"Unusual Happenings": The tale of when one Supreme Court judge got himself hospitalised and his Chief Justice went checking

He would turn sixty-five on April 26, 1973. He had just presided over a thirteen-judge bench which, for 68 days from October 31, 1972 to March 23, 1973, had heard possibly the most significant case the Indian Supreme Court would ever hear. (Kesavananda Bharati vs State of Kerala)

Sarv Mittra Sikri’s name literally meant that he was a friend of all. However, in reality, Chief Justice Sikri, the first judge to be directly elevated from the Bar to the Apex Court, was only too aware that he had presided over a Bench bitterly divided and under the most intense of pressures to decide in a particular manner, or better still to ensure that the case remained undecided.

This is that story of a race against time.

Sikri was from Lahore. Coincidentally, the die for this epic race had been cast by two Punjabi brothers from the other side of the border at Jalandhar - Henry and William Golak Nath. The Golak Nath family had challenged the government eyeing their 500 acres land and had managed to get the Supreme Court to hold that even constitutional amendments, like ordinary laws, had to pass the test of being consonant with Fundamental Rights.

Indira Gandhi was not one to take this fatal blow lightly. Fali Nariman claims the initial government response was one of “stunned silence”. Given its socialist moorings, the Right to Property had troubled the Congress Party, from the word go. Indira’s triumvirate - Bengal Chief Minister Ray, Law Minister Gokhale and Steel Minister Kumaramangalam - were tasked to undo this verdict and they went about it systematically. For starters, they ended the practice of giving the Chief Justice an unfettered reign in matters of judicial appointments.

Packing the Court

Justice Jaganmohan Reddy, who sat alongside Chief Justice Sikri to hear that epic case, believed that probably Justice KK Matthew was elevated to the Supreme Court at Kumaramangalam’s instance. HR Gokhale was credited with bringing Justices DG Palekar and YV Chandrachud. SS Ray’s hand was suspected behind the elevation of Justices MH Beg and AK Mukherjea. Justice Beg has himself admitted that Mrs Gandhi had wanted him on the “Muslim seat” on the Apex Court. However, only seven and a half years as a High Court justice and a fifteen rank in seniority came in his way. Lady Luck struck when a High Court for Himachal Pradesh was created in Shimla for India’s newest State. Beg was made Chief Justice and, in record time, brought to Delhi. It was obvious that Mrs Gandhi had great hopes pinned on him.

Justice SN Dwivedi had admitted to Justice Reddy that the entire triumvirate had interviewed and cleared him. Madhu Limaye, on the floor of the Lok Sabha, went to the extent of alleging that Dwivedi had been brought with the express purpose of overruling the Golak Nath decision. In fact, TR Andhyarujina claimed that Chief Justice Sikri was initially reluctant to appoint Beg and Dwivedi, but Indira forced his hand. Gadbois writes that Sikri had consulted Bhargawa, who had served with Dwivedi in Allahabad and was told that he was a “Leftist”. In any event, Sikri’s relations with Madam were stained.

Gadbois writes that there were rumours that there was a strong possibility that Sikri would not have succeeded Chief Justice Shah as Indira had withheld the announcement, which was customarily made a month in advance, only to anoint Sikri actually three days before he got the top job! According to Gadbois, Kumaramangalam had confirmed that a decision had been taken to supersede Sikri, however internal Congress Party issues came in the way.

Sikri, perhaps to repair the relations, succumbed to all these appointments.

These six justices, along with Justice AN Ray, were expected to turn the balance when the opportunity presented itself. And it did, when Chief Justice Sikri constituted a thirteen-judge Bench to reconsider Golak Nath.

Much has been written about the Kesavananda Bharati decision. This story is about the “unusual happenings” behind the scenes. This is a phrase used by Justice Chandrachud which caught the fancy of Granville Austin. In fact, an entire section of his book Working a Democratic Constitution is dedicated to these “happenings” under the heading “Unusual happenings on the bench”.

Austin claims that Indira’s government tried to subvert the Kesavananda Court in three ways to ensure a favourable verdict:

1. Trying to ‘discover’ the thinking of judges.

2. Trying to ‘influence’ the judges’ opinions.

3. Trying to ‘delay’ the decision beyond Chief Justice Sikri’s retirement.

Discover

It was believed that some of the judges on the Kesavananda Bench themselves were accessory to tactics No 1 and 2, including leaking out draft opinions. Justice Beg was suspected on this count, as was Dwivedi Arun Jaitley, in his blog post, states that Dwivedi in open court indicated to Nani Palkhivala that if he was willing to give up the Right to Property as a Fundamental Right, he would get Parliament to accept that the other rights were unamendable.

Justice Reddy in, We Have a Republic: Can We Keep It?, had gone as far as alleging that Mohan Kumaramangalam had congratulated his colleagues a week before the judgment was delivered, and was aware that the three senior most judges, who would pay with their supersession, would be holding against the government. While Kuldip Nayar claimed that on the morning of the judgment itself the government had all the opinions, Justice Chandrachud was of the opinion that the news of draft opinions being leaked was far-fetched. Palkhivala, however, did not rule out this possibility. Chief Justice Sikri had heard rumours. He informed Austin that there was nothing “secret” about draft opinions and he would have shared them with the government if it wanted.

Influence

SS Ray and wife hosted Justice and Mrs Mukherjea for lunch. Ray was a barrister called to the Bar from Inner Temple. AK Mukherjea was a barrister too before donning judicial robes. He was from Gray’s Inn. Both were Bengalis. Ray thought he had an opening.

While Ray worked on the East, Gokhale tried his hand on the West. Justice Chandrachud is rumoured to have discussed the case with Gokhale and Justice PB Gajendragadkar. Gajendragadkar was believed to have played a crucial role in getting Chandrachud to the Supreme Court and therefore it was clever to involve him in this process.

Golkhale is said to have adequately hinted to Chandrachud, who was just fifty-two when appointed to the Apex Court, having been considered, according to Justice Hidayatullah, “SCI material”, that his eventually becoming Chief Justice hinged on the way he would rule.

Delay

Anil Divan had shared with Palkhivala his suspicion that there was a pattern behind Niren De, HM Seervai and others seeking excessive time to argue. Was there a clear strategy to outlast the case beyond Sikri? Nani brushed the theory aside and, in fact, embarked on his own detailed submissions.

Marathon hearings were almost at the finish line when Justice Beg fell “ill” and hospitalised himself at the All India Institute of Medical Sciences on March 4 or 5. Justice Reddy took him there and his friend Justice AN Grover visited him as did others. Seervai staunchly quashed rumours that the “illness” was deliberately trumped up to delay the decision. However, the prevalent theory that this was some sort of government “game plan” is corroborated by Andhyarujina.

Chief Justice Sikri was in a fix. He would retire on April 25, which was just weeks away. He also had to fit in a two-week European trip lined up, a perk of holding high judicial office. So, he did something unprecedented – he himself landed up at hospital to check up and sought out a certificate from the doctors! Arun Jaitley states that when Sikri asked what the illness was, the doctors said it was “high blood pressure”, and had prescribed two-weeks’ rest. Sikri went to the extent of obtaining a written certificate!

Sikri then summoned his fellow judges and both side’s advocates to his chamber and sounded out the idea of reconstituting the Bench. On predicted lines, Beg, being known to be sympathetic to the government, Attorney General De, and the lead counsel Seervai flatly refused. Seervai pointed out that the hospital certificate did not indicate that Beg was incapacitated from giving his opinion. In fact, De and Seervai wanted the hearings stalled. Palkhivala, the leading counsel from the petitioners’ side, wanted the hearings continued. He submitted that the hearings could be tape recorded for Beg’s benefit. Finally, he even offered to cut short his submissions and simply submit written submissions.

De threatened to boycott proceedings if the ‘tape recording’ route was adopted. This led to even talk of De being cited for contempt.

Finally, Beg returned and the hearings concluded. However, Sarva Mittra Sikri’s problems were far from over. When he sounded out his colleagues, it was evident that there would be no meeting of minds. The Chief Justice, feels Austin, by not insisting on common opinions, further fuelled the discord in the Bench.

Opinion writing and judges meeting

Chief Justice Sikri and Justices KS Hegde and Mukherjea had begun writing their opinions while the hearing was on. Sikri circulated his draft before departing for Europe on March 26. Justice Shelat felt that a common judgment by five judges would have carried greater weight than separate opinions. He had tasked Justice Grover to draft a common opinion.

Sikri returned from the cooler European climes on April 10, just fifteen days before retirement, to find complete chaos reign. There would be multiple opinions. Sikri decided to bring matters under control and lessen the number of “tentative” views. Things had come to such a pass that he decided to meet the judges in two groups. He called up brother Justice Reddy, thanking him for the grapes he had sent, and requested him to meet at his residence the next morning.

To his surprise, when Reddy turned up at Sikri’s house he found only seven other judges. Sikri explained that the other five had gone done too much down the path of parliamentary supremacy and “there was no use talking to them”. In fact, Sikri did not have a meeting with the pro-government group and many of his colleagues, off record, shared their reservations on such a selective consultation. Reddy, in his book ‘The Judiciary I served’, recalls Ray complaining to him about his exclusion and, apparently, when he asked Sikri why he hadn’t been called, the Chief Justice told him that he already knew his “view”! Andhyarujina felt that some viewed Sikri’s efforts as “a manoeuvre to create a majority that did not exist.”

Kuldip Nayar asserts that Sikri did have one meeting of all the Bench members. However, when he failed to persuade his brother judges to reduce the number of judgements, he simply surrendered. He did, however, get his way in getting each opinion author to agree to expressly conclude with a specific “conclusion” paragraph.

Special mention is warranted for the justice who managed to finalize his draft actually on the day of the pronouncement. Rumours floated that Sikri had ordered him to take leave and finish up. It was he who also claimed that he had only seen four draft opinions. This shocking claim of Justice Chandrachud was seriously disputed by his colleagues on the Bench.

Sikri’s saves the day with the “View of the majority”

Sikri did manage to redeem the day with his greatest contribution to India’s constitutional history. When he had failed to check the multiple opinions, according to Justice Beg, Sikri hastily drew out the “View of the Majority”, which set out the dominant view which would go on to be accepted as the real ratio of the Fundamental Rights Case, given the eleven multiple and divergent views of the Bench.

Beg claims that this statement was nothing but a copy of Justice Khanna’s 15 basic points set out in the conclusions of his opinion. So eventually, it was the view of a solitary justice which came to reflect the decision of this great 13-judge Bench. India got her “Basic Structure” doctrine from Khanna’s efforts to straddle the middle point between Parliamentary supremacy and the Constitutional supremacy of the Court. He said you could indeed amend Fundamental Rights as long as the Basic Structure remained intact. Sadly, this “View of the Majority” was not signed by the Parliamentary Supremacy faction - Ray, Beg, Matthew and Dwivedi. Only nine justices appended their signature.

The fallout

All India Radio, at its 5 PM bulletin on April 24, 1973, announced that three signatories - Justices JM Shelat, Hegde and Grover were superseded, and Ray, who had abstained from signing, became India’s Chief Justice on April 26, 1973. The three resigned in protest.

Former Attorney General CK Daphtary cheekily commented “the boy who wrote the best essay won the first prize”. Hidayatullah lamented that the initiative was to produce “not forward looking judges but judges looking forward to their future.” Ray insisted that he was given two hours to decide or the offer would be passed on to the next senior most judge. Abhinav Chandrachud, in his book Supreme Whispers, quotes Ray as saying that he did not ‘hanker’ for the post. Kumaramangalam would subsequently, on May 2, justify Ray’s appointment in Parliament saying that it would “help put an end to this period of confrontation”. He also said that the government wanted a “forward-looking judge”.

What was to be the brightest day of India’s Supreme Court - the day it gave the world the gift of “basic feature” jurisprudence, a concept that would resonate in courts the world over, including Pakistan and Bangladesh - became its darkest by that one act. The Indian Supreme Court would never be the same.