Subodh Markandeya

Subodh Markandeya
सुबोध मार्कण्‍डेय
Personal details
Born	(1937-07-24) 24 July 1937
Nationality	Indian
Spouse(s)	Chitra Markandeya
Children	2 daughters 1 son
Residence	Delhi
Occupation	Senior Advocate (वरिष्ठ अधिवक्ता)[1][2][3][4][5] Author (लेखक),[6][7] Judicial activist
Religion	Hinduism[8]

Subodh Markandeya (सुबोध मार्कण्‍डेय) is a senior Indian lawyer, author^[7][9] and judicial activist.^{[4][5][10][11][12]} He primarily practices at the Supreme Court of India, but also appears in various High Courts. He has served as the standing counsel for Government of India, Life Insurance Corporation of India (LIC), State of Uttar Pradesh, Uttar Pradesh Financial Corporation (UPFC), Uttar Pradesh State Electricity Board (U.P.S.E.B.), Uttar Pradesh Jal Nigam and numerous Developmental Authorities. He was appointed 'amicus curiae' (friend of the court) by the Supreme Court in the 'Tihar Jail Enquiry' (1982–85).^{[3][10][13][14][15][16]}

Family and early life

Subodh Markandeya is the third of seven surviving children of Vidya, a home maker and Ram Prasad Markandeya, an industrial chemist. He spent his early childhood in an industrial complex near Sri Lingampally, 24 kilometres (15 mi) from Hyderabad, now part of Telangana State. When Markandeya was three years old, his father moved to Jamnagar (the former Princely State of Nawanagar).

Education

At Jamnagar Markandeya was educated at the Vibhaji English School and Nawanagar High School. In 1950 when his father again shifted to Sri Lingampally, Markandeya studied in the Government City College, Hyderabad up to Intermediate, took his B.Sc. degree from the Nizam’s College in 1956 and LL.B. from City Centre of Osmania University Law College (OULC) in 1959. He obtained his master's degree in law in Constitutional & International Law from the Campus Centre of OULC in 1963. In college, he actively participated in theatre and won commendation for his elocution on the subject of "World Without War" sponsored by the United States Information Service (USIS).

Legal career

Markandeya apprenticed with, and was also a junior to Ramkrishen Rao Nimbalkar, a leading lawyer of the City Civil Court, Hyderabad, one time President of its Bar Association and member of the first Bar Council of Andhra Pradesh. Nimbalkar’s chamber gave Markandeya a sound grounding in civil law practice. In 1965, he got the opportunity to practice under Jagdish Swarup, legendary lawyer of Allahabad High Court, where he honed his skills in the civil, constitutional, regulatory and interpretation laws. He also acquired independent cases for the Supreme Court of India, particularly in labour and service laws. In 1968 he shifted to Supreme Court as a trainee Advocate-on-Record (AOR) under R. Vasudev Pillai. He was enrolled as AOR by the Supreme Court in 1970 and appeared in several 'cause célèbre' cases from all over India.

He was appointed Standing Counsel by the Central Government in 1977 and he appeared in cases of prime importance, like Special Reference (1), Minerva Mills vs. Union of India.^[17]

(2), Som Prakash Rekhi vs. UOI^[18] (3), Sanjay Gandhi vs. Delhi Administration^[19] (4).

The Supreme Court appointed him amicus curiae in the "Tihar Jail Enquiry"Case which spurred major jail reforms and protection of prisoners’ human rights.^[13][20][21]

A petition was moved in the Supreme Court by Markandeya contending that the resignations submitted by MLAs on the issue of Telangana be deemed to have been accepted by the Andhra Pradesh Assembly Speaker. He said MLAs belonging to Telangana, irrespective of their political affiliations, submitted their resignations to the Speaker, who acknowledged the receipt of 139 letters.^{[4][5][5][22][22][23][24][25][26][27][28]}

During the Emergency, his joint efforts with R. P. Goel, [later Advocate General of Uttar Pradesh] brought succour and freedom to hundreds of detenues throughout India and particularly Uttar Pradesh. Markandeya was also appointed Counsel for the Allahabad High Court,^[29] State of Uttar Pradesh,^[30][31][32] its various Public Undertakings, Development Authorities, Universities and local bodies. He also appeared for a number of public sector undertakings like Life Insurance Corporation,^[33][34] Bharat Electronics Ltd., etc.

Notable cases

Huge disappointment marked the first major case that Markandeya handled before the five-judge Constitution Bench (CB) of the Supreme Court of India. In AVS Narasimha Rao vs. State of Andhra Pradesh^[35] (6), CB led by Chief Justice M. Hidayatullah struck down section 3 of the Andhra Pradesh Public Employment[Requirement as to Residence] Act, 1956 (AP PE [RR] Act) enacted by India’s parliament for reserving lower government posts for residents of backward regions of Telangana of Andhra Pradesh. However, with hard work by Markandeya and other lawyers - and some luck – a later judgment held in Director of Industries vs. VV Reddy,^[36] (7) that the consequence of striking down the AP PE [RR] Act was to revive the defunct 'Mulki Rules' made by the Nizam for appointing only his subjects for public employment in his dominions.

In All Saints High School vs. State of Andhra Pradesh^[37] (8) knowing well the Supreme Court of India’s track-record of zealously protecting the rights of minority institutions, Markandeya strategized the argument that even minority institutions can not be allowed to terminate the services of teachers en masse as such a course would inevitably result in the lowering the standards of excellence, which was accepted by the Supreme Court.

Lakshman vs. State of Madhya Pradesh was a very interesting case argued by Markandeya: for centuries, members of nomadic tribe of Rabari from Kutch, and Rajasthan had been going with their herds of sheep unhindered by changing political boundaries, to deep south of the sub-continent. State of M.P. levied grazing fee on migratory cattle at twice the rate of fee payable by local herdsmen. In writ petition under Article 32 of the Indian Constitution by the tribesmen, the Supreme Court struck down the discriminatory fee imposed by State of Madhya Pradesh.^[38]

In T. Venkata Reddy vs. State of Andhra Pradesh within minutes of taking oath as Chief Minister, N. T. Rama Rao signed on the dais itself, the A.P. Abolition of Posts of Part-time Village Officers Ordinance No. I of 1983, which terminated the services of over 37,000 Village Officers (V.Os.) across the state without taking into consideration the hardship caused to the officers, and the chaos created by such vacuum. After the Supreme Court upheld the validity of the Ordnance, Markandeya counselled that such of the VOs as were qualified under new dispensation must be employed first before recruiting any fresh incumbents – a contention that prevailed before the High Court as well as the Supreme Court in appeal.^[39]

B.Prabhakara Rao vs. State of A.P. involved a sudden reduction in superannuation age from 58 years to 55 years of over 35,000 public servants of theState Government, public sector undertakings, statutory bodies, educational institutions and Tirumala Tirupati Devasthanams (TTD). They lost the first round of litigation in the Supreme Court. Realising the mistake, fresh legislation was brought restoring the original superannuation age of 58 years, but providing that the benefit of new legislation would not extend to those whose reduction of age of superannuation had been upheld. In challenge to this law, Markandeya argued that all that was required was to strike down naughty "not" – which found favour with the Supreme Court bringing relief to over 35,000 public servants.^[40][41]

P. Sambamurthy vs. State of A.P., related to constitutional validity of clause (5) of Article 371-D inserted in the Constitution for setting up the Andhra Pradesh Administrative Tribunal (A.P.A.T.) for deciding service cases of public servants. Strangely, it was provided that the judgment of the A.P.A.T. could be annulled by the State Government – a litigant before the A.P.A.T. Markandeya submitted that the provision that gave a litigant power to annul the judgment of the tribunal, before which it is a party is in the nature of a "Bill of Attainder" and void, which was accepted by the Supreme Court and clause (5) of Article 371-D was struck down.^[42] Pawan Kumar Jain vs. Union of India was perhaps the first Supreme Court case challenging the constitutional validity of telephone tapping by the Government.^[43] Ittehad-al-Khawateen-ul-Musalmeen-e- Hind [Al Khawateen] vs. Union of India challenged the constitutional validity of the Muslim Women's Right to Maintenance Act, 1986 which really robbed the Muslim women of their right to claim any maintenance.

The challenge in A.S. Narayana Deekshitulu Etc. vs State Of Andhra Pradesh And Ors was to the A.P. Charitable & Hindu Religious Institutions & Endowments Act, 1987 which took away the rights of the Hindu priests (Archakas) to customary offerings given to them after performance of rituals (Archakatwam). Markandeya argued that out of more than 37,000 temples in the state only 25 had annual income of rupees 2.5 million; most of the village temples had an annual income of only rupees 5000 and it is futile to bring them under the purview of the impugned Act. The Supreme Court upheld the validity of the Act but in view of the above argument also directed the State Government to consider the exemption of village temples from the operation of the Act. A massive temple movement started forcing the Government to bring legislation to amend the Act.^[44][45]

In Preeti Srivastava vs. State of M.P.(15) petitioner with 63% marks in the admission test did not get admission to post-graduate medical course while Scheduled Tribe (ST) candidate with 13% marks secured admission in that course. The Supreme Court accepted Markandeya’s submission that excessive reservation and dilution of standards for admission in post graduate courses in favour of ST candidates were unconstitutional.^[46][47] In Anil Baluni vs. Surendra Singh Rawat, Markandeya had an uphill task: to persuade the Supreme Court to hold that a Returning Officer [RO] after accepting appellant’s nomination as valid, himself made an interpolation to invalidate it. With magnifying glass he had blown up the interpolation and with corroborative evidence on record - forensic report and "return" sent by RO to the Election Commission of India by 3 p.m. on the date of receiving nomination as mandated by the election manual - Markandeya was able to persuade the Court that Uttaranchal High Court’s judgment was flawed. It was, accordingly, set aside, election of successful candidate was quashed and fresh poll for Kotdwar constituency of Uttaranchal Assembly was ordered.^[1][48][49]

In Jaswant Singh VS Mohd. Azam Khan, civil contempt petition no. 386 decided on 25 October 2014, the question was whether the employees of Jal nigam were entitled to the retiral benefits given by the Supreme Court on 2 July 2013. Azam Khan and others alleged contemeror contended that the petitioners were not the parties to that judgment. Markandeya pointed out that the court has used the expression "Employees including the respondents" which means that employees other than respondents before the court were also beneficiaries of the judgement.The Court accepted Markandeya’s argument and gave all retiral benefits to the petitioners who were not parties in 2 July 2013 judgment.^[2][3][50]

Constitutional measures drafted

• Constitution of the Commonwealth of Islamic Republics of Turkmenistan, Azerbaijan, Kazakhstan, Uzbekistan, Afghanistan and Pakistan (October 1995 – March 1996) [Concept of Article 35 of this Constitution providing for ceiling on the size of Cabinet has been incorporated as clause (1A) of Articles 75 and 164 of Constitution of India.]
• Comprehensive Proposals for Devolution of Power in Sri Lanka (June – December 1996 – still "classified")
• Constitution of the Commonwealth of South Asian Nations (2001 – sent by "Core Committee for Unification of South Asia" for consideration of India-Pakistan Summit at Agra)

Books written

On legal subjects -

• The Customs Act, 1962 (JAICO – 1975)^[51]
• The Foreign Exchange (Regulation) Act, 1973 (JAICO – 1977)^[52]
• The Imports & Exports Control Act, 1947 (N.M. Tripati – 1977)^[53]
• The Foreign Trade (Regulation & Development) Act, 1998 (Universal -1998)^[7]
• The Customs Act, 1962 (Universal - 2003)

On General topics:

• SUBHAS CHANDRA BOSE – Netaji’s Passage to Immortality (Arnold – 1991 and 1997)^[54]

Legislations drafted

• State of Uttarakhand Act, 1996 (enacted by Indian Parliament as the Uttar Pradesh Re-organisation Act, 2000)
• Election Laws (Reforms) Act, 1997 (submitted to Law Commission of India)
• House of the People & State Assemblies (Special Provisions) Act, 1998
• U.P. Land Acquisition for Development Authorities (Special Provisions Act, 1999
• Uttaranchal Conservation of Environment and Preservation & Augmentation of Glacial and Forest Resources Act, 2007

Personal life

In her letter to Chief Justice A.H. Ahmedi, Asma Niazi one of his interns from Pakistan described him as "common human asset of South Asia". Personally, Markandeya found his interactions with Salma Mahmood a dedicated Muslim feminist from Hyderabad (whom he calls "Aapa" – elder sister) intellectually very stimulating and rewarding. Inspired by Fatima Mernissi’s The Veil and the Male Elite, Mahmood wanted to hold in major Indian cities, Mujahera-e-Burqa-fash [public demonstration of tearing the veil] for which she wrote to the Chief Ministers to provide her police protection from mullahs. Even women Chief Ministers – J. Jayalalita of Tamil Nadu and Mayawati of Uttar Pradesh did not extend any such protection.^[56] According to him India had come a long way since it's freedom .He believes that woman should be given equal opportunities as gender equality is the utmost important factor for the development of India .^[57]

References