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Fragments From A Manuscript

It often falls on archaeologists and historians to reconstruct civilizations and their cultures from a shard of pottery or the remnants of parchment. In contrast, the tools of law require us to sift through the dross and distill the ratio of a decision.  We lawyers are trained to ignore distractions of what might have happened in court and focus on the eventual outcome and the principle laid. Nevertheless, at times of repose we often drift into imagining the theatre that played out in the courtroom when great cases were heard.

Offered here are a few fragments of what happened in court during Kesavananda Bharati,[1] arguably the most significant decision by the Indian Supreme Court.   These manuscripts may hold your interest because they draw on the personal records of two stalwarts who attended the hearings and later wrote on the landmark case.

In Kesavananda Bharati, the petitioners assailed the 24th, 25th, 26th and 29th amendments to the Constitution. The thrust of the petitioner’s case was to protect the fundamental right to property, guaranteed under Article 19(1)(f) of the Constitution. The respondents led by H.M. Seervai, Advocate General of Maharashtra, contended that fundamental rights were amenable to amendments and could be abrogated.

My father, Anil B. Divan[2] maintained hand written notes of the hearings[3] that began at 11 a.m. on Tuesday, October 31, 1972. Nani A. Palkhivala[4] opened the case for the petitioners and argued for 30 days. He was followed on January 8, 1973 by C.K. Daphtary, M.C. Chagla, Soli J. Sorabjee and other counsel who concluded their submissions on the same day. On Tuesday January 9, 1973 Seervai commenced his submissions and soon articulated two basic postulates of democracy: (1) faith in human beings, and (2) faith in human reason.  Assisting Seervai was my senior, Tehmtan R. Andhyarujina who maintained a daily diary of the hearings. T.R. Andhyarujina drew on this diary and other primary sources from the records of the Supreme Court to capture the twists and turns in the case.[5]

The Supreme Court Bench of 13 Judges was presided over by Chief Justice S. M. Sikri.[6] The Chief Justice was to retire on April 25, 1973, raising a deadline for deliberations and judgment.

On the 30th day of the proceedings, this is how Palkhivala concluded his arguments before the winter recess:[7]

Thursday, December 21, 1972
30th hearing
3:40 pm

The punch in Palkhivala’s closing submission is revealed on a reading of Seervai’s passionate defence of the right to property, in a series of three articles that appeared in the Times of India seventeen years before Kesavananda was argued.

                                                                             Fundamental rights
                                                                              I – A Basic Issue [1]
By H.M. Seervai

 “Is it too much to hope that the Prime Minister who is never afraid to admit a mistake, will realize that his bill rests upon a demonstrably wrong interpretation of the Supreme Court Judgment,[2] and that the cause which the Supreme Court has vindicated is also his own cause – because of freedom and justice for the inhabitants of India? He will abandon article (2A) (proposed to be added in article 31) since it provides for an unjust deprivation of property.”

                                                                                 Fundamental rights
                                                                II – No Compensation for Shareholders
                                                                                        By H.M. Seervai

ANXIOUS THOUGHT

Is it not time that we rekindled the inspiration which led to the enactment of fundamental right? The Prime Minister and the distinguished Statesmen and Lawyers who framed our Constitution did not enact Article 19(f) and (g) and Article 31 without the most anxious thought.  They found in the Constitutions of great Democracies that acquisition of property was on the basis of just compensation.  The Constitution of India,  like those of these democracies, was also designed to secure basic human freedoms; equality before the law, freedom of person, of speech, or association and of religion. It was realised that for all practical purposes these freedoms would come to nothing if the freedom to carry on a business, trade, profession or calling, the freedom to acquire, hold and dispose of property and the freedom from deprivation of property was not also secured.

 * * *

 SOCIAL WELFARE

 When, therefore, we are told that fundamental rights prevent Social Welfare Legislation, we can answer: we dispute the fact.  The State has taken over Joint Stock Companies, Railways, Telephone systems, Air Transport, on the payment of just compensation and so promoted social welfare.  But even if the guarantee of Fundamental Rights prevents or retards “Social Welfare” Legislation we must maintain that there is no higher social welfare than the bringing up free and upright people living under Constitution which puts it beyond anybody’s power to take an Indian’s life by taking the means whereby he lives; as long as the means are not immoral.  It would be a strange paradox if “Social Welfare” legislation which is designed to increase the material wealth of the people was accompanied by legislation rendering that wealth insecured when earned. It would be a still stranger paradox to fight Communist tyranny by borrowing the  Communist’s own weapon of confiscation and suspension of Constitutional Guarantee “in the national interest.”

 If the effect of the amendments on the economic and moral life of the country will be grave, the effect on the young democracy of India will be disastrous since the Constitution will have been treated as an ordinary law to be changed at the will of the party in power.  If today freedom from unjust deprivation of property and business can be brushed aside in “the national interest”, the freedom of speech and association could also be brushed aside, if the Government of tomorrow thought that “national interest” required a strong Government whose dictates must be unquestioningly obeyed.

 On 26th January, 1950, we lifted up our heads because our Constitution decreed that all Governments in India were to work within the framework of fundamental human freedoms. Must we, five years later, lower our heads by saying that there are no fundamental freedoms; that the Constitution did not mean what it said when it guaranteed fundamental rights, that there is nothing fundamental except the Government of the day?

On the third day of his submissions, Seervai was momentarily distracted by the lingering effect of Palkhivala’s closing flourish:[1]

Thursday, January 11, 1973
34th hearing (Dictated by A.B.D.)

Attorney General Niren De and Solicitor General Lal Narain Sinha followed Seervai and concluded their submissions on March 14, 1973 leaving four days for the petitioners to rejoin.

Mid-way through Palkhivala’s rejoinder Justice Beg fell ill again and the Chief Justice called a second chamber meeting with Judges and counsels present.  The tense exchange is captured in these minutes: [1]

On March 23, 1973 the bench assembled in court without Justice Beg “in a tense atmosphere”.[1] Before the Chief Justice could state his decision, Palkhivala diffused the tension by requesting that the hearing may be treated as closed and that he would file written submissions.

Today, My Lords, is the 67th day of the hearing of the case and tomorrow is scheduled to be the last day.  This case, My Lords, is beyond question one of the most momentous in world history and probably the most important in the history of democracy and, My Lords, it would be a thousand pities if the real legal issues arising in the case get clouded or sidetracked by pettiness, bitterness or acrimony.   I have, My Lords, therefore, been thinking over the matter arising out of the unfortunate illness of the Hon’ble Mr. Justice Beg.  If my learned friends are anxious that the Hon’ble Mr. Justice Beg should participate in the judgment, let me make it abundantly clear that the Petitioner is no less eager that every single one of your Lordships, including the Hon’ble Mr. Justice Beg, should participate in the judgment.

 It has been suggested that the Hon’ble Mr. Justice Beg may feel better and may be able to take part in the formulation of the judgment. If, My Lords, this is the possibility, I would be as happy as anyone else in this Court room if the Hon’ble Mr. Justice Beg can take part in the Judgment.  If this has to happen, My Lords, question is whether I should continue with my oral arguments or request your Lordships to treat the oral arguments as closed and ask for liberty to put in my brief points of reply in writing say by tomorrow evening or Sunday morning. [2]

Justice Beg recovered from his illness and the judgments of the court were delivered on April 24, 1973. Chief Justice Sikri retired on April 25, 1973. The government superseded the three senior-most judges of the Supreme Court — Justices Shelat, Hegde and Grover by appointing Justice A.N. Ray as Chief Justice of India.  The three superseded judges who had decided Kesavananda Bharati against the government promptly resigned.

Author is a Senior Supreme Court Lawyer

 (Published with the permission of the Supreme Court of India. This article appeared in the Supreme Court of India’s publication “The Constitution at 67” (2017))

[1] T. R. Andhyarujina, The Kesavananda Bharati Case : The  Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 36 (2011, Universal).

[2] T. R. Andhyarujina, The Kesavananda Bharati Case : The  Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 37 (2011, Universal).

[1] Typed record of minutes prepared by Anil B. Divan. Also see T. R. Andhyarujina, The Kesavananda Bharati Case : The  Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 34-36 (2011, Universal).

[1] This excerpt is from typed notes prepared by Anil B. Divan. The typed notes are based on separate hand written notes recorded in court.

[1] Excerpt from Times of India – Bombay Edition dated February 14, 1955 at page 6 Columns 7-8. Cyclostyled copy of article tendered by Palkhivala to the Supreme Court. Page 1222, Vol. IV, Papers of Anil B. Divan.

[2] Seervai was referring to Prime Minister Nehru and the Sholapur Mills case, reported as Chiranjit Lal Chowdhuri v. Union of India & Ors. (1950) SCR 869.

[1] His Holiness Kesavananda Bharati Sripadagalveru v. State of Kerala,  1973 Supp SCR 1; (1973) 4 SCC 225; AIR 1973 SC 1461.

[2] Referred to as “ABD” in the documents excerpted here.

[3] Apart from these notes, Mr. Anil B. Divan has written about Kesavananda Bharati in “Nani Palkhivala – Some Personal Glimpses – The Fundamental Rights Case” and “H.M. Seervai – Random Memories and Recollections” in Anil Divan, On the Front Foot :  Writings on Courts, Press and Personalities at pages 275 and 286 (2nd Ed., 2017, Universal). Mr. Divan appeared on the side of the petitioners for sugar factories in Maharashtra  and writes that till 10 days before the commencement of the case, Palkhivala was undecided whether he would accept the brief and M.C. Chagla was to lead the arguments.

[4] Referred to as “NAP” in some of the documents excerpted here.

[5] T. R. Andhyarujina, The Kesavananda Bharati Case : The  Untold Story of Struggle for Supremacy by Supreme Court and Parliament (2011, Universal).

[6] The other justices on the Bench were J.M. Shelat, K. S. Hegde, A.N. Grover, A.N. Ray, P. Jaganmohan Reddy, D.G. Palekar, H. R. Khanna, K. K. Mathew, M.H. Beg, S.N. Dwivedi, A.K. Mukherjea and Y. V. Chandrachud.

[7] Hand written manuscript of hearing maintained by Anil B. Divan.

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