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Speech at Centenary Celebrations of Chief Justice K. Subba Rao
by Justice B.P. Jeevan Reddy†
Cite as : (2003) 8 SCC (Jour) 41
Hon’ble Chief Justice of Andhra Pradesh, Shri Justice Y. Bhaskara Rao, Hon’ble Judges of Andhra Pradesh, sitting and retired, President of the Andhra Pradesh High Court Advocates’ Association, Members of the Bar, Ladies and Gentlemen:
I must compliment the Andhra Pradesh High Court Advocates’ Association for deciding to celebrate the 101st birthday of late Shri Justice K. Subba Rao, a truly great Judge, though they may have missed his hundredth birthday. It does not however matter since, it is said, the centenary celebrations can extend over one year and in this sense you are still within “limitation”. I must also thank the High Court Advocates’ Association for giving me this opportunity to join all of you in paying my respectful homage to Justice K. Subba Rao.
Shri Justice K. Subba Rao, the first Chief Justice of Andhra Pradesh High Court and the first and the only Judge till now, from Andhra Pradesh to be appointed the Chief Justice of India, was a man of strict discipline and high learning. He was, without a doubt, a great Judge who left his deep imprint on the development of constitutional law in India. He was an original thinker and a staunch proponent of fundamental rights in our Constitution. Fundamental rights were an article of faith with him. A man of strong convictions, he came to be known as a dissenting Judge in his early years in the Supreme Court; indeed some of his greatest judgments are his dissenting opinions.
But let me first talk of his discipline — the hallmark of his conduct as a Judge. He believed in self-discipline and expected disciplined conduct from others including judges and lawyers. His orderly conduct of Court, his bearing on the Bench, his masterly analysis of the arguments advanced, mark him out as an ideal Judge. We all have a lot to learn from him. What do we mean when we speak of “disciplined conduct” on the part of a judge. Discipline means coming to the court exactly at the appointed hour; it means orderly disposal of the cases listed before him; it means sitting till the last minute of the court time. It means not making an excuse of absence of advocates to get up and retire to chambers before the appointed time. Discipline also means a devotion to work; it means treating the office of the judge as a mission; it means doing our duty honestly and to the best of our ability; it means neither hustling the advocate nor hearing him interminably; in short, it means total integrity — unflinching integrity. Justice Subba Rao was an embodiment of all this and this discipline of his is the first quality which the present and coming generations of judges have to imbibe — and imbibe deeply. If only we had learnt and imbibed this quality, the kind of complaints we are hearing today against judges all over the country would not have been heard — complaints which make us hang our heads in shame. It is necessary to remind ourselves, and follow, the norms of judicial behaviour associated with Justice Subba Rao and try to undo the damage being done by some of our errant brethren.
Now let me turn to Justice Subba Rao’s judgments — after all, a judge has to be known by his judgments — judgments with all of which one may not agree but which no one can ignore.
He was appointed to the Supreme Court on 31-1-1958. His first dissent came quite early. In Radeysham Khare v. State of M.P.1 the question arose as to the nature of the powers of the State Government to supersede the Committee of a Municipality and whether it was necessary to give a hearing to the Committee before superseding it, even though the Act did not provide for such an opportunity. The majority held that no such opportunity was obligatory. They held that merely because the Act required the Government to pass a reasoned order, it did not mean a duty to record a judgment judicially arrived at, though they recognised that an order of supersession does cast a slur upon the Committee and its members. Subba Rao, J. in his dissent, took a contrary view. He stated the principle relevant in this behalf in the following words: (AIR p. 134, para 64)
“The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance.”
Applying the said principle, he held that the power under Section 53-A of the Act could be exercised only on the happening of three conditions i.e. (a) incompetence of the Committee to perform its duties; (b) formation of opinion by the State Government that appointment of a special officer would improve the working of the Municipality; and (c) obligation to pass a reasoned order. He held that these requirements called for a duty to act judicially which includes a duty to give a hearing to the Committee. All of us know that this ultimately became the law, which found its fruition in the well-known decision of Kraipak2 where, as you all know, it is held that the dividing line between administrative and quasi-judicial function has become quite indistinguishable and that the test is whether the action of the authority affects the rights or the interests of a person and if it does, he must be heard, whether you call it the principles of natural justice or the duty to act fairly.
Justice Subba Rao’s next major opinion followed soon after when he succeeded in converting a majority of judges to his view. In Basheshar Nath v. CIT3 a question was raised whether it is open to a citizen to waive the fundamental rights conferred upon him by Part III of our Constitution. One Judge (S.K. Das, J.), thought that that question did not really arise on the facts of that case. Two other judges including S.R. Das, C.J., thought that whatever may be the position with respect to other fundamental rights, a citizen cannot waive a breach of Article 14. They were of the opinion that Article 14 was not a right conferred upon the citizens as such but a mandate to the State not to discriminate, and since the said mandate is based upon public policy, the citizen has no right to waive it. Subba Rao, J. with whom Bhagwati, J. agreed, took a more liberal view. He opined that the entire Part III — and not merely Article 14 — has been conceived in public interest and that all of them confer rights upon citizens. He opined: (AIR p. 181, para 82)
“[I]t is not proper that the fundamental rights created under the various articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit.”
Accordingly, he held that no citizen can waive any of his fundamental rights — to wit, no citizen can agree to be discriminated. He gave several reasons in support of his view, which cannot be set out in this short paper. All of us know that this is the law even today and that since 1970s, Article 14 is recognised as having both a negative and an affirmative content — a vindication of the view propounded by Subba Rao, J.
In M.S.M. Sharma v. Sri Krishna Sinha4 (Searchlight case) again, Subba Rao, J. dissented. The question there was whether the Press has the fundamental right under Article 19(1)(a) to publish the speech of the members of a legislature, which was expunged by the Speaker. On the question of existence of the privilege of legislature to prohibit publication of even true reporting of speeches, the majority and Subba Rao, J. differed — the former holding that legislature did possess such a privilege flowing from Article 194(3) and the latter holding that no such privilege was available. But the approach adopted by Subba Rao, J. in this case is significant and was in tune with his great faith in the fundamental rights. Dealing with the argument that Article 19(1)(a) and Article 194(3) should be harmoniously construed (that was the majority view), he stressed the fundamental significance of the freedom of speech and expression conferred by Article 19(1)(a) and the nebulous state in which the privileges of legislatures were by virtue of Article 194(3) — the problem of finding the privileges of House of Commons on each occasion and held: (AIR p. 419, para 47)
“As the privilege claimed by the respondents is in derogation of the fundamental right of a citizen, the burden lies heavily upon them to establish by clear and unequivocal evidence that the House of Commons possessed such a privilege.”
In the later seven-Judge Constitution Bench opinion of the Supreme Court in Article 143 of the Constitution of India; In re5 the majority (including Subba Rao, J.) while affirming the majority view in Searchlight case4 yet made the privileges of legislature subject to Article 21. The Court held: (AIR p. 786, para 127)
“In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Article 32, on the construction of the latter part of Article 194(3) is decisively against the view that a power or privilege can be claimed by the House, though it may be inconsistent with Article 21. In this connection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under Article 208(1).”
One of the very far-sighted judgments of Justice Subba Rao is in Kavalappara Kottarathil Kochuni v. States of Madras & Kerala6. In this case, he first planted the idea that an act for acquisition of citizen’s property must not only satisfy Article 31 but must also pass the test of reasonableness in Article 19(6). This view, a departure from the majority view in Gopalan case7 became the law of the land when it was expressly and fully affirmed in R.C. Cooper v. Union of India8 (Bank Nationalisation case) overruling the majority judgment in A.K. Gopalan v. State of Madras7. The theory propounded was: (SCC p. 288, para 49)
“[I]t is not the object of the authority making the law impairing the right of a citizen, nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attracts the jurisdiction of the Court to grant relief. If this be the true view and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the legislature nor by the form of the action, but by its direct operation upon the individual’s rights.”
(Taken from R.C. Cooper8)
One more instance of Subba Rao, J.’s dissenting opinion getting accepted later by the majority of the Supreme Court is his opinion in Kharak Singh v. State of U.P.9 Though the case related to the validity of a provision in the U.P. Police Regulations, it raised a question as to the meaning and scope of the expression “personal liberty” in Article 21. While the majority took a restricted view, Subba Rao, J., not unexpectedly, took a more expansive view. Subba Rao, J. (with whom Shah, J. agreed) held as follows: (AIR p. 1305, para 30)
“No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.”
In Maneka Gandhi v. Union of India10 Bhagwati, J. held that the majority judgment in Bank Nationalisation case8 had the effect of overruling the majority opinion in Kharak Singh9 and of approving the minority opinion of Subba Rao, J.
In Chitralekha case11 he took the view that the OBCs in Article 15(4) can be identified on the basis of occupation-cum-means and that it is not impermissible to ignore the caste in doing so. This view was noticed with appreciation in the later nine-Judge Constitution Bench judgment in Indra Sawhney12.
There are a few more such instances, but I do not think it advisable to set out all of them on this occasion. But I think it is only fair that I must also refer to instances where his view was disapproved later. Before I refer to the well-known decision in Golak Nath13 I may refer to his decision in Krishan Kumar Narula v. State of J&K14. I may give a little background. In RMDC case15 the Court held that there can be no fundamental right to gambling. In other words, it was held that the right to practise any profession or occupation does not take in gambling — reason being that gambling cannot be called a commercial activity. They held, it was res extra commercium. But in K.K. Narula case14 Subba Rao, J. argued: (AIR p. 1371, para 11)
“The learned Advocate General contended that dealing in liquor was not business or trade, as the dealing in noxious and dangerous goods like liquor was dangerous to the community and subversive of its morals. The acceptance of this broad argument involves the position that the meaning of the expression ‘trade or business’ depends upon and varies with the general acceptance of the standards of morality obtaining at a particular point of time in our country. Such an approach leads to incoherence in thought and expression. Standards of morality can afford a guidance to impose restrictions, but cannot limit the scope of the right. So too, a legislature can impose restrictions on, or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining at particular time or place may hold the restrictions or prohibition reasonable.” (emphasis supplied)
The logic of this reasoning is impeccable. However, this reasoning was contrary to the reasoning in earlier decisions commencing from RMDC15. This controversy has been set at rest by a recent Constitution Bench decision in Khoday16 of which I happened to be a member. I agreed because, RMDC15 line of thinking had become too well established and it was not desirable to disturb it.
Now I come to the decision in Golak Nath case13. As we have already noticed, Subba Rao, J. was a great believer in fundamental rights enshrined in Part III of our Constitution and was deeply disturbed whenever those rights were sought to be curtailed or overridden, whether by Parliament in exercise of its constituent power or by any other. In particular, he was more concerned about freedom of speech and expression guaranteed by Article 19(1)(a) and the right to hold and dispose of property guaranteed by Article 19(1)(f). He was disturbed to see that these fundamental rights were being constantly eroded by amendments made from time to time by Parliament and that almost every decision of the Court on the meaning and scope of Articles 19(1)(f) and 31 was being nullified resorting to the power of amendment. First it was the Constitution (First Amendment) Act, 1951 which not only touched upon the right in Article 19(1)(a) by amending clause (2) but also impinged seriously upon the right to property by introducing Article 31-A (immunising land reform laws from Articles 14, 19 and 31) and Article 31-B read with the Ninth Schedule to the Constitution. Articles 14, 19 and 31 were made inoperative insofar as enactments covered by Article 31-A and those included in the Ninth Schedule. In 1955 again, Parliament brought in the Constitution (Fourth Amendment) Act by which the scope of Article 31-A was extended to cover several kinds of property, over and above the rights in an estate and an attempt was made to circumscribe the power of the courts to award full and fair compensation by amending Article 31. By clause (2-A) in Article 31, it was declared that any and every deprivation of property does not entitle the owner to compensation. Such right exists only when the right/title is transferred to the State or a Corporation controlled by the State, and not when the right/title is transferred to a third party. You will remember that the provisions in the State land reforms laws all over the country compulsorily transferring the title of the landlord to the tenant was made possible only because of this clause (2-A). Since the property was not transferred to the State or to a Corporation controlled by the State but only to a third party (tenant) the State was under no obligation to pay any compensation therefor though the relevant provisions in the State enactments provide for some token amount to be paid by the tenant to the landholder by way of compensation. Then came the Constitution (Seventeenth Amendment) Act in 1964 which further eroded the right to property by enlarging the scope of the expression “estate” to mean even the land held under the ryotwari settlement and all kinds of agricultural property. He found a pattern in these amendments. These amendments, and in particular Article 31-B read with the Ninth Schedule immunised a host of enactments, both Central and State, from the operation of Part III. He, therefore, formed an opinion that this constant and continuous encroachment of fundamental rights by Parliament purporting to act in exercise of its constituent power should be checked — and when an occasion arose, he did so. The first premise underlying his judgment in Golak Nath13 and which several persons find it difficult to subscribe to was that an amendment effected by Parliament in accordance with Article 368 was yet a “law” within the meaning of Article 13(3)(a) of the Constitution and therefore if such law is inconsistent with any of the provisions of Part III, it would be void to that extent. He refused to countenance the argument that a constitutional amendment, even though effected by Parliament, is an exercise of its constituent power conferred upon it by Article 368 and that it cannot be treated as a “law” within the meaning of Article 13(3)(a). Once the above premise was laid, the rest followed. He declared that the First, Fourth and the Seventeenth Amendments to the Constitution were all void under Article 13(2) of the Constitution but saved them applying the principle of prospective overruling inasmuch as invalidating the said amendments would have resulted in unbelievable chaos in the country’s legal, social and economic system. He, however, declared that in future Parliament shall not be competent to curtail or abridge any of the fundamental rights in Part III in exercise of the power of amendment conferred upon it by Article 368 of the Constitution though he conceded that they can be enlarged. This decision created a furore in several relevant circles and became the subject of grave criticism — and, of course, in certain quarters, of approbation. The Government of the day in particular felt deeply disturbed by this decision. The political class as a whole did not take kindly to it. The result was the Constitution (Twenty-Fourth Amendment) Act amending Article 368 itself expressly stating that the power of amendment extends to all parts of the Constitution and further, providing expressly that a constitutional amendment shall not be subject to Article 13 and the Constitution (Twenty-Fifth Amendment) Act introducing Article 31-C. Article 31-C immunised an enactment from the purview of Articles 14, 19 and 31, provided the enactment is designed to give effect to the principles in clauses (b) and (c) of Article 39 in Part IV and the enactment contains a declaration that it is so designed. These Amendment Acts too were challenged and a thirteen-Judge Bench of the Supreme Court in Kesavananda Bharati17 upheld the Constitution (Twenty-Fourth Amendment) Act and the Constitution (Twenty-Fifth Amendment) Act as well except insofar as the declaration of the legislature was made final and conclusive. What is relevant is that the majority in Kesavananda Bharati17 held, disagreeing with Golak Nath13 that a constitutional amendment is not a “law” within the meaning of Article 13(3)(a). They also did not agree with Subba Rao, J. that the fundamental rights in Part III are sacrosanct and cannot be amended though they gave recognition to the theory of basic features or what is called the basic structure theory of the Constitution.
It is evident that during his ten-year tenure in the Supreme Court, Subba Rao, J. helped shape the development and direction of the constitutional law of the country. He is rightly reckoned as one of the greatest judges who adorned the Supreme Court. As I stated at the beginning, one may not agree with all his views but none can dispute his learning, his vision of the constitutional system of this country and his steadfast commitment to his principles. He remains a shining example for the members of the judiciary to emulate and cherish, for ever.
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