Interesting Facts About Indian Judiciary

The Supreme Court of India (SC) is considered one of the most powerful courts in the world. The writ jurisdiction of the SC runs over territory extending 3 million sq miles (1997 sq miles from north to south and 1822 sq miles from east to west) inhabited by a population of around 1.3 billion. Indeed as M.C. Setalvad, the first Attorney General for India said during the inaugural speech of the SC that:

“It can truly be said that the jurisdiction and the powers of this Court, in their nature and extend are wider than those exercised by the highest court of any country in the Commonwealth or by the Supreme Court of the United States.”¹

Alexander Bickel² said something similar about the American Supreme Court that “the least dangerous branch of the American Government is the most extraordinarily powerful court the world has ever known”.

It is considered powerful because the framers of the Constitution conferred great responsibility on the SC and because of the great Judges who have adorned the Benches of the Supreme Court and have been successful in upholding the supremacy of the Constitution and have ensured that the will of the people as envisioned in the Constitution is supreme even over the will of the legislature. It has decided small, big, important, delicate, controversial matters and has delivered far-reaching judgments not just affecting the lives of the individuals but also the course of the nation by upholding the constitutional ethos and creating the supremacy of the Constitution above all the three branches of the Government.

There are several fascinating and interesting facts regarding the history of the Supreme Court throughout its formative years till it established itself to be the most powerful Supreme Court of the world. It would not have been possible to know about them had the American scholar George H. Gadbois not studied, researched, and interviewed more than 66 Judges of the Supreme Court which included 19 Chief Justices of India and several senior lawyers, court staff, family members of the deceased Judges, etc. during the 70s and 80s. He is described as the American trailblazer of Indian jurimetrics. Based on the interviews and his research he published the book Judges of the Supreme Court of India: 1950-1989 in 2011 almost after 3 decades of those interviews with the Judges. He is right in stating that very little attention has been paid to the Judges and their backgrounds and therefore, he took it upon himself to study and write about them.

His book provides a biographical essay for each of the first 93 Judges from 1950 to 1989 who adorned the SC. In his own words the book can be described as the who’s who of the SC. He could achieve this as he was a brilliant scholar, well received by the Judges and was given access to the files of the biographical information about each of the Judges, which information is otherwise not available to the public. His interviews with the SC Judges reveal some fascinating stories about the SC Judges and how and when they came to be appointed to the SC. Gadbois made detailed typewritten notes about each of the interviews. Abhinav Chandrachud in his book Supreme Whispers mentions that most of the contents of his typewritten notes were not part of his monumental book. There must be lot more to know about these great personalities however we will have to be content with the information available in these two remarkable books in order to understand the inspiring stories about the life of these great and monumental figures who shaped and created the SC to be one of the most powerful constitutional courts of the world.

After completing 72 years 72 fascinating facts and stories about the Supreme Court, its Judges during its formative years are encapsulated hereunder giving a peek of its glorious history and the highlights of the great Judges who have made the SC one of the most powerful courts of the world:

1. The Supreme Court of India came into existence on 26-1-1950 as per Article 124³ of the Constitution of India.
2. The inaugural sitting took place on 28-1-1950 in the Chamber of Princes in Parliament building. In addition to the Presiding Judges, the Chief Justices and the Advocate General of various High Courts and the Prime Minister, Deputy Prime Minister, other ministers, and diplomatic ministers of foreign States were present.⁴ The younger generation can only imagine what a remarkable event it must have been in independent India.
3. It is in this building that the Federal Court of India sat for 12 years between 1937 and 1950. The Federal Court of India in its 12 years of existence delivered 135 decisions and rendered 4 advisory opinions.⁵
4. Chief Justice Kania since the inception set forth the role of the Supreme Court in its inaugural ceremony and said:

   “The duty of interpreting that Constitution with an enlightened liberality falls on the Supreme Court…. We are quite sure that the Supreme Court will be able to make a substantial contribution towards the formation of India into a great unit retaining its own civilisation, traditions, and customs…. In endowing the Supreme Court of India with very wide powers, the Constituent Assembly — the Assembly representing the voice of the people through its elected representatives — has shown complete confidence in the Court as the final body for dispensing justice between individuals and also between States and States, and the States and the Centre. We hope to deserve that confidence. We trust that the people of India will also maintain independence, honour, and dignity of the Supreme Court.”⁶

   His vision and his confidence speak volumes about his personality.

5. The Judges of the Federal Court of India became the Judges of the Supreme Court as per Article 374⁷ of the Constitution and the Judges of the High Court in the British Province and of the princely States became the High Court Judges of the newly integrated States as per Article 376⁸ of the Constitution.
6. Chief Justice Hiralal, J. Kania, Justice Syed Fazl Ali, Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice Bijan Kumar Mukherjea, and Justice Sudhi Ranjan Das were the 1st 6 Judges of the SC. Out of the 1st 8 Judges of the SC, fathers of 4 (Justice J. Kania, Justice Sastri, Justice Mukherjea, and Justice Aiyar) were Sanskrit scholars, 4 (Justice Fazl Ali, Justice Mahajan, Justice Mukherjea and Justice Aiyar) came from a legal background and 3 (Justice Fazl Ali, Justice Das, and Justice Bose) were London educated Barristers. 6 were Hindus, 1 Muslim (Justice Fazl Ali) and 1 Christian (Justice Vivian Bose).
7. The Supreme Court moved into the present iconic building in 1958. The building is shaped to project the image of scales of justice. The central wing of the building is the centre beam of the scales. In 1979, two new wings, the east wing and the west wing were added to the complex. In all, there are 15 courtrooms in the various wings of the building. The Chief Justice’s Court is the largest of the courts located in Central Wing.⁹
8. The Constitution established the Supreme Court with a Chief Justice and 7 puisne Judges, leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the court increased and arrears of cases began to accumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 30 in 2009 and 34 as of now.
9. About the appointments made to the SC, George H. Gadbois states that in the first 20 years, the Chief Justice of India alone was responsible for appointments, whereas the next 20 years, the selection power was shared between the Chief Justice of India and the executive, and the selection criteria underwent some changes.
10. Justice Hiralal Jekisundas Kania (born in Surat, Gujarat) became the first Indian Chief Justice of the Federal Court on 14-8-1947 after the resignation of Chief Justice William Patrick Spens.¹⁰ Justice Kania was appointed as an Additional Judge of the Bombay High Court in 1931 at the age of 40, though Justice Kania being the seniormost in Bombay High Court when Justice John Beaumont retired in 1943, Justice Beaumont recommended Justice Leonard Stone and Justice Kania got superseded and Justice Stone became the Chief Justice of Bombay High Court. Justice Kania could have been the first Indian Chief Justice of the Bombay High Court had he not been superseded. Justice M.C. Chagla later became the first Indian Chief Justice of the Bombay High Court.
11. The only Indian before Justice Kania who could have become the 1st Indian Chief Justice of the Federal Court was Justice Srinivas Varadachariar but he could serve as its acting Chief Justice for a brief period after the retirement of 1st Chief Justice of the Federal Court, Justice Sir Maurice Linford Gwyer, and Justice Varadachariar who was the seniormost Judge of the Federal Court despite that Justice Sir William Patrick Spens became the 2nd Chief Justice of the Federal Court.
12. Justice Kania inherited the Supreme Court as its 1st Chief Justice when the Federal Court Judges became the Supreme Court Judges. With Justice Kania as the Chief Justice of India, Justice M.C. Setalvad as the 1st Attorney General and Justice C.K. Daphtary as the 1st Solicitor General, all from the Bombay Bar, the SC in its formative years was strongly influenced by the traditions of the Bombay Bar.
13. Motilal Setalvad in his autobiography My Life: Law and Other Things mentions that he was invited to become the Judge of the Federal Court before Justice H.J. Kania, but he declined.¹¹ Had he accepted the judgeship he would have become the 1st Chief Justice of India, but he went on to become the 1st and the longest serving Attorney General for India.
14. The first Supreme Court Judge to be appointed after the commencement of the Constitution was Justice N. Chandrasekhara Aiyar, who had already retired from the Madras High Court in 1948 and when he was sworn in on 23-9-1950 he was already 63.¹² The retirement age during that time for the High Court Judges was 60 as per Article 217¹³ of the Constitution. Another Judge appointed at that age was Baharul Islam in 1980 who was a few weeks older than Justice Chandrasekhara Aiyar however the retirement age of High Court Judges was 62 at that time.
15. Till 1963 the retirement age of the High Court Judges was 60 however it is through the Constitution (15th Amendment) Act, 1963¹⁴ that the age of High Court Judges retirement came to be increased to 62 by amending Article 217 of the Constitution of India. Former Chief Justice of India, Justice B.P. Sinha claimed credit for increasing the age of retirement of High Court Judges¹⁵ though he had suggested increasing it to 65 years for the High Court and 70 years for the Supreme Court. Another interesting feature of Justice Sinha’s tenure was that the three rising stars of Indian judiciary Justice J. Y V Chandrachud, Justice P.N. Bhagwati and Justice R.S. Pathak were appointed as the High Court Judges at very young age.
16. Justice M.C. Chagla in his autobiography mentions that Chief Justice Kania extended him an invitation to Judgeship of the Federal Court, however, he refused as he thought he was doing more useful work as Chief Justice of the Bombay High Court.¹⁶ Had he accepted the offer he could become the Chief Justice of India for almost 6 years which could be the longest during the first two decades.
17. Chief Justice Kania unfortunately passed away on 6-11-1951 and Justice M. Patanjali Sastri became the 2nd Chief Justice of India. Justice Chagla mentions in his autobiography that at that time M.C. Setalvad requested the Prime Minister to appoint Justice Chagla as the Chief Justice of India and the Prime Minister seemed agreeable however the sitting Judges threatened to resign if the seniority rule was not followed.¹⁷ The convention of the seniormost Supreme Court Judge becoming the Chief Justice of India can be dated from this incident as the said convention was not followed earlier during the Federal Court of India.
18. The said convention has thereafter been continued all throughout except for three occasions. First in 1963 when Justice Syed Jafar Imam was made to resign due to his debilitating illness and Justice P.B. Gajendragadkar was made the 7th Chief Justice of India, second in 1973 when Justice A.N. Ray superseded Justice J.M. Shelat, Justice K.S. Hegde and Justice A.N. Grover and became the 14th Chief Justice of India and third in 1977 when Justice M.H. Beg superseded Justice H.R. Khanna to become the 15th Chief Justice of India.
19. Justice M.C. Setalvad in his autobiography mentions that the “First Bench was truly outstanding and the best that the Supreme Court had”.¹⁸ After Justice Patanjali Sastri retired in 1954, Justice Mehr Chand Mahajan, became the 3rd Chief Justice of India for 11 months, after him Justice B.K. Mukherjea became the 4th Chief Justice of India till 1956. The 2nd, 3rd and 4th Chief Justices of India were the accidental Chief Justice of India as otherwise, Justice Kania would have retired in 1956 and Justice S.R. Das would have become the 2nd Chief Justice of India.
20. Amongst the 1st Bench of the SC, Justice Fazl Ali was appointed as Judge of the Patna High Court in 1928 when he was 41. He had served as the Chairman of the Royal Indian Navy Mutiny Inquiry Commission in 1946.¹⁹ He had the most amount of High Court experience amongst all the first 8 Judges of the SC. Before his actual date of retirement, Justice Fazl Ali resigned as he was appointed as the Governor of Orissa.
21. After Justice Fazl Ali another Supreme Court Judge to be appointed as the Governor was Justice Fathima Beevi, the first female Supreme Court Judge who was later appointed as the Governor of Tamil Nadu. Later in 2014, Chief Justice P. Sathasivam came to be appointed as the Governor of Kerala. In 1969 Justice Hidayatullah served as acting President of India for a brief period of time and after his retirement was elected as the 6th Vice-President of India from 1979 to 1984.
22. Justice M. Patanjali Sastri came to be appointed as the Judge of the High Court of Madras in 1939 when he was 50. Justice Sastri was an accomplished Sanskrit scholar. In 1947 he was appointed to the Federal Court.
23. Justice Mehr Chand Mahajan came to be appointed as the Judge of the Lahore High Court in 1943 when he was 53. He served as a member of the Royal Indian Navy Mutiny Inquiry Commission and as a member of the Punjab Radcliffe Boundary Commission. Following partition, he continued as a Judge of the New East Punjab High Court at Shimla. At the invitation of Maharaja Hari Singh of J&K, he became the Prime Minister of J&K from 15-10-1947 till 6-3-1948. It was during his reign as Prime Minister that the State got merged into India and he had a prominent role to play in the accession of J&K into India. Justice M.C. Mahajan has discussed in detail about the episode of accession of J&K into India in his autobiography Looking Back.
24. Justice B.K. Mukherjea was appointed as an Additional Judge of the High Court of Calcutta in 1936 when he was 45. Justice S.R. Das joined the Calcutta High Court in 1942 at the age of 48. Justice N. Chandrasekhara Aiyar came to be appointed as an Additional Judge of the Madras High Court at the age of 53.
25. Justice Vivian Bose, the 8th Judge of the SC was born in Ahmedabad in 1891. There are several interesting facts about Justice Bose, his father-in-law Dr John R. Mott was awarded in 1946. Justice Bose a Barrister became the Judge of the newly created Nagpur High Court in 1936 at the age of 44. Justice Bose was elevated to SC in 1951 and became the 8th and final member of the original Bench of the SC. Driving was his passion amongst many other interests and in 1933 he drove from Nagpur to London and in 1956 he completed the reverse trip. He was truly the rockstar of the Supreme Court with varied interests including riflery, motoring, travelling, photography, magic. He was also considered as a craftsman of the English language and whenever the SC wanted to put forth their views in elegant language, the task was entrusted to Justice Bose.²⁰
26. Amongst the early arrivals at the Supreme Court was Justice N.H. Bhagwati born in Ahmedabad, the first lawyer in the family. He started practice at the Bombay High Court and at the age of 50 he was appointed as Additional Judge after 8 years in the Bombay High Court and being 3rd in seniority came to be sworn in as the Judge of the SC in 1952. 52.
27. Justice N.H. Bhagwati’s son Justice P.N. Bhagwati was appointed as a Judge of the Gujarat High Court in July 1960 when Justice S.T. Desai was the Chief Justice of the Gujarat High Court.²¹ Justice P.N. Bhagwati was 38 when he was appointed as a Judge of the Gujarat High Court. Justice P.N. Bhagwati was identified amongst the 3 most brilliant Judges in the country along with Justice Y.V. Chandrachud and Justice R.S. Pathak. All rose to serve as the 15th, 16th, and 17th Chief Justice of India.
28. Justice R.S. Pathak was appointed as a Judge of the Allahabad High Court at the young age of 37, which is the youngest post-independence. However, the youngest ever in India to be appointed to the High Court was Justice Syed Mahmood at the age of 32, he became the officiating Judge of the Allahabad High Court in 1882. Justice Rohinton Nariman²² pays a tribute to this fearless Indian Judge in his book Discordant Notes, The Voice of Dissent in the Last Court of Resort. He also mentions another instance of Joseph Story who in 1812 became the Judge of the US Supreme Court at the age of 32 being the youngest Judge to have ever been appointed in the history of US Supreme Court.
29. Gadbois mentions three Supreme Court Judges who have served in jail prior to joining the judiciary. The first is the 11th Judge of the SC, Justice Bachu, and Justice Jagannath Das appointed in 1952. He was active in the freedom movement and joined the Indian National Congress in 1921. He was jailed for his participation in the 1942 Quit India Movement and had to spend almost 22 months in jail. At the age of 55 he came to be appointed as a Judge of the Orissa High Court in 1948. The second one is the 17th SC Justice Jeevan Lal Kapur who was jailed for participating in the Salt Satyagraha in 1930. He was very active in the Indian National Congress. His son Dalip Kumar Kapur also became the Delhi High Court Judge and retired as the Chief Justice of that High Court. The third and most surprising is Justice V.R. Krishna Iyer, who is the only one to have been jailed after independence.
30. One of the oldest to be appointed to the High Court and who could reach the Supreme Court was the 12th SC Judge T.L. Venkatarama Iyer who joined the Madras High Court at the age of 57 and reached the Supreme Court after his retirement in 1953. Gadbois mentions that he was considered one of the most brilliant Judges to have served the SC. He is remembered for his extensive knowledge of American constitutional law which was frequently cited by the SC in its early days.
31. The 2nd longest serving Chief Justice of India prior to Justice Y.V. Chandrachud is Justice Bhuvaneshwar Prasad Sinha, the 6th Chief Justice of India from 1959 to 1964, who served for 4 years and 122 days. He was appointed as an Additional Judge of the Patna High Court at the age of 43. He was elevated to the SC in 1954 at the age of 55. Justice Y.V. Chandrachud is the longest serving Chief Justice of India for 7 years and 139 days from 1978 till 1985. It is interesting to mention here that had Justice H.M. Seervai accepted the offer of becoming the Judge of the SC in 1957 he would also have had a long tenure as Chief Justice of India however it would have been Nani Palkhivala who would have the longest tenure as Supreme Court Judge as well as Chief Justice of India had he accepted the judgeship of SC in 1963 when he was 41, he would have been the longest serving Chief Justice of India from 1971 to 1985.²³
32. Justice P.N. Bhagwati was younger than Justice Chandrachud but was appointed earlier as Judge of the Gujarat High Court on 21-7-1960 whereas Justice Y.V. Chandrachud came to be appointed as Judge of the Bombay High Court on 19-3-1961. Before Justice Bhagwati could be appointed to the SC, Justice Y.V. Chandrachud came to be appointed on 28-8-1972 and Justice Bhagwati came to be appointed on 17-7-1973. Had Justice P.N. Bhagwati been appointed earlier, he would have served as Chief Justice of India for almost 10 years.
33. Justice B.P. Sinha’s son and grandson both served at Patna High Court and his grandson Justice Bishweshwar Prasad Singh served the SC from 2001 to 2007. There have been other instances of father and son becoming Judges of the SC viz. Fazl Ali, J. (one of the first Judges of the SC who authored the famous dissent in A.K. Gopalan v. State of Madras²⁴) and his son Justice Syed Murtaza Fazl Ali, who also served in SC from 1975 to 1984, Justice N.H. Bhagwati, Justice P.N. Bhagwati, and Justice K.S. Hegde (resigned after Kesavananda Bharati v. State of Kerala judgment²⁵) and his son Justice N. Santosh Hegde served the SC from 1999-2005, Justice K.K. Mathew and Justice K.M. Joseph, however, Justice Y.V. Chandrachud and Justice D.Y. Chandrachud would become the first instance of father and son both becoming the Chief Justice of India when Justice Dr D.Y. Chandrachud became the 50th Chief Justice of India on 9-11-2022. The only instance of father and daughter becoming the Chief Justice of India would be when Justice B.V. Nagarathna would become the 1st woman Chief Justice of India in 2027. Her father Justice E.S. Venkataramiah was the 19th Chief Justice of India in 1989. There are other instances of uncle and nephew becoming SC Judges like Justice Kania’s nephew, Justice Madhukar Hiralal Kania who also became the 23rd Chief Justice of India, also 21st Chief Justice of India Justice R.N. Mishra and 45th Chief Justice of India Justice Dipak Misra are related so are Justice H.R. Khanna and Justice Sanjiv Khanna.
34. Justice Syed Jafar Imam was appointed as an Advocate General of Bihar at the age of 42 and in 1943 he was appointed as Judge of the Patna Bench. Justice Imam was elevated to SC in 1955 and was to become the first Muslim Chief Justice of India after Justice B.P. Sinha retired in 1964, however his health prevented this from happening and thereafter Justice M. Hidayatullah became the 1st Muslim Chief Justice of India.
35. Justice Sudhi Ranjan Das was the 5th Chief Justice of India from 1956 to 1959 and at his initiative the strength of the SC was increased from 8 to 11 in 1956. Justice S.R. Das has the distinction of appointing 10 SC Judges, out of which 6 go on to become the next CJIs and some of whom became the most distinguished Judges in the history of SC.
36. It is interesting that his 1st appointee Justice S.K. Das the 1st amongst the 5 Judges to serve the SC who did not have any law degree as he was an Indian Civil Service (ICS) officer like the other 4 viz. Justice K.N. Wanchoo, Justice Raghubar Dayal, Justice Vaidyanathan, Justice Ramaswami, and Justice Vashishtha Bhargava. Out of all 5, Justice K.N. Wanchoo has the distinction of being the only ICS officer to hold the highest judicial office in the country as he became the 10th Chief Justice of India from 1967 to 1968. ICS officers in those days had the option of choosing between administrative and judicial careers.
37. Amongst others appointed during Justice S.R. Das’s tenure as Chief Justice of India are Justice P.B. Gajendragadkar in 1957, Justice M. Hidayatullah in 1958 and Justice J.C. Shah in 1959, all went on to become the 7th, 11thand 12th Chief Justice of India, respectively.
38. As of 1-1-1960 there were only 182 High Court Judges in the country.²⁶ Presently there are 25 High Courts in the country with a sanctioned strength of 1108 Judges out of which as of 1-8-2022 380 seats are vacant with around 727 High Court Judges in the country.²⁷ This suggests that the High Court Judge population ratio comes out to 1:18 million people. Which means there is 1 High Court Judge per 18 million people in the country.
39. Justice Das did offer judgeship to H.M. Seervai, who was then the Advocate General of Maharashtra and Lal Narayan Sinha, who was the Advocate General of Bihar, both declined. Justice Seervai was 50 when he was invited in 1957 and had he accepted he would have been the youngest ever to reach the SC and would have become the Chief Justice of India in 1966 till he would have retired in 1971. In 1988 Justice Seervai said in Judgments: Need for Clarity and Accuracy that he could make a larger contribution to the development of constitutional law by his book, than he could have ever done by being a Judge of the SC.
40. Justice S.R. Das is also credited with the appointment of the first female High Court Judge, Justice Anna Chandy, appointed to Kerala High Court in 1959 at his recommendation. Justice V.R. Krishna Iyer is also partially credited for this milestone as he claims that he initiated the recommendation of Justice Anna Chandy when he was serving as Kerala’s Law Minister. After Justice Anna Chandy’s appointment, it took another 24 years for a female to be appointed to High Court. It was Justice M. Fathima Beevi who was elevated to Kerala High Court from district judiciary in 1983 and went on to become the 1st female Judge of the SC in 1989. Later, Justice Sujata Manohar, Justice Gyan Sudha Misra, Justice Ranjana Desai, Justice R. Banumathi, Justice Indu Malhotra, Justice Indira Banerjee, Justice Hima Kohli, Justice Bela Trivedi, and Justice B.V. Nagarathna have reached the SC.
41. Justice S.R. Das during his farewell speech revealed the friendly atmosphere of the SC of that time when he offered amusing comments about his brother Judges. About Justice Gajendragadkar he said that “His heart is literally bleeding for the underdogs, and unless the bleeding can be stopped, the underdogs will soon become top dogs.” About Justice A.K. Sarkar, he said that “My Brother Sarkar has been an onlooker on the highway of life. He attends dinners but does not eat; he sees other people eat. He has joined many bridal processions but has not married. But I do not know whether he will change his mind.” About Justice Subba Rao, he said “Then we have Subba Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill-conceived judgments of his colleagues which require reconsideration.”²⁸
42. The 16th Supreme Court Judge Justice P. Govinda Menon has the distinction of serving as the Crown Prosecutor in 1940 at the age of 44 and also as the Chief Indian Prosecutor at the International Tribunal of the Far East, in Tokyo prosecuting the Japanese accused of war crimes.
43. Amongst the appointments during Justice Das’s tenure, one of the most distinguished was Justice P.B. Gajendragadkar who belonged to a well-known family of Sanskrit scholars and educators for 6 generations. He became an Additional Judge of the Bombay High Court at the age of 43 and after 12 years of judgeship and being 4th in seniority was elevated to the SC at the age of 55. During his 10 long years tenure in the SC, he participated in 993 decisions reported in Supreme Court Reports. Gadbois mentions that Justice Gajendragadkar was the true workhorse of the SC and was also the courts greatest assenter whereas Justice K. Subba Rao was the courts greatest dissenter with 43 dissenting opinions. Justice Gajendragadkar’s legacy includes several books and publications. He has also written an autobiography To the Best of My Memory. He was awarded Padma Vibhushan in 1972.
44. Another interesting fact about Justice K. Subba Rao is that before 3 months of his retirement age, he resigned as the 9th Chief Justice of India and accepted the nomination to become the united opposition’s candidate for the Presidency of India. Gadbois mentions that this was the first time an SC Judge had resigned to enter the political arena and the nomination generated controversy and criticism. Justice K. Subba Rao was also amongst the only 3 former CJIs to publicly criticise the supersession of 3 SC Judges during 1973, the other two being Justice M. Hidayatullah and Justice J.C. Shah.
45. There are several interesting facts about one of the most distinguished Judge, jurist, scholar, educationist, the 22nd Supreme Court Judge, Justice Mohammad Hidayatullah. He studied at Cambridge University and thereafter was called to the Bar from Lincoln’s Inn in 1930. He enrolled and started practice at Nagpur. At 37 he was the youngest to be appointed as the Advocate General and at the age of 40 became the Judge of the Nagpur High Court. At 48 he became the youngest High Court Chief Justice in those days. However, his record was thereafter broken by P.N. Bhagwati, J. who became the Chief Justice of Gujarat at the age of 45. In 1958 he was elevated to the SC when he was 52 youngest at that time and third youngest ever after Justice P.N. Bhagwati who was appointed at the age of 51 and Justice Y.V. Chandrachud at 52 but younger than Justice Hidayatullah. He became the 11th Chief Justice of India from 1968 to 1970. He also served as the acting President for more than a month in 1969 due to the death of President Zakir Hussain. As the acting President he assented to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970²⁹ (Bank Nationalisation Act, 1969) and when it was challenged before the Supreme Court, Justice Hidayatullah had to recuse himself from the 11-Judge Bench which delivered the landmark judgment in Rustom Cavasjee Cooper v. Union of India³⁰.
46. He retired the next day of delivering the majority judgment in Madhav Rao Jivaji Rao Scindia v. Union of India³¹ (Privy Purse case). In 1979 he was elected unopposed and unanimously as Vice-President of India for the term of 5 years. He has the record of being the only citizen to have served as Chief Justice of India, Vice-President of India and ex officio the Chairman of the Upper House of Parliament and acting President of India. He has authored several books including his autobiography My Own Boswell. He truly was one of the most outstanding Judges of the Supreme Court in its 1st and 2nd decade, widely respected and admired.
47. The last appointee of the first decade was Justice Jayantilal Chhotalal Shah who was elevated to the Supreme Court in 1959 from Bombay High Court. Justice Shah was born in Ahmedabad, Gujarat and was the 3rd Gujarati in the first 10 years of the SC even before the formation of the State of Gujarat. For the first 5 years of his career, he practiced at the Ahmedabad District Courts before moving to Bombay. He was appointed Special Public Prosecutor and assisted C.K. Daphtary, the then Advocate General of Bombay, in the Mahatma Gandhi murder trial at Red Fort in Delhi. At 43 he was appointed as Judge of the Bombay High Court. In 1959 he was elevated to the SC at the age of 53 being one of the youngest to reach the SC after Justice P.N. Bhagwati, Justice Y.V. Chandrachud, Justice M. Hidayatullah, and Justice J.C. Shah in 1970 was the seniormost Judge of the SC and become the 12th Chief Justice of India in December 1970. The Government was considering superseding Justice Shah for his majority judgment in Rustom Cavasjee Cooper case³² and Privy Purse case³³. Justice Hidayatullah went to the Prime Minister and said that if Justice Shah were superseded all the Judges (except one) of the Supreme Court would resign.³⁴ The one who was not ready to resign was Justice A.N. Ray.³⁵
48. There was an impeachment motion introduced against Justice J.C. Shah in Parliament in 1970, the first directed against a SC Judge for making harsh oral comments against O.P. Gupta a dismissed public servant during the proceedings. Chief Justice Hidayatullah had to intervene and convince the Lok Sabha Speaker that the motion was frivolous. Most of the MPs later withdrew and the Speaker disallowed the motion and the matter ended.³⁶ Later another impeachment proceedings came to be initiated against a Supreme Court Judgein 1990 against Justice V. Ramaswami for the allegations of intentional and habitual extravagance at the cost of the exchequer, moral turpitude by using public funds for private purposes in diverse ways, etc.
49. Justice S.M. Sikri observed that Justice J.C. Shah “outworked every other Judge”. During his 11 years tenure, Gadbois mentions that he participated in 1520 decisions reported in Supreme Court Reports which is a record as no other Judge before or after participated in more reported cases or wrote as many opinions. Justice Shah’s tenure as Chief Justice of India was just for 35 days which is the 3rd shortest tenure after Justice Kamal Narain Singh’s, 17 days in 1991 and Justice Rajendra Babu’s, 29 days in 2004. Justice Shah is also known for being the Chairman of the most important post-Emergency Commission to determine the abuse of authority and power during the 1975-1977 Emergency. The three volume Report of the Shah Commission of Inquiry was completed within a year in 1978 however it was never acted upon, and the copies were withdrawn from circulation after the return of Mrs Gandhi in power in 1980 as his report pointed how the power was abused during those 20 months. In his report he holds that Smt Indira Gandhi did not consult the cabinet before the declaration of emergency despite ample time and he found enough evidence to show that Smt Indira Gandhi planned the imposition of emergency to save herself from the compulsion of a judicial verdict against her.³⁷
50. The largest Bench to ever hear a case in the history of the Supreme Court was the 13-Judge Bench in Kesavananda Bharati (Fundamental Rights) case³⁸. It heard the lengthiest arguments for 68 days spanning over 5 months, covering the widest areas of law and legal literature resulting in 703 page judgment with 11 scholarly opinions.
51. The Supreme Court by razor-thin majority of 7:6 for the first time in any constitutional adjudication in the world propounded the doctrine of basic structure — the power of Parliament to amend the Constitution is not unlimited and that Parliament cannot amend the basic structure of the Constitution. Later, Malaysian courts and recently the Kenya High Court also adopted the said doctrine.
52. Two retired Supreme Court Judges, Justice I.D. Dua and Justice C.A. Vaidialingam were appointed as ad hoc Judges under Article 128³⁹ of the Constitution to handle the court business during that time when remaining 13 Judges were hearing Kesavananda case⁴⁰. The majority judgment was delivered by Chief Justice S.M. Sikri, Justice J.M. Shelat, Justice Grover, Justice K.S. Hegde, Justice Mukherjea, Justice P. Jaganmohan Reddy, Justice H.R. Khanna. The minority opinions were of Justice A.N. Ray, Justice Mathew, Justice Beg, Justice Dwivedi, Justice Palekar and Justice Y.V. Chandrachud.
53. The theory of basic structure was not supported by any precedent or judgment of any court. The said theory was the brainchild of a German scholar Prof. Dietrich Conrad who had propounded the theory of implied limitation based on the experience of Germany and the misuse of the Weimar Constitution by Adolf Hitler. Adolf Hitler was appointed as the Chancellor of Germany, and he undermined the Republic and the Weimar Constitution and seized absolute dictatorial powers through the amendment process of the German Constitution. Before this judgment, the basic feature theory was first mentioned by Justice Mudholkar in his minority opinion in the judgment of Sajjan Singh v. State of Rajasthan⁴¹. He referred to the doctrine of essential features of the Constitution derived from the Pakistan Supreme Court judgment in Fazlul Quader Chowdhry v. Mohd. Abdul Haque⁴².
54. During the peak of emergency, on 20-10-1975 Chief Justice Ray issued a written order “that the Court would hear arguments on 10-11-1975 on two matters:

    (i) Whether or not the basic structure doctrine restricted Parliament’s power to amend the Constitution.

    (ii) Whether or not Bank Nationalisation case⁴³ had been correctly decided.”⁴⁴

    There was no written application, or a review petition filed before the Supreme Court and the Supreme Court does not hear review petitions in open court. Following the order of the Chief Justice on 10-11-1975 a Bench of 13 Judges commenced hearing of the review of Kesavananda Bharati case⁴⁵. On 12-11-1975 the Bench assembled to a packed court for resumption of the arguments. Hardly had the 13 Judges taken their seats when to the surprise of all the Chief Justice stated, “This Bench is dissolved.”

55. It is interesting to note that the Bench in Kesavananda case⁴⁶ is not the largest Bench to hear a case in India. That record is held by the Allahabad High Court where the largest Bench of 28 Judges sat together in a sensational case where 2 Judges of the Allahabad High Court filed petitions challenging the action of the Legislative Assembly passing resolutions directing the 2 Judges to be brought in custody before the Assembly for breach of privilege of the Assembly. It happened in 1964 when Keshav Singh who was sentenced by the Assembly for the breach of its privilege and his sentence was challenged by an advocate by filing writ petition before the Allahabad High Court seeking his immediate release. The matter was heard by a Division Bench of Nasirullah Beg and G.D. Sehgal, JJ. And Keshav Singh was ordered to be released on bail by the Division Bench. That order, in the Speaker’s view, undermined the authority of the Assembly and he indicated that that the High Court Judges as well as the lawyer who filed the petition had committed breach of the privilege of the Assembly. The Assembly passed a resolution directing that the lawyer and the two High Court Judges be brought into custody before the Assembly. The two Judges filed petitions in the Allahabad High Court challenging the resolution. The Chief Justice decided that all Judges (except the two) would sit together to hear this case and that is how the largest Bench in the history of this country to date consisting of 28 Judges sat together to decide this case. The High Court restrained the Government from execution the arrest warrants. Immediately thereafter, the warrants of arrest were withdrawn by the Assembly. A presidential reference was made to the Supreme Court under Article 143⁴⁷ of the Constitution of India to enable the Court to rule on the authority of the Assembly vis-à-vis the independence of the judiciary. A Bench of 7 Judges led by Chief Justice Gajendragadkar was constituted to decide the presidential reference. H.M. Seervai assisted by Tehmtan Andhyarujina appeared for the U.P. Assembly and M.C. Setalvad appeared for the High Court Judges.⁴⁸ In Chief Justice Gajendragadkar’s words, the Court was on trial. ⁴⁹
56. The longest serving Chief Justice of India Y.V. Chandrachud had a fascinating career as a lawyer, he was born into a family of lawyers. He attracted national attention as the prosecutor in the sensational Nanavati trial in late 50s. After 12 years as Judge of the Bombay High Court and being 3rd in seniority, he was recommended to become the Judge of the SC in 1972, at the age of 52. Before being appointed as the Chief Justice of India, both Justice Chandrachud and Justice Bhagwati were criticised for their judgment in the Habeas Corpus case⁵⁰ during the emergency and were thought to be unfit to be appointed as the Chief Justice of India. It was also the first time in history that the CJI was appointed by consensus of all the SC Judges as well as all High Court Chief Justices.⁵¹
57. Amongst many others Justice Vivian Bose, Justice N.H. Bhagwati, Justice J.C. Shah, and Justice P.N. Bhagwati, all four born in Ahmedabad, are certainly Gujarat’s contribution to the great legal luminaries of the country. Justice Jaishanker M. Shelat was the first to reach the Supreme Court from the Gujarat High Court in 1966. He was initially appointed as Judge of the Bombay High Court and then became one of the first Judges of the newly created Gujarat High Court on 1-5-1960.
58. After Justice J.M. Shelat, another Judge to reach the Supreme Court from Gujarat High Court was Justice P.N. Bhagwati in 1973. At the age of 45 he became the youngest Chief Justice of the Gujarat High Court on 16-9-1967 serving for almost 6 years till he was elevated to the Supreme Court on 17-7-1973. Along with Justice Bhagwati, another great Judge to be appointed on the same day in the Supreme Court was Justice Vaidyanathapuram Rama Ayyar Krishna Iyer. Both reached the Supreme Court on 17-7-1973. Both are known to have brought the age of activism in the Supreme Court in the 70s and 80s with opening the doors of the SC with public interest litigation.
59. An interesting and unknown fact about Justice V.R. Krishna Iyer is that he is the only SC Judge to have been jailed after independence and has served in Cannanore Central Jail. He mentions about this incident in his autobiography Wandering in Many Worlds that he was arrested in 1948 for allegedly helping communists in their violent activities and providing them hideouts. His arrest could not be supported with any evidence and ultimately, he was released after spending a month in jail.⁵²
60. Justice Krishna Iyer before becoming a Judge of the Kerala High Court in 1968 served as Home Minister and Minister of Law in 1957-1959. In his speech during the swearing ceremony at Kerala High Court, he made it clear that he would endeavour to become a judicial activist.⁵³
61. His appointment to the Supreme Court was protested by many prominent lawyers including Soli Sorabjee on the ground that he was a Marxist.⁵⁴ At the end of his tenure, he was one of the most respected Judges of the SC.
62. During the summer holidays in June 1975, Justice Krishna Iyer was sitting as a Single Judge in a Vacation Bench. The sensational appeal of Smt Indira Gandhi was filed and came up for hearing on 23-6-1975 in his Bench. Despite intense arguments by Nani Palkhivala for Smt Indira Gandhi seeking complete stay of the impugned judgment, he passed the interim order granting conditional stay against the Allahabad High Court judgment in the election petition of State of U.P. v. Raj Narain⁵⁵ which declared Smt Indira Gandhi’s election from the seat of Raebareli to be void and further disqualified her from contesting elections for a period of 6 years. Nani Palkhivala argued that if an unconditional stay was not granted her political career would be ruined.⁵⁶ By way of the said conditional stay Smt Indira Gandhi could remain in office as Prime Minister, however she could not vote in Parliament, nor could she draw any remuneration as a member of Parliament.⁵⁷ It is after the interim order which did not grant an unconditional stay that an emergency was declared on 25-6-1975. Justice Krishna Iyer in later days remarked that it was only Nani’s brilliant arguments that induced him to grant the stay, which he was not otherwise inclined to grant.
63. Smt Indira Gandhi had engaged the services of J.B. Dadachanji, to represent her in the Supreme Court. He engaged Nani Palkhivala as Senior Counsel. The draft of her appeal was settled by Fali Nariman who was then the Additional Solicitor General.⁵⁸
64. Fali Nariman resigned as Additional Solicitor General the day after the emergency was imposed.⁵⁹ On 27-6-1975 Nani Palkhivala wrote a letter to Smt Indira Gandhi informing her that he had decided to withdraw from her appeal in view of the developments of the declaration of the emergency.⁶⁰ The courage, conviction and principles of these stalwarts were uncompromising and non-negotiable.
65. There have been deadly attacks on the SC Judges twice. One in March 1968 when a half mad man attacked Justice A.N. Grover and stabbed him on the head with a knife, while he was sitting on a Bench with Chief Justice of India Hidayatullah and Justice C.A. Vaidialingam.⁶¹ Second is when in March 1975, 2 persons threw hand grenades inside the official car of Justice A.N. Ray who was sitting along with his son, fortunately the grenades did not explode.⁶² Prime Minister Indira Gandhi had cited the said incident as one of the reasons for imposing the emergency.⁶³
66. After Justice A.N. Ray, the 15th Chief Justice of India in line was to be Justice H.R. Khanna, however hours before Justice Ray’s retirement on 28-1-1977, the Government announced Justice M.H. Beg’s appointment as the 15th Chief Justice of India. Justice H.R. Khanna resigned in protest. The members of the Bar across the country protested and resolved to boycott the courts on that day.
67. After the supersession of Justice Khanna, in the General Elections in March 1977, Congress lost and Janata Government took over, Morarji Desai became the 4th Prime Minister of India. Justice Khanna mentions that immediately thereafter Ram Jethmalani came to his residence and asked Justice Khanna to take over as the Chief Justice of India. Even the Prime Minister Desai called on him and mentioned that the incumbent on the office of the Chief Justice of India would be asked to step down and Justice Khanna would be made the Chief Justice of India. To this Justice Khanna refused saying that it would not be proper.⁶⁴
68. It is mentioned that Prime Minister Desai asked Justice Khanna to prepare a note containing suggestions for constitutional amendment so that there might be no repetition of what had happened during the emergency. Justice Khanna gave detailed suggestions and mentioned that his suggestions were approved and based on which the 44th Constitutional Amendment⁶⁵ was moved which inserted clause (5) to Article 352⁶⁶ ceasing the operation of emergency on expiry of 6 months. Another suggestion which was approved resulted into amendment of Article 359⁶⁷, which inter alia excluded Articles 20⁶⁸ and 21⁶⁹ of the Constitution from suspension during emergency, meaning thereby the constitutional courts would be able to issue writ of habeas corpus even during emergency. Thereby the majority opinion of the Habeas Corpus case⁷⁰ came to be nullified by the amendment to the Constitution and the minority opinion of Justice Khanna became the law of the land.⁷¹ Despite being the sole dissenter, he was instrumental in making the change in the Constitution. He truly earned an iconic status which was elegantly put up by the New York Times when it said, “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court.”⁷² Justice Khanna’s life-sized portrait was unveiled in Courtroom No. 2 of the SC in 1978⁷³ immortalising him in the 2nd Court of the SC.
69. After Justice P.N. Bhagwati the next to reach the Supreme Court from Gujarat High Court was Justice Dhirajlal Ambelal Desai whose appointment precipitated unprecedented controversy as Justice Desai marched over Justice B.J. Dewan, the Chief Justice of the Gujarat High Court and 2 other Senior Judges of the Gujarat High Court. The Gujarat High Court Bar Association argued that Justice B.J. Dewan should have been appointed as he was the Chief Justice. Another fact that irked the Bar Association was that the Chief Justice of India while recommending Justice Desai had stated that he was “the ablest Judge of the Gujarat High Court”. The Gujarat Bar was of the view that the three bypassed Judges were men of high integrity, ability, and independence and therefore such a remark by the Chief Justice of India was not appropriate. Immediately thereafter on 29-9-1977 a Senior Judge J.B. Mehta resigned. The Bar held all the three Senior Judges in highest regard and in its extraordinary meeting on 29-9-1977 under the leadership of then President Shri J.M. Thakore, resolved to refrain from work when Justice Desai was to be sworn in as a mark of protest. The Bar also resolved to refrain from working on that day as a mark of respect to Justice J.B. Mehta. The matter thereafter reached the Supreme Court, and the Supreme Court Bar passed a resolution on the same day disapproving the bypassing of the Senior Judges of the Gujarat High Court. The Supreme Court Bar Association resolved not to attend the swearing in ceremony. Rajeev Dhavan and Alice Jacob mentions about this incident in their book Selection and Appointment of Supreme Court Judges: A Case Study that the Attorney General for India, the Solicitor General of India, and many government lawyers did not attend the swearing in ceremony held on 1-10-1977. Despite of the controversy Justice Desai did leave a mark in the SC and gained the reputation for being an activist Judge passionate about improving the conditions of workers and peasants.
70. The next to be appointed to the Supreme Court in 1978 was Justice R.S. Pathak who came to be elevated to the SC when he was 53. After Justice P.N. Bhagwati’s retirement, he became the 18th Chief Justice of India in 1986. Before his retirement he was elected as India’s representative in the International Court of Justice (ICJ). He has the distinction of becoming one of the 4 Indians to serve as a Judge of the International Court of Justice. The first being Sir Benegal Narsing Rau (B.N. Rau) the Constitutional Advisor to the Constituent Assembly who played a prominent role in drafting the Constitution and was the first Indian member to serve in the ICJ in 1952-1953. Second was Nagendra Singh an ICS officer and a member of the Constituent Assembly who came to be appointed as a Judge of the ICJ in 1973 and was the first Indian to serve as the President of ICJ from 1985-1988. After him was Justice R.S. Pathak from 1989-1991. The fourth is Justice Dalveer Bhandari who came to be elected in 2012 and is currently serving as a Judge in the ICJ.
71. In 1980 the Congress Government came back to power with a thumping majority. The Government then decided to undertake a large-scale transfer of Judges across the country. The Chief Justice of Madras High Court was transferred to Kerala and Lily Thomas, an advocate challenged the transfer before the Supreme Court. During the pendency of the petition, Union Minister sent a letter to the Chief Minister of all States (except north-east) asking them to obtain the consent of all the Additional Judges in the High Court for being transferred and made permanent Judges in other High Courts. This letter set the fire ablaze and several Bar Associations condemned the letter. Advocate Iqbal Chagla challenged the letter by preferring writ petition before the Bombay High Court and the letter came to be stayed by the Bombay High Court. Several petitions were filed challenging the transfer of Judges and all the petitions were to be heard by the Supreme Court. The highly sensitive issue raising questions of great constitutional importance and about the independence of judiciary were to be decided by the 7-Judge Bench of the Supreme Court in 1981. The Bench heard the arguments for 35 days, 100s of lawyers appeared and argued with enormous industry and erudition. The judgment does acknowledge and appreciate the assistance rendered by the lawyers. The judgment known as the First Judges’ case⁷⁴ came to be pronounced on 30-12-1981 with 7 opinions running more than 900 pages making it one of the longest judgments of the SC. The most interesting part apart from the important questions of constitutional importance is that the Chief Justice of India himself was on trial. The Bench presided by Justice Bhagwati directed the Chief Justice of India to file an affidavit explaining the steps taken before transferring the Chief Justice of the Patna High Court. Even a statement prepared by the President was read out during the hearings. Soli Sorabjee who had appeared and argued for one of the petitioners after the outcome commented that the rhetoric in the judgment is historic, but the outcome is zero.⁷⁵

72. The 70s and 80s are considered as the era of the activist Judges. Justice Abhinav Chandrachud explains that judicial activism in the 1980s arose out of the famous dissent of Justice H.R. Khanna in the Habeas Corpus case⁷⁶. The Bench of 5 Judges, by majority of 4:1 held that during emergency writ of habeas corpus could not be issued due to Article 359 suspending the fundamental rights. The majority took a conservative approach which seemed immoral but not strictly illegal. Justice Khanna interpreted the Constitution in a manner that stretched it beyond what the framers had intended. He held that the right to life which existed even before the Constitution could not be taken away by the Government during emergency. His view was quite moral, legitimate considering the sufferings of the people and need of the hour for the Supreme Court to stand up during the dark days, however bending the Constitution with quite liberal interpretation which was later developed further to be considered as judicial activism. Justice Khanna’s interpretation gave the legitimacy of judicial activism in the late 70s and 80s. In the interview with Justice Bhagwati, he tells Gadbois that he was consciously trying to create more rights than were available under the Constitution. He felt that the right to life ought to contain more freedom than had been conventionally believed. Even the doctrine of due process which was rejected by the framers of the Constitution came to be accepted during the 1970s and 1980s and became part of constitutional law.

Concluding remarks

1. These are just few of the many instances which form part of the rich and diverse history replete with so many fascinating stories, cases which give a peek into the yesteryears of the SC.
2. Great Judges and lawyers have contributed immensely to shaping and making the SC one of the greatest and most powerful courts in the world.
3. Courageous and bold Judges have always won the hearts of millions of people and they are always remembered for their boldness.
4. Indians must be grateful to the Judges who have with their judgments and power of judicial review given true meaning to the extent and scope of fundamental rights so that the citizens can live life with dignity and create conditions in which they can develop their personality to the fullest extent.
5. Judges are capable of making fundamental changes not just in the life of ordinary individuals but also the course of the nation. Great Judges never sulked but soared with law. They imbibe the qualities that Socrates said belong to a Judge: “(1) to hear courteously; (2) to answer wisely; (3) to consider soberly; and (4) decide impartially.”
6. It would be apt to quote the famous observation of Justice Vivian Bose in Bidi Supply Co. v. Union of India⁷⁷ that:

   25. The heart and core of a democracy lies in the judicial process and that means independent and fearless Judges free from executive control brought up in judicial traditions and training in judicial ways of working and thinking.

7. Justice Y.V. Chandrachud remarked in the landmark decision of Minerva Mills Ltd. v. Union of India⁷⁸ that “Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law.”
8. Let me end this by quoting the farewell speech of Justice H.R. Khanna who quotes Harold Laski’s tribute to Justice Holmes describing the hallmarks of a great Judge.

   “A great Judge he said must be a great man. He must be able to catch the ultimate in the immediate, of the universal in the particular. He must have a constant sense of essential power, and yet be capable of humility in its exercise. A great Judge, it is said seeks to make the infinitely small illuminate the infinitely great.”