to a test and found wanting."
– Times of India, January 7, 1978.
The test was one of judicial spine which "they" failed to demonstrate in the Habeas Corpus case heard in the dark night of Indira's Emergency. The news report summed up the national mood and the sentiment of the Bar. The two justices referred to were life-long rivals as destiny had pitted each against the other. Yet destiny again, by twist of irony, had placed both on the same side of ignominy.
Bhai Morarji sat at his table and took a deep breath. His advisors were clear. Both had discredited themselves and were unfit to sit on the High Chair as the pater familias of India's judicial family. Morarji had played deputy to someone younger, greater pedigree and yet someone, he always thought was less accomplished than he. Yet Desai sworn an oath at Raj Ghat administered by JP that his government would not repeat Indira's mistakes.
His decision would leave its indelible mark on India's judicial history. It could also cut short a decades-long rivalry in a manner neither of the protagonists had ever imagined.
His father may not have been a sitting judge of the high court, but Yeshwant Chandrachud was born into no less an illustrious legal family. Vishnu was one of the first LLM graduates from Bombay University. The family was well off, as, in addition to earnings from the law, there were always the earnings from the family jagirs.
In November 1943, at age 23, he enrolled himself as an advocate of the Bombay high court. After a brief stint in Pune, he was drawn to the big city where he spent the next three decades.
In the high court, the young lawyer must have appeared in the court of justice N.H. Bhagwati. Bhagwati would one day go on to sit in India's highest court. Like in India from the days of Mahabharata, N.H. Bhagwati had a weak spot. His son. Bhagwati Junior was a young, upcoming lawyer, and Bhagwati Senior was determined to charter great heights for him.
Was it then an unconscious act on his part to be unpleasant to all young lawyers who could be viewed as a threat to his son? None felt it more that this young lawyer from Pune – Yeshwant Vishnu Chandrachud. Young, intelligent and accomplished and only a few years elder, he was indeed "the" rival for the Bhagwatis to look out for, when, on October 8, 1946, the justice's son was enrolled as a high court advocate.
In fact, Chandrachud's own grandson, Abhinav Chandrachud, in his book Supreme Whispers gave a riveting account of this great rivalry between these distinguished jurists. He claimed that Bhagwati Senior was transferred out of the coveted original side to the appellate side of the court as advocate general H.M. Seervai complained against him to Chief Justice M.C. Chagla.
This is the story of that rivalry.
The race to Chief Justiceship
Unlike the Chandrachuds, the Bhagwatis were "a family of modest means but grand ambitions." However, unlike young Chandrachud, who was a law abiding and conformist, Prafullachandra Natwarlal Bhagwati was deeply influenced by the Indian independence struggle, which had reached a critical point, and the Quit India Movement had its epicenter at an open ground just a few kilometers from the Bombay high court, where both our protagonists would go on to practice.
Bhagwati was caught distributing the banned Congress Patrika and had to suffer a month's incarceration. On release, he again devoted himself to the underground activities of the Congress Socialist Party.
In December 1952, Chandrachud began to represent the Bombay government in the high court as an additional assistant government pleader. Four years later, in May 1956, he was promoted as assistant government pleader. In another two years, by June 1958, he was a government pleader. It was during this time that he appeared for the state in the infamous Nanavati Case.
In 1960 the Bombay state had been split on linguistic lines and Bhagwati, a Gujarati, had been invited to be a foundational member of the new high court. Bhagwati, like many Gujarati-speaking Bombay residents, was more attached to the city than to the new state carved out for Gujarati speakers.
The Gujarat Chief Justice designate, S.T. Desai, got father Bhagwati, who was his close friend, to nudge him and, at 38, on July 21, 1960, he became a judge of the newly minted Gujarat high court!
While Bhagwati's judicial career got cracking, Chandrachud met with a roadblock. Chief Justice B.P. Sinha in a speech at the Bombay bar had expressed an opinion that no lawyer should be elevated unless he was between the ages of 45 and 55 years. Abhinav Chandrachud claimed that Bombay high court Chief Justice Hashmatrai Khubchand Chainani took this as a formal mandate and refused to forward Chandrachud's name.
[Advocate Abhinav Chandrachud]
It was then left to Gajendragadkar, a fellow Maharashtrian and a sitting Supreme Court justice, who viewed himself as young Chandrachud's mentor, to clear the roadblocks. It is not without reason that, years later, in the middle of the Kesavananda Bharati hearings, when law minister H.R. Gokhale was trying to reach out to Chandrachud, who was a member of the bench, to get him on the government's side, the services of Gajendragadkar were requisitioned!
At the age of 40, as American scholar Gadbois said, "young especially by Bombay standards", Chandrachud became an additional judge of the Bombay high court on March 19, 1961.
Bhagwati beat Chandrachud in the race to be a high court chief justice as well! On September, 16, 1967, at only 45, Bhagwati was already chief justice. In fact, while Bhagwati would serve for six years as chief, Chandrachud would not have served even a day as one.
Conflicts within the ranks
While certain Gujarati justices in the top court had a soft spot for Bhagwati, the mighty Gajendragadkar looked out for the Maharashtrian, after all, the families had known each other for years and Chandrachud's uncle used to send work to Gajendragadkar, the lawyer. Chandrachud was twice-blessed. The Maharashtrian law minister Gokhale, a key member of Indira Gandhi's kitchen cabinet, was also rooting for him.
Abhinav Chandrachud wrote that justice J.C. Shah – not a personal favourite of Indira Gandhi, whose succession as Chief Justice of India, madam had tried her best to thwart but failed when Hidayatullah threatened her with resignation and embarrassment at the international jurists' conference that was to take place in Delhi – recommended to the then Chief Justice S.M. Sikri Bhagwati's name for elevation to the Supreme Court.
This was, however, vetoed by Shah's colleague in the bench, justice Shelat, who had also served as Gujarat high court chief justice, as he carried an impression that Bhagwati was "interested in pleasing the government".
Shelat seemed to recall a speech made by Bhagwati at a public function in Ahmedabad in 1970 or 1971, in the presence of law minister Gokhale – that all judges should be committed to the Congress. This had embarrassed even Gokhale who had to stand up and clarify that this was not what the government had in mind when it called for a "committed judiciary".
Shelat withdrew the nomination so that his protégé's future chances would not be hurt. Bhagwati, years later, in conversation with Gadbois, had speculated that Shelat's hostility towards him could be traced back to his family having spurned the marriage proposal of Shelat's daughter with his brother. Bhagwati claimed that Shelat never liked him since.
Abhinav Chandrachud claimed that justice Sikri had indicated that the relative ages of the two protagonists had been factored in while deciding who would be brought up first. Shelat's animosity towards Bhagwati also weighed against him. Justice Hegde, who thought Bhagwati was more qualified, tried his best to counter Shelat and prevail upon Sikri. Having failed, he assured Bhagwati that his would be the next appointment.
After Chandrachud was elevated to the top court, justice Jaganmohan Reddy, in his autobiography, wrote, "There was a grouse entertained by a Chief Justice of a High Court who, though junior, thought he should have been considered by reason of the office held by him. His attempts did not succeed."
After more than eleven years on the Bombay bench, when he was the third seniormost judge at 52, Chandrachud became the juniormost judge of the Supreme Court. Like the legendary Bombay high court Chief Justice M.C. Chagla, Chandrachud also had some reservations about giving up the high court. His two senior judge colleagues were about to retire soon, and he could look forward to serving as a chief justice of that premier high court for a decade.
Like many judges, Chandrachud may have done the math and sacrificed the crown of Bombay for the top seat in Delhi, which would be his for five and a half years after the retirement of A.K. Mukherjea in January 1980. Of course, what he did not know then was that Mukherjea would die in harness, leading to Mirza Hameedullah Beg getting to be Chief, only to retire early in 1978, giving him an even longer tenure. Of course, he almost did not even become chief justice of India, but we are getting ahead of ourselves.
Bhagwati finally caught up on July 17, 1973, after having served six years as chief justice. Even then he was only 51 when sworn into the Supreme Court.
When Beg was to demit office, the Janata Party government – many of whose ministers were détenues during Indira's Emergency, and whose pleas had been tossed out on the strength of concurring opinions of Chandrachud and Bhagwati – was in a dilemma. It was committed to not repeating Indira's errors in dealing with the judiciary.
Yet it could not also ignore the growing clamour of legal luminaries, retired judges, journalists and intellectuals that the tainted duo be bypassed for high judicial office as "they were both 'committed judges', whose SCI appointments at a relatively young age were the work of law minister H.R. Gokhale 'with an eye to guaranteeing the succession of committed judges' to the chief justiceship. They argued that 'to restore the convention of seniority now would be to perpetuate a hierarchy built upon commitment."
The legendary M.C. Chagla issued a statement that although he had known and "admired" Chandrachud for "decades", his opinion in the ADM Jabalpur case was a "grave misdeed" of such a magnitude that he was undeserving of being CJI. Recalling the iconic tribute to justice Khanna – the dissenting judge in that case – in the New York Times, Chagla warned that if indeed Chandrachud was made CJI, "we would be making ourselves the laughing stock of the whole judicial world".
Morarji curtly responded, "It is not the lawyers who will be making the appointment." While he did not commit himself to the seniority principle, his law minister Shanti Bhushan indicated that the government would consult all Supreme and high court judges. There were rumours that Nani Palkhivala had been approached to take oath as the first direct Chief Justice of India but he settled for an ambassadorship instead.
In February 1978, barely three days before Beg would demit office on 22nd February, papers reported that Morarji had ultimately followed the seniority rule! A couple of days later, Prime Minister Desai explained that of all the justices consulted, only two high court chief justices were of the opinion that Chandrachud should be made to pay for his conduct during the Emergency.
When asked to respond to Chagla's appeal, Morarji struck a note of reconciliation saying, "(The Emergency) was a time when everyone functioned in a state of fear and that cannot be forgotten."
The executive-judicial conflict
On February 22, 1978, when President Neelam Sanjiva Reddy swore in Chandrachud at the Rashtrapati Bhavan as the Chief Justice of India, with bhai Morarji Desai sitting in the audience, Chandrachud was 58
During Chandrachud's marathon tenure as Chief, with Bhagwati waiting in the wings, Gadbois reported that Bhagwati "had different views about who should be appointed and made these views known to the law ministers". It seemed often Chandrachud, on judicial appointments, would consult none of his colleagues and simply forward names. No wonder Gadbois concluded, "During his tenure, he had to battle on two fronts – with the executive and with some of his colleagues".
In fact, Abhinav Chandrachud wrote, "Bhagwati made Chandrachud's tenure as chief justice somewhat difficult", hinting that he vetoed two candidates Chandrachud had proposed – V.S. Deshpande and Chandurkar. Behind his back, claimed the grandson, the grandfather was betrayed when Bhagwati reached out to the prime minister and the president to blackball these names.
While the two protagonists tried to convey a picture of bonhomie, their rivalry was the court's worst kept secret. In S.P. Gupta's case (known as the First Judges Case), while Bhagwati, as the presiding judge hearing that case, compelled Chandrachud, as the chief justice, to file an affidavit, which raised many eyebrows, in his written opinion as a peace offering Bhagwati, cited an article written by Chandrachud's son Dhananjay Chandrachud, who would himself one day go on to sit in the same court.
This, the father found, was "generous on his part". He chose to ignore the fact that his affidavit filed as a sitting chief justice had been dismissed by his J1 in his judgement as "delightfully vague"! This sleight is also noticed by Fali Nariman.
Chandrachud, post retirement, sought to explain that, "(t)he general impression that all is not well between us arose because of observations made by him in his two judgements which, with respect, were somewhat harsh". He was referring to the First Judges Case and Minerva Mills.
In the Minerva Mills case, Bhagwati had opined that Chandrachud had not given sufficient opportunity for the judges to deliberate. Coomi Kapoor claimed that Bhagwati's charge of breach of the principle of "collectivism" by which all judges come to a decision, stood refuted by justices N.L. Untwala and P.S. Kailasam, who were on the Minerva Mills bench, in the form of a written note to Chandrachud. In fact, Rajeev Dhavan claimed that Chandrachud faced criticism for giving a free rein to Bhagwati in PIL matters.
Upendra Baxi minced no words when he described the period as a "seven-year war". He said, "Several articles were written in the press by supporters of both groups of justices."
Abhinav Chandrachud wrote, "Bhagwati himself considered Chandrachud to be a good judge but a weak leader". As a contemporary journalist, Coomi Kapoor noted that the "clash of ideologies and differences on the bench have spilled over into the open".
She made a note of the subtle manner in which Bhagwati sought to communicate this in a speech when he described his critics as "ostrich-like" and "trained in old British tradition of adversarial justice…their minds are fossilized and intellect suffering from jurisprudential pubescence".
On July 12, 1985, Chandrachud finally retired to make way for Bhagwati to take over. A small section of the bar boycotted his farewell for his role in the habeas corpus case and for backing an alleged corrupt contractor of the court canteen!
Bhagwati, who also spent 12 years in the apex court, finally emerged from the shadows! Unlike the cliff-hanger for Chandrachud, Rajiv Gandhi's Congress government announced well in advance on May 10, 1985, that Bhagwati would be the next chief.
In an interview to Shekhar Gupta, on demitting his office, Chandrachud said, "The threat from within (the judiciary) is the result of materialistic ambitions and lack of contentment."
Questioned about two judges calling out Bhagwati for his Minerva Mills remarks, he admitted the same and explained that his "constant endeavor has been to hold the court together, even at the cost of personal embarrassment. The institution has to be greater than the individuals who man it."
When prodded, he was more specific, "There have been no notable differences between me and my successor… No two individuals are alike and the approach of the judges at the level of the Supreme Court is bound to differ from person to person. There is not a single incident outside the court which can be pointed out as reflecting personal animosity between me and justice Bhagwati."
Significantly, when asked whether he was consulted on his successor, he said, "My unquestioned choice was Justice Bhagwati."
The other protagonist could not be left behind. As a sitting Chief Justice, Bhagwati also decided to give an interview to Sumit Mitra. This time, when he was asked about not being consulted by Chandrachud in the Minerva Mills case, he said, "I do not wish to enter into any controversy."
He denied that the Supreme Court was divided. "Today the entire team is with me." He summed up his career with the words, "Controversy has always chased me and I have faced it squarely."
Gadbois wrote how Chandrachud, a "man of the middle", had to struggle to balance the "personalities to his left and right". He concluded, "It could not have been much fun being CJI during those years." For Bhagwati, he wrote, "No one waited in the wings for the chief justiceship longer than Bhagwati. Throughout the entire Chandrachud regime, he was the seniormost associate judge".
V.D. Tulzapurkar, a common colleague of the protagonists on the bench, in a speech at a law college in Pune in 1982, a few years after Bhagwati's controversial congratulatory missive to Gandhi's electoral success against the Janata Party, summed up the tension on the bench best when he said that the threat to the judiciary came not from without but from within.
He wondered if a judge could maintain his appearance of impartiality "if he sends fawning and flattering congratulations to political leaders or if he goes to the airport or railway station with a garland or bouquet to see off the prime minister or other ministers". It is not without reason that professor Upendra Baxi described Tulzapurkar as the "chief public flagellator of the Supreme Court".
Noted constitutional jurist A.G. Noorani observed of the times: "In the past there might have been some words between a few judges. Justices Meher Chand Mahajan and Kania were hardly on the best of terms, but the present Supreme Court justices are wrangling like cats. There has never been such degree of pettiness and malice."
The court survived this conflict. The shame of surrender that haunted the court led it to atone in the years to come and emerge as a true champion of the people. There came a time, when the citizen, whose faith had been eroded from all the edifices of governance, turned to that court where our two protagonists sat for redemption. The court always survives. It has to.
Views are personal.
(Sanjoy Ghose is a labour lawyer in Delhi.)
This article was first published in The Wire.in