Between silence and substance: Remembering Justice BK Mukherjea on India's 79th Independence Day

As the nation celebrates its 79th Independence Day, the spotlight rightly falls on the architects of its democratic institutions. Yet, August 15 also marks the birth anniversary of a quieter, but equally foundational figure: Justice Bijan Kumar Mukherjea, India’s fourth Chief Justice.

Scholarly, restrained and deeply constitutional in outlook, his judgments helped shape the moral spine of Indian Constitutionalism.

In the 1955 Tagore Law Lectures in Calcutta, US Supreme Court Justice William O Douglas famously drew a constitutional line from Chief Justice John Marshall to Chief Justice Mukherjea – recognising his role in giving life to India’s nascent constitutional charter. And yet, when early voices of constitutional liberty are recalled – Justice Fazl Ali in AK Gopalan v. State of Madras (1950) or Justice Vivian Bose in State of West Bengal v. Anwar Ali Sarkar (1952) – Mukherjea’s name is rarely mentioned.

This omission is curious. In Dr NB Khare v. State of Delhi (1950), Justice Mukherjea subtly diverged from the majority’s narrow reading of Article 19(1)(d), offering instead a more textured and humane understanding of liberty and movement. He saw the Constitution not just as a legal instrument, but as a living document forged in the crucible of freedom. Justice Krishna Iyer would later echo this spirit, warning courts against making fundamental rights “as rare as roses in December, ice in June.” [Som Prakash Rekhi v. UoI (1980)]

Mukherjea drew on comparative constitutional law, Roman legal principles and Indian traditions to forge a jurisprudence marked by balance, fairness and moral conviction. Nowhere is it more evident than in Ameerunnissa Begum v. Mahboob Begum (1952), a case that tested the very limits of legislative power in post-Integration Hyderabad.

The origins of the case lay in a tangled succession saga. In 1935, Nawab Waliuddowla of Hyderabad’s powerful Paigah family – second only to the Nizam in prestige and wealth – passed away, leaving behind vast jagir lands and considerable personal estate (matrooka). While Ameerunnissa Begum was the undisputed wife, two other women - Mahboob Begum and Kadiran Begum - claimed to have been lawfully wedded to Waliuddowla and sought inheritance rights for their children under Muslim law.

Mahboob Begum initially filed a suit before the Dar-ul-Quaza, then-Hyderabad’s personal law court for Muslims. But before the case could be heard, Ameerunnissa persuaded the Nizam to intervene. A firman was issued, withdrawing the case and appointing a Special Commission led by Jiwan Yar Jung, then-Chief Justice of the Hyderabad High Court. This Commission, after considerable scrutiny, affirmed that both Mahboob and Kadiran were lawfully wedded to Waliuddowla, and their children legitimate.

But just as one expected the dust to settle, the Executive Council to the Nizam found itself in disagreement and sought a second opinion from an Advisory Committee, comprising two judges and the State’s legal adviser. Another firman followed, asking the Committee to review the Special Commission’s findings, but without taking fresh evidence or hearing the parties. The Committee reversed the Special Commission’s report. Yet, in a twist, the Executive Council decided to reject this reversal and opted instead for the original report. A firman was then issued directing the Chief Justice of Hyderabad to implement the original Commission’s recommendations. 

Just as the matter seemed resolved, Hyderabad’s political fortunes changed. The Indian government launched ‘Operation Polo’ in 1948, integrating Hyderabad into the Union. The Nizam’s power collapsed, and a Military Governor took over. On Ameerunnissa’s application, the Governor stayed the execution of the report and referred the matter to Sir George Spence, then-Legal Adviser to the Governor. Without hearing parties or permitting evidence, Spence declared that neither Mahboob nor Kadiran were lawful wives, nor were their children legitimate.

In 1950, the Constitution had come into force. The Nizam, now a titular head, could no longer issue binding orders. To give effect to Spence’s findings, then-Hyderabad Legislative Assembly enacted the Waliuddowla Succession Act, 1950. This enactment, in Section 2, summarily dismissed the claims of Mehboob Begum, Kadiran Begum and their children. Section 3 barred courts from entertaining any challenge to this dismissal. Section 4 went a step further, directing the Hyderabad High Court to enforce this statute “as if it were a decree” passed by itself.

In essence, the legislature donned the robes of a civil court, deciding a private dispute without trial or hearing. The Hyderabad High Court struck it down under Articles 13(2) and 14 (among others) of the Constitution and the matter came in appeal before the Supreme Court.

Before the Supreme Court, surprisingly, the argument turned not on separation of powers, but on Article 14. Mukherjea seized the argument and expanded its scope. He looked past the formal classification test, then dominant in equality jurisprudence. The State argued that the legislation was meant to end a long-standing family dispute. But Mukherjea observed that this was no justification for singling out two individuals and denying them even a forum to assert their rights.

In resonating words, he wrote (at para 17):

“[W]hat the legislature has done is to single out two groups of persons...and prevent them from getting any share in the personal property... No competent court of law has as yet negatived their claims... and the question is, on what basis this apparently hostile and discriminatory legislation can be supported.”

He held that the legislation was plainly unreasonable and discriminatory, that the classification could not be justified on any conceivable ground and, therefore, violated the equal protection clause. This judgment laid the conceptual foundation for the arbitrariness doctrine – that arbitrariness is the antithesis of equality – long before EP Royappa v. State of Tamil Nadu (1974) and Maneka Gandhi v. UoI (1978) transformed Article 14. If Justice Mudholkar in Sajjan Singh v. State of Rajasthan (1965) sowed the seeds of the basic structure doctrine, then Justice Mukherjea in Ameerunnissa Begum planted the roots of substantive equality – anchoring Article 14 in fairness, not just classification. 

He carefully distinguished pre-Constitution firmans from post-Constitution legislation. While acknowledging transitional legislative authority under Article 385, he made clear that constitutional power could not override constitutional guarantees. For Mukherjea, equality meant not just uniform treatment, but the guarantee that power would not be used capriciously.

Yet, Amirunnissa Begum has remained largely forgotten – unreferenced in later arbitrariness cases, and absent in dominant narratives of equality. This is surprising, given its early articulation of a key doctrinal insight.

Not all of Justice Mukherjea’s judgments have aged without critique. In The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Shirur Mutt, 1954, his opinion originated the essential religious practices (ERP) doctrine. At the time, it marked a strong defence of religious autonomy from excessive State interference. Significantly, no less an appraiser than Motilal Setalvad, India’s illustrious first Attorney General, remarked in his autobiography that it was the first enunciation of the true scope of the Constitutional provisions safeguarding religious liberty and that the exposition of these fundamental rights was complete and precise and completely in harmony with Indian practice and sentiment.

However, over time, ERP has evolved into a problematic standard, often forcing judges into ecclesiastical debates they are institutionally ill-equipped to resolve. The Sabarimala review and the pending In Re: ERP reference now seek to revisit its doctrinal viability. While Mukherjea intended to demarcate spheres of State and faith, the formulation unintentionally tethered fundamental rights to religious orthodoxy, creating a jurisprudential tangle.

Yet, even in Shirur Mutt, one discerns his instinct for institutional modesty – an effort to balance autonomy and accountability. The failings of ERP owe less to his judgment than to the path it took after him.

Justice Mukherjea passed away in 1956 after just about a year into his tenure as Chief Justice. He functioned as Chief Justice for about 8 months, only having assumed office in December 1954. He was on leave from September 1955 because of failing health and resigned in January 1956. He passed away in February 1956 even before he reached the retirement age of 65.  He left no memoirs or ideological following – only judgments of quiet conviction and clarity. 

Yet, the force of his judicial intellect endured. Over six decades later, Justice Rohinton Nariman, at a lecture, named him alongside Lord Mansfield (from the 18^th century) and Justice Marshall (from the 19^th century) as jurists who defined the judicial ethos of their times. Unlike them, Mukherjea served on the Bench for only a brief span, but his work left a lasting imprint. This piece highlights only a few among many.

As we revisit foundational principles – whether in equality or religious freedom – it is worth recalling that the strength of constitutional law lies not only in grand doctrines, but the hands that first shaped them. Mukherjea’s hands were steady, his voice measured but firm, his legacy understated but indispensable. It is a rich and undefiled legacy: great erudition, deep and exact knowledge, thorough exposition of the law and rectitude bordering on saintliness, the nearest approximation to the ideal. The lawyer and the layman will profit from it. The lawyer will find with great delight the work of a master craftsman, realising and appreciating the gamut of its remarkable brilliance and the moderation that marked its finest flowering.  All will be stirred to the soaring spirit of one who, functioning in the cloistered halls of justice, approached legal problems with the philosopher’s breadth of vision.

In the words of Justice Benjamin Cardozo,

“[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”

Justice B.K. Mukherjea stood in that tide – and, firmly, held the line.

He was a distinguished lawyer, a pre-eminent judge and, above all, a gracious and God-like human being. The love and respect with which we light his memory is a measure of his all-round greatness.

V Sudhish Pai is a Senior Advocate and author of A Judge Nonpareil, a BK Mukherjea Reader.

Debarshi Chakraborty is an Advocate before the Delhi High Court.