Limits on legislative privileges


U.P. ASSEMBLY CASE, 1964 H.M. SEERVAI’s close associate T.R. Andhyarujina, on how India’s greatest constitutional commentator was called to defend the indefensible

THE Constitution of India was brought into force on January 26, 1950, which we call the Republic Day. It is a matter of satisfaction for India that its Constitution has survived for sixty years, keeping alive its democratic institutions when contemporaneous Constitutions of other countries have failed. Sixty years after the advent of our Constitution it is right to recall the eminent lawyers who in the early days of our Constitution helped to enlighten it and firmly lay its foundation. Foremost amongst these lawyers was the late H.M. Seervai.

In the early days of the Constitution, there were no judicial precedents for elucidation of a written constitution. Seervai therefore invoked fundamental principles of constitutional law, always bearing in mind that it was a Constitution which was being expounded and not an ordinary law.

He was a powerful and fearless advocate, a man of courage and conviction with a great command over the English language. Uniquely, he held the office of Advocate-General of Maharashtra for 17 years. With considerable sacrifice, he devoted himself exclusively to the work of his state shunning all private practice and defended difficult and unpopular decisions in court. Though he was the principal law officer of the state he was politically neutral and knew no politician. So great was his stature that other governments sought his services.

In 1964, he was chosen by the Uttar Pradesh Vidhan Sabha to defend its apparently outrageous action of issuing warrants of arrest of two judges of Allahabad High Court in exercise of its legislative privileges. The Assembly believed that only Seervai with his fearless arguments would be able to tell the Supreme Court judges that they could not control the privileges of legislatures. He did this without hesitation. I remember how in an electrifying moment in the Supreme Court, he told the Court that its order would be disregarded as a nullity if it exceeded its jurisdiction, a statement which any other lawyer would consider not only disrespectful but imprudent.

In 1972, the Government of India chose Seervai as  its leading counsel in precedence over thethen Attorney General for India to defend Parliament’splenarypowers toamendtheConstitutioninthefamousKesavananda Bharti case before the largest bench of 13 judges of the Supreme Court ever constituted to overrule the SupremeCourt’sjudgmentinGolakNath(whichheld that Parliament could not amend fundamental rights).  Seervai argued with great vehemence for 22 days for Parliament’sunrestrictedpowerstoamendtheConstitution including fundamental rights. After 67 days of hearing,sixjudgesupheldhisview,othersixjudgesheld that Parliament’s power to amend was limited by impliedlimitations. TheremainingJudgeJusticeKhanna titled the balance. Whilst holding that power to amend the Constitution was plenary, he said Parliament could notchangethebasicstructureoftheConstitutionbyan amendment. Justice Khanna’s view was considered as theviewofthemajorityofjudges.

Later in 1975, when Parliament in abuse of its amending power made amendments to the Constitution to validate Mrs Indira Gandhi’s election, Seervai had the intellectual courage to change his view. He then subscribed to the theory that Parliament’s power to amend the Constitution was limited by the basic structure of the Constitution.

In 1961, Seervai believed that the time had come for him to devote his energies to correct and critically comment on the  judgments of the Supreme Court. For 30 years he devoted himself to writing his magnum opus, The Constitutional Law of India in three volumes. It was a highly critical commentary on the decisions of the Supreme Court. In the book he boldly stated that a decision of the Supreme Court was “productive of a great public mischief and should be overruled”. The book has become a book of reference not only in India but in other countries of the world. In that sense unlike other eminent lawyers who also contributed to the exposition of the Constitution but have died, Seervai still lives in courts.

Recognition of his work came in many ways. He was offered a judgeship of the Supreme Court twice which hedeclined. HewasconferredthePadmaVibhushanin 1972. He was made a Fellow of the British Academy. Government of India desired to appoint him the Attorney-GeneralforIndiain1971. Hedeclinedtheoffice stating that the best contribution by him would be to embodyinsuccessiveeditionsofhisbookthecorrectjudicial interpretation of the Constitution. At the age of 89, Seervai continued to labour on the last edition of his monumental book. He completed the last page on the day preceding his death. He died on Republic Day on January 26, 1996. The writer is a senior advocate of the Supreme Court, former SG, and appeared with Seervai in many cases


In 1964, a 7-judge bench of the Supreme Court delivered its advisory opinion in a Presidential Reference. This followed a dispute between the Allahabad High Court and the UP State Legislative Assembly. The Assembly had issued a warrant against the intervening high court judges.


The issue before the Court was the proper limit of legislative privileges. The Supreme Court advised that separation of powers must be respected, and antiquated notions of Parliamentary supremacy was irrelevant in the Indian context.


The debate over legislative privileges persists till date. The principles in the advisory opinion have prevented possible future abuse.


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