Constitutional Czars

in the Hall of Fame

 

Constitutional Czars

in the Hall of Fame

(Musings, Anecdotes & Episodes)

 

 

N Vijayaraghavan

V Lakshminarayanan Advocates, Madras High Court

 

Special Contributions:

Justice P N Prakash

Justice  G R Swaminathan

Justice N Anand Venkatesh

 

 

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15^th October, 2022

HANS RAJ KHANNA

                                                                           

 

In 2008, Justice K.T. Thomas wrote that before he took oath as a judge of the Supreme Court in 1996, there were only two places he visited: the first, was the Samadhi of Mahatma Gandhi and the second was the house of Justice H.R. Khanna. For Khanna was a peer amongst peers, and this gesture of Thomas, J. only served to pay homage to a judge who had, for long years, remained the conscience-keeper of the judiciary.

Justice Hans Raj Khanna was born on 3^rd July, 1912, at Amritsar. After graduating in Law from Lahore, Khanna joined the Amritsar bar in 1934. In February 1952, he was appointed the Additional District and Sessions Judge at Ferozepur. In 1962, he was appointed a Judge in the Punjab High Court.  When the Delhi High Court was constituted in 1966, Justice Khanna, along with Dua and Kapur, JJ., was transferred from the Punjab High Court and sworn in as judges of the Delhi High Court. The High Court’s first Chief Justice was K.S.Hegde, a man whom Khanna, J. characterized as a “pleasing personality” whose sympathetic attitude towards the bar won him their popularity. Justice Khanna eventually succeeded Justice Hegde as the Chief Justice of the Delhi High Court in 1969. He terms this period as “one of the happiest periods of my judicial life”. During this period the rate of disposal at the Delhi High Court is stated to have exceeded the rate of institution of cases. Justice Khanna was eventually elevated to the Supreme Court in September 1971. Justice Khanna’s swing vote in Kesavananda Bharati Sripadagalvaru v State of Kerala[1] and his subsequent clarification of the basic structure doctrine in Indira Nehru Gandhi v Shri Raj Narain[2] are too well known to require any restatement. As is widely known, his finest hour came during the emergency.

On 27^th June 1975, President Fakhruddin Ali Ahmed signed the proclamation under Article 352 of the Constitution declaring a state of internal emergency in the country. The Maintenance of Internal Security Act, 1975 (MISA), vested wide power with the executive to pass detention orders for prolonged periods. Recourse to Article 226 was possible, but, in view of the declaration of emergency, Article 359, as it stood then, operated to suspend the operation of the fundamental rights conferred by Articles 14,19, 21 and 22 of the Constitution.  Seven High Courts in the country held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14,21 and 22, the High Courts can examine whether an order of detention is in accordance with the provisions of the MISA which constitute the conditions precedent to the exercise of powers thereunder. The High Courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution, a detention order could still be questioned on the grounds of mala fides or on the ground that the conditions precedent to the exercise of power did not exist. Purely as a matter of law and on first principles, there can be no doubt that this conclusion was unassailable. Four learned judges of the Supreme Court, however, thought otherwise.

In A.D.M. Jabalpur v Shivakant Shukla[3], four learned judges [A.N.Ray C.J., Beg, Chandrachud and Bhagwati, JJ.] in the Constitution Bench, handed down a judgment on April 28, 1976 concluding that in view of the Presidential order dated 27^th June 1975, no person had any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal or is based on extraneous consideration. The maxim “ubi jus ibiremedium” had, in effect, been turned on its head.

One of the judges in the majority, Justice Beg, who was to later supersede Justice Khanna as the C.J.I., handed down the following certificate to the executive:

“Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.”

 

Justice Chandrachud pitched in and observed:

 

“Counsel after counsel expressed the fear that during the emergency, the Executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”

 

These observations appear ironic, given the fact that when A.D.M.Jabalpur was being heard in the Supreme Court, one Rajan, a student of an Engineering College in Calicut, was picked up by the police from the college hostel on 01.03.1976.  The “maternal care” extended by the police was such that Rajan was never heard of again. His body was never recovered. His father Eachara Warrier ran from pillar to post. Finally, he knocked the doors of the Kerala High Court. A Division Bench comprising two very distinguished judges (Subramonian Potti, and V. Khalid, JJ.) found that the Home Minister K. Karunakaran had lied on oath. Proceedings were, thereafter, initiated under Section 340 Cr.P.C leading to Karunakaran’s resignation. In the dark days of the emergency, there were hundreds of such Rajan’s who were silenced by the “maternal care” and the excesses of the executive.

 

Nothing discloses real character like the use of power. It is easy for the weak to be gentle. Most people can bear adversity, but, if you wish to know what a man really is, give him power. That is the supreme test. We have the benefit of hindsight to say, without the slightest iota of doubt, that the majority had woefully failed this test. Justice Khanna was the silver lining in an otherwise dark cloud that had engulfed the country by the decision of the majority in A.D.M Jabalpur.

In a blistering dissent, he observed that no power had been conferred on any authority under the Constitution to meddle with the constitutional power of a High Court to issue a writ of habeas corpus to secure the liberty of the subject. He emphatically held that the suspension of the right to move any Court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty. He goes on to observe:

“The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic values affecting life, liberty and the rule of law. More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of are order. What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we also say with justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law even if it chooses to act contrary to law or in an arbitrary and capricious manner. The question is not whether there-can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.” (emphasis supplied)

 

Dissenting from the majority, Khanna, J. alluded to the timeless observation of Chief Justice Hughes that “a dissent in a court of last resort to use his words, is an appeal to the brooding spirit of the law to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

Institutional vindication of the dissent of Justice Khanna came in K.S.Puttaswamy v Union of India[4], where, D.Y Chandrachud, J. termed the decision of the majority as “seriously flawed”. Overruling the decision of the majority in A.D.M. Jabalpur, the Supreme Court observed thus:

 “A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Khanna, J. must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”

(emphasis supplied)

 

The wheel had come a full circle. Justice Khanna’s appeal to the brooding spirit of the law was eventually recognised and upheld by the intelligence of a future day. In paying our tribute to this constitutional czar, we may only notice and remind all those who sit in judgment over their fellow beings of a sacred obligation which Lord Mansfield pointed out in R v Wilkes[5]:

“The constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be; if rebellion was the certain consequence, we are bound to say ‘fiat justitia, ruatcaelum.’ . . . I will do my duty, unawed.”

 

Jai Hind!

 

(Justice P.N. PRAKASH)

Justice G.R.Swaminathan,

Judge, High Court of Madras.                                                                Dated : 15.10.2022

 

 

JUSTICE MICHAEL D.KIRBY

 

How to introduce the Hon’ble Justice Michael D.Kirby?.  To say that he was a judge of the highest court of Australia would be factually correct, but not quite adequate.  He is to Australian judiciary what Lord Denning is to U.K and Justice V.R.Krishna Iyer and Justice H.R.Khanna put together are to us. Plus something much more.  Many of us would have come across his erudite “Sexual Orientation & Gender Identity – A New Province of Law For India” (Tagore Law Lectures).

 

I got acquainted with him in 2019, thanks to Vikram Raghavan, the lead counsel at U.N. What opened the doors of friendship was my Arunkumar judgment. Arunkumar is a male who had married a transwoman.  The couple wanted to register their marriage under the Hindu Marriage Act. The registering authority took the stand that a valid marriage can be solemnized only between a bride and a bridegroom; a bride is a woman on her wedding day; since Arunkumar had not married a woman, the marriage cannot be registered.  I rejected this stand and held that a transwoman can also fall within the expression “bride” and directed registration of their marriage.

 

This judgment had warmed the heart of Kirby,J. Perfectly understandable!.  He possessed stunning looks and girls did fall for him.   But he was simply not interested. Very early in life, Kirby realized that he was gay by inclination.  Yet he had to keep it as a dark secret deep within.  Australian criminal law contained the equivalent of our own Section 377 of IPC. There was also vigorous crack down and prosecution of persons accused of sodomy.  Though Kirby had met Johan van Vloten in February 1969, he could make the relationship public only 30 years later. Australia had decriminalized homosexuality only in late 1990s. Kirby’s commitment to Johan is comparable to Rama’s loyalty to Sita. But he could formally marry Johan only on the 50th anniversary of their first meet because it took so long to legalize same sex marriage.

 

Kirby loves India and had been a regular visitor.  He had been in Koyambedu market in 1970!.  He developed deep friendship with Justices Khanna, Krishna Iyer and Bhagwati.  He was close to H.M.Seervai.  Let me illustrate his great respect for our jurisprudence. Once I mailed a judgment of mine in which I had quoted Justice Ravindra Bhat who in turn had relied on a decision of Justice Kirby.  I got the following response:

“This is often the way that important ideas spread from one common-law country to another. I copied Justice Bhagwati’s reasons in Maneka Gandhi’s case in my decision in the NSW CA of Osborne v Public Service Board of New South Wales. I upheld the right to reasons from a public official. I was joined in my opinion by Justice Priestley. Justice Glass dissented. But it was appealed to the High Court of Australia (before my elevation to that court). My decision was reversed. (1986) 159 CLR 656. But I have always considered that the Indian line of decisions was preferable to the Australian (based at that time mainly on English decisions that often reflected a bureaucratic attitude to secrecy that seemed inappropriate to a modern democracy).”

 

Kirby was born on the eve of the Second World War.  He did not hail from a privileged background. He was precocious. He wrote a Will at the age of eight – the schedule of property comprising his books and some personal belongings!. He spent hours on studies and was a topper both in School and College. His debating and oratorical skills made him a natural student leader.

 

He loved student politics and enjoyed his position as the President of Students’ Representative Council (SRC), University of Sydney.  However, in order to stay in the said role, he had to be doing a degree.  Kirby copied the Dravidian model but in a positive way. I have heard that some of the leaders of the Dravidian movement used to deliberately fail in their examinations so that they could continue as students and propagate the ideology. Kirby instead joined one course after another and in the process, he got four degrees from Law to Economics and thus continued to be a student in the campus!.

 

Kirby can be an inspiration to any aspiring young lawyer. He had no godfather in the profession. He had no background either. He simply put in long hours of work.  His work ethic soon gained the attention of Lionel Murphy, the then Attorney General who appointed Kirby as Deputy President of the Arbitration Commission at the young age of 35.   Soon thereafter he was asked to head the Australian Law Reform Commission. The way he carried out his job made him a national figure.  His reports compelled attention and the government could not ignore the same. The reports were personally written after great deliberation and thought. The general public was involved in the debates. Issues such as impact of technology on law, privacy and data protection with which we are now grappling were dealt with by him with consummate ease.   He was seen as the man reshaping the laws of the nation.

 

In September, 1984 he was sworn in as President of the New South Wales Court of Appeal.  He churned out a number of judgments and at the same time was deeply involved in the humanitarian activities of international bodies. He was U.N special representative for Cambodia for three years from 1993 to 1996. He travelled widely throughout the country.  He spoke directly to the people.  He visited hospitals where people were dying of AIDS.  Seeing human misery at such close quarters, he submitted a forthright report which laid the foundation for some fundamental changes.

 

In 1996, Kirby was elevated to the High Court of Australia (their High Court is equivalent to our Supreme Court, their Supreme Courts equivalent to our High Courts). His approach to adjudication stood out. At the very commencement of his professional career, his firm received an application from one Owen Westcott for representing him in a local court.  Owen was an aboriginal Australian. He was fortunate to get admission in University. Since the aboriginals were not allowed upstairs in the cinema hall, Owen decided to make it an issue. He purchased box office tickets and climbed the staircase with some aboriginal students and demanded entry.  He was stopped and a scuffle ensued.  He was arrested and charged with trespass and other offences. Kirby was his solicitor and his experience deserves to be recounted in his own words:

 

“I decided to get barristers for Owen, and we approached Gordon Samuels QC. He was later to be my colleague on the Court of Appeal in NSW. He immediately agreed to do the case pro bono. His junior was Malcolm Hardwick, an Oxford graduate, who also accepted the brief.

 

We examined the law and looked at a case that had gone to the Privy Council early in the 20th Century. It concerned a claim by a person who hard boarded a Sydney ferry, who had bought a ticket, and who was entitled to travel on his ticket. We had a legal argument in the case. But, in the end, the magistrate found that Owen and his Aboriginal friend were guilty of trespass and blocking access to a public place. The magistrate dismissed the legal arguments but, under the First Offenders’ provision of the Crimes Act, he proceeded to find the defendants guilty. He did not, however, impose a penalty.

 

That case brought it home to me that, despite the high aspirations we have of our legal system, the law in Australia was sometimes quite discriminatory. It was discriminatory against women, people of colour, and Aboriginal Australians. I knew discrimination extended also to me, as a gay man, at a time when the law criminalised gay activity. But it also taught me how important it was for lawyers to stand up for the right cases. Sometimes, even losing the case can have consequences that are beneficial for the state of the law.

 

The very week I retired from the High Court of Australia, I received a letter in the mail. It came from a man who said that, in 1965, he had been the magistrate in Walgett and had heard and determined the case concerning Owen Westcott. He said he greatly admired the way in which our legal team had defended Owen and his Aboriginal colleagues. However, he had not felt able, at the time, to uphold our arguments. He wanted me to know that, two weeks after the end of the case, the manager of the Walgett cinema announced that discrimination was ending, and that Aboriginals could go anywhere in the cinema.

Owen lost his case, but he won his cause.”

 

This case left a lasting impact on Kirby’s approach towards law and life. It underpinned his entire work.  For him, compassion was a fundamental judicial virtue. His commitment towards human rights and personal dignity was non-negotiable. No wonder, he was labeled as an activist Judge and criticized. He withstood calumny and character assassination. He was accused of having had sexual relationship with a minor male prostitute.  The accusation was made in the parliament with the backing of the Prime Minister. For full one week, newspapers ran juicy and gossip stories.  It then turned out that the allegation was not only false but built on forged documents.  The accuser had to apologize and he was censured by the parliament.

 

Kirby,J. became a loner on the bench. His colleagues were often not on the same page. Dissent became the norm. But he did not flinch.  He stuck to his convictions. He reminded his colleagues “Judges of final courts will have to think a little bit differently because there is no further appeal. They have to think about the long term directions. They march to a different drumbeat… If they think that they are just an ordinary judge solving a problem, then they’re missing both their responsibility and their opportunity in the final court of a nation.”  Obviously, they were not amused. When Kirby,J. retired none of them even attended his farewell ceremony.

 

Kirby’s love and care encompassed every section of humanity – from aborigines to AIDS affected patients.  After his retirement, he became a votary of animal rights too.  While launching a book “Animal Law in Australia” Kirby, J. had this to say :

 

“If the ordinary Joe and Jill in the street knew how bacon comes to be made; how pigs are kept in close confinement in crates, unable to move or scratch themselves; how chickens, which are one of the most sociable of animals, are corporatised and killed on a production chain and pumped with hormones in order to get to the stage where they can be killed quickly; and how animals are pained during experimentation on them and other animals are subjected to terrible conditions for entertainment of human beings in sports, they would really think twice about it.”

 

Kirby is now 83 and still going strong. He continues to engage himself actively in several pursuits, academic, intellectual, professional and humanitarian.  He is an iconic figure. An inspiration to every one of us. In my perspective, a true constitutional Czar in the hall of fame.

 

 

            Justice G.R.Swaminathan,

                                                                                             Judge, High Court of Madras.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUSTICE N.ANAND VENKATESH,             15^th OCTOBER, 2022 HIGH COURT, MADRAS.

 

 

M  HIDAYATULLAH

 

Mohammed Hidayatullah is undoubtedly one of the brightest stars to have shone in the judicial firmament of this country. In him, one finds a good example of Francis Bacon’s timeless observation “A man that is young in years may be old in hours, if he have lost no time”.

 

Born in 1905 into a distinguished family of Urdu poets, Hidayatullah was educated at the Morris College, Nagpur and at the University of Cambridge. He was called to the Bar at Lincoln’s Inn when he was all of 25. He also went on to become the youngest Advocate General of the Central Provinces at the age of 37. His capacity for hard work and excellence caught the eye of Sir Patrick Spens, the Chief Justice of the Federal Court of India who ensured that Sir Fredrick Grille, the Chief Justice of the Nagpur High Court nominated Hidayatullah’s name for judgeship, even without his consent. He went on to become Chief Justice of the Madhya Pradesh High Court, which was followed by his elevation to the Supreme Court in 1958 when he was just 53. In February 1968, he was appointed as the  Chief Justice of India. He was the Acting President of India, for a time, when Dr. Zakir Hussain died in 1969. After demitting office as Chief Justice in 1970, he went on to become Vice President of India in 1979 and continued in office till 1984.

 

 

 

 

Justice Hidayatullah’s prodigious prowess in constitutional law was noticed early. In Re: Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 19381, he assisted W.R Puranik, the then Advocate General of the Central Provinces on an important issue concerning the interpretation of the entries in the Federal legislative lists under the Government of India Act, 1935. A few years later, as Advocate General, he successfully defended the Special Criminal Courts (Repeal) Ordinance, 19432 before the Federal Court. His skilful performance won him the praise of Sir. B.L. Mitter, the then Advocate General of India who observed “the youngest AG is by no means the last to be reckoned with!”.

In one of his early decisions in the Supreme Court in Lord Krishna Sugar Mills Ltd. and Another v. Union of India and Another (AIR 1959 SC 1124), Hidayatullah, J laid down a pragmatic working test for applying the doctrine of reasonableness when he opined that in judging the reasonableness of a law, the Court will necessarily see not only the surrounding circumstances, but all contemporaneous legislations passed as part of a  single  scheme. More importantly, he rightly points out that it is the reasonableness of the restriction and not the law that has to be examined.

A written constitution, of course, incorporates a society’s agreement  on  the why and how of government, stating objectives, apportioning powers, and setting forth procedures. The founding fathers evidently believed that the

¹AIR 1939 FC 1

²AIR 1944 FC 1

 

 

 

 

Federal Parliament could be trusted with constituent power to amend the Constitution. No one expected that amendments will start pouring in and that many amendments will attack and reverse interpretations of the Constitution by the Supreme Court. In Sajjan Singh3, he expressed doubts about the decision of Patanjali Sastri, J in Sankari Prasad Singh4 that the amending power of Parliament was unrestricted and unfettered. Though he joined Gajendragadkar, CJ in upholding the validity of the Constitution (17thAmendment) Act, he expressly reserved his opinion on the aforesaid question wryly observing:

“The Constitution gives so  many  assurances  in  Part  III  that  it  would  be difficult to think that they were the play things of a special majority.”

 

Three years later in Golak Nath5, he joined Subba Rao, CJ in  the  6:5 majority overruling Sajjan Singh’s case. In a long and scholarly opinion, Justice Hidayatullah traced the history of India’s  nationalist  movement since 1885 and showed that it had been a struggle throughout for human rights, a struggle not against British rulers alone, but also against all oppressors and all oppressions. On taking note of various Constitutions of various countries, Justice Hidayatullah pointed out that each of those Constitutions can be properly understood only upon a historical examination of the milieu in which each document was forged. Though the

 

³Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 : AIR 1965 SC 845

⁴AIR 1951 SC 458

⁵I.C. Golaknath and Others v. State of Punjab, 1967 AIR 1643

 

 

 

 

majority judgment in Golaknath was later overruled in Kesavananda’s6 case, the following passage sets out essential premise of Justice Hidayatullah’s articulation which was also echoed by the majority in Kesavananda’s case:

“The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. But this power does not permit the State itself, to take away or abridge the right beyond the limits set by the Constitution. It must also be remembered that the rights of one individual are often opposed by the rights of another individual and thus also become limitative. The Constitution in this way permits the Fundamental Rights to be controlled in their exercise but prohibits their erasure.”

 

In Kesavananda, Justices Hegde and  Mukherjee  (a  part  of  the  majority) echoed a similar sentiment when they observed:

 

“Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself.”

 

Who can forget the famous powerful words of Justice Hidayatullah while referring to the Preamble of the Constitution of India when he wrote on Democracy in India and Judicial Process, wherein he said “Preamble is the soul of our Constitution, which lays down the pattern of our political society. It contains a solemn resolve, which nothing but a revolution can alter”.

There               are      certain          other important judgments                  of       Justice Hidayatullah that instantly strike my mind.

 

⁶ Kesavanda Bharati v. State of Kerala, AIR 1973 SC 1461

 

 

 

In Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881), he authored the opinion of the Constitution Bench endorsing the Hicklin test as the appropriate test for obscenity under Section 292 IPC. In K. A. Abbas

1. Union of India and Another (AIR 1971 SC 481), Justice Hidayatullah succinctly dealt with the ambit and scope of freedom of speech and expression vis-à-vis obscenity when he upheld the censorship of films as a reasonable restriction on the right guaranteed under Article 19(1)(a).

 

In Ram Manohar Lohia v. State of  Biharand Another (AIR 1966 SC 740) and in Madhu Limaye v. Sub-Divisional Magistrate (AIR 1971 SC 2486), the intricate relationship of the concepts of law and order, public order and security of the State was explained. In State of Madhya Pradesh v. Shobharam and Others (AIR 1966 SC 1910), the Constitutional right of an accused to be defended by a lawyer of his choice was upheld.

 

Justice Hidayatullah was also a party to as many as thirty nine dissenting judgments delivered on a vast arena of subjects. For the purpose of this article, I will confine to some of the important judgments rendered under Constitutional law.

 

In Naresh Mirajkar v. State of Maharashtra and others  (AIR 1967 SC 1), Justice Hidayatullah was the lone dissenter and he held that the definition of “State” under Article 12 of the Constitution would include

 

 

the Judiciary as well and judicial act violative of fundamental rights was amenable to judicial review and correction in Writ Jurisdiction. It is quite interesting that in A.R.Antualy v. R.S.Nayak and Another [(1988) 2 SCC 602], a seven Judge Bench relied upon the Naresh Mirajkar judgment and three of the Judges infact referred to the judgment of Justice Hidayatullah and approved it. However, the majority held otherwise and as a result, the dissent of Justice Hidayatullah cannot be regarded as a binding law.

 

Yet another formidable dissent was made in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer [(1967) 3 SCR 525], where Justice Hidayatullah  considered  the  question  of  passports  fully  and the main question that arose for  consideration  was  whether  the  right  to travel abroad and to insist upon a passport for the same, could be said to be part of personal liberty within the meaning of Article 21 of the Constitution of India. Justice Hidayatullah, for himself and Justice Bachawat, wrote the minority view and held that there is no absolute and fundamental right to passport and to travel abroad. At the best, the aggrieved party can only challenge the rejection if he is treated unfairly.

 

The above dissenting judgment was referred in Justice K.S.Puttuswamy (Retd.) and Another v. Union of India [(2017) 10 SCC 1] qua the clarity given to the view in Kharak Singh v. State of U.P. and Others [(1964) 1 SCR 332] and ultimately, the majority view in Kharak Singh was

 

 

upheld, holding the right of locomotion is limited by the  Constitution  of India to the territories of India and it is not possible to read more of that right in Article 21 of the Constitution.

 

The Privy Purse case (AIR 1971 SC 530) was the last judgment of Justice Hidayatullah in his long judicial career. Even though it was a concurring judgment to the majority view, the punchline on referring to the presidential order de-recognising the erstwhile Indian rulers as “midnight orders” caught everyone’s attention. The allusion was to President Adams’ midnight appointments and midnight Judges in the US and the famous painting by Lisa Biganzoli showing Adams making “midnight appointments”.

 

To conclude, I will borrow the words of Chief  Justice  J.S.Verma, who wrote:

As with flowers, so with men

 

They blossom, bloom and wither away… But there are some who always

Leave a fragrance behind…

Justice Hidayatullah’s fragrance will always remain.

 

 

 

JUSTICE N.ANAND VENKATESH

 

 

 

 

 

 

Advance Praise

 

Such books come but rare. Constitution may be for us all. But to write in racy,pacy style on the czars across democracies, on the anecdotal road, makes it a lovely read.

 

Justice V Parthiban (Retd)

                                  Madras High Court

 

The authors deserve commendation to carry such stories on constitutional scholarship sans the legalese, in engaging style as stories on constitutional czars.

 

Manivannan R.Rajan

                        Risk Management Expert

 

The authors have guardedly confined their selection of their chosen czars in India to those who have departed. They candidly admit there could be differences on the choices made. It does not detract from the integrity in their choice and compelling stories they have put together.

                     Ms.Supriya Sriram

                  Housewife/Bookworm

 

In these attention span lacking social media times, the authors’ efforts  to pen on Vivian Bose, H R Khanna, Scalia and Souter, are bold and beautiful. They are mystical musings and magical anecdotes.

Sharath Chandran

         Author & Advocate,Madras High Court

 

This book may be the perfect segway, as part of curricula, for law students to pivot to constitutional law. And non legal students to be entertained and illumined about rich , inspiring and worthy lives.

                          Prof. V Narayanan

                       (Retd Faculty Member)

 

Preface

 

For a compulsive writer, availability and willingness of a companion writer in V Lakshminarayana, was a god send. We hit upon the theme of a book on Constitutional Czars in the Hall of Fame – ( Musings,Andcdotes,Episodes). To make it interesting, informatics and illuminating, in whatever order. It was not easy to identify the ‘chosen’ ones.Easy at one level yet more difficult than picking a cricket eleven.

 

We went ahead and ignored the hazards in zeroing in on our ‘favourites’. We decided that we shall stick to those, who were not in our midst, in India. Outside Bharat, we breached the code line. The Sandra Day 0’Conors, David Souter,Michael Kirbys, Jonathan Sumptions and Lady Hales, entered easily. If this self imposed restriction is appreciated and understood, the reader will realize why some obvious choices do not find a place. Anyway, it is OUR choice to the hall of fame. You may have yours.

 

Be that as it  may, whom did we pick as a Constitutional Czar in the Hall of Fame? Those who made a lasting impact and reverberating with life even today. They were pioneers in the interpretation of the Constitution. As Nani Palkhivala said, “The Constitution constitutes the nation”. It is the very core and essence of what makes a democratic nation in the free world.

 

Nani KNEW the Constitution. Ours and others’ too. And he said,” The essential purpose of .. Constitution is to ensure freedom of the individual and the dignity of man,and to put basic human rights above the reach of the state and of transient politicians in power whose naked juvenile chatter is covered by the fig leaf of demagogic claptrap”. Each one of the Czars between the covers of this venture meet this standard.

 

And go beyond, as several of them put together the very instrument called the Constitution as its framers. And they all had something in common running in their blood and veins. Love of their land and brethren. Some of them were slave owners like Thomas Jefferson. Yet they  genuinely sang, “ All men are created equal”. It would be imbecile and illiterate to attribute them with hypocrisy and indulge in idiotic cancel culture from puerile vantage of wokism.

 

Let us judge in their times. They were as ‘liberal’ as they came. As Justice V R Krishna Iyer, “Never judge from the prism of black or white. No one pure of either shade. Each and all of us are grey and we better be aware”. Our chosen Czars may not be lily white. But they produced magic in, from and out of the Constitution. Be they branded as ‘Originalists’ or ‘Conservatives’ or ‘liberals’, they saw what we mortals could never see. And they let us from their shoulders. Higher highs we could never dare to aspire.

 

This work is not a compilation of the biographies of the constitutional czars. It is not a dissertation on their scholarship or pronouncements. It is a musing. An entertaining trip on the anecdotal and episodes plane. We got to read a lot. Hear a lot about them. About their scholarship and outputs. There were pearls and gold and diamond strewn across territories and jurisdictions. We string them together to offer an ornament that dazzles.

 

Not necessarily from our efforts but from the inherent and intrinsic worth of the inputs. We thoroughly enjoyed and reveled in the journey with the czars. They shone so bright that they showed the way. We were always behind. So it did not blind us. It was a fascinating flotilla in serene constitutional waters. We were dumbfounded with the array of choices in offer. We kept our nerve. Made our choices. The product was liked by our Publisher OakBridge Publishing who, unhesitatingly, chose to add this to their proud and charming stable from many an intellectual. We felt good to join the ranks. We are grateful to the Publisher for packaging the product deserving of the czars inside.

 

We enjoyed the effort. We learnt a lot. We have shared the best from our exercise. It shines brighter in print. We trust it appeals to the readers. Be they lawmen or laymen, as we have made efforts to cut the legalese and let the constitution live among us We the People.

 

Having made the choice, in the 73rd year of our Republic, come 26th Nov,2022, on Constitution Day, we are keen, ready, able and willing, fully padded up, helmets to boot, to meet bouquets and brickbats of all hues. We shall take them on by swaying, if need be, from even bouncers and beamers, that may be hurled at us,on our chosen lot or rather typically, the omitted ones. They shall be YOUR choice.

 

We shall not fail in our duty to thank Justices P N Prakash, G R Swaminathan and N Anand Venkatesh, puisne judges of the Madras High Court, for their ready consent to provide their Special Contributions, in a timely fashion without compromising on erudition and content, on their chosen czars. Their Special Contributions add verve,zest and illumines our effort to let it sparkle and taste better, for the reader to partake in the fare.

 

We trustingly serve while promising  a constitutional feast to  the discerning  reader’s entire constitution,in an enjoyable tête-à-tête  with the Constitutional Czars in the Hall of Fame.

 

 

N Vijayaraghavan

V Lakshminarayanan

Advocates,Madras High Court

 

23.10.2022

Chennai.

 

About the Authors

 

N Vijayaraghvan is a practising Advocate, Madras High Court, with over 3 decades of experience. He has authored several books. He had authored Constitution and its Making, : Musings, Anecdotes and Episodes &  Constitution and its working, : Musings, Anecdotes and Episodes OakBridge in 2020/2021. He has been a resource person with TN Judicial Academy, run by Madras High Court and National Judicial Academy, Bhopal, run by Supreme Court of India. Married to Rukmani and lives in Chennai with his two daughters Bhargavi and Ranganayaki.

1995. Lakshminarayanan is an Advocate practicing at the Madras High Court since 1995. He has a wide range of practice in all fields of law. In 2008, he succeeded Justice K. Kannan as the Deputy-Editor-in-Chief of the Madras High Court. He has contributed over 300 articles in the Madras Law Journal over the past two decades. He is co-editor of Mulla on the Transfer of Property Act (2022 Edition, forthcoming). He is a stylophile who takes keen interest in travelling. VLN is married to Dr.Anuradha Srinivasan and lives with his children Shreekar and Shreeja in Chennai.

 

[1] (1973) 4 SCC 225

[2] 1975 Supp SCC 1

[3] (1976) 2 SCC 521

[4] 2017 10 SCC 1

[5]  98 E.R 327