Remembering C.K. Daphtary - India's first Solicitor General

“The boy who wrote the best essay got the first prize”. Many of us would have come across this anecdote, where Chander Kishan Daphtary, India’s first Solicitor General, perfectly summarized the Indira Gandhi government’s decision to appoint Justice A.N. Ray as Chief Justice of India, by superseding 3 of the senior-most judges of the Supreme Court (Justices Shelat, Grover and Hegde). [A.N. Ray was rewarded for his ‘essays’, after he held in favor of the Government in the Keshavananda Bharathi case, and was also the only judge who upheld Indira Gandhi’s bank nationalization ordinance of 1969].

This is just one among the many sharp and memorable anecdotes from Daphtary’s career, where he served as independent India’s first Solicitor General (from 1950-1963), and succeeded M.C. Setalvad to serve as India’s second Attorney General from 1963-1968. After serving as Attorney General, he was also nominated to the Rajya Sabha in 1972. In fact, his one-line description of Justice A.N. Ray getting the ‘first prize’ for his ‘essay’ was made in the Rajya Sabha itself!

C.K. Daphtary, who was fondly known as Chandubhai, is still remembered for his sharp and witty one-liners in Court. Perhaps the most ‘savage’ of all his one-liners was when Daphtary was practicing in the Bombay High Court. Daphtary was appearing before a Bench headed by Justice Somjee, on a matter relating to stock exchange transactions. It was also well-known that Daphtary himself regularly dabbled in stocks.

Justice Somjee had refused to grant Daphtary permission to continue cross-examining a witness regarding a stock exchange transaction he had undertaken. When Daphtary persisted, Justice Somjee had remarked – ““Mr Daphtary, you will of course know all about stock exchange transactions”.

Daphtary did not react. A few moments later, a law report had to be passed by him to the Bench. As soon as the book was handed over, Justice Somjee remarked – “Mr. Daphtary, there is a bug in this book”. Daphtary immediately seized the opportunity and said – “My Lord, it is not the first time that a bug has travelled from the Bar to the Bench”. This was a sly remark at Justice Somjee himself, who had been elevated as a Judge from the Bar.

While there are many more witty anecdotes and one-liners, Mr. Daphtary’s memory lasts beyond his sharpness and sense of humour. He was also a man who stood by principles, some of which are relevant even today. Three such incidents from Daphtary’s journey bear utmost relevance even today.

A stern request asking Chief Justice Gajendragadkar to recuse

In 1965, two matters dealing with a cooperative housing society came before a Bench headed by Chief Justice Gajendragadkar. A bunch of intervenors from Bombay argued that Chief Justice Gajendragadkar should recuse himself, as he was a member of one of the cooperative housing societies, for which the Government of Bombay had acquired land. Initially, Justice Gajendragadkar stated that he would recuse himself only from one out of two matters, where he had an indirect interest. But, this was objected to C.K. Daphtary, who was then the Attorney General.

Daphtary categorically stated that Chief Justice Gajendragadkar should recuse himself from both matters, as he had a common indirect interest in them. The Bench was reconstituted the next day, and Justice Subba Rao was asked to preside. As Fali Nariman points out in his autobiography, Before Memory Fades, Daphtary stood up for principle and asked for Chief Justice Gajendragadkar’s recusal - even though there was a strong belief in the Bar that Chief Justice Gajendragadkar would decide in favor of the State, as his views on the legal questions involved were well-known.

Daphtary’s role in the constitution of the ADM Jabalpur bench

Daphtary also had an important role to play in the constitution of the bench that decided the ADM Jabalpur case in 1976, during the emergency. After Indira Gandhi’s proclamation of a national emergency in 1975, a number of political leaders and activists had been arrested under the infamous MISA – Maintenance of Internal Security Act, 1971.

Different High Courts had taken contrary views on whether fundamental rights (including the right to life under Article 21) can be suspended when a national emergency was declared. This was crucial, as if fundamental rights stood suspended during an emergency, anyone who had been detained would have no right to challenge his detention before the High Courts and the Supreme Court.

As 9 High Courts had held against the Indira Gandhi Government, the Government filed an appeal in the Supreme Court. There was a growing suspicion in the Supreme Court Bar that Chief Justice A.N. Ray (the boy who wrote the best essay and got the first prize) would constitute a bench of judges who would without doubt give their decision in favor of the Government. Daphtary, who was then the President of the Bar Association, approached Chief Justice Ray and suggested that as there was some concern in the Supreme Court Bar, a bench consisting of the 5 senior-most judges of the Supreme Court should be constituted.

Chief Justice Ray retorted - and asked whether there was ever an occasion where suggestions were made to the Chief Justice of India regarding whom to put on a bench. Daphtary was quick to the task, and responded that he does recall a previous occasion where Chief Justice S.R. Das was told about concerns regarding the composition of a bench, and S.R. Das never took it in the wrong spirit.

This struck the right nerve with CJI A.N. Ray, as S.R. Das happened to be his mentor! CJI A.N. Ray then went on to constitute a Bench with the 5 senior-most judges of the Supreme Court. However, Daphtary’s efforts obviously went in vain, as 4 out of 5 judges held in favor of the Government.

It was only Justice H.R. Khanna who dissented and held that even during a national emergency, fundamental rights cannot be suspended. This ‘essay’ also cost him the post of Chief Justice of India, as the Government superseded him and appointed Justice Beg. In an era where serious questions have been raised regarding composition of benches and assignment of politically sensitive cases to certain judges, even A.N. Ray’s reluctant approval of Daphtary’s request seems to look bright.

Daphtary’s views on the UAPA

Daphtary’s views on the UAPA are most relevant today, when the law is being used to muzzle political dissent. In October 1967, a Joint Parliamentary Committee was set-up to examine the Unlawful Activities (Prevention) Bill, 1967 (UAPA). This was the original draft of the UAPA, which did not deal with terrorist activities, and only penalized ‘unlawful activities’ that affected India’s territorial integrity and sovereignty. As Daphtary was the Attorney General, he was asked to depose before the Joint Parliamentary Committee.

Taking into account the overbroad definition of ‘unlawful activity’ that could be penalised, Daphtary noted that “these are drastic powers”, and that “the law was going as far as one could go”. In his view, the UAPA Bill was constitutional, but not ‘perfectly constitutional’. He also stated that while we may assume that powers granted by the UAPA would be exercised honestly and properly, we cannot say whether that shall always be the case.

Although Daphtary was to a certain extent ambiguous in his opinion, he has been proven correct in hindsight – as the UAPA today is only used against activists and protesters, who disagree with the ruling establishment. Even though the UAPA has been substantially amended since 1967 and terrorist activities have also been brought within its ambit, Daphtary’s views highlight how the law always had the potential to be misused – in the manner that we are witnessing today.

Along with his sharpness and wit, Daphary’s commitment towards rights and freedoms was also steadfast. In June 1975, after Indira Gandhi imposed the emergency, Daphtary was pained to see how High Court judges who decided against the Government were arbitrarily transferred. He told Fali Nariman – “Fali, what we need now is a Subba Rao”.

In fact, Fali Nariman has stated in his autobiography that the most important advice he ever received was from Daphtary, who told him – “Always remember, Fali, it is better to spend more time thinking about a case than merely reading the brief”. All of his words and actions continue to stand the test of time.