Anil Divan Foundation

Justice Rohinton Nariman: I did attend his opening speech. And that made an indelible impression on me, because I remember he didn't touch any papers. And he just got up and he addressed the court for two hours. And there was a pin-drop silence, nobody said a word…. 

 

Host: It’s noon on 9th January 1973. You’re in the large central hall of courtroom number 1 of the Supreme Court. There are thirteen judges sitting in their high-backed chairs on the raised platform. The portraits of two former chief justices stare down from the walls. And Homi Maneckji Seervai, is standing up to deliver his opening address for the government. 

Nariman: Nothing sticks in my mind except the fact that he held all the judges in rapt attention. I can only remember it was a very powerful oration because Seervai was a very powerful speaker. So whatever he said, the judges were just sitting and listening to him like students… 

 

Host: You just heard Justice Rohinton Nariman tell us what that was like. Years later, Nariman was to be on this very Supreme Court bench, listening to lawyers argue some of the country’s gravest legal questions before him. But on that winter day in 1973 he was a transfixed 16-year-old school boy.

 

Welcome back to Friend of the Court. I am your host Raghu Karnad. As we heard last time, the court had been hearing arguments in Kesavananda Bharati vs State of Kerala since October 1972. The petition challenged the validity of the 24th, 25th and 29th amendments. These gave Parliament unlimited power to amend the Constitution and downgraded certain fundamental rights. For two months, Nani Palkhivala had argued on behalf of the petitioners. He told the court that there were limits on what Parliament could change in the Constitution; that it could not alter its essential features, including the fundamental rights. Now, it was the government’s turn to respond. 

 

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Host: HM Seervai was widely regarded as one of the country’s finest constitutional minds. The bespectacled 66-year-old Parsi was the first to enter the legal profession from his family when he joined the Bombay bar in 1929. He rose to the office of Advocate General for Maharashtra. 

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He came to court impeccably dressed in his winged collars and tailcoat, formalwear that harked back to another era. He loved poetry and often quoted Wordsworth and Keats. A staunch teetotaller, he had made his name defending the Bombay government’s policy of Prohibition in court – that’s the policy that regulated drinking. He rarely took on more than one case at a time, and took only those he strongly believed in. Seervai turned down opportunities both to become a Supreme court judge, and later Attorney General for India. His passion project was writing a critical commentary on the constitution called Constitutional Law of India. First published in 1967, it remains a must-read text for lawyers to this day. 

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Kirby: Well, in Australia it is very rare to combine a scholar with a leading advocate. But Seervai was both. He also wrote his magnificent book. It's a very idiosyncratic book. It's full of criticism of the judges, which most advocates will hold their tongue about; in case from the bench, they get a bit of retaliation and resentment. 

 

Host: Justice Michael Kirby, a former judge of the Australian High Court, has extensively studied Seervai’s work. In 2007, Kirby delivered the Seervai Centenary Memorial Lecture at the Bombay high court. He told us more about the man:

He didn't hesitate to criticise, and he did it in very strong language, and to an outsider who is brought up in the super-polite world of Anglo Australian, Canadian, New Zealand, and even American jurisprudence. Seervai's writing comes as a cold shower. It's really a splash in the face of icy cold water. 

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Host: As Kirby says, Seervai wasn’t the type to hold back. In 1967, he lambasted the Golak Nath judgement. He was convinced that the court had made a mistake when it declared that Parliament could not touch fundamental rights. Navroz Seervai, his son, now a senior advocate in Mumbai, was a teenager in the 1970s and helped correct the proofs of Constitutional Law of India, his father’s magnum opus. 

 

Navroz Seervai: So I knew Dad was absolutely outraged by the judgement in Golak Nath, And he thought it was entirely wrong and incorrect… He genuinely thought that it was a dangerous proposition in constitutional law to have an unamendable Constitution. Even if that was restricted to fundamental rights he thought that virtually no [country] had an unamendable Constitution. And that it was necessary to give that leeway to Parliament in its constituent capacity if it thought it appropriate and necessary to be able to amend, and that there were adequate safeguards to prevent abuse. That was his original thinking, and therefore his criticism of Golak Nath.

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Host: Seervai’s vocal criticism naturally made him a top pick for the government. His son Navroz says Prime Minister Indira Gandhi was determined he should lead the arguments. As the legal challenge to the 24th and 25th amendments took shape, the government approached Seervai to argue their case. But there was one problem: typically, the Attorney General, the country’s top law officer, leads arguments in major cases for the government. In 1972, that post was held by Niren De, a 64-year-old Cambridge-educated lawyer who had made his name defending trade unions. 

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Andhyarujina: Niren De was a fine man but he didn't have much tact. He was often having a lot of brushes with the judges. Unfortunately, he was the law officer and in this case of Golak Nath, bank nationalisation case, privy purses case. He was the loser. Committee said how can we have him all the time? Let’s look for another person. 

 

Host: This is the late senior advocate TR Andhyarujina, Seervai’s former junior, giving a public talk on the Kesavananda case. He was by Seervai’s side throughout that period, and had a ringside view of events. Here he describes the closed-door meeting in which Seervai huddled with  “the committee” or Indira Gandhi’s close advisers, Ministers HR Gokhale and Mohan Kumaramangalam. 

Andhyarujina: Gokhale and Kumaramangalam met him in the Ashoka Hotel, I was there. They said, Mr Seervai, “you must take this case, because we require a man like you to conduct this case. It is a most important case for us.” Seervai said “but you have the Attorney General.” They said, “yes but the Attorney General has lost three cases, we want you”. Seervai said, “very well, if you want me, I will appear, for the side of the government.. But on one condition: that I will be the first to argue for argument, not Mr Niren De who is the Attorney General”. That was a very awkward situation. Because the Attorney General always has the first strike in any case. But Seervai said “it’s alright. The case was Kesavananda Bharati vs the State of Kerala, and after that the state of Kerala was the Union of India. Kerala was the first respondent, I will appear for the first respondent”. 

 

Host: Kesavananda’s petition mentioned the Kerala government as the first respondent, or opposing party. The central government was the second respondent. Seervai believed that if he appeared as the lawyer for the Kerala government, this would not come off as a challenge to Niren De. 

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Andhyarujina: This was a superficial way of looking at it. I said, Mr Seervai, you can’t do that, attorney general has the first preference, it will create a problem.

 

Host: And, according to Andhyarujina, it did. When the case opened, and the petitioners argued their side, the two men in their black gowns and white bands sat stiffly together: Niren De in the first seat, and Seervai next to him. They barely exchanged any words as Palkhivala’s arguments progressed. At times, they even openly disagreed in court. None of this boded well for the government. 

 

[Beat] 

 

Andhyarujina: Seervai had spread in the bar that I am going to argue this case first. Niren De came to know of this desire of Seervai to open this case. The whole bar said, how can you give up your right as AG. It will be a reflection on the bar. So he was very agitated. But somehow Indira Gandhi said, we leave it to the committee people to decide. One day he called me over: “Andhyarujina come here. Your senior wants to open? Yes, he is very anxious, I said. Alright, I’ll see that he opens the case.” I went and told Seervai. Seervai was jubilant. 

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Host: The stalemate ended sometime in December as the court was hearing Palkhivala’s arguments. 

 

Andhyarujina: Then I told Fali Nariman. He was Additional Solicitor General. Every afternoon Seervai would go to his chamber to have lunch. Fali used to listen to all what Seervai used to say. He was a loquacious chap. I said look, Niren De has agreed. They were happy. In the evening they called a tea party. De came, Seervai came. They became very jolly friends suddenly. Next day when they came in court, both were talking to each other. On the last day of the term, Niren De got up and said, Milords, on the reopening in January, my friend Mr Seervai will open the case on behalf of the government. 

 

[Beat]

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Host: For over  a month, Seervai had patiently sat and listened to his old friend Nani Palkhivala passionately argue against the government. Both men had started out as juniors in the chambers of the legendary Jamshedji Kanga at the Bombay High Court. They had come a long way from that cramped office where they prepared for tax and commercial cases to now being on opposing sides of this monumental case. One day during Palkhivala’s arguments the article clerk Yazdi Dandiwala ran into Seervai in the washroom. 

 

Dandiwala: Then he asked me, young man, you must be finding it very frustrating not to be able to say anything and only listen to all the things which are being. I said no Sir, I am finding it not at all frustrating, I hardly have time to really digest and understand clearly. But I could take for him it must have been frustrating because he could talk a lot and for him to just sit without arguing for almost I think Nani took about six to eight weeks I think if I'm not mistaken. To sit without arguing it must have been a difficult time.

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Host: As we heard in the previous episode, Palkhivala had argued that a Parliament with unlimited amending power was a danger to democracy. He put forth the idea of “implied limitations”, that the Constitution contained unspoken constraints on its own amendment.

 

As the clock struck 11.57 AM on the cool, wintry day of 9 Jan 1973, Seervai rose to respond to Palkhivala. He began by attacking Palkhivala for painting a grim picture. According to Seervai, Palkhivala’s distrust in the government was unfounded. Lawrence Liang, Professor of Law at Ambedkar University Delhi tells us more:

 

Liang: Many of the arguments that were being made by Palkhivala were anticipatory arguments or arguments that were anticipatory of certain fears. If the Parliament does not have any limitation on it, and if they have absolute powers, what would happen if you had a despotic Parliament coming into place? And the reliance was on of course, you know, precedents in the form of the Weimar constitution leading up to of course, you know, the Nazi regime, etc.  

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Host: Seervai said that was a stretch. First of all, Palkhivala ignored other factors that contributed to Hitler’s rise — such as the lopsided Treaty of Versailles after the first World War and the economic crash of 1929. Moreover, the amendment provision of the Weimar Constitution wasn’t the only one that enabled the German dictator. Its emergency provisions also played a crucial role. 

Seervai said there was reason to have more faith in Indian democracy.  Since 1947, the country had proven that it could handle crises with maturity. Even though an emergency was declared during the wars against China and Pakistan, it never led to dictatorship.

 

Liang: He says, we've declared an Emergency on several occasions in India, most notably in 1962; 1962 in the context of the Indo-China War, emergency was declared. And that emergency continues through ordinance for a long period of time. He said, even when emergency was declared, did the government do something as drastic as abolishing fundamental rights? Did the government turn authoritarian? No. On the contrary, what happened was elections were held, even when an emergency was in place, elections were held. So he was giving you empirical evidence of what he saw to be a very different experience and experiment with democracy compared to the imaginary fears that he saw the other side proposing from the European context. 

 

Seervai’s augment is that you can't take an imaginary hypothesis of something that has not happened and use that as the basis of reading into the Constitution limitations that are otherwise not present.

 

Host: Seervai believed Parliament was supreme. The overall theme of his arguments was that Parliament’s amending power was unlimited. Seervai stressed, to an almost comical degree, on the word amend. Sandip Thakore, one of the lawyers in the petitioners’ team recalls: 

 

Sandip Thakore: Seervai for three full days he talked about the word amend.. I think he read the English dictionary, six English dictionaries to find out what is the meaning of the word amend. The first three days, Seervai went on only about that.

Host: Chief Justice Sikri interrupted and asked: does amend mean destroy? Seervai promptly replied yes. If Parliament thought it necessary to destroy constitutional values in order to improve the country, they were right to do so. Seervai then attacked the Golak Nath judgement, which for the first time, took away Parliament’s power to amend fundamental rights. In a rare interview at his home in Delhi, Justice Nariman told us about his interactions with Seervai, and his memories of his opening arguments.

 

Nariman: Because I understand that even though Golak Nath was abandoned pretty early in the proceedings by Palkhivala, Seervai still kept on saying that it is Golak Nath which is the cause of all this trouble, and therefore I must deal with Golak Nath. 

Host: In that case, a slim majority had held that fundamental rights could not be amended. But on close reading things were more complex. According to Seervai, the court had not really made its position clear. So Parliament had no choice but to pass the 24th amendment and take back its amending power.

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Host: Seervai’s arguments had kicked off a heated debate about the correctness of the Golak Nath judgement, and how each judge had ruled in that case. This was something that the present bench wanted to avoid from the beginning. They wanted him to focus on the scope of Parliament’s amending power. In mid-January, ten days into Seervai’s arguments, the bench wanted to move on from Golak Nath. And the clock was ticking. They had been hearing the case for almost 40 days at this point. The Attorney General, Solicitor General and Advocates General of the states were still to argue. Sikri reminded Seervai that he had to finish by February since the bench had to give its verdict before he retired in April. Seervai retorted that he would be done well before that as he had no intention of responding to the 800 pages of the petitioners’ written arguments. 

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Host: Seervai carried on with his arguments on the nature of Parliament’s amending power. 

 

Liang: He says what is the nature of 368? 

 

Host: That’s Lawrence Liang again. Article 368 laid out the procedure for amending the Constitution. But it did not say anything about what Parliament could and could not amend. Back to Liang:

 

Liang: He says 368 is a self-executing power. What does he mean by this? He says that, you know, the amendment under 368 can only be challenged on the grounds laid down by 368, which is the procedure to be followed. If, for example, you passed an amendment without two thirds majority, it can be challenged. But only to that extent. You can't go into the content of the amendment, you can only go to the procedure of the amendment. 

 

Host: Seervai rejected Palkhivala’s argument. He disagreed that the fundamental rights were natural rights. Meaning, citizens did not possess them automatically. These rights existed only because they were written into the Constitution. By extension, he argued that they could be taken away by an amendment.

[Beat]

Host: Seervai invoked a number of scholarly texts and international judgements to make his points. One Friday, he referred to an Australian case to bolster one of his arguments. According to Anil Divan’s notes, it was already 3:00 that afternoon. The bench had been listening to heavy theoretical arguments all day. Chief Justice Sikri allowed Seervai to read out a few passages. Justice Ray interjected. He encouraged Seervai to read the whole judgement. At this point Justice Hegde, who was seen to be an anti-government judge, lost his cool both with his colleague Ray as well as Seervai. He accused Seervai of not answering his questions with the same enthusiasm as he was answering Ray’s. Andhyarujina throws more light on the courtroom dynamics: 

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Andhyarujina: So there was first of all, the judges were divided, and politically aligned so they unfortunately displayed their mutual antagonism against each other by saying things in the court. It was a very unfortunate thing in even the judges expressing their views…

Whenever any question arose, sometimes the judges amongst themselves literally exchanged words. Justice Hegde for example was a very vocal judge… 

 

So when Hegde put a question, Ray would answer and he would get angry and say, look at this, my brother's answering my question.he would say, I put this to you Mr Seervai, why is he answering? 

 

Host: Seervai typically argued until about 4 in the afternoon. But he rarely submitted written notes summarising these arguments. At various points, the bench couldn’t quite keep up. Matters escalated on 25th January. According to Anil Divan’s minutes, an exasperated Justice Hegde said that he had made notes on Seervai’s arguments for the first 10 days but then he gave up. He couldn’t keep track. Seervai was not pleased. His son, Navroz, told us in an interview: 

 

Navroz Seervai: My dad had this incredible capacity to keep his cool in court under the gravest of provocation. He told me that while it may help you letting off steam, it does your client no good, and does the matter no good. So he kept his cool, but I've never seen him that wild, actually wild when he came home. He told the judges and in particular Justice Hegde, don't worry, this won't happen. Every morning I will give you a written script of what we argued the previous day, which will help you to understand what I've argued. 

 

Host: According to Navroz, this significantly increased his father’s burden. Remember, these were the days before Xeroxing, and copies had to be painstakingly cyclostyled. The following week, Seervai submitted two sets of documents outlining his arguments to the bench. The petitioners, the Times of India noted,  had submitted 4,000 foolscap pages. 

The Chief Justice once again reminded Seervai that the hearings needed to be wrapped up. For his final act, Seervai launched another attack on essential features and implied limitations. There was no clarity on what Palkhivala meant by essential features. Moreover, the whole concept of, quote-unquote “implied limitations'', was vague. Accepting such limitations on the amending power would create a great deal of uncertainty. It could lead to amendments being bogged down by endless legal challenges. Liang paraphrases his arguments:

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Liang: He also said very clearly, in the absence of express limitations, you can't read implied limitations. That's the court becoming a super legislature, right? So you can't invent a new concept. And he says, you certainly can't invent something as vacuous and as airy as basic structure. You can't touch basic structure, you can't see basic structure, you can't feel basic structure in terms of the Constitution. If I asked you, show me where in the Constitution, there is basic structure, you're saying that you can't. He says you can't invent something which is transcendental, right?

 

Host: Seervai believed in sticking to the text of the Constitution. The document contained no explicit restrictions on Parliament’s amending power. Therefore, this power should be interpreted as widely as possible. He said that the court’s role was only to interpret the law exactly as it was worded. 

[Beat]

 

Through this period, Seervai was often working up to 16 hours a day. He and Andhyarujina stayed at the Ashoka Hotel in New Delhi. At times he would wake up in the middle of the night, work, sleep again, and then wake up by 8am for conferences. Even Justice Hegde once remarked that he seemed to be able to pack 48 hours into 24. Between 1969 and 1973, Seervai was mostly in Delhi while he was also arguing in the Krishna water dispute. 

 

Navroz Seervai: He didn't have any fear about flying, but my mother had lost a cousin in the Shannon air crash in 1946. And so, in one sense uncharacteristically for my mother, she had reservations about flying. So for years, my father used to take the Frontier Mail, when he used to go for his matters to Delhi. 

Host: When Feroza Seervai realised this would keep her husband away from home for three or four months at a stretch, she relented. So Seervai took the Indian Airlines flight to and from Bombay to spend the weekend with his wife and their three young children.

 

Navroz Seervai: The four years that he was in Delhi though he used to come back every Friday and go back every Sunday, he would write a minimum of three letters, one a day, to my mother. Every single day, it would just be an inland letter. Sometimes it would just be a page and a half. Sometimes it would be two pages. But every single day, he would write a letter to my mom. 

 

Host: About a month into Seervai’s arguments, on February 6, Justice MH Beg took ill. Remember his name: we’ve already met him, as one of the judges picked by the government for the Supreme court. He’ll be important later in this story. For now: Beg took ill, and the case was adjourned for a week. When they resumed, Seervai again took aim at the basic structure argument. He said every provision of the Constitution was essential. He also told the court that if the people of the country wanted to replace the current, parliamentary system of government with a presidential or monarchical system, they could do so. With that, his arguments drew to a close. As agreed, the baton now passed to Attorney General Niren De.

 

Ganguli: Let me tell you, he was a towering personality. And as he used to walk down his stairs from his office down to the Supreme Court corridor, we have seen as lawyers, out of reverence, people would leave a way for him to move in, to walk through. So it was not very easy to communicate to him, not very easy to approach him. Not that he was unapproachable, but his aura was such.

 

Host: This is senior advocate AK Ganguli. As a young lawyer he frequently worked with Niren De. In the only publicly available photo of him, De has a square jaw and is gazing hard at the camera through his spectacles, his hair slicked back. He studied at Presidency College, Calcutta and then went to Cambridge University. Once he was back in India, he fought for the trade unions when they had few legal protections. Through this work he ended up in contact with political leaders in the 1940s. De first served as an additional solicitor general, when he appeared for the government in the Golak Nath case. A year later, he was appointed Attorney General for India. He then went on to lead arguments in the bank nationalisation and privy purses cases. In his arguments, De first took up from where Seervai left off. 

 

Ganguli: His first question is, is there any provision in the Constitution that restricts the power or limits the power of the Constitution or the Parliament exercising constitutional power to amend the Constitution? His argument was that we have adopted a written Constitution, unlike many other countries. And we have adopted one of the lengthiest Constitutions at that time. The objective was for the Constituent Assembly, to spell out in detail as much as possible, so that you avoid a scenario of someone developing some other concepts outside the law. 

 

Host: Like Seervai, De too fired back at the essential features argument. He asked: what was the point of the amending power, if it were meant only for inessential things? He claimed that Parliament’s amending power was unrestricted and essential for responding to the changing nature of society. Justice Hegde, who had previously clashed with Seervai, now went after De. Palkhivala’s junior colleague, Thakore, gleefully recalls: 

 

Thakore: Hegde was after his blood. He kept on asking him questions. The only obstruction Niren De had was from Hegde. 

Host: A running theme through De’s arguments was the importance of the directive principles. You will recall that the Constitution contained directive principles as ideals for governments to follow. Here is where De laid bare the Indira Gandhi government's thinking. In so many words, he told the court that the directive principles were more important than the fundamental rights.

 

[Beat]

 

Host: When he made this point, Justice Jaganmohan Reddy interjected: “In your opinion, to provide social and economic equality you have the right to infringe fundamental rights.” De shot back: “... Only a few are affected. Their so-called fundamental rights will be infringed but millions would get economic means to enjoy these rights.” Here’s Lawrence Liang:

 

Liang: So Niren De’s arguments on parliamentary supremacy, in many ways, were reflective of an idea of absolute sovereignty, in terms of political power. And that absolute power then extended to a translation into what ideological policies and laws were actually implemented… 

 

Host: In the Indira Gandhi government’s case, this meant policies such as the nationalisation of key industries. The government’s supporters hailed this as a necessary step towards building an equitable society, to end monopolies and increase production. For instance, by January 1972, the government had taken over 214 private coking coal mines and plants. After the new amendments, their owners were powerless to challenge such actions. 

 

Liang: So the idea of a committed, you know, Parliament in terms of an ideological Parliament that's very, very, very strong in it's pushing for certain reforms, and it's pushing for a certain kind of, in its view, equitable laws. All of these were beyond the pale of the court. And beyond their remit to be able to question. That’s primarily his argument.

 

Host: Remember at the end of his arguments, how Palkhivala had embarrassed Seervai by reading out an old article by him? De had some courtcraft of his own up his sleeve. One day in March, he told the bench he would be reading excerpts from the parliamentary debates from the 1950s on the first and fourth amendments. He then proceeded to read out the remarks of one particular Rajya Sabha MP. That MP had said Parliament had the power to amend fundamental rights. Who was that? None other than Justice Hegde himself. Hegde had served as an MP before he became a judge. After reading aloud, De concluded: “I am adopting, with respect, your lordship’s reasoning as my own.” Soon after, De wrapped up his arguments. 

 

[Beat]

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Host: After De, solicitor general Lal Narain Sinha argued for a day and a half, and the advocates-general of various states also had their turns briefly. As is the practice in all such cases, Palkhivala would now get the chance to put forth his rejoinder. There was only about a month left for Chief Justice Sikri’s retirement. 

 

Andhyarujina: So the days were short. If the case went on beyond April 25 the whole case would go phat. The government would not be too unhappy with that. He said you must finish this case. Sikri said he would be abroad for 16 days. Nobody knew why. So these time constraints were there. Then we had Holi vacation. Sikri said we will devote three days to reply by Nani Palkhivala.

 

Host: Palkhivala came out swinging against the notion that fundamental rights had to be violated in order to implement the directive principles. He stressed on what he described as the ‘totalitarian’ elements of the 25th amendment. He said it would destroy the identity of the Constitution and convert the country from a democratic republic to a totalitarian state. He used the word “totalitarian” so many times that at one point Justice Grover asked him to avoid the word. According to Palkhivala, Article 31C was so lethal that it violated seven essential features of the Constitution and abrogated 10 fundamental rights. He argued that this took away the fundamental right to practise a profession. The government had so far taken over large industries like mining, banking and insurance, saying it was for the common good. But Article 31C put other professionals like lawyers, doctors and architects also at risk. There were also other, more far-reaching implications. It would infringe on Indians’ rights to free speech and dissent. For instance, newspapers could lose their independence if the government decided to nationalise them by saying it was for the greater public good. In another example, he said citizens would be deprived of effective legal representation if the government suddenly decided to nationalise the legal profession. Palkhivala was just hitting his stride. But on March 22, things took a drastic turn. 

 

[Beat]

 

Host: The Chief Justice called all the lawyers to his chamber. Anil Divan’s carefully typed up notes, now yellowed with time, offer a peek into the drama that unfolded. Only eleven of the 13 judges were present. The Chief Justice informed them that Justice Dwivedi was indisposed because of an upset stomach. But more seriously, Justice Beg had an ailment that required a month’s rest and a week in hospital. Sikri then read from his medical report. Andhyarujina gives us a play by play account of what happened, and the stakes involved:

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Andhyarujina: One time when he fell sick it had to be adjourned for three days. The second time again the bench again had to be adjourned to enable Justice Beg to resume. The third time he fell sick was the day Nani was to give his rejoinder. He was only given two days. Previous evening Justice Beg was taken to the hospital. The next morning we were all summoned to the chamber of CJI. We all went there and the great tension. Seervai, De, Palkhivala was there, Chagla and Daphtary. And Sikri said, Gentlemen, Justice Beg is in hospital. I have been this morning to the hospital and I have met his doctor and the doctor says he is suffering from high BP and the doctor said he has to be in bed for a fortnight. We will therefore have to drop him.” Now if you drop Beg the scales are turned dramatically in favour of the petitioners. Then Sikri said “yes, but he is sick. Gentleman, I won't have his death on my hands”. 

When he said that, Palkhivala’s side got happy, when you drop one person who is pro-government they stand to gain. On the other hand, on government’s side we would lose this man. Immediately when this was said, Niren De got up and said milord we protest. Seervai said we also join in protesting against this. 

 

Host: The government’s lawyers were insistent that Palkhivala submit written arguments so that even Beg could read them. According to Divan, Seervai jumped in to point out an inconsistency. If he had to submit written arguments, because of a lack of time, then why could the other side not do the same?

 

Andhyarujina: There were clashes between the judges, counsel, Palkhivala on the other. Niren De said Mr Palkhivala, you will give your written submissions instead of oral submissions. And you will close the case. Palkhivala was very angry. “I only had two days for oral arguments. And you are preventing me…” and all that. De said if you close this case without Beg I have instructions from government to withdraw from this case. Then Seervai said I also withdraw. Hegde said if they are going to threaten us like this openly, one day they will even say write the judgement in our favour. 

 

Host: It had come down to this: either the matter would continue without one judge, tipping the scales in the petitioners’ favour. Or they would have to wait for Justice Beg to recover, and risk running out of time to finish the case before Sikri retired. 

 

Andhyarujina: Sikri said very well gentlemen we will meet in court, consult and tell you. They went to the court, we waited for a decision. An hour passed. The registrar came and said the Chief Justice says we meet in court tomorrow in the morning. 

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Host: At 10.30am the next day, everyone assembled in court again. Justice Beg was notably absent. Before Sikri could say anything, Palkhivala stood up to address the bench. He had a concession. 

Andhyarujina: My lord I have reflected on this matter, and I am congenitally incapable of submitting to coercion. In the interest of justice and to prevent further acrimony… I will submit written submissions for my reply. Please give me two days for that. I will give my written submissions in full by Sunday morning. And the case may be closed. But in any case, if any of your lords are not there the case will be decided without them. 

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Host: This was the perfect solution. Now all the judges, including the bed-ridden Beg, would have access to Palkhivala's arguments without losing more time. 

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Andhyarujina: Sikri said, Mr Palkhivala, we are grateful to you, we accept your offer. And the case is now closed. That was how the tension came to an end like that. And the case was closed. 

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Host: The judges would have a month to confer and collate their thoughts. Which way would it go? Would Parliament stand supreme? Would Indira Gandhi have her way? In the next episode, we will return to April 24, 1973, one of the biggest days in India’s legal history. A day of confusion, court-room manoeuvres and drastic reprisals from the government. Until then, I am your host Raghu Karnad.