'The Idea Of 'Basic Structure' Was Advocated For The First Time in India In Golaknath Case By Barrister M.K. Nambiar': Chief Justice UU Lalit

Chief Justice Lalit was delivering the Second M.K. Nambyar Memorial Lecture organised by SASTRA Deemed to be University under the aegis of the C.S. Vaidyanathan Chair on Law and Development. Former Judge of the Supreme Court, Justice B.N. Srikrishna presided over the event. Also in attendance were retired Justice Santosh Hegde of the Supreme Court, former Attorney-General K.K. Venugopal, and Senior Advocate C.S. Vaidyanathan.

"Any youngster who joins the bar and who has something to do with the constitutional law of this country would always be guided by one single name to begin with and that is M.K. Nambyar," the Chief Justice began.

He also reminisced about his time as a junior in the chambers of the veteran advocate and former Attorney-General, Soli S. Sorabjee, who authored 'From Gopalan to Golaknath, and Beyond: A Tribute to Mr. M.K. Nambyar'. The Chief Justice said, "Mr. Sorabjee was extremely proud of his work, 'From Gopalan to Golaknath', which dealt with M.K. Nambyar's contribution. Today, I thought that this particular occasion would warrant some contribution from my side as well as to how I understood Gopalan and to what extent the principles laid down in Gopalan have travelled and been part of our jurisprudence and our ethos."

"Within two months of the Supreme Court being established, two Nambyars entered the Court," Chief Justice Lalit recounted, referring to an article he had read, "One, Gopalan Nambiar, through the registry of the Supreme Court. And one M.K. Nambyar, through the court halls."

Arguably, the greatest claim to fame of M.K. Nambyar was his appearance and arguments in the case of A.K. Gopalan v. State of Madras [AIR 1950 SC 27], in which Sorabjee said the barrister had "made his mark as a constitutional lawyer". Sorabjee also called it a "curious coincidence" that the full name of his client was Ayilliath Kuttieri Gopalan Nambiar. A.K. Gopan was a popular Indian communist leader who had been arrested under a preventive detention law.

"That writ petition was numbered as O.P. No 13 of 1950. Many research scholars keep thinking about what those items were, numbered 1 to 12. History does not know what those were. But O.P. No. 13 of 1950 has become immortal in our jurisprudential and constitutional history," Chief Justice Lalit remarked.

Highlighting the profundity and force of Nambyar's submissions, the Chief Justice said that "each one of the six Judges on the Bench" extensively quoted the "brilliant submissions" advanced by the barrister. The Chief Justice added, "Out of those submissions, three principles have emerged, which have been adopted in our jurisprudence over time."

Chief Justice H.J. Kania had set out the most crucial submission made by Nambyar, which had far-reaching effects on Indian constitutional law. Nambyar had advocated for a conjoined reading of Articles 19 and 21, arguing that a common thread ran through all the liberties enshrined in Part III. This contention was rejected by the Supreme Court by a majority of 4:1 on the basis of the doctrine of mutual exclusivity of fundamental rights. This "unsound doctrine", as Sorabjee described it, held the field for two long decades after Nambyar argued for it to be rejected.

The two other submissions were recorded by Justice Patanjali Sastri, as he was then. The barrister had argued that the expression "except according to procedure established by law" in Article 21 should implicitly include procedural due process. Chief Justice Lalit summarised, "Not just procedure established by law, but that the procedure must be a proper procedure. This is the second submission." Nambyar also argued that, in the words of Chief Justice Lalit, "Law within the meaning of Article 21 must be understood not in the sense of an enactment but signifying immutable and universal principles of natural justice." Both these submissions were rejected by a majority of five Judges in Gopalan, who proceed to place a narrow and restrictive meaning on the Article.

Chief Justice also read out excerpts from the judgements of Justices B.K. Mukherjea and Sudhi Ranjan Das in Gopalan, both of whom went on to become the Chief Justice of India. Chief Justice Lalit observed that even though the five Judges forming the majority did not accept Nambyar's submissions, they were noted "in such extenso and with such appreciation and awe". The Chief Justice added, "Every submission has been noted with great respect. It is evident in the fact that they copiously mentioned everything."

Chief Justice Lalit then turned to the dissenting opinion of Justice Saiyid Fazl Ali in Gopalan and said, "This was the lone dissenting note, which then became one of the classic dissents in the history of India's jurisprudence. Justice Fazl Ali accepted everything that Nambyar submitted."

The Chief Justice narrated how the doctrine of mutual exclusivity of fundamental rights was finally overruled in the Bank Nationalisation case, R.C. Cooper v. Union of India [(1970) 2 SCC 298]. Gopalan, the Chief Justice explained, "stood its ground" till R.C. Cooper was decided by eleven Judges of the Supreme Court. He further explained, "Now the theory that the Articles of the Constitution which embody guarantees of fundamental rights must be construed, or the theory that every Article is a class or compartment by itself, and there cannot be any overlap and you cannot read both articles or all three articles...Basically, the theory of disjunctive interpretation was completely discarded."

Again, in the celebrated case of Maneka Gandhi v. Union of India [AIR 1978 SC 597], the Supreme Court, rejecting the narrow and restrictive interpretation engrafted on Article 21 in Gopalan, ruled that "procedure established by law" would include procedure which was fair and reasonable. "Justice Bhagwati accepted that the submissions of M.K. Nambiar in Gopalan were the correct law. The minority view expressed by Justice Fazl Ali was accepted in Maneka Gandhi," explained Chief Justice Lalit. He read out the observations of Justice P.N. Bhagwati, as he then was, as recorded by Justice D.Y. Chandrachud in K.S. Puttaswamy v. Union of India [(2007) 10 SCC 1], which is where "the journey reached the destination".

Chief Justice Lalit noted, "M.K. Nambyar planted the seed of these principles which we have come to adopt. The seed was planted in Gopalan. Of course, he did not succeed in that matter, but the seed that was planted today has become the accepted notion. It has become a part of our constitutional ethos. The submissions advanced by Nambyar are now a part of our constitutional history and jurisprudence." In the "journey from Gopalan to Puttaswamy", the contribution of M.K. Nambyar was significant, despite the hurdles he faced, including "a 5:1 decision against him", the Chief Justice recounted.

He also pointed out, "The idea that the procedure must be there, and the procedure must be established by law, has been carried to such levels and decisions say for instance in the judgements in Bachan Singh and Mithu v. State of Punjab. The issue that came up in Bachan Singh was whether the award of a death sentence was constitutionally valid or not. Justice Sarkaria who was the author of the majority view, in two passages again traced the development of the law from Gopalan down the line. In Mithu v. State of Punjab, the validity of Section 303 of the Indian Penal Code was tested on the ground of whether the procedure established by law was fair and just. That is when Justice Chandrachud, speaking for the Bench, again goes to Maneka Gandhi, Sunil Batra, and some of the observations made by earlier judges. In Sunil Batra, while dealing with the question of whether a person awaiting a death sentence can be kept in solitary confinement, Justice Krishna Aiyyar said that though our Constitution did not have a due process clause as in the American Constitution, the same consequence ensued after the decision in the Bank Nationalisation case. Again we go back to the same source."

Chief Justice Lalit also spoke about Nambyar's role in developing the basic structure doctrine. He recalled, "On my recent visit to Germany, I had the opportunity to meet the Chief Justice of the constitutional court and if one studies Golaknath, the basic ideas come from a German author. Those Judges in Germany are very interested in noting that what was propounded in Germany, the basic structure principle has been accepted a part of our constitutional law. So much so that we have set aside some constitutional amendments on the ground that it violates the basic structure, including National Judicial Appointment Commission, P. Sambamurthy. The idea was advocated for the first time in Golaknath by none other than M.K. Nambiar."

In conclusion, the Chief Justice observed, "Everytime, whatever developments are in the field of law, they trace their origin to Gopalan first, and the acceptance of the Gopalan principles in R.C. Cooper and Maneka Gandhi. It is these three principles which have gained acceptance over a period of time, right from 1950 when it was advocated for the first time by Nambyar. Everyone was in awe of the efforts made by him. The then Attorney-General (M.C. Setalvad) also said that in one of his books. Nambiar came up with theories which did not receive acceptance immediately but were fundamental and basic."

Chief Justice Lalit also offered a brief tribute to the legal luminaries who graced the event with their presence. He said, "As a young lawyer, I saw Justice B.N. Srikrishna when he was in his avatar as a lawyer in Bombay, a senior counsel practising mainly on labour, industrial, and constitutional matters. I saw Justice Santosh Hegde in his avatar as a lawyer, senior advocate here at the Supreme Court. I had the privilege to assist him also in some matters on behalf of the Union of India. Of course, the great Venugopal, who has not assisted him? Everybody coming to the Supreme Court from some stage or the other must have had some occasion to be a part of any case in which Venugopal was appearing. I had a great association with C.S. Vaidyanathan. I appeared in many matters with him. So, I consider it my extreme privilege to be among such a galaxy of stalwarts, in front of whom, I started as a junior counsel in this court."

Justice Uday Umesh Lalit is the 49^th Chief Justice of India. He was one of the six Senior Advocates to be directly elevated as a Judge of the Supreme Court. He is scheduled to demit office on November 8, after a tenure of 74 days as the Chief Justice of India.