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Thursday, October 28, 2021

A Grand Constitutionalist

Andhyarujina appeared in some of the most important cases of independent India

Written by Raju Ramachandran |
Updated: March 29, 2017 12:27:05 am
Kesavananda Bharti case, Supreme Court, Supreme Court advocates, Supreme Court cases, Supreme Court of Pakistan, Yakub Memon, Yakub Memon plea, indian express news The Supreme Court. (File Photo)

The tribe of lawyers that grew up alongside the Constitution is diminishing. Last week, it was Anil Divan, yesterday it was Tehmtan Andhyarujina. Another grand old constitutionalist has passed on. Andhyarujina imbibed his constitutional values in the chambers of the late H M Seervai, the formidable Advocate General of Maharashtra, an authority on constitutional law, a legend of the legal profession. Seervai was a man of uncompromising integrity. Andhyarujina and Atul Setalvad, Seervai’s other notable junior, imbibed this quality. Andhyarujina appeared in some of the most important cases of our times, first, as Seervai’s junior, later, in the course of his own very distinguished career, as the Advocate General of Maharashtra, Solicitor General of India and one of the most respected Senior Advocates in the Supreme Court.

He was a consistent critic of the “basic structure” doctrine laid down by the Supreme Court in the Kesavananda Bharti case by a slender majority. He was clear that unelected judges cannot have the power to come in the way of constitutional change brought about by Parliament through a constitutionally sanctioned special majority. As a close witness to all that transpired during the hearing, he recorded the inside story of that unique case for posterity in his book The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (2011). Andhyarujina was a constitutional conservative and very unhappy with what he saw as judicial activism in diverse areas, which he thought was never intended by the framers of the Constitution. He was an “original intent” wallah. He bemoaned what he saw as a decline in the standard of the Supreme Court. He was distressed by the types of cases on which the Supreme Court was spending time (a part of the “original intent” approach where the Supreme Court was intended to be a constitutional court).

When I met him in Mumbai last month, I suggested that he use his enforced leisure to write. He went back to his pet theme, namely, what the Supreme Court has become. I gently chided him, telling him he should now write a book on a core constitutional subject. Over the years, Andhyarujina wrote with clarity and sobriety on many matters of law, both in the popular press and academic journals. While rejecting the “basic structure” doctrine in their own country, Pakistan’s Supreme Court quoted from Andhyarujina’s trenchant critique of the doctrine. He was professionally active till late last year. Among the major cases in which he appeared last year were the Entry Tax case, the Arunachal Assembly case and

Jayalalithaa’s corruption case. He was regularly asked to be amicus curiae in cases; the right to die and criminal defamation, recent examples. One amicus assignment left unfinished is a case relating to the “minority” status of Sikhs in Punjab in relation to educational institutions. Andhyarujina appeared for the Death Penalty Clinic in support of Yakub Memon’s plea for quashing the death warrant on grounds which serious lawyers and judges acknowledge as legally weighty. “I hope you know whom you are trying to save” said a Supreme Court judge to all of us involved in the effort. For someone whose loyalty to the Constitution was greater than a mere oath of office, this must have been saddening.

I must be forgiven for ending on a personal note. Being a couple of decades younger and junior to him in the profession, I was content to be a distant admirer of this great gentleman lawyer, but my wife and I were privileged to be included in Tehmtan and Silloo’s close circle of friends. When our son got married in Mumbai a few years ago, it was the Andhyarujina home in which we received our daughter-in-law with the Andhyarujinas doing the welcome in Parsi style.

The writer is a senior advocate of the Supreme Court

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