THE FIRST ARGUMENT by R.K. Garg I encountered was in Ranjit D. Udeshi v. State of Maharashtra, which was part of our criminal law course in the Faculty of Law. Garg was counsel for Udeshi, the owner of the Popular Book Stall in Bombay, who had been convicted for obscenity under S.292 of the Indian Penal Code, 1860 for selling D.H. Lawrence’s novel Lady Chatterley’s Lover. Garg argued that S.292 was an unconstitutional restriction on the freedom of speech and expression under Article 19(1)(a). The judgment of the Court by Justice M. Hidayatullah paid a compliment to the counsel for the appellant. Our brilliant criminal law teacher Dr A.S. Bedi, referring to that compliment, said, ‘Mr Garg is a great lawyer indeed.’ But the judgment went against the appellant. The Court upheld both the section and the conviction, declaring Lady Chatterley’s Lover obscene. ‘In condemning a piece of literature,’ Dr Bedi told us, ‘Justice Hidayatullah wrote a piece of literature himself.’ I was sceptical of that, and disappointed by the judgment. Justice Hidayatullah was the 1960s equivalent of today’s ‘woke’ judge. He was educated at Cambridge, was a barrister at law, and seemed to be a synthesis of erudition, liberalism and cosmopolitanism. How could he – and the Supreme Court through him – purport to say a piece of literature was obscene? And, in my innocence, I thought, if a counsel was being complimented for his argument, he should have won the case. It is only later that I realized that the losing counsel will sometimes get the consolation prize of a compliment; I have received some in my time.
I had, of course, heard of R.K. Garg even earlier, in my years in school. My mother’s first cousin, M.K. Ramamurthi, along with R.K. Garg, D.P. Singh and S.C. Agrawal had set up a litigating law firm in the Supreme Court called Ramamurthi and Co., which became very well known. They were from different parts of the country. Ramamurthi was from Tamil Nadu, Garg from Uttar Pradesh, D.P. Singh from Bihar and S.C. Agrawal from Rajasthan. I am writing about Ramamurthi in another chapter of this book, so I only need to tell you about D.P. Singh and S.C. Agrawal.
D.P. Singh, a lawyer from Bihar, later became a Senior Advocate and a Congress MP. Singh was a vocal supporter of the major constitutional amendments that Indira Gandhi brought about to implement her socialist vision and was an articulate defender of the supersession of judges in 1973. S.C. Agrawal was the sole ‘non-political’ member of the team. He was the workhorse of the firm, excelling in drafting. He later became a Judge of the Rajasthan High Court and then served with distinction as a Judge of the Supreme Court from 1990 until 1998.
Rajendra Kumar Garg was born in October 1928. His hometown was Saharanpur – known for its high-quality iron and brass locks – in western UP. After his school education there, he studied at Ewing Christian College, Allahabad. He obtained a master’s degree in philosophy and a degree in law from Allahabad University. Those were the glorious days of that great university. The English department had two young lecturers who became legendary names in Hindi and Urdu literature. The first was Harivansh Rai Bachchan, and the second was Raghupati Sahai, better known as Firaq Gorakhpuri. Firaq was to become Garg’s lifelong friend. Poignantly, when Firaq died at the All India Institute of Medical Sciences (AIIMS), his body was brought to Garg’s house in Niti Bagh.
In his student days, Garg was a prominent leader of the All India Student Federation and, in a natural progression, became a leader of the undivided Communist Party of India. He started his practice in Saharanpur in 1953 and was also elected vice-chairman of the Saharanpur municipality. He shifted to Allahabad in 1955 and joined the chambers of the progressive lawyer S.N. Dwivedi, who later became a Judge of the Allahabad High Court and eventually a Judge of the Supreme Court. Justice Dwivedi was in the minority of six in the Kesavananda Bharati case, holding in favour of Parliament’s unlimited power to amend the Constitution. Such was his ardour for parliamentary supremacy that when he was elevated to the Supreme Court, he told a gathering of lawyers who had come to say goodbye to him at the railway station that he was going to Delhi to overrule Golak Nath. In 1960, R.K. Garg decided to shift to Delhi. He wrote to the Attorney General, Motilal Setalvad: ‘You are the most eminent lawyer in independent India, and I shall consider myself fortunate if I am given the opportunity to join your chamber as I desire to learn to defend the interests of the working class, whom I politically represent.’ It is to the credit of the staid and dour M.C. Setalvad that he agreed to take a firebrand communist into his chamber. Till the end, Garg revered Setalvad, and no one who went to brief Garg could miss his photograph on his office wall.
In his advocacy, Garg was vociferous and strident, and had the delightful habit of looking back after what he thought was a punchline to see if the rest of the courtroom liked his argument. I have often wondered why and how, in this obsequious and milord-ing profession, lawyers like Garg and Ramamurthi were aggressive. I believe that in the geriatric Supreme Court, in which they set up practice, in a court dominated by the likes of Setalvad, C.K. Daphtary and A.C.V. Viswanatha Sastri, youngsters could not afford to be meek. And thus, stormy petrels like them would not curb their natural style.
Most judges took Garg’s aggression in their stride, but not Justice A. Varadarajan, who, sitting as a junior judge with Justice Murtaza Fazl Ali, insisted (much to the discomfiture of the senior judge) on issuing a notice of contempt to him. Varadarajan retired in August 1985, and the matter lay hidden in the depths of the Court’s registry till Garg’s passing.
However, behind the aggression and flamboyance lay a formidable intellect. There was both depth and width of knowledge, not only of law but of politics, literature and philosophy. As Chief Justice M.N. Venkatachaliah said at the Full Court Reference held on his passing, ‘His was an enormous mind indeed.’ Garg’s intellectual integrity made him a bit of an oddball in party politics. He was an elected member of the UP Legislative Assembly on a Communist Party of India (CPI) ticket from 1973 to 1977. I had always wondered why a person of such formidable talent and stature was not chosen by the CPI to represent it in Parliament. The party was evidently uncomfortable with him because of the Congress Party’s comfort with him. In fact, his election to the UP Legislative Assembly on a CPI ticket was also with the support of the Congress. He was ultimately expelled by the Communist Party of India. Interestingly, Garg was in favour of the supersession of judges, and had backed Indira Gandhi’s progressive policies. He also did not oppose the Emergency. In fact, the CPI (his party at the time) supported it. Garg was, however, uncomfortable with the emergence of Sanjay Gandhi, and memorably described him as an ‘extra-constitutional centre of power’.
Garg’s contributions to the jurisprudence of the Court starts from the 1960s, and continued till his premature death in 1994. They were in the fields of personal liberty, freedom of speech, the right to life, criminal law, independence of the judiciary, public service law, and in varied areas of constitutional law and interpretation. Full Court References are rarely able to capture all the contributions of a lawyer to the jurisprudence of the court, but in the case of Garg (and a few months earlier in the case of his comrade Ramamurthi), the many cases argued by him are mentioned.
In an era where fees were freely given in cash, and that was in fact the norm in criminal cases, Garg was known to deposit and declare every rupee that he earned. So he had the moral authority and standing to approach the Supreme Court himself as an honest taxpayer to challenge the Special Bearer Bonds Scheme. This was a scheme introduced by the post-Emergency Indira Gandhi government allowing the investment of ‘black money’ into non-taxable, anonymously held bonds. The aim was to raise investment for the government by providing immunity from prosecution to those who put their undisclosed funds into government bonds. He failed in his challenge, but succeeded in getting a dissent from Justice A.C. Gupta. Decades later, my mind went back to Garg, as the Supreme Court struck down the Electoral Bonds Scheme, and as Justice B.V. Nagarathna wrote her powerful dissent in the demonetization case.
Garg’s long-time junior, Sunil Kumar Jain, recalls his senior as a kind person but a hard taskmaster. If they were working late into the night on a case, Garg himself would drive Sunil home to his flat in Lajpat Nagar. But he also recalls the many dressing-downs he received, during some of which he actually wept.
Communal harmony was a cause dear to Garg. This was not surprising because Saharanpur had a large Muslim population, and he was educated in that great Ganga–Jamuni town of Allahabad in its pre-Prayagraj avatar. One weekend in July 1994, when he was in the midst of hearings in the Presidential Reference on Ayodhya, he travelled to Saharanpur to address a meeting on secularism.9 Tragically, he died in a road accident during that trip. The circumstances of his passing left many of us teary-eyed. One of those who died with Garg in the accident was a communist friend of his. Sunil Jain recalls that the last rites for both were conducted together. Poignantly, a wreath on behalf of the Communist Party of India was placed on the body of the colleague but not on that of Garg. Expulsion from a communist party is no different from excommunication by a conservative religious sect; it goes right up to your grave. For me, it was a double whammy because my senior, Ramamurthi, had passed just the previous year, in 1993. In one of two instances of which I am aware of a court noting with regret the passing of a lawyer who had been arguing before it in an ongoing hearing, Justice S.P. Bharucha wrote: ‘We are indebted to the learned Attorney General for the assistance that he has rendered to the Court. We are indebted to counsel who have appeared in these matters; if we single out Mr. R.K. Garg, it is because of his untimely demise.’ The other instance is Gobinda Mukhoty, about whom I write separately.
The Full Court Reference to Garg in the Supreme Court on 10 August 1994 was one of the most memorable I have ever witnessed (I must confess that in the last couple of decades, I have stopped attending Full Court References because they have become mechanical and mindless repetitions of biodatas). The Attorney General Milon Kumar Banerji said, ‘One Rajendra Kumar Garg, never a second again.’ One could see how moved Chief Justice Venkatachaliah was, and his description of Garg as ‘the pillar of the alternative argument’ is unforgettable.
'14 Lawyers: Portraits from the Bar' is authored by Senior Advocate Raju Ramachandran and published by Juggernaut. It is available online and in bookstores.