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.