Book Extract | [In]Complete Justice? The Supreme Court at 75‎ by S Muralidhar (Editor)

Excerpted with permission from the publisher [In]Complete Justice? The Supreme Court at 75‎ S. Muralidhar (Editor), published by Juggernaut

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Recollections and Reflections

GOPAL SUBRAMANIUM

I

The journey of the legal profession is a fascinating one, where different personalities enter and exit the train. It can be somewhat discursive too. I hope to acknowledge those who have left an indelible mark, conducting themselves in accord with the highest standards of the legal profession.

Lawyers played a prominent role in India’s struggle for freedom. Mahatma Gandhi, after nearly two decades of law practice in South Africa, returned to India in 1915. In his travels across the country, he was able to inspire Indians (and lawyers, in particular) to resist oppression, even encouraging a social audit in villages. In the Champaran satyagraha, Gandhiji was joined by several young lawyers, including one who would become the first President of free India – Dr Rajendra Prasad. Other prominent figures in the freedom struggle like Motilal Nehru, Jawaharlal Nehru, Sardar Patel, Dr BR Ambedkar and C Rajagopalachari were all lawyers by training, and combined their political and professional lives with remarkable skill. KM Munshi and Alladi Krishnaswami Iyer, who were leading legal practitioners and played an active part in the Constituent Assembly, were tasked with drafting the Constitution of India. A leading light of the Bombay Bar, Bhulabhai Desai, brilliantly defended the three Indian National Army-accused in the Red Fort trials of 1945.(22)

The Indian Constitution was adopted on 26 November 1949. It came into force on 26 January 1950. The first Attorney General for India (AG) was Motilal Chimanlal Setalvad, who by then had already established himself as the leader of the Bombay Bar. In fact, from May to September 1949, Setalvad had acted as Advocate General of India. He was present at the inaugural sitting of the SCI on 28 January 1950. In his opening speech, he exhorted the Court to attain judicial eminence, reminding it that epoch-making judgments will illuminate its records. He said, ‘that like all human institutions, the Supreme Court, we hope, will earn reverence through truth.’ (23) CJI Kania looked forward to a Bar which would set a high standard.

He further said that the legal profession would naturally resist encroachments attempted in the name of law and order on the liberty of the subject and fundamental human rights.(24)  Setalvad, throughout his long and distinguished career, maintained near absolute standards of independence and integrity, matched by great ability and a flair for precision.(25)

Alongside Setalvad, there was CK Daphtary, a former Advocate General of Bombay, who was the first Solicitor General of India (SG). His arguments were marked by humour, wit and legal craftsmanship. He was, famously, the public prosecutor in the trial of the accused in Gandhi’s assassination case. He was a versatile lawyer.(26) SV Gupte, who was an acclaimed author on Hindu law, was appointed as Additional Solicitor General and later, as Solicitor General.(27) He was a very sharp, forceful lawyer. He could handle many branches of law. Following him was HN Sanyal, who was a brilliant legal mind, conversant with textbooks and cases.

The well-known case of AK Gopalan v. State of Madras(28) was argued before a six-judge Constitution Bench of the SCI by MK Nambyar, a doyen of the Madras Bar. His arguments in the case reflected his deep knowledge of comparative constitutional law and the developing international law on civil liberties. Other prominent legal luminaries who were his contemporaries included NC Chatterjee, GS Pathak and Barrister Ashoke Kumar Sen, who went on to serve as a Member of Parliament (MP) and was a Law Minister in both Prime Ministers (PMs) Jawaharlal Nehru and Indira Gandhi’s cabinets. The titanic constitutional scholar, HM Seervai, travelled to Delhi often to address the Court in some of our nation’s most famous constitutional cases. He served for several years as Advocate General of Maharashtra. His reverence for the Courts was best described by former CJI RS Pathak, who acknowledged that Seervai ‘was extremely jealous of protecting their public reputation, anxious to see that the stream of justice flowed unpolluted, and ensured that no deviation, which came to his knowledge, remained uncorrected.’(29)

Dominating the SC Bar between the decades of the 1960s and 1990s were three leading lights of the Bombay Bar. The first was Nani Palkhivala, the second, Fali Nariman, and the third, Soli Sorabjee. Each one had a distinct style of advocacy.

Palkhivala was the most voracious reader and would not spend a moment in chatter or idle conversation. His fascination for spirituality and knowledge of the many works of Shri Aurobindo left an indelible impression.(30)  He entered the courtroom slowly and graciously. Not in one moment did he lose his self- control or raise his voice. Out of the many great moments I witnessed him in Court, two come to my mind. The first was his appearance on behalf of Mrs Indira Gandhi, whose election had been set aside by the Allahabad HC. In a vacation hearing presided over by the legendary VR Krishna Iyer, he argued with restraint, calmness and gentleness, which must have persuaded the Court to pass a conditional order of stay.(31)  The second moment was when the CJI (the late AN Ray) attempted a review of the judgment in the Kesavananda Bharti case(32). The arguments of Palkhivala were brilliant, and many of his submissions, handwritten, were so persuasive that the Judges persuaded the CJI to dissolve the reference.(33)

Fali Nariman, a brilliant lawyer who traced his routes to Burma, was meticulous in every detail. He used his walking time for transcendence and thinking. He was adept in most branches of the law, was used to severe critical enquiry and placed institutional reputation at a very high level. His masterly performance in the Escorts case(34) in the Bombay HC (in Tilak’s Hall before Reddy and Rege JJ) was a treat, so much so that his opponents admired him all the way. He argued good points, dropped bad ones and could weave a narrative where only a few pieces existed. He was a great reader, a consummate writer and an advocate for freedom, liberty and the protection of minorities.(35)

Soli Sorabjee was yet another advocate of admirable skill and ability. He had a prodigious memory, and a child-like sense of innocence and trust. He was a lover of books and music. In the Court, he was ready from start to finish. An early riser like Fali, incredibly industrious, he had the power of quick reading and identification of facts.(36) His arguments in the famous St. Xavier’s case(37) were enthralling and held the Court spellbound.

A special mention must also be made of GS Pathak, who returned to the Bar after demitting office as Vice President of India. He was very persuasive and industrious. Likewise, Sachin Chaudhri, the son of the eminent JN Chaudhri of the Allahabad HC, would argue with dignity, elegance and immense courtesy.

There were retired judges, too, who contributed to the Court and its precincts. One was ST Desai, an authority on Hindu law, whose skill in tax matters was amazing to witness. He would wake up at 2 a.m. to read his briefs and would arrive at the court at 10 every morning. The other was Vishwanatha Sastri, who impressed both the Bar and the Bench with his brilliance and disarming simplicity.

There are a few more lawyers whose names deserve a tribute. Foremost among them is KK Venugopal, whose manners, etiquette and analytical presentation has led to many successes from his stables. Two of his juniors rose to be judges of the SCI as direct appointees.(38)  He is very courteous to the Court and his opponents. His heart is full of compassion. In matters of the Constitution, he is an acclaimed authority. His father, the late MK Nambyar was one of the foremost thinkers of constitutional law.

K Parasaran, son of Kesava Iyengar, a legendary lawyer from Madras, was himself an extraordinary lawyer.(39)  He began as a civil law expert, but like Setalvad, in no time, mastered constitutional law. He held the office of AG with distinction. He was preceded by Lal Narayan Sinha, a doyen of the Patna Bar whose deep understanding of constitutional law was complemented by his dignified and understated presentation of a case.(40)  Succeeding Parasaran as AG was another leading light of the Madras Bar, G Ramaswamy. His wit and repartee in Court livened the court proceedings.(41)

In the field of criminal law, Ram Jethmalani stood out as an exceptional lawyer and played a long and successful innings, dabbling in politics as well.(42)  A lawyer from Allahabad who rose to national prominence was Shanti Bhushan, who conducted the trial of the election case that unseated the sitting PM Indira Gandhi in 1975.(43)  He served as a Law Minister in the cabinet of PM Morarji Desai.

Another distinguished criminal lawyer in India was Frank Anthony. He always carried multiple coloured pens. His memory and description of evidence and facts were mesmerizing. He was a leader of the Anglo-Indian community, the founder of a school, amazingly punctual and had a specially designed Ambassador car that could house his books when he travelled for various trials. His junior, Sushil Kumar, has carried the mantle in criminal law. KK Luthra was another great criminal lawyer who appeared in all Courts, always prepared and dressed to perfection.

In the field of civil liberties, two lawyers require special mention. VM Tarkunde, a former judge of the Bombay HC and a keen follower of MN Roy, was progressive in his outlook and during the inglorious Emergency, was fearless, calm and determined. He was one of the prominent co-founders of the People’s Union of Civil Liberties. Gobinda Mukhoty, another leading light from the Calcutta Bar, helped establish the Peoples Union for Democratic Rights. He was a hardworking, people-oriented, sharing and caring lawyer, protective of the junior members of the Bar and their well-being.

Dr LM Singhvi, an eminent jurist and parliamentarian, was the founder of the Institute of Constitutional and Parliamentary Studies. A scholar of depth, profundity and eloquence, he spoke with intelligence, craftsmanship and thoroughness.(44)

Anil B Divan’s work as amicus curiae in the Vineet Narain case(45) made notable contributions to the independence of investigating agencies.(46) Ashok K Desai, a successful senior lawyer from the Bombay Bar, was admired for the manner in which he conducted himself with dignity and objectivity while holding the office of the AG. Likewise, Dipankar Datta embellished the office of the SG with his pleasant demeanour and understated depth of learning.(47)

GL Sanghi and PP Rao were the epitome of scholarship and industry. Among the prominent lawyers from Assam, who made a mark in the SCI, was Prasanta Kumar Goswami, whose fidelity to the record of a case stood out as an iconic feature of his professionalism. From the Orissa Bar came Gobind Das, who had earlier served as the Advocate General of Orissa. He was one of the most prodigiously well-read lawyers of his time.(48) His interests went beyond law, into art, philosophy and multiple areas of intellectual questioning. Dr YS Chitale distinguished himself as a lawyer of great eminence. He will be remembered for assisting the SCI as amicus curiae in the Sunil Batra(49) and Bachan Singh(50) cases. One of his juniors is Raju Ramachandran, a Senior Advocate, whose self-definition of standard and professional rectitude is a role model for young lawyers and young Seniors.(51) From the Punjab Bar came HL Sibal, who commenced his practice in Lahore prior to Partition and then moved to Chandigarh where he established a flourishing practice.(52) His son Kapil Sibal has been on top of the legal profession for several decades now and in 2024, was the President of the SCBA.(53)

JM Thakore, who remained an Advocate General of Gujarat for over four decades, would argue with calm and composure. The other Advocate Generals of the states who made a mark in the SCI included VKT. Chari, Govind Swaminadhan, Narasa Reddy, AS Bobde and Tehmtan R Andhyarujina. Each of them contributed immensely to building a high degree of professional and ethical standards.

While the former Advocate General of Punjab SM Sikri was the first among the lawyers to be directly elevated as an SCI judge(54), after a long gap, he was followed by other successful practitioners – Kuldip Singh, Santosh Hegde, Rohinton Nariman, L Nageswara Rao, UU Lalit and Indu Malhotra.(55)

The SCI has lost an opportunity in failing to nominate some of the most outstanding jurists of their time as its judges. Three names come to mind – Professor PK Tripathi,(56) Professor Upendra Baxi and Professor Lotika Sarkar.(57) They were distinguished but deeply distinctive from each other’s way of teaching and thinking.

Shyamalha Pappu was among the earliest of the women lawyers to be designated as Senior Advocate and actively practiced in the SCI.(58) Indira Jaising, coming from the Bombay Bar, distinguished herself with her thoroughness of preparation and admirable presentation of cases, contributing significantly to the development of labour and human rights jurisprudence.(59)

Today, the Bar has amongst its seniors Harish Salve, CS Vaidyanathan, Rakesh Dwivedi and Dushyant Dave – a set of eminent, illuminating and forceful advocates for their clients and the positions they believe in. Further, the pioneering work of mediation by Sriram Panchu and the late Sadhana Ramachandran is inspirational.

Each of these lawyers have helped develop the law and strengthen the independence of the judiciary. It is possible that in this recapitulation, this writer may have omitted the names of many a worthy individual. This is inadvertent and may be forgiven.

II

Today, the profession is blessed with extraordinary talent in its many young Seniors. They will require reflection over the values, the traditions and the nature of the judicial exercise. It is on their shoulders that the responsibility of maintaining the traditions of the profession now rests.

Several traditions, which many of the eminent counsel I mentioned before would have taken for granted, now slowly wither away. The tradition followed in all hearings – namely, that the Respondent waited to speak until he was called upon by the Court – has yielded to a simultaneous opportunity for all Counsel to speak, even argue at the same time. The Respondents are meant to respond, but increasingly, they choose instead to open a case. One of the reasons for this tradition, this basic rule, was that the rule against interruption existed in aid of judges so they may be able to apply themselves with a degree of comfort and clarity. There is much to be done.

Another area in which the Courts have become increasingly liberal is to enable counsel to make statements that are not supported by the record. The practice was seriously frowned upon in the first forty-five to fifty years of the SCI’s history. It enabled caution and care to weigh on a lawyer’s mind when they made a statement about the facts in a case.

In the SCI, the tradition was always that irrespective of clients’ interests, the lawyer was first and last an officer of the Court. This tradition, too, if not passionately protected, may face a quick death. One must hope that the new generations of Seniors and Law Officers bring these traditions back to the SCI and to Courts across India.

As Bernhard Schlink wrote, ‘once parties, unions and associations, churches and clubs, universities, schools and courts have been forced into line, there comes a point when the ethics of opposition survive only in quixotic heroic gestures.’(60)

III

The Rule of Law in India has its roots in the freedom struggle, in the writing of the Constitution, and most importantly, in its practice by institutions and individuals. The Rule of Law is the legal constraint on the authority of a state in matters of person, life and liberty. Lawyers, like judges, are guardians of the Rule of Law.

As intermediaries between individuals and the legal system, they ensure fairness in the application of the laws. They are protectors, burdened with a loyalty to their clients, but with a higher loyalty to justice. More than the executive and the legislature, it is the Bar that truly checks transgressions by the judicial branch. An ethical, independent and unaligned Bar preserves public trust, leading to the long-term stability of the State. Thus, a lot depends upon the lawyers in the profession.

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S. Muralidhar (Editor), [In]Complete Justice? The Supreme Court at 75‎ ‎ Juggernaut, 2025. Hb. Pp.624

India’s top legal minds on the issues that define justice In its seventy-fifth year, how should one view the Supreme Court of India – an institution that has not only transformed in its composition and functioning but has also been a catalyst for change in other branches of the State? How has it fared in terms of accountability, transparency and its responsibility to both the law and the people? Has it consistently managed to strike the delicate balance between judicial activism and the imperative of accountability in the exercise of judicial power?

Has it remained true to its constitutional mandate, interpreting the Constitution in the spirit of its foundational values – liberty, equality, fraternity and dignity? And how consistent has its jurisprudence been in defending these ideals?

This book brings together a range of voices – former judges, practicing lawyers, legal scholars, researchers and a journalist – to engage with these questions through a series of essays and interviews. Their reflections offer a critical exploration of the Supreme Court’s evolving role and functioning. This volume aims to foster meaningful dialogue and deepen public understanding of the Court’s challenges in retaining its legitimacy while striving to fulfill the constitutional promise of equal and fair justice.

S. Muralidhar is a Senior Advocate at the Supreme Court. He has previously served as the Chief Justice of the Odisha High Court and as the Chief Justice of the Punjab and Haryana High Court and he has also served as a Justice of the Delhi High Court.

Gopal Subramanium was designated Senior Advocate by the Supreme Court at the young age of 35, and served as the Additional Solicitor General of India from 2005 to 2009, and as Solicitor General of India from 2009 to 2011. He was also the Chairperson of the Bar Council of India from 2010-2011. He is a highly regarded legal professional who is in active practice both in India as well as in the United Kingdom.

Contributors:

Ajit Prakash Shah, Madan Lokur, Raju Ramachandran, Usha Ramanathan, Rohan J Alva, S Ravindra Bhat, Upendra Baxi, Rebecca Mammen John, Nitya Ramakrishnan, Vrinda Grover, Faizan Mustafa, Mohan Gopal, P Sainath, Indira Jaising, K Chandru, Gautam Patel, Arvind P Datar, Gautam Bhatia, Suhrith Parthasarathy, Amit George, Meenakshi Arora, Gopal Subramanium, Kamala Sankaran, S Muralidhar, Sriram Panchu

Footnotes:

22 AG Noorani, Indian Political Trials 1775-1947 (Oxford University Press 2005).

23 Motilal C Setalvad, My Life – Law and Other 7ings (Universal, reprint 2000) 149.

24 Ibid 150–51.

25 The late RK Garg, who was inspired by Setalvad’s analytical thinking, told this writer how he analysed judgments based on logic, reason and an openness to a change of views. He referred to a young barrister – B Sen – who later become a distinguished Senior Advocate of the SCI, following Setalvad’s etiquette and code of conduct in examining and preparing cases.

26 Daphtary had a great sense of humour which has been admirably captured in the book – Fali S Nariman and Vinoo Bhagat, 7e Delightful Mr. Daphtary (Law and Justice Publishing Co Pvt Ltd 2023).

27 Interestingly, Setalvad had recommended Gupte to be a Judge of the SCI. Gupte declined, and a former Advocate General, SM Sikri, was appointed as Judge of the SCI. Years later, a law officer who followed the course of SM Sikri was Kuldip Singh.

28 AIR 1950 SC 27. KK Venugopal, M.K. Nambyar: A Constitutional Visionary (Ebury Press 2024)

29 RS Pathak, ‘H.M. Seervai – A Tribute’ in Feroza H Seervai (ed), Evoking H.M. Seervai (Universal 2005) 14; Seervai set for himself the highest moral standards, and had an unwavering commitment to discipline, candour and commitment to the administration of justice.

30 Nani A Palkhivala, We, the People: India: 7e Largest Democracy (UBS Publishers & Distributors Ltd 1999); Soli J Sorabjee and Arvind P Datar, Nani Palkhivala: 7e Courtroom Genius (LexisNexis 2012).

31 (1973) 4 SCC 225.

32 TR Andhyarujina, Kesavananda Bharati Case – 7e Untold Story of Struggle for Supremacy by Supreme Court and Parliament (Lexis Nexis 2014)

33 See also, Fali S Nariman, Before Memory Fades: An Autobiography (Hay House Publishers India 2010).

34 Escorts Ltd. v. Union of India (1985) 57 Comp Cas 241.

35 Fali S Nariman, India’s Legal System: Can it be Saved? (Penguin Random House India 2006); Fali S Nariman, You Must Know Your Constitution (Hay House Publishers India 2023); Fali S Nariman, Beyond the Courtroom: Reflections on Law, Constitution, and Nationhood (Hay House Publishers India 2024).

36 Abhinav Chandrachud, Soli Sorabjee: Life and Times: An Authorized Biography (Penguin Random House India 2022).

37 Ahmedabad St.Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717.

38 RF Nariman and KV Viswanathan JJ.

39 SASTRA University, Law and Dharma: A Tribute to the Pitamaha of the Indian Bar (2016).

40 His son, LM Sharma, would become the CJI.

41 Justice S Muralidhar, ‘GR: 7e Client’s Lawyer, 7e Lawyer’s Envy, 7e Legal World’s Pride’ High Court of Madras Sesquicentennial: 1862–2012 Madras High Court A Saga (High Court, Madras) 185.

42 He served as a Law Minister in the cabinet of PM Atal Bihari Vajpayee; He commenced his practice in Sindh at the unbelievably early age of nineteen and shifted his practice to Bombay on the country’s partition. Although his expertise was in criminal law and preventive detention, he also had strong command of constitutional law. His masterly performance for the defense in the Parliament Attack case was a lesson worthy of emulation. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600. See also Ram Jethmalani, Maverick Unchanged, Unrepentant (Rupa Publications 2014); Ram Jethmalani, Big Egos Small Men (1st edn, Har-Anand Publication Pvt Ltd 2017); Ram Jethmalani and DS Chopra, Parliamentary Privileges - Law and Practice (Thomson Reuters 2015).

43 Shanti Bhushan appeared for Raj Narrain. This verdict delivered by JN Sinha J of the Allahabad HC precipitated the declaration of the infamous Emergency that lasted from 26 June 1975 till 21 March 1977; Shanti Bhushan was a fiercely independent professional. He was fond of science, mathematics and was a positivist logician. His thorough reading and analysis of every brief, and his determination to get justice for his client, will be always remembered.

44 His able son, Dr AM Singhvi, is a leading practitioner today.

45 Vineet Narain v. Union of India (1998) 1 SCC 226.

46 Anil Divan, On the Front Foot: Writings of Anil Divan on Courts, Press and Personalities (2nd edn, Universal Law Publishing – An Imprint of Lexis Nexis 2016).

47 He pupiled in the chambers of Barrister Siddharth Shankar Ray, who rose to great prominence in the Calcutta Bar and was a leading politician in the Congress party. He went onto become the CM of West Bengal in the early 1970s. Later, in the 1990s, he was the Governor of Punjab.

48 Govind Das, Supreme Court in Quest of Identity (2nd edn, Eastern Book Co 2000) and Gobind Das,

Justice in India: A Study of Last Two Decades (Shangon and Shangon 1967).

49 Sunil Batra v. Delhi Administration (1978) 4 SCC 494.

50 Bachan Singh v. State of Punjab (1980) 2 SCC 684.

51 Raju was also an Additional Solicitor General of India. Another of Chitale’s juniors, Mukul Mudgal became a judge of the High Court of Delhi and retired as Chief Justice of the Punjab and Haryana High Court.

52 He served a very long term as Advocate General for the States of Punjab and Haryana for two terms each.

53 Kapil Sibal is a parliamentarian and has served as a Union Minister in the cabinets of Manmohan Singh for two terms. Both his sons Amit Sibal and Akhil Sibal are Senior Advocates as well.

54 Sikri went on to become a CJI and headed the Bench that decided the Kesavananda case.

55 The most recent elevations are of PS Narasimha and KV Viswanathan.

56 Pankaj Kumar Tripathi, Constitution of India: A Comprehensive Premier (PVP Pvt Ltd 2021); Pankaj Kumar Tripathi and Pramod Kumar Upadhyay, Emerging Social, Economical, Legal C Challenges in Developing India (Edwin Incorporation 2017).

57 Amita Dhanda and Archana Parashar (eds), Engendering Law: Essays in Honour of Lotika Sarkar (Eastern Book Company 1999).

58 She was the first woman lawyer to be designated Senior Advocate by the Delhi High Court in 1971.

59 An interview with Indira Jaising is separately carried in this book.

60 Bernhard Schlink, Guilt About the Past (House of Anansi Press 2010) 32–33.