On our Republic Day, four persons, all four trained in law, come powerfully to mind — BR Ambedkar, the first law minister of independent India who is celebrated as the architect of the Constitution, Rajendra Prasad, the first President of the Republic, respected for helming it with dignity and distinction, Jawaharlal Nehru, our first Prime Minister (PM) who, in the words of another lawyer-statesman, C Rajagopalachari, commanded universal love, and Sardar Vallabhbhai Patel, our first deputy PM, who commanded universal trust — a combination in leadership that cannot be bettered by chance or design.
In saluting their memories on each anniversary of its founding, the Republic of India salutes the sagacity and statesmanship shown by these four, along with other founders of the nation — men and women of whom any country that believes in liberty and the rule of law would be proud.
But this column today is going to dwell not on those four phenomenal stalwarts, but four others, also from the legal community, for their role in ensuring what is essential to a country and its Constitution — its fostering, nurturing, protecting from the ill-winds of external assault and internal corrosion.
The first of these four is Mahommedali Currim Chagla (1900–1981), the first Indian to be appointed chief justice of the Bombay High Court, who went on to serve the nation as a cabinet minister and ambassador, but is perhaps best remembered for his fearless independence from his own society’s prejudices as well as the State’s predispositions. Chagla was, for instance, a doughty advocate of a Uniform Civil Code, and an inveterate opponent of the domination by one party or ideology, for example, in the matter of linguistic supremacism. Atal Bihari Vajpayee described Chagla as “a great citizen, a great judge and above all, a great human being”. Jayaprakash Narayan was to describe this uncompromising opponent of authoritarianism in the following words: “[Chagla’s] crowning glory came during the Emergency which stirred the innermost recesses of his heart and he became a beacon — rallying point — of the forces struggling to recover our freedom and democracy.”
The second is Hormusjee Maneckji Seervai (1906–1996), who drew his last breath, incidentally, on Republic Day, 1996. Having declined an offer of becoming the attorney general of India and the opportunity of elevation to the bench of the Supreme Court, this foremost of constitutional authorities and star of Bombay advocates is to be remembered for a quality that is so rare today. A readiness to acknowledge an error and rectify one’s erroneous and damaging opinion is now practically unknown. In 1972, in Kesavananda Bharati v. the State of KeralaSeervai argued with zest for 22 days that Parliament had powers to amend the Constitution “without limit”.
His position, the same as that of the State, was overruled by a wafer-thin majority in a judgment that protected — and holds the fort to this day — the basic structure of the Constitution from any alteration. But by 1975, when he saw the ruling party moving to amend the Constitution’s essential being, he had the intellectual honesty to admit his misjudgment. Deriding the “…equating [of] the amending power to the power of an absolute ruler of Indian States to issue firmans in which it was not possible to make any distinction between legislative, executive and judicial powers, since the ruler’s word was law…,” Seervai showed what Justice Rohinton Nariman has described as “the courage to change his mind and wholeheartedly accept the basic structure doctrine.”
The third is justice Hans Raj Khanna (1912-2008), born to a family of modest means in Amritsar but rising by dint of sheer and stunning merit to the high seat of Supreme Court judge. He was among the slimmest of slim majority of judges that ruled in Kesavananda Bharati for the inviolability of the Constitution’s basic structure. What makes Justice Khanna nothing short of a jurisprudential immortal is his order in the 1976 case known famously as the Habeas Corpus case (the landmark ADM Jabalpur v. Shivkant Shukla case), which was fought in the high noon of the Emergency. This time, Justice Khanna was in a minority, the four-member majority headed by then Chief Justice of India PN Bhagwati. The majority ruling in that case was that a person’s right to not be unlawfully detained (ie habeas corpus) can be suspended in the interest of the State. In his dissenting order Justice Khanna described detention without trial as “an anathema”. He quoted the great American jurist Charles Evans Hughes to say, “Dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day…”
The last and fourth champion of the Republic I would like to refer to today is Justice Leila Seth (1930-2017), the first woman judge in the Delhi High Court and the first woman to become chief justice of a state High Court (Himachal Pradesh). While her position on rape laws, the impact of television serials on child-minds, and her amazingly fresh stand in favor of LGBTQIA rights are well-known, I want to cite a deeper thought of hers: ‘In an uncertain and troubled neighbourhood, it is our secular and balanced constitution scheme that has kept India, for all the troubles we have gone through, from the worst problems that have beset the countries around us. When religious and regional hatred arise, we should remember that the greatest religion is that of decent behavior towards each other.’
Leila Seth had the following words kept under a sheet of glass on her desk: My religion is to love justice, to long for the right, to love mercy, to pity suffering, to assist the weak, to forgive wrongs and remember benefits, to love the truth…
I dedicate this column to the memories of two fearless keepers of our Constitution’s conscience — NA Palkhivala (1920-2002) and Fali S Nariman (1929-2024).
Gopalkrishna Gandhi is a student of modern Indian history and the author of The Undying Light: A Personal History of Independent India. The views expressed are personal
