Chief Justice of India and Vice-President once, Acting President twice: Justice Hidayatullah’s legacy

As the opposition nominates Justice (retd.) B Sudershan Reddy, former judge of the Supreme Court, as its candidate for India’s next Vice-President, it is an opportune moment to reflect on the illustrious tenure of Justice M Hidayatullah beyond the corridors of the Supreme Court.

A distinguished jurist, he served as Vice-President of India and acted as the President of India on two historic occasions.

While it is common for an incumbent Vice-President to serve as acting President, it is exceptionally rare for a sitting Chief Justice of India (CJI) to assume this role.

On May 3, 1969, during Justice Hidayatullah’s tenure as CJI, President Zakir Husain passed away. Vice-President VV Giri took over as the acting President. Giri resigned on July 18, 1969 to contest for President, creating an unprecedented situation where India lacked both a President and a Vice-President.

In terms of the President (Discharge of Functions) Act, 1969, CJI Hidayatullah was sworn in as acting President by the acting Chief Justice JC Shah.

Supreme Court Cases notes in “The Chief Justice as Acting Rashtrapathy”:

"His Excellency M. Hidayatullah has taken his oath of office on 20-7-69 to stand by and uphold the Constitution. We have no doubt that he will do so, a Constitutional savant as he is…This is indeed a significant occasions as in the Constitutional history of India, Shri M. Hidayatullah is the first sitting Chief Justice who has been called to act as the President of India."

Justice Hidayatullah served as an acting President for 35 days from July 20 to August 24, 1969. During this period, he hosted US President Richard Nixon (also a former lawyer) at Rashtrapati Bhavan, marking a notable diplomatic engagement. Following the election, VV Giri, a barrister-at-law, was elected President. Gopal Swarup Pathak, also a renowned lawyer, was subsequently elected as Vice-President.

Chief Justice Hidayatullah was set to retire from the Supreme Court in December 1970. Prime Minister Gandhi considered superseding Justice Shah, who was to succeed Justice Hidayatullah as the Chief Justice, in favour of Justice AN Ray. Justice Hidayatullah averted this mishap as he threatened to resign along with the other Supreme Court judges if the supersession was carried out.

In 1979, Justice Hidayatullah was elected unopposed to the office of the Vice-President and was sworn into office on August 31, 1979.

An archival article from the period notes:

"[Hidayatullah] was the only consensus candidate of all the major parties, and his name was endorsed by Prime Minister Charan Singh, Opposition leader Jagjivan Ram, and other leaders, including Y.B. Chavan, H.N. Bahuguna and Kamalapati Tripathi. Of course, they had very good reason for doing so, since he was originally an Indira Gandhi nominee and Congress(I) leaders had made it quite clear that they would foreclose on their support of the Janata(S) if Hidayatullah's nomination was opposed. He was not opposed."

Dr Mohan Kanda, who served as Secretary, recounts that after Neelam Sanjiva Reddy retired as President in 1982, Justice Hidayatullah declined a request to contest for the next President’s election. He writes:

"At one point of time, all senior leaders of the opposition parties, including L K Advani, H N Bahuguna, Harkishan Singh Surjeet and others, called on Hidayatullah to try and persuade him to run for President…At the end of the meeting, Hidayatullah, firmly but politely, declined the offer, saying that contesting an election was inconsistent, both within personal values and public image. “Zeb nahin deta,” were his actual words. Subsequently, the ruling party Congress (I) chose Giani Zail Singh as its candidate, who went on to become the President of the country."

Interestingly, former Supreme Court judge Justice HR Khanna contested this election as a combined opposition candidate. Justice Khanna, however, lost to Giani Zail Singh, securing 27.5% votes. Earlier in 1977, Justice Khanna had served as the Minister of Law and Justice for three days under the Prime Ministership of Charan Singh. This government fell within six months.

Justice Hidayatullah served as Vice-President till 1984. During his term, he again briefly served as acting President, from October 6 to October 31, 1982, when President Zail Singh was in the United States of America for medical treatment. He was sworn in by then CJI YV Chandrachud.

The 17^th Vice-Presidential election to choose the 15^th Vice-President of India will again see a retired Supreme Court judge in the race. This time, however, the judge will not contest unopposed. Justice Hidayatullah, on the other hand, never had to face the ballot as his election in 1979 was unanimous, a rare moment of consensus in Indian politics. This year’s contest adds a new chapter to the story, one that echoes Justice Hidayatullah’s remarkable journey from the Supreme Court to the Rashtrapati Bhawan, while also showing how India’s democratic landscape continues to evolve.

Mohit Singh is an Advocate-on-Record at the Supreme Court of India.