As if prophesising, M.K. Nambyar wrote: “No one for a moment can minimize the importance of human endeavour in the march of events, whether in courts of law or elsewhere. By thought, word, and deed, man shapes the course of the future. His life is largely his own making. And not merely his own life, but even the world around him in which he moves and has his being is shaped by his aspiration, his ambition and achievements.”
Born in 1898 in Kerala, Nambyar stands as one of the most distinguished legal minds in the history of independent India. His impact on jurisprudence in India is indelible and undeniable. The foundations of constitutional law that he laid out during the beginnings of independent India shaped the legal and judicial landscape for generations to come.
While one might think that the immediate and perceptible result of an advocate’s work is but to win or lose a case, Nambyar’s life is an example of the principles and convictions that he set in motion, that were not accepted by courts at the time he made them. Yet, today they help secure the rights of billions of citizens against arbitrage of state power. His arguments, despite being ahead of their time, steered the country towards a system where the rule of law was supreme, making India one of the best examples of a successful democracy in the world. His son and Senior Advocate K.K. Venugopal’s tribute to him in the form of his biography is not just the personal journey of an individual lawyer but the journey of a nation.
Behold the newly independent India
There is no brighter chapter in Indian history than that which was heralded on August, 15, 1947, when for the first time India became an independent nation with a common territory, common government and common citizenship. The sovereignty of the people replaced the divine right of the ruling kingdoms and the British Parliament and opened the path to freedom for its people. But reality was very different for A.K. Gopalan, a primary school teacher and communist who was in jail since his arrest in 1941. Even as India celebrated the declaration of its Independence and every political prisoner released, Gopalan continued to be detained in prison: not by the British but by the Congress government. As the whole country freed itself, Gopalan remained in solitary confinement in Cannanore jail, hearing the cries of Bharat mata ki jai from his prison cell.
Detention unfixed, uncertain and arbitrary
While the Constitution sought to guarantee the freedom of its citizens in a language both clear and specific, Gopalan’s incarceration continued post-Independence. The power exercised by the state to detain him emanated from an explicit exception inserted in the provisions of Article 22. This particular Article, which otherwise, meant to protect a person against unlawful detention, permitted preventive detention by the state for a period longer than three months. Such detenu under the preventive detention laws was not an undertrial as he was being detained preventively, and there was no offence that he had committed. Consequently, the detenu was not entitled to any benefits available to persons accused of committing an offence awaiting trial. Under these laws, the period of detention was unfixed, uncertain and arbitrary, fixed by the state without any end in sight.
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It was under these circumstances that Gopalan petitioned from jail to the newly formed Supreme Court of India invoking his fundamental rights as the first constitutional case to be heard by six judges of the Supreme Court.
Harbinger of a constitutional civilisation
The underlying issue in Gopalan’s case was that there are certain immutable principles guaranteeing freedom and liberty to all citizens of India enshrined as fundamental rights in Part III of the Constitution of India, and the preventive detention laws in contravention of these rights ought to be declared as unconstitutional and void. While this might be an absolute view today, in 1950, when Nambyar made this argument, it did not capture the imagination of the judges of the Supreme Court. In fact, there was no support for his propositions in the Indian jurisprudence and he had to look to foreign law especially American jurisprudence from where India borrowed the concept of fundamental rights and due process of law. Nambyar’s arguments propounded that there was an inbuilt safeguard against arbitrariness in Article 14 of the Indian Constitution under which a law that is unreasoned or that is lacking in the basic precepts of natural justice ought to be declared invalid. He placed an emphasis on the interweaving of fundamental rights enshrined in Articles 14, 19, and 21 called the golden triangle of the Indian Constitution, and any law in order to be valid had to pass the test of the cohesive whole of these three fundamental rights.
Nambyar’s deep study and laborious arguments regarding legislation by the Parliament as being subservient to fundamental rights and the laws abridging or abrogating fundamental rights being unconstitutional and void laws were mere abstractions at the time when he was making them. And yet, regardless of the immediate outcome of the case, Nambyar continued to persevere through his arguments before the courts because he recognised in the Constitution the vision of its framers, the loftiness of its ideals, and the hopes and aspirations for the future of the people of India.
Of the Constitution, Nambyar wrote: “No constitution in the world has sought to guarantee the freedom of the citizen in language so clear and explicit, or to secure his rights beyond the chances of judicial interpretation… Words more inspiring cannot be found in any other organic instrument. They hold within themselves both a prayer and promise.”
Nambyar took this prayer and promise and made it his constitutional duty to clarify that the basic human rights enshrined in Part III are guaranteed by the Constitution and are inviolable in nature. That is to say that fundamental rights are beyond the scope of Parliament’s amending power. Any power to amend them can only be exercised to preserve these rights and can never be used to eliminate them. Therefore, the amendability of the Constitution as per the provisions of Article 368 can never be used to amend, abridge or contravene any of the fundamental rights. His arguments expounded that laws that deny a person of his liberty had to be founded on principles of justness, fairness and reasonableness i.e. by way of due process.
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Although he laid these foundations for the inviobility of fundamental rights, the unamendable nature of the basic structure of the Constitution and due process in Gopalan’s case in 1950, they only came to be accepted by the Supreme Court decades later in the Bank Nationalisation, Keshavandanda Bharti, Maneka Gandhi and other judgments. And although Nambyar was unable to travel to Delhi on account of his health to make oral arguments, he formulated and settled the pleadings in Keshavananda Bharati that ultimately shaped the seminal opinion of Justice H.R. Khanna. His precepts rejected at the time, have come to represent a thesis that is central to how we understand the chapter of fundamental rights today.
On the occasion of the 78th year of India’s Independence, it is worth remembering the ethos and principles that Nambyar embodied and advocated, and the conviction with which he pursued them that shaped the fate of Young India and are the anvils of our Constitution today.
It is indeed our privilege to be living in times where we are able to enjoy the acceptance of the ideas for which he unyieldingly laboured. Guided by his convictions and principles, Nambyar, totally self-made, rose to become a guardian of the Constitution and a legendary lawyer and visionary who paved the way for many of the freedoms that we enjoy today.
(Author’s note: All references in this article are from M.K. Nambyar: A Constitutional Visionary, a book written by Senior Advocate and former Attorney General K.K. Venugopal, a legal legend himself.)
Rushda Khan is a lawyer practising in the Supreme Court and a former associate to K.K. Venugopal.
