V. VENKATESAN IN THE FRONTLINE
TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, “The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law.” Excerpts from an interview he gave Frontline:
Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?
Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.
In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?
It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.
Can you explain how the then government sought to appoint judges before the hearing of the case?
After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.
Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].
You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?
It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.
The Attorney-General had threatened to walk out if Justice Beg was dropped. [Justice H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government’s wish, and agreed to close his oral arguments on the 66th day.
By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.
The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament’s amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges’ conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.
You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?
The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jagannatha Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.
Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.
Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala’s letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?
I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.
How would you interpret Justice Ray’s legacy?
Chief Justice Ray’s acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.
Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?
In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.
The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.
All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.
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TIMES CREST ARTICLE
1st CONSTITUTIONAL AMENDMENT
Seventeen months after the Constitution came into force, Parliament enacted the first amendment in June 1951. It imposed “reasonable restrictions” on the freedom of speech, clarified that right to equality does not bar special consideration for historically deprived sections and introduced the Ninth Schedule to insulate agrarian reforms from legal challenge. The Constitution has since been amended 94 times.
1st PUBLIC INTEREST LITIGATION
The problem of undertrials in Bihar being detained for periods longer than the maximum term they are liable to get on conviction prompted the Supreme Court in 1980 to allow Delhi-based lawyer Kapila Hingorani to file a petition on their behalf. The Hussainara Khatoon case was the beginning of the concept of public interest litigation, as it was the first recorded instance of the Supreme Court waiving the requirement of locus standi, under which only an affected party could file a petition.
1st COURT-LEGISLATURE CLASH OVER CONTEMPT
In 1964, the speaker of the Uttar Pradesh assembly sentenced one Keshav Singh to seven days of imprisonment. But, when the Allahabad high court granted him bail, the assembly retaliated by passing a resolution that held Keshav Singh and the two judges who had granted bail guilty of contempt of the house. All judges of the high court in turn stayed the resolution. This tit for tat carried on and led to a Supreme Court verdict ruling that no action of the legislature is exempt from judicial review.
1st GOVT DISMISSED UNDER ARTICLE 356
Though it empowers the Centre to dismiss a state government, Article 356 of the Constitution was not invoked for almost a decade. The Nehru government exercised this draconian power for the first time on July 31, 1959, when it dismissed the first democratically-elected Communist government in the world: EMS Namboodiripad‘s in Kerala. This led to the president’s rule provision being misused from the 1960s to the 1980s.
1st HIGH COURT
Inaugurated on July 1, 1862, the Calcutta high court – originally called ‘the high court of judicature at Fort William’ – is the first high court in India. The high courts of the other two presidencies, Bombay and Madras, came into existence within a few weeks. Today, besides the Supreme Court, there are 21 high courts.
1st WOMAN CJ
Being sworn in as the first woman chief justice of a high court (Himachal Pradesh) in 1991 isn’t the only first Leila Seth has to her credit. She chose to study law as professors weren’t fussy about attendance, but soon became the best student, and the first Indian woman to top the Bar exam in London. She held her own in a male-dominated world, taking up tax matters, constitutional law and criminal cases. She went on to become the first woman judge of the Delhi high court (additional judge in ’78, permanent judge in ’80) and the first woman on the Law Commission. In 2003, she published her autobiography, On Balance, edited by her poet-novelist son Vikram Seth.
1st WOMAN BARRISTER
Cornelia Sorabji was not only the first Indian woman lawyer in 1893, but also the first woman to study law at Oxford – 30 years before another woman graduated from an English law school. In India, she fought for the rights of women and children. She was critical of Gandhi and believed India didn’t need freedom, a stance that cost her support for the legal and social reforms she campaigned for.
1st CHIEF JUSTICE OF INDIA
The Supreme Court came into existence on January 28, 1950, two days after India became a republic. At the inaugural function held in Parliament House, Harilal J Kania was sworn in as the Chief Justice of India. He started his career in the Bombay high court in 1915 and retired as CJI in 1951. India has since had 38 CJIs. The apex court was shifted from Parliament House to its current premises on Bhagwan Das Road in 1958.
1st DALIT SC JUDGE
It took 30 years for the Indian republic to appoint a Dalit as a Supreme Court judge. Justice A Varadarajan made it to the bench of the apex court in 1980. Since then, there have been three more Dalit judges, including Justice K G Balakrishnan, who went on to become Chief Justice of India. Of them all, Justice K Ramaswamy was the most vocal champion of social justice.
1st LAW COMMISSION
Five years after abolishing sati at the instance of Raja Ram Mohan Roy, the British government set up the first law commission in 1834 to make further legal reforms. Its chairman, Lord Macaulay, drafted the Indian Penal Code and the Criminal Procedure Code, the first attempt in the world to put together a comprehensive criminal manual. The two codes, along with several other seminal laws, were enacted only after the revolt of 1857. The first law commission of independent India was set up in 1955 under the chairmanship of the first attorney general, M C Setalvad.
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THE LEGAL ARCHIVES - ARTICLE BY A G NOORANI IN THE FRONTLINE
On the judiciary’s struggle for independence from executive control.
ON March 6, 2003, the Chief Justice of the Madras High Court, Justice B. Subhashan Reddy, delivered this threat in open court: “We will have to close down the courts. We will say the government is not financially sound. We will address constitutional functionaries to invoke financial emergency. We will do it.” The Judge’s resentment was perfectly justified. The State government had not allocated to the Court the funds it needs for the due performance of its functions. How could the court function without stenographers, typists and subordinate judicial officers, he asked the Advocate-General.
The issue of financial autonomy for the judiciary must be addressed soon. No less important is the issue, which the Chief Justice’s remarks raise. Is he entitled under any circumstances to close down the courts? If so, what are they? And, what is the procedure he must follow in that event?
Obviously, to use the phrase coined by the Supreme Court apropos of the death penalty, such a drastic step can be taken only in “the rarest of rare” cases when there is an actual breakdown of the constitutional system, rendering extremely difficult the proper performance of the judiciary’s functions and duties and the exercise of its authority, power and jurisdiction.
Obviously, such a decision does not belong to the Chief Justice exclusively. He must consult all his colleagues. The perils of acting otherwise in the face of a hopelessly divided Bench are obvious. Nor can the opinion of the Bar be ignored. Next, the High Court must petition the Supreme Court and inform the President. It goes without saying that even with all these precautions the Supreme Court will declare its own closure only when the unthinkable has occurred. We came fairly close to it on June 25, 1975. Both Siddharth Shankar Ray, then Chief Minister of West Bengal, and Om Mehta, the powerful Minister of State for Home, testified before the Shah Commission about Sanjay Gandhi’s plans “to lock up the High Courts” and sever electricity connections to the newspapers the next day. The electricity was cut off. The High Courts were spared.
There is, however an excellently documented precedent which, though now forgotten, inspired more than one generation of members of the Bombay Bar. On April 1, 1829 Sir John Peter Grant, Chief Justice of the Supreme Court of Bombay, declared in open court that the Supreme Court had “ceased on all its sides, and that he would perform none of the functions of a Judge until the court had received an assurance that its authority would be respected, and its process obeyed, and rendered effectual by the Government of the Presidency” (Asiatic Register; Volume 28, page 351 onwards). He petitioned to the Privy Council and opened the court only when, as expected, the Privy Council ruled in favour of the Governor, Sir John Malcolm, and against the Chief Justice on the issue of jurisdiction. It did not care to write a judgment.
Surely even if the Chief Justice was wrong on the issue of jurisdiction, strictures on the Governor for his defiance of the court, in however measured terms, were called for. The court had issued a writ of habeas corpus. The Governor contemptuously ignored it. It is a notorious fact that very many orders of the High Court of Jammu and Kashmir are ignored. No sensible person would advocate its closure. But this case, once celebrated, deserves to be retrieved from its present obscurity. There are authentic records of the entire proceedings in the law reports, memoirs and historical writings. It is fully reported as In Re: The Justices of the Supreme Court of Judicature (May 11, 1829) in 1 Knapp’s Report, Privy Council, pages 1 to 59. It is reproduced in Volume 12, English Reports, pages 222-243.
Memories of the case were strong even over a century and a half later when, in 1862, the Supreme Court was replaced by the High Court. It was one of the three cases of the judiciary’s defiance of the executive, which inspired Chimanlal H. Setalvad and moved him to join the Bar. He was born in 1865. Before he died in 1948, he had become a legend in his lifetime for brilliance in advocacy, an acknowledged leader of the Bar and a liberal unexcelled by any of his peers in the country (vide his memoirs Recollections and Reflections; 1946, pages 9-14).
But it is the devoted and scholarly historian of the Bombay High Court, P.B. Vacha, that we must first consult to appreciate the background to the tussle. (Famous Judges, Lawyers and Cases of Bombay; 1962, pages 195-8).
The East India Company operated under Charter from the British Crown and statutes of Parliament, as its conquests increased. Vacha wrote a whole Chapter (XIII) on “Conflicts between the executive and the judiciary in Bombay” since 1687. Two Governors of Bombay appointed by the Company were men of outstanding ability and force of character. Monstuart Elphinstone (1819-1827) challenged Chief Justice Sir Edward West to a duel having insulted him and his wife at a dinner at Government House the previous evening. Edward West was the first Chief Justice of the Supreme Court, which was established in 1823 replacing the Recorder’s Court. The Supreme Court was set up by an Act of Parliament. Its jurisdiction was defined by Letters Patent with no excess of clarity as, indeed, was that of the High Court later.
Elphinstone’s successor John Malcolm earned a reputation for turbulence at school. “Jock’s at the bottom of it” teachers would say whenever a row broke out. Years later, he presented to his old teachers a copy of his famous History of Persia with the inscription “Jock’s at the bottom of it”. Bombay’s insalubrious climate exacted a heavy toll of judges’ lives. One ignores reports of poisoning by aggrieved litigants and servants. Sir Ralph Rice resigned in 1827 because of illness. He was succeeded by Sir John Peter Grant, who became Chief Justice on the death of Edward West on August 8, 1828. He was 45. Such was Edward West’s popularity that 140 Indians of all communities presented an address to the Acting Chief Justice Sir Charles Chambers and Grant.
The Bombay Gazette of October 1828 published the address dated October 1, 1828. The text is published in Bombay in the Days of George IV: Memoirs of Sir Edward West by F. Dawtrey Drewitt (Longmans Green and Co. 1935, pages 296-299. It also contains Lady West’s diary). Those were times far different from ours. “Sir Charles Chambers in answer said that neither he nor Sir J.P. Grant could receive the address; that a judge should proceed on his course without desire of applause or fear of censure; that it was a novelty to address a court of justice; that if Sir E. West were present he would be the first to approve the Judges’ determination” (page 299). (Emphasis added throughout.)
Drewitt laments: “Memories are short in India.” The Wests were soon forgotten and “the schools supported by Indian generosity became `Elphinstone College’ and Bombay Handbooks have long informed their readers that the `West’ scholarship was founded by Sir Edward West, not by the Indians he befriended” (page 300).
It is men like Chambers and Grant that Elphinstone’s successor, Malcolm, was determined to humiliate. Returning from the Chief Justice’s funeral, he dashed off to the Board of Control in London his “honest sentiments” on the choice of the next Chief Justice. His prime qualification should be that he “must view himself as an aid to the company”. In a letter to his wife he was less inhibited. “I am now engaged in battle with the Supreme Court” to prevent “the government over which I preside being trampled on, not by honest fellows with glittering sabres, but quibbling, quill-driving, lawyers.”
The judicial system was a mess. There were the King’s Courts and the Company’s Courts (“adawlats”, a corruption of adalats or courts) headed by the appeal courts the Sadr Diwani Adalat and the Sadr Foujdari Adalat, for civil and criminal cases respectively. They were independent of the Supreme Court and functioned outside the Presidency town as the highest courts of appeal in India. The Supreme Court had jurisdiction over British subjects, Indian or European, in the town and island of Bombay, the factories subordinate to it, and all the territories which then were, or thereafter might be, subject to or dependent on the government of Bombay. It was invested with the same jurisdiction and authority as the Court of King’s Bench in London had by the common law of England. Why then could the Supreme Court not issue a writ of habeas corpus as the Court of King’s Bench did in England?
Shortly after Sir Edward’s death, two writs of habeas corpus were issued by the Supreme Court to bring before itself prisoners who had been “committed by word of mouth” in Provincial Courts which were “habitually irregular and oppressive”.
In the first case Sir Charles Chambers found “no cause of detention” and ordered the prisoner’s release. In the second, a poor debtor who had been strongly imprisoned was ordered to be released.
It was the third case that triggered off the crisis. The court issued a writ of habeas corpus to the company’s provincial court in Poona for the production before it of Moro Raghunath, a boy of 14 who was in the guardianship and custody of his grand-uncle Pandurang Ramchander. The petitioner, who was the boy’s father-in-law, complained that the uncle had an evil influence on the boy.
Governor Malcolm decided to give battle on what he felt was favourable ground. The court, in his view, had exceeded its territorial jurisdiction and he would use the error to humiliate it. As he confided in a letter: “The opportunity of striking a blow at these courts was given me, and to the utmost of any strength, I will inflict it.”
The message and the messenger alike were calculated to insult the Judges. On October 3, 1828, a common servant delivered at the house of Sir Charles Chambers a letter addressed to him and to Sir John Peter Grant signed by Governor Malcolm, the Commander of the Forces, Lt. Gen. T. Bradford and two members of the Governor’s Council, J.J. Sparrow and John Romer.
In view of its historic significance it is set out in full: “Honourable Sirs,
“We are quite aware that we transgress upon ordinary forms in addressing this letter to you; but the circumstances under which we are placed will, we trust, justify this departure from usage, and our knowledge of your private and public characters lead us to hope, that what we state will be received in that spirit, in which it is written, and that, notwithstanding your strict obligations to fulfil every part of your high and sacred duty as British Judges, you will on this extra-ordinary occasion, deem yourselves at liberty to consider as much the objects, as the rules of the court over which you preside; and viewing the intention of the Legislature in its institution, as directed to the aid and support of the government entrusted with the administration of this Presidency, you will, for a short period be induced by our representations to abstain from any acts (however legal you may deem them) which, under the measures, we have felt ourselves compelled to take and which we deem essential to the interests committed to our charge, must have the effect of producing open collision between our authority and yours, and by doing so, not only diminish that respect in the native population of this country which it is so essential to both to maintain, but seriously to weaken, by a supposed division in our internal rule, those impressions on the minds of our native subjects, the existence of which is indispensable to the peace, prosperity, and permanence of the Indian empire.
“This conclusion refers to a variety of circumstances which we are equally forbid from explaining as you are from attending to such explanation; but we deem it necessary to state our conviction of the truth of what we have asserted, expecting that it may have some weight with you as connected with the preservation of the strength in the government, which in all our territories, and particularly those we have so recently acquired, is the chief, if not the only power we possess for maintaining that general peace, on the continuance of which the means of good rule, and of administering law under any form, must always depend.
“2. In consequence of recent proceedings in the Supreme Court in the cases of Moro Ragonath (1 Knapp, 8) (6) and Bappoo Gunnes (1 Knapp, 11), we have felt compelled, for reasons which we have fully stated to our superiors, to direct that no further legal proceedings be admitted in the case of Moro Ragonath; and that no returns be made to any writs of habeas corpus of a similar nature to those recently issued and directed to any officers of the provincial courts, or to any of our native subjects not residing in the island of Bombay.
“3. We are quite sensible of the deep responsibility we incur by these measures, but must look for our justification in the necessity of our situation. The grounds upon which we act have exclusive reference to considerations of civil government and of state policy; but as our resolution cannot be altered until we receive the commands of those high authorities to which we are subject, we inform you of them; and we do most anxiously hope, that the considerations we have before stated may lead you to limit yourselves to those protests and appeals against our conduct in the cases specified, that you may deem it your duty to make, as any other conduct must, for reasons already stated, prove deeply injurious to the public interests, and can, under the resolution taken and avowed by government, produce no result favourable either to the immediate or future establishment of the extended jurisdiction you have claimed. A very short period will elapse before an answer is received to the full and urgent reference we have made upon this subject; and we must again express our hope, that even the obligations under which we are sensible you act, are not so imperative as to impel you to proceedings which the government has thus explicitly stated its resolution to oppose.
“We have the honour to be, etc. etc.”
When the court assembled on October 6, Chambers had the letter read out by the Clerk of the Crown. Both Judges directed him to inform the Chief Secretary to the Government of the Bombay Presidency by letter that the Governor’s letter had been received but the Judges could take no notice of it.
Sir Charles declared that “the East India Company and those who govern their possessions, however absolute over those whom they may consider their subjects, must be told, as they have been told a thousand times before, that in the King’s Court they are entitled to more favour than other suitors.”
He ruled: “The court would not allow any individual, be his rank ever so distinguished, or his powers ever so predominant, to address it in any other way respecting our judicial and public functions, than as the humblest suitor who applies for its protection.” He added, “Within these walls we know no equal and no superior but God and the King.”
Sir John Grant fully associated himself with his brother Judge’s decision and said that it was the duty of the King’s Judges to issue writs of habeas corpus and bring before the court for examination all subjects of the King reported to be unlawfully detained. He warned that if there were loss of life in resisting the writ of the King’s Court, responsibility for the murder would rest with those who advised the resistance.
The strain was too much for Sir Charles. He died suddenly a week later. Now it was left to Sir John Grant alone to continue the fight. The Governor’s letter, he said, had killed his fellow-Judge but “they shall not kill me”. He obtained from five Judges in Madras and Calcutta the opinion that the King’s Courts had undoubted jurisdiction over all the territories subject to the Presidencies.
Sir John Grant decided to submit a petition to the King seeking royal protection against “a most unconstitutional and criminal attempt on the part of those armed with the whole power, civil and military, of this Presidency to approach Your Majesty’s Supreme Court of Judicature within the same, not by their humble petition, or by motion, by themselves or their counsel, in open court, the only ways in which the law, for the wisest purpose, permits Your Majesty’s Judges to be addressed, but by means of such covert and private communication as is strictly forbidden by the forms reared by the wisdom of sages for entrenching their persons against the danger, and even the pollution of undue solicitation or menace, and this for the declared purpose of inducing Your Majesty’s Judges, notwithstanding their most sacred obligations to God, to Your Majesty, and to themselves, to refuse to administer justice according to what they should deem to be law, in compliance with such notions those who have thus approached them may from time to time ascertain to what they shall call State policy, whenever they shall presume to allege to Your Majesty’s Judge the existence of a State necessity, whether they put the said Judges in possession of the grounds of it or not.”
In the circumstances, “it was a matter for grave and anxious consideration whether they, Your Majesty’s Judges, should not close the doors of Your Majesty’s Court until its peaceful authority should be re-established and the dangers removed which appear to surround every attempt that may be made to exert it.“
However, of the two evils “encountering these dangers is the least”. Sir John Grant still preferred to proceed to discharge his duties in “a firm but dispassionate manner” despite the attempts to undermine the court’s independence “by showing that its Judges might be privately dealt with and corrupted (for fear is as corrupting as avarice), and rendered political instruments in the hands of the local government.”
The petition was a powerfully reasoned document and deserves to rank with the great historical documents, which reflect the judiciary’s struggle for independence from the executive. It recalled: “That in times of some of Your Majesty’s royal progenitors, the King’s Secretaries of State and Privy Council have detained persons in prison for reasons of State contrary to law, trusting to the circumstances for their justification; but it was never heard of, in the most arbitrary and corrupt times, that it has been proposed by the Ministers of the Crown to the King’s Judges that they should abstain from acts which they deemed legal, in obedience to the authority or from dread of the opposition of such Ministers of the Crown.
“Still less was it ever heard of that any Ministers of the Crown presumed to dictate to the King’s Judges what proceeding should be allowed or disallowed in a matter of private right depending before them, or to reprehend them for what they had done in any particular case, or to dictate to them what they should do or abstain from doing in any description of cases that might afterwards occur. Yet this is what has been done by the said Governor and Council, towards Your Majesty’s Judges in this instance.” (For text vide The Government of India by Major-General, Sir John Malcolm; John Murray, Albermorle Street, 1833, Appendix C; pages 115 to 128. Malcolm’s Minute in reply dated November 30, 1828, is at pages 130-151. It was penned at his “Camp near Beejapoor”. Malcolm’s comments on the legal system are at page 162).
The Judicial Committee of the Privy Council met at its office in Whitehall on May 14, 1829, and heard counsel for Grant and for the East India Company. It did not deliver a reasoned judgment at all; merely stated its conclusions: “That the writs of habeas corpus were improperly issued in the two cases referred to in the said petition.
“That the Supreme Court has no power or authority to issue a writ of habeas corpus except when directed either to a person resident within those local limits wherein such court has a general jurisdiction, or to a person out of such local limits, who is personally subject to the civil and criminal jurisdiction of the Supreme Court. That the Supreme Court has no power or authority to issue a writ of habeas corpus to the gaoler or officer of a native court as such officer, the Supreme Court having no power to discharge persons imprisoned under the authority of a Native Court.
“That the Supreme Court is bound to notice the jurisdiction of the Native Court, without having the same specially set forth in the return to a writ of habeas corpus.”
The Judicial Committee’s Report was approved by the entire Privy Council presided by the King, on June 10, 1829. Not content with securing the dismissal of the petition, London packed the Supreme Court by appointing John Dewar, the Advocate-General who was a friend of the Governor, as Chief Justice, and William Seymour, a barrister as puisne judge. The President of the Board of Control, Lord Ellemborough, expressed the hope that these appointments will prevent all mischief in future, as Grant will now be like a wild elephant between two tame ones.” Indira Gandhi emulated him over a century later.
It was said that when John Grant left Bombay for Calcutta, where he retired in 1848 as Judge of its Supreme Court, “the natives drew his carriage”. His portrait hangs still in the Central Court Room of the Bombay High Court where great State Trials, like those of Tilak, were held.
It is clear that the Privy Council was influenced by extra-legal consideration of which Malcolm made sinister mention in exaggerated terms in his petition in the concluding paras: “The speeches and proceedings of the court have not only been published in native newspapers, but generally disseminated by letters throughout the whole country.” Straining the readers’ credulity, he claimed the petition of Sir John Grant is spread throughout almost every part of the Deccan. An intelligent Brahmin repeated, a few days ago, almost the whole of it to me at Sattarah, and concluded by asking me, before many natives, whether the authority of the Supreme Court or that of the government would be finally established over the country.” It was a remarkable, but false, tribute to the level of education and awareness in 1828.
Malcolm concluded shrewdly with a warning of dire consequences: “Unless the power and jurisdiction of the Supreme Court of India at Bombay be clearly defined and limited… this institution will in its future encroachments, and in its collision with government, seriously weaken the authority and accelerate the downfall of our power in this quarter of India.” It worked, the Privy Council was in effect, an instrument for colonial control.
In the famous case of Ameer Khan (1870) Justice Norman heard arguments from his counsel T.C. Anstey similar to those in Grant’s petition. He attacked the Governor-General’s claim to despotic power of imprisonment without trial and the Advocate-General’s defence of that power and praise of the Viceroy. “I shall not make any comment on the glowing panegyric that has been pronounced upon the nobleman on whose behalf arbitrary power over two hundred millions of the inhabitants of this country has been demanded, further than this, that I hope my learned friend will, in another world, receive an ample reward for it, as he is certainly likely to receive in this. For my part, I shall do my duty without fear or favour. I, perhaps, may boast of the private friendship of the noble Lord (the Viceroy), but I value not the public patronage, or the private friendship of any man one straw, when it interferes with my duty to the client who trusts me with his case.”
Anstey’s peroration is probably unsurpassed in its boldness. “If Your Lordship be unable, I will not say unwilling, to contribute to this end then it will now be decided that there is no law in this country, it behoves us in that case to look well to our words, to fear the caprices of the despot of the hour to whom the Ministers of the crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then, Your Lordship’s decision be against us, I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed or colour except immediate departure, or open rebellion.”
The Constitution of free India itself sanctions imprisonment without trial, uniquely among the democracies and, ironically, in a chapter on Fundamental Rights. In 1976 the Supreme Court reversed High Court rulings to hold that the writ of habeas corpus was not available during the Emergency. Bombay can legitimately boast of a street that is named after Thomas Chisholm Anstey.