Anil Divan Foundation

Transcript

Dandiwala: Certain atmosphere was there. When we were all waiting with 13 empty chairs there and then they started trooping in. Before they walk in all those 13 peons would come and stand behind the chairs and hold the chairs for them to come and sit, so that it can be pushed forward. And all part of our, I think, British-era tradition. And then all of them trooped in. Initially there was just some pleasantries exchanged and brief introduction as to who is representing who and all that kind of thing ... And as I said, it was like, you feel you're part of some historical moment.

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Host: This is Yazdi Dandiwala, a partner at the law firm Mulla & Mulla and Craigie Blunt & CAroe. Dandiwala is 72, with a thick mop of grey hair and a measured, soft-spoken manner. We spoke to him at his office at Mulla House overlooking Mumbai’s iconic Flora Fountain. Here he is describing to us the first time he went to the Supreme Court 50 years ago. He was then a 21-year old law student working at the firm as an article clerk, a position roughly like an apprentice. By a quirk of fate, he ended up as the youngest member of the team that was about to argue a historic writ petition:

Dandiwala: I had joined as an article clerk with Mr DM Popat way back in around July of 1972. I was still doing my third year LLB at that time. And I had signed an articleship which was for a period of two years… So I was not involved initially in this matter. And as a young, raw, article clerk, Mr. Popat had a habit of just sending me to any conference where he was expected to be there. And my duty used to be to just be there and say “Mr Popat is on his way”. And so one day it was, I think the month of October, or maybe end September, I think October, he called me, “rush to the High Court library. We are having a conference with Mr. Divan and Mr. Thakore. Just tell them I am on my way.” 

Host: At a quarter to five, Dandiwala entered the 100 year-old-library to find the lawyers Anil Divan and Sandip Thakore hard at work. Divan, tall and strapping, Thakore, a slim, wiry man. He conveyed the message that Mr Popat was on his way. Divan smiled at him, and asked him who he was. For a few minutes, Dandiwala waited and watched as the men searched for a particular judgement of the United States Supreme Court. He offered to lend a hand.  

Dandiwala: So as I started looking at the books and by chance or whatever you call it, I could find that judgement. So they were very happy. I mean at least the citation I could find. So then one had to just go and take it out. He asked me okay, now very good, you go and get it. Then by that time Mr. Popat came so to my utter surprise Mr. Divan told Popat [in Gujarati] “Tame Yazdi ne saath leyee le jo”. So, Mr. Popat was a bit – “normally we don't take article clerks,” Divan said no, he'll be very helpful there. We need someone at his level also, and he will be good, you take him along. So that's how suddenly out of the blue I was involved in the matter.

Host: “Matter” is a word that Indian lawyers use colloquially to refer to a case. The matter Dandiwala is referring to was the monumental writ petition filed by Kesavananda Bharati, a monk from Kerala. An impressive line-up of lawyers had teamed up to argue his case, including former chief justice of the Bombay high court MC Chagla, India’s second attorney general, CK Daphtary, the newly-appointed senior advocates Anil Divan and Soli Sorabjee. Leading them was the formidable Nani Palkhivala. Other prominent names of the Bombay Bar, like the Maharashtra Advocate General HM Seervai and his junior TR Andhyarujina were missing from this team. They were across the courtroom, appearing for the government. Sitting beside them was the Attorney General for India, Niren De. Advocates -general of some of India’s other states filled up the second and third rows. It was down to these lawyers to argue and settle a constitutional conundrum that had first arisen 20 years ago, right after Independence: Did the Constitution give Parliament unquestioned power of amendment? If it did, was Parliament allowed to change any part of the Constitution—even the fundamental rights?

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Welcome back to Friend of the Court season 2, a series about the most important case in the legal history of independent India. I am your host Raghu Karnad. In the last episode we traced how Kesavananda Bharati’s petition arrived at the Supreme Court in 1970. And how it then grew in scope to challenge the newly passed 24th, 25th and 29th amendments. In this episode, we join courtroom proceedings, with Nani Palkhivala leading a blistering attack. 

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<Sound design: Song: Apni azadi ko hum hargiz nahi mita sakte…>

Host: Nani Palkhivala was the kind of legal star that could draw, well, actual stars into the courtroom. Like India’s biggest movie star, the heartthrob Dilip Kumar. 

Thakore: Dilip Kumar came. He knew me. He came to see Nani. He was in Delhi. He met Nani the previous evening. Next day he came to court. Most of them didn't know about Dilip Kumar. I knew because I knew him personally. He sat in the back row much behind where I was sitting. He sat for the whole day. 

Host: This is Sandip Thakore, one of the lawyers on Palkhivala’s team. Dilip Kumar attended the hearing at Thakore’s invitation. A news report from the time tells us he sat in the middle row. Though Thakore recalls little fanfare, the report says that several women rushed to the courtroom. The visitors’ gallery was packed. A matinee idol arriving in court to watch a major court case where he had no stake? Imagine if Shah Rukh Khan turned up one day at the NJAC hearings. Unusual, to say the least. But then so was the man Dilip Kumar had come to watch. 

[Beat]

Host: Nanabhoy Palkhivala, better known as Nani, came from a modest Parsi family. His surname harked back to ancestors who were palanquin or palkhi makers. Nani had overcome a childhood stutter through speaking exercises. He joined the Bombay bar in 1944 and soon became a sought-after lawyer for commercial and tax cases. By 1972, he was also a well-respected public intellectual. Audiences packed Brabourne stadium, Bombay’s famous test cricket venue, just to hear his annual speeches analysing the budget. Speeches from the 1970s are hard to find, but here’s a clip from one of the later ones. 

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Clip: Event organiser: Good evening ladies and gentlemen. May I have your attention please. I have a few announcements to make. Arrangements for drinking water at the two ends. There is a first aid centre at the main entrance. There is also an ambulance and a doctor at the West gate. We hope it won’t be necessary. But if at all, the bill will be sent to the finance ministry. (Crowd laughs). Mr. Palkhivala will be addressing public meetings in a number of other cities.. 

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There have been many requests for Mr. Palkhivala’s previous writing which are out of stock. Most of them have been brought together in a book under the title “We the People” which is now in the sixth edition. While you leave, please don’t rush at the same time. Because this huge crowd has come over two hours, don’t try to leave in five minutes… 

A different speaker introduces Palkhivala: Our faith in democracy will go on as long as people like Nani Palkhivala are there, so I give you Nani Palkhivala.  

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Host: On 31st October 1972, courtroom number 1 of the Supreme Court was jam packed, the air thick with anticipation. At 11.30am on that Tuesday morning Palkhivala, five-foot-seven, in his black robe and white collar, rose to address the bench. [beat] Justice Rohinton Nariman, a former Supreme Court judge, appeared with Palkhivala as a junior in another famous case in 1979, the Minerva Mills case. In perhaps one of the only interviews he has ever given, Nariman spoke to us about many things, including his senior. Here he is giving us a flavour of what Palkhivala was like in court:

Nariman: He was a man who – it was like an opera performance. I mean, I can't describe it any better. He was very nervous. In fact, he used to sweat before 10.30 when the court started, but the moment the judges came in, and he was on his feet, he was a different person. And he would address them in a very low voice.

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Host: Palkhivala’s decision to lead the arguments was a last-minute one. He’d missed out on weeks of preparatory work. But this wasn’t going to be a big problem for him. He’d already spoken and written extensively on the fallacies of the 24th and 25th amendments. Now, his job was to convince at least seven of the 13 judges that Parliament should not be trusted with absolute amending power.  

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Heading the bench was the congenial, 64-year old Chief Justice of India SM Sikri, who was originally from Lahore. He sat in the centre, and his 12 colleagues took their places to his left and right in order of seniority. They were all squeezed in, more tightly cramped than usual. During Sikri’s tenure, the government had started influencing appointments to the court. Although he retained his independence while picking the judges for the Kesavananda bench, by this time the court had been permeated by supposed government plants. 

Sikri ultimately managed a balancing act. TR Andhyarujina, one of the lawyers in the government’s team, later wrote a book about the case. In 2015 he spoke on the case at a public lecture organised by Vidhi Centre for Legal Policy. Here he is describing the off-stage drama in the composition of the bench:

Andhyarujina: They screened the new judges that were coming. And some of the judges. Not that they were duds or useless people, but they looked at their viewpoints and outlooks in life. Therefore, they said, each of these people were appointed and you had then judges who are like Justice Matthew from Kerala, a very learned person, but not at all in favour of this activism of the Supreme Court. Then they took other people, like Justice Palekar who is a very humble person, from the Bombay high court… 

Then, they brought in the youngest judge… Justice Chandrachud. And then Indira Gandhi said that I'd like to have two of my judges, and if you please, I must have Justice Beg whom she knew quite well and Justice Beg was quite close to Indira Gandhi. Chief Justice Sikri didn't like him but what could you do? So he had to accept Beg. Then Indira Gandhi also insisted that I must have a judge called Justice Dwivedi who is also from Allahabad and Justice Sikri didn't like that. But nevertheless Dwivedi was brought. And on the day he was selected, he went and made a public speech saying I'm going to Delhi to the Supreme Court to reverse Golak Nath's case… Chief Justice Sikri said I'd like to have Justice Khanna and he was taken and he proved to be the decisive judge in this case… So, in one sense, you might say, the government of the day, realising that you must have judges who were independent, non-conservative, they, in one sense, tried to pack the court. Even in this 13 judges bench we have our own judges with our own liking.  

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Host: Some of the judges on the bench, such as Justices Sikri, Shelat and Hegde, had already ruled against the government in important cases. Justice AN Ray had consistently ruled in the government’s favour. Others like Justices Beg and Dwivedi were seen as pro-government. So from the outset, the divisions were apparent. Dandiwala gives us the petitioners’ impressions: 

Dandiwala: And we knew some judges are kind of more liberal than the others. So that thing was there. And whenever you are arguing before a bench you try to keep in mind, normally you have two or three judges or maximum five judges. So you keep in mind which judge has what kind of approach and you try to fine tune your arguments so that it meets all their requirements. Here when you're arguing before 13 people. It's extremely difficult to. you just then have to rely on the correctness of what you are urging.

Host: Early on in the hearings, Sikri took the petitioners by surprise. He asked Palkhivala not to get into the Golak Nath ruling, and instead argue about the scope of the amending power. Palkhivala conceded and opened his arguments by attacking the 24th amendment. Of course Parliament could amend the Constitution, he said. But he was concerned about the extent to which Parliament could exercise this power. Palkhivala called Parliament just a “creature of the Constitution,” which meant that there were implied limitations on its amending power. To hammer the point home Palkhivala urged the bench to look at the basic democratic structure, or the spirit behind the written text of the Constitution. Dandiwala tells us more:

Dandiwala: Look, you cannot have a situation where the Parliament can completely ignore or completely destroy this Constitution. Because the Constitution has provisions for amendment so therefore, it's not as if the Constitution was not envisaged to be amended. But you have to draw a line somewhere. You cannot allow the complete annihilation or destruction of the Constitution. Once you accept that, then the point is, where do you draw the line?

Host: Palkhivala deconstructed the meaning of the term amendment in Article 368. He said it only laid out the amending procedure; it did not give Parliament unlimited power to amend. The core of his arguments was that Parliament had a narrow amending power, not an extensive one. Senior lawyer Arvind Datar explains:

Datar: What is the meaning of amendment in Article 368? So he says: What does amendment mean? Does it mean what it means? Does it mean to amend or does it mean it can include repeal, abrogation, substitution, what does it mean? 

Host: Palkhivala came up with a catchphrase: amend does not mean destroy. Certain essential features could not be amended. He emphasised his point with simple examples. For instance, could Parliament turn the country into a monarchy if it had the requisite numbers?  

Datar: You say, one point is, it's a republican form of government. When you can make it into a monarchy, then it's not the Constitution at all. You can't say there'll be no judicial review, then there is no constitution.

Host: Parliament was a temporarily elected five-year body. And it was a paradox to suggest that Parliament had unlimited powers to amend what Palkhivala called “essential features”. Palkhivala went on and on about essential features, even if it never became clear what they were. At one point, a confused Justice Grover asked if judges should depend on their intuition to decide which features were essential. Palkhivala was able to offer a few examples in response. Datar explains:

Datar: He lists 12 essential features. The 12 essential features I recollect, one is of course, he says that republican Constitution, federalism, secularism, right to free speech, religion, equality, these are basic rights, then the federal structure of our Constitution, the independence of the judiciary, the separation of powers, so he lists 12 things which he says are part of the Constitution. And if you take away any one of them, there is no real Constitution at all. When you talk of essential features. It's like the scaffolding on which the whole Constitution is built. You remove the scaffolding then the building won’t stand. 

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Host: His arguments provoked a barrage of questions from the bench. Here’s Dandiwala again: 

Dandiwala: When he had started arguing, I still remember the very first day or two my god there was like each and every judge had something to say. They would hardly let him speak. You know if you can imagine 13 people sitting and literally you've to turn your face to look at one from the other. One guy would ask something, while you're about to answer somebody will again interject and say yes, yes. But even you have to consider this. And as a counsel I think he found it frustrating because counsel has to be allowed to build up his argument to them. This was an important case, this was not some press conference… 

Host: Justice Ray asked: could implied limitations be found in a written Constitution? Justice Palekar asked: were there any unalterable Constitutions? Justice Shelat commented that Palkhivala’s arguments were interesting academic discussions. But for Palkhivala, it was exactly the reason why this case was being heard: to settle perplexing constitutional debates that had been raging since the dawn of the republic. 

[Beat]

One evening, a frustrated Palkhivala turned to his old friend and senior colleague CK Daphtary, lamenting the lack of progress. Daphtary was known for his sense of humour and sparkling repartee. He diplomatically came to his friend’s rescue. He met Chief Justice Sikri at a social event. Sikri asked him why he was not coming to court. Daphtary replied that he was not able to come daily, but he was getting updates on the matter. Dandiwala: 

Dandiwala: CK Daphtary is supposed to have brought them in line… CK Daphtary told the bench… “You know, I have a young niece or somebody who is very much interested in matter, so I asked her: how does she like the hearing? So she said, yes, it was very good, the way the learned  judges were discussing but who was that young chap who was continuously trying to interfere in their…” (laughs).. So I think they got the hint. So thereafter, he was given the requisite time. And I mean, of course, there were questions. Nobody prevents them from doing but at least they respected the fact that he should be allowed to argue. 

Host: This astute young woman did not in fact exist. According to Anil Divan, the niece was invented by Daphtary to politely convey Palkhivala’s frustrations to the Chief Justice. The judges got the message. After that, they let Palkhivala proceed. 

[Beat]

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Then, Palkhivala turned to Article 13. This was the article which said that no law could violate fundamental rights. The government was saying it did not apply to constitutional amendments.  Palkhivala vehemently disagreed. Datar explains:

Datar: He says there are two most important questions to be decided. What is the meaning of word law? What does law mean in Article 13 (2)? Because that article says no law can take away fundamental rights. So will the law mean an ordinary parliamentary law or will it also include constitutional amendments? This is the first important question: what is law?

Host: Palkhivala contended that the term law in Article 13 alluded to every type of legislation and executive action. Constitutional amendments were simply a species of legislation. They were not above the Constitution. And like other species of legislation, the courts could review the actual substance of constitutional amendments and not just the procedure by which they were passed. 

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[Beat]

Host: As Palkhivala meticulously laid out his arguments, the judges were getting impatient. They were also mired in their own internal dynamics. Justice Jaganmohan Reddy later narrated this in his memoir. Justices Beg and Dwivedi were feeling sidelined by Palkhivala. They felt he was responding with more enthusiasm to Justices Sikri, Shelat, Hegde and Grover. One day, after court closed, the judges met in the Chief Justice’s chambers. Some of the judges complained that Palkhivala was using the hearings to sway public opinion against the government. Justice Ray suggested that Palkhivala was repeating himself and his time should be curtailed. But once again, Palkhivala was allowed to continue at his own pace. About a month after he began his arguments, he turned to the nature of fundamental rights:

Datar: One important point he made was that fundamental rights are like natural rights. He said that, when you give me the right to liberty, he says the Constitution is not giving me life and liberty. I already got life and liberty, it is being protected by the Constitution. He said there are certain inherent rights in a human being. So these are constitutionally protected. No government can be tyrannical or dictatorial and take away that right. So he talks of fundamental rights, or at least some of them being natural rights, which inhere in every civilised society. Right to practise my religion, right to say what I want, subject to defamation, etc. These are all natural rights. 

Host: Modern democracies generally agree that all human beings automatically have certain rights. An individual can’t be enslaved; freedom is her natural condition. This was the tack Palkhivala defended. He argued that the Constitution doesn’t grant rights as fundamental as these ones. It protects these rights against the excesses of the state. It was absurd to suggest that a Parliament that was in power for a limited term could do away with these protections. 

[Beat]

Palkhivala was the face of the case but behind the scenes was a diligent team of lawyers that included Anil Divan and Sandip Thakore. We found records of their preparations in the Kesavananda Bharati files at Anil Divan’s office. It looks like every evening, assisting counsel like Divan and Thakore dictated the minutes of the day, the questions from the bench and a list of things to do. These were in turn cyclostyled – an early form of photocopying – and distributed to the others. These to-do lists included tasks like looking up specific judgements and scholarly articles to answer judges’ queries. Just the answers prepared by Divan and Thakore run into hundreds of pages. The team was working with so much material that they simply couldn’t physically bring all of it to court. One day during the lunch break, Palkhivala turned to Popat, whom he fondly called Babu, and asked him for a favour. For his arguments in the afternoon he needed a book that was lying at their hotel. Popat, Dandiwala and two others went back to the Oberoi, near the Delhi Golf Club, to fetch it. On their way back, they climbed into an Ambassador taxi, wth Popat sitting in the front. They were in a rush, and asked the driver to hurry. This was Delhi, in 1972, a city filled with road diversions. Dandiwala describes what happened next:

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Dandiwala: Now at one particular spot, he ought to have taken a right turn to take us straight there. And instead Mr Popat saw he's going straight. So he told him, no no take a right. He argued, “idhar se right nahi ja sakta hai”. We told him, look we are going twice a day so don't tell us, we know you can go, please go. And Mr. Popat told him rather strongly, look we are getting late just go, come on. So instead of going he stopped the taxi and got out, you can’t talk to me like this I'm not going anywhere. And he left the keys inside the car. He just did not react so Mr. Popat just slid across the bench seat of the Ambassador car. He was in his black jacket, band and everything and took the taxi. And we went to the Supreme Court and at the Supreme Court gate also that chap was looking at us, since when are the lawyers driving taxis? So we went inside, we parked the taxi where all the cars were parked and locked it and he took the key with him and we sat in the afternoon session. At the end of the session Mr Popat sent me and Shardul to find out and pay his waiting charges. 

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Host: Dandiwala laughs about it all these years later, and admits this was something like a hijacking. By this point, the weather was turning cooler, and Dandiwala was enjoying his first winter experience in Delhi. He even celebrated his 22nd birthday around this time. Meanwhile, inside the courtroom, Palkhivala was working his way into the home stretch. 

He reminded the bench of dark episodes from history, mainly Germany’s descent into authoritarianism in the 1930s. Palkhivala relied on Dieter Conrad’s article to make his point. Conrad had argued that the rampant use of the Weimar Constitution’s emergency powers and the amendment clause led to the collapse of democracy. Hitler ultimately used those powers to legitimise his rule. Here’s Datar:

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Datar: Some judges told him you cannot argue on the basis of fear. We are not Nazi Germany. But he was trying to put forth the point that look, this Constitution is for generations to come. And you must have a system in place where even a person with the worst of intentions can't touch the liberties of people.

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Host: On 5th December, as Palkhivala threaded his way through these arguments, a startling suggestion came from the bench. 

Andhyarujina: Justice Dwivedi the chap who came from Allahabad saying I’m going to reverse Golak Nath. He told Mr. Palkhivala, “Mr. Palkhivala supposing I procure for you an amendment of the Constitution for the right to property and I guarantee that there will be no other amendment, will you accept it?” Palkhivala was aghast. How is this judge saying I’ll procure it for you? 

Host: That was Andhyarujina, one of the government counsels. In his book he says, the Chief Justice visibly protested, and looked disapprovingly at his colleague. It came across as if the judge was negotiating on behalf of the government; Justice Reddy recalled in his memoir that he received a call from Justice Dwivedi later that night at 9.30pm. He told Reddy that he only meant to ask if Palkhivala would be satisfied if Parliament made a concession: declare that no fundamental right could be amended, except the right to property. But that was a concession Palkhivala was unlikely to make. Soon after this exchange, Palkhivala began his defence of property rights.

[Beat]

So far he had attacked the 24th amendment. Now he turned to the 25th. This amendment targeted the right to property, which Palkhivala called an “essential feature” of the Constitution. He attacked the amendment for allowing the government to fix an arbitrary amount as compensation for the property it acquired.

But he saved his most blistering attack for Article 31C, another part of this 25th amendment. This was the clause that said laws violating the fundamental rights of equality, freedom and property could not be taken to court, if those laws were meant for the common good. Palkhivala called it “a monstrous outrage”. The government said this amendment was necessary to prevent the concentration of wealth in a few hands. But Palkhivala argued that it enabled the government to take over any private property on a whim. Besides, it had an even more dangerous dimension. By extension, it gave the government unquestioned power to arrest political opponents or sign death warrants, if it did so on the basis of a “common good”—a vaguely defined idea in the Directive Principles. On hearing this, the Attorney General rose to his feet and attacked Palkhivala for reducing the government to “a bunch of crooks”.  

[Beat]

On 20th December 1972, Palkhivala was nearly done. Dandiwala describes the mood in the petitioners’ camp:

Dandiwala: They were confident it was going well, but still considering the nature of the relief and considering the kind of indirect pressure which the government was obviously putting, that apprehension was there whether there will be sufficient number who would support this argument?

Host: According to the constitutional historian Granville Austin, Indira Gandhi’s coterie was actively seeking information from the bench to try and influence the outcome. For almost two months, government counsel and Palkhivala’s long-time friend, HM Seervai, had sat across him patiently listening to his points. Palkhivala found his friend’s position in this case curious. Dandiwala again:

Dandiwala: In fact, we were all surprised. Seervai was taking a stand which was against what we all expected him to do. As a perso n he was outstanding, apart from being an outstanding lawyer, he was a great human being and extremely straightforward guy who would not ever think even when arguing in courts, he would never think of doing anything wrong. Like say, not telling all the facts or suppressing anything or suppressing any judgement, it was unthinkable Seervai would. If Seervai said something you can accept it as the last word like and when a guy of that stature is going to argue that no, Parliament should be allowed to do whatever it wants, it was a kind of slight disappointment.

Host: Palkhivala had saved his most tactical assault for the very end. Even if it risked damaging a close personal friendship. 

By this point, Dandiwala, somewhat homesick for Bombay, and running low on college attendance, had left. But Sandip Thakore was still around. He recalls Palkhivala’s words:

Thakore: Tomorrow, your lordships. I am going to surprise your lordships about an article written by a well-known constitutional lawyer and your lordships know about him. 

Host: On the last day of arguments, Palkhivala stood up and told the court: “I will end as I began, with a few well-chosen and well-phrased words of a distinguished lawyer. I would however request your lordships not to read the name of the author.” Palkhivala then paused to hand over a sheaf of papers to the court master. He again reminded the judges not to read the name of the author. “Because if you do,” he said, “you will not believe your eyes.” Let’s hear more from Andhyarujina: 

Andhyarujina: Palkhivala was a great master of strategy. Seervai when he was not the advocate general had written in the Times of India, a couple of articles criticising amendments to property rights, that they were wrong. Very cleverly, Palkhivala wanted to make use of that. One day I saw outside the Supreme Court, a big Times of India sheet there. And I realised they were going to make use of Seervai’s article on the last day. I told Seervai they are going to make use of it. He said never mind. Palkhivala said at the end of the speech I’m going to refer to an article. Don't look at who’s written it. But am reading out to you. And he referred to Seervai’s article. There was total consternation and laughter in the court. 

Host: Seervai’s articles published back in 1955, slammed the Fourth Amendment bill which proposed to dilute property rights. Ironically, here he was 17 years later, arguing the very opposite position. In his response to Palkhivala in court, Seervai stiffly said, “I shall reply to this”. At 4.05pm, when Palkhivala was finally done, Justice Hegde remarked: “this shows the dangers of judges and lawyers writing articles”. 

Seervai and Palkhivala’s friendship took some time to recover after this – so Andhyarujina tells us. But Palkhivala’s arguments were done, and the court broke for the winter vacation soon after. When it reopened, Daphtary, Chagla and Sorabjee would conclude their arguments for the petitioners. And then it would be the government’s turn. Join us next time to hear about the government’s case in court, the ego clashes, a conciliatory tea party and the spirited fightback from HM Seervai and Niren De.