In January 1976, at the full court reference in memory of Meloth Krishnan Nambyar (1898-1975), then Attorney General Niren De notably stated,
“…it can be said, without exaggeration, that Nambyar’s arguments assisted this Court a great deal in the interpretation of several Articles of the Constitution, particularly those relating to fundamental rights. Until his death, he was perhaps, the most erudite Constitutional Lawyer in the country.”
It is ironic that these remarks were made at the height of the Emergency, by the law officer of a government which had incarcerated most of the opposition under preventive detention laws, fighting against which Nambyar had made his name, particularly in the cases of AK Gopalan and S Krishnan.
A couple of years later, as the Congress warmed the opposition benches, Nambyar’s commitment to the Constitution of treating citizens with equal care, respect and dignity stood vindicated and his legacy was cemented by the Supreme Court’s ruling in the case of Maneka Gandhi v. Union of India. This landmark decision jettisoned the majority view of AK Gopalan and accepted Nambyar’s arguments, which had found favour with the minority view in AK Gopalan (Fazl Ali J and Mahajan J) that “procedure established by law” in Article 21 had to be just, fair and reasonable, as well as the point that fundamental rights were inter-connected and not distinct and mutually exclusive.
While there is no paucity of tributes and analyses of Nambyar’s contributions to the march of the law in our country, the recent publication of MK Nambyar: A Constitutional Visionary, written by his son and former Attorney General KK Venugopal (with Suhrith Parthasarathy and Suhasini Sen) gives us reason to revisit his life, through three cases that were seminal not only to Nambyar’s career, but also to the life of our nation.
Nambyar obtained a Master’s degree in constitutional and administrative law from the London School of Economics and joining the Bar from Lincoln’s Inn. Upon his return to an India in the 1930s, his newly gained qualifications not only propelled him status-wise in Mangalore legal circles, but also prepared him intellectually and experientially for the constitutional battles to come.
From mofussil lawyer to lead counsel in AK Gopalan Case
After 25 years in Mangalore, Nambyar had grown significantly in stature having appeared in numerous cases as a government pleader and public prosecutor. Fortuitously, upon the elevation of Govind Menon [Judge, Supreme Court of India (1956 - 1957)] to the Madras High Court bench, upon a recommendation, Nambyar was invited to take over his practice and juniors at the Madras High Court. Justice V Krishna Iyer J later remarked,
“When Nambyar came to Madras it coincided with the Independence of the country and shortly after the Constitution came and India awoke to a new human order, where constitutional civilization became the essential part of culture.”
It was in this new milieu that Nambyar’s academic grounding and many years as a trial lawyer helped him in moving forth. Just two years after he had moved to Madras, VG Row, a solicitor for Leftist causes, decided to engage Nambyar for the Republic’s first constitutional case - a challenge to the preventive detention of communist AK Gopalan on the ground that it violated Articles 19(1)(d), 21 and 22.
As is well known, Nambyar’s submissions in the matter were two-fold: (i) That the word ‘law’ in the phrase procedure established by law in Article 21 was to include due process and to be just fair and reasonable as opposed to any arbitrary procedure and (ii) That preventive detention laws were not the sole preserve of Articles 21 and 22 and were also justiciable under Articles 14 and 19. These arguments didn’t find favour with the majority. However, they did in Fazl Ali J and Mahajan J’s dissenting judgments. Fazl Ali J in his famous dissent in paras 97-98 accepts the overlapping nature of fundamental rights. In para 122 particularly, he dealt with the word 'law' in Article 21 to entail due process elements of notice, opportunity to be heard, impartial tribunal and orderly procedure. While Nambyar’s submissions and Fazl Ali’s dissent lay dormant for about two decades, they found acceptance in the majority view in RC Cooper v. Union of India, in which Gopalan was overruled in the context of property rights 19(1)(f) and 31.
Interestingly, it has been noted that before the commencement of arguments, JB Dadachanji on behalf of KM Munshi informed Row and Nambyar that Munshi would open arguments. However, Row with an emphatic "no", laid the stage for Nambyar to open arguments and thereby helped catapult Nambyar to the national stage. Chief Justice Harilal Kania, although in the majority, noted the Court’s indebtedness to Nambyar for helping it interpret the true meaning of Article 21.
Right to property, Karimbil, Golaknath and Dieter Conrad
As the foremost constitutional lawyer in the 50s and 60s, Nambyar had the privilege to argue some of the main challenges against land reform legislation. He also brought an interesting perspective to these issues as he hailed from a land-owning family. Nambyar, ever vigilant of the potential carte blanche that the legislature had bestowed upon the executive by using the elastic phrase ‘public purpose’ for land acquisition, frequently wrote against these dangers. He would successfully proceed to represent landowners (under the Ryotwari system) in a challenge against the Kerala Agrarian Reforms Act of 1961 in the case of Karimbil Kunhikoman v. State of Kerala. Justice Wanchoo accepted Nambyar’s arguments and held that as Ryotwaris didn’t fall under the definition of an ‘estate’ as per the Fourth Amendment, the 1961 Act was struck down as it was no longer protected by Article 31A. The 17th Constitutional Amendment, which was challenged in the Golaknath case, was an immediate reaction to the above decision. It expectedly included the lands held under Ryotwari settlements in the definition of “estate” and subsequently placed the 1961 Act in the Ninth Schedule.
Buoyed by Mudholkar J and Hidayatullah’s J dissenting judgments in the Sajjan Singh case, one Henry Golaknath proceeded to challenge the vires of the First, Fourth and Seventeenth Constitutional amendments. Around the same time, Dieter Conrad, a German legal scholar, had delivered a lecture at the Benares Hindu University titled Implied Limitations of the Amending Power. He drew on the experiences of Nazi Germany and warned that the Supreme Court had not yet been confronted by extreme amendments in cases it had decided until then. He emphasised that it was the duty of the jurist to anticipate extreme cases of conflict, as only extreme tests reveal the true nature of a legal concept. Leading the charge in the Golaknath case, Nambyar relied upon Conrad’s lecture (after seeking his permission, and on the condition that it be placed in toto before the bench) on implied limitations and ultimately found favour with Chief Justice Subba Rao in a 6:5 decision.
Unsurprisingly, this decision was negated by the Twenty-Fourth and Twenty-Fifth Amendments, which famously came to be challenged in the celebrated Kesavananda Bharati case, which accepted the petitioners’ submissions that there was an implied limitation on the power of Parliament to amend the Constitution qua the basic structure.
Although the two decisions of Gopalan and Golaknath are known to be the famous and enduring decisions associated with the name and erudition of MK Nambyar, he had the privilege of appearing in more than several hundred reported cases across the Supreme Court and High Courts. These included 21 Constitution Benches, of which two were 11-judge benches. While there are numerous characteristics that set Nambyar apart, Venugopal at page 136 of the book writes,
“What set him apart was the depth of his academic knowledge, discernible irrespective of the nature of the case that he argued or the forum where it was argued. The knowledge that he possessed from his years of study shaped his arguments and lent to them the conviction that can only come from a true scholarly belief in the principles he espoused.”