In Hot Blood by Bachi Karkaria

Author:Bachi Karkaria
Language: eng
Format: epub

The Supreme Court – Twice Over

The full bench of the Bombay High Court had to be set up on account of a straying wife?! But it gets stranger than that. The Nanavati case has become a full-blown constitutional issue. Tehmtan Andhyarujina explained later, ‘Though the Chief Justice of Bombay upheld the validity of the Governor’s action, Supreme Court judge P.B. Gajendragadkar told his brother judges that this interference should not be tolerated.’

After the high court’s favourable judgement on the Governor’s order, Nanavati’s legal team files an application for special leave in the Supreme Court – a special leave petition can be filed against any judgement of a high court – and also another application asking to be exempted from compliance with Order 21, Rule 5 of the Supreme Court Rules and for the hearing of his application for special leave against the high court judgement convicting him for murder without surrendering to his sentence.

This now requires the attention of the Chief Justice of India himself, presiding over a five-judge bench. They are tasked with interpreting the powers of the Governor (executive) vis-à-vis those of the judiciary. How are the Governor’s powers of pardon under Article 161 to be harmonized with the Supreme Court’s constitutional mandate under Article 142 to ensure the enforcement of legal orders and decrees?

The development has also split the power bloc of the union law ministry. M.C. Setalvad, the Attorney General of India, completely disagreed with the Governor’s order of 11 March 1960, and three weeks later, on 5 April, he presided over a meeting of the Bar Association of India, where a strongly worded resolution condemning such executive interference was passed. The matter having become a politico-legal turf war, the union law minister, Asoke Sen, has to defend the executive from long distance; he wasn’t in India at the time.

The Attorney General’s name takes us back to the very start of our narrative. Setalvad Lane, where Prem Ahuja lived cavalierly and died violently, honours MC’s father, Sir Chimanlal Setalvad, eminent advocate and liberal leader of the freedom movement. According to the noted lawyer A.G. Noorani, ‘Free India punished him for not praying at the shrine of the Congress.’

The first time that the Supreme Court deliberates on the Nanavati case is 5 September 1960 with Chief Justice B.P. Sinha, and fellow judges J.L. Kapur, P.B. Gajendragadkar, K. Subba Rao and K.N. Wanchoo. With the exception of J.L. Kapur, all will be elevated to the highest post of the judiciary.

J.L. Kapur is interesting because he will give a dissenting judgement, so powerful that H.M. Seervai will later cite it as one of the reasons which ‘prompted him to embark without further delay’ on his magisterial commentary on the Indian Constitution. After retirement, Kapur would head the eponymous one-man commission (1964–67) enquiring into the assassination of Mahatma Gandhi. Why sixteen years after the nation-shattering event? This was because of the public outrage over celebrations in Pune after the release of the conspirators in 1964, and the remarks of G.V.

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