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Tuesday, June 15, 2021

A case for the Republic

On the 60th birthday of our founding text,we remember the historic court judgments that expanded the idea of India,breathing life into our Constitution and the rights it promised us...

Written by Vinay Sitapati |
January 26, 2010 11:14:58 pm

1,17,369 words seem an odd excuse for a national holiday and a thundering parade. But the Nandalal Bose-decorated Constitution of India,born sixty years ago to this day,deserves every festoon in its annual birthday celebration. Its words inscribe the idea of modern India,tell us who we are. But these lofty intentions didn’t automatically translate into rights that we can touch and feel. That has required a far-sighted judiciary and dogged litigants,who through landmark court judgments,expanded the idea of India.

On the 60th birthday of our founding text,we profile the 20 court cases that breathed life into our Constitution by fulfilling its promise. We see these historic judgments through the eyes of the men and women — lawyers,activists,petitioners — who made it happen. Their often-lonely battle is as historic as the cases themselves.

This special edition aims to enthuse the lay-man and law-enthusiast alike. Both can revel in odd connections,like the nugget that the lawyer who argued for property rights earliest is the father of communist Somnath Chatterjee. The list includes one father-son combination: K.K .Venugopal and his father M.K. Nambiar — a man whose arguments,like Mohammad Bin Tughlak’s,were before their time. Special mention must be made of Nani Palkhivala,whom attorney general Goolam E. Vahanwati describes in his essay as “unarguably the best lawyer that this country has produced”. Palkhivala is profiled as the lead lawyer in India’s most celebrated case — the 13 judge and 1000 plus page Kesavananda Bharati v. Union of India. Indira Gandhi’s crude attempts to take over a temple priest’s land ended with possibly the single greatest act of judicial-self empowerment the modern world has seen. Also profiled is that doyen of legal commentators H.M. Seervai,whose Constitutional writings have explained the idea of India to generations of students.

The choice of profilees is eclectic. At times they are the lawyers who argued the case. Elsewhere they are petitioner-activists whose cussed litigiousness has expanded the idea of India in ways clever argument never quite can. Some of the names,such as Fali Nariman,animate the newspapers today. Yet others,such as Shamshad Pathan in Gujarat,perform the invisible task of making sure riot victims file FIRs and sign affidavits. Our profile of acclaimed legal scholar Upendra Baxi demonstrates how public intellectualism outside the courtroom can impact the gifts dispensed within.

This is not to validate every single Supreme Court judgment. Many contracted the idea of India. In these twenty,we profile three such: letting off the policemen who raped the tribal girl Mathura,validating communist A.K. Gopalan’s preventive detention,and possibly the most disturbing of them all: acquiescing to the Emergency by agreeing to the suspension of the writ of Habeas Corpus. But even these cases served to rally around an outraged public and changed later judicial attitudes. Their consequences expanded the idea of India,even if their intention didn’t.

Like all lists,this one too is incomplete,and it is so in three ways. By enumerating cases that fought us our rights,the focus is only on petitioners and litigants. Judges such as H.R. Khanna,government lawyers such as M.C. Setalvad and Ashoke Sen,get short shrift. And in large cases such as the Gujarat riot litigation,detailing every lawyer would take an entire book; we apologise for their absence. The list is also dominated by Delhi-based Supreme Court lawyers. This is not a geographical indictment of quality; it only reflects the reality that cases sparked by unknown bravehearts usually end their long journey in the apex court.

As the Republic turns 60,a new generation of litigants,many younger than the Constitution,are bringing new energies to their battle. While questions of property,reservations and the separation of powers lie somewhat settled,new controversies rage — not least about the proper place for the world’s most powerful court. From the goods & services tax to water rights,our profilees speculate on what the next landmark judgment will likely be. But if the last 60 years has taught us anything,it is that through birth pangs,growing pains,and mid-life crisis,the idea of India remains secure.

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