The edifice of justice


In the new legal culture that exists in India, judicial discipline and respect for precedent seem to be dangerously on the wane.

“The British have given us a fine system of judiciary on a platter. No doubt, a little mortar is falling here; a little brick is coming out there. But don’t destroy it by trying to interfere with the edifice. You may repair it or add to it or alter it somewhat, without destroying the structure as a whole.”

Justice Harilal Kania, the first Chief Justice of India, to lawyers at the Secunderabad District Court in 1950 (P. Jaganmohan Reddy; The Judiciary I Served; page 42).

JUSTICE Jaganmohan Reddy was one of the finest judges of the Supreme Court, erudite, cultured, fiercely indepen-dent and disciplined. Few of the judges who came after him possessed all these qualities. There came a bunch of “progressives” who were as little familiar with Marx as with the law. They encouraged a breed of academics who paid court to them. A new legal culture grew, of which the rulings of the Lucknow Bench of the Allahabad High Court are a vivid illustration. It is no less conspicuous in the Supreme Court. Judicial discipline and respect for precedent are dangerously on the wane.

It is as preposterous to call the judicial system a foreign plant as it is to call the parliamentary system – indeed, the Constitution itself – a foreign plant. During the Emergency, The Times (London) of July 14, 1976, published a letter by Prof. W.H. Morris-Jones in devastating refutation of the jibe about India being “exhibit A of the Westminster model abroad”. He demonstrated convincingly that Indian democracy “had become a specifically Indian achievement”.



The same is true of India’s judicial structure. In India the writ of habeas corpus is over two centuries old. It was first issued by Chief Justice Sir Elijah Impey against Governor-General Warren Hastings ((1775) Morton’s Reports 206). In 1976, the Supreme Court of India ruled that the writ was not available to citizens of India during the Emergency. On April 1, 1829, Sir John Grant, Chief Justice of the Supreme Court of Bombay, declared that the court had ceased to function and would remain closed because the Governor, John Malcolm, did not comply with the writ of habeas corpus the court had issued. The Privy Council overruled him on a question of law on June 10, 1829. The court’s doors were reopened ( In Re: The Justices of the Supreme Court of Judicature; 1 Knapp’s Report, Privy Council; 12 English Reports, pages 222-243).

Those who fought for India’s freedom and the architects of India’s Constitution had drunk deep at the fount of British constitutional history. Chief Justice Harilal Kania’s remarks are extremely apposite – improve the edifice that was inherited but do not destroy it. During the Quit India movement, the High Courts and the Federal Court, presided over by Sir Maurice Gwyer, issued writs of habeas corpus for the release of those detained by the British rulers. The Privy Council, as consistently, overruled the Federal Court.

In one such case, Chief Justice S. Varadachariar and Sir Muhamad Zafrullah Khan ruled in favour of the citizen Benoarilal Sharma, while Justice G. Rowland ruled against him and poured ridicule on the judgment of Justice Sen of the Calcutta High Court.

Rowland received his just deserts at the hands of Justice Sen in another case involving the same point of law. His retort bears quotation in extenso: “I believe there is a sound rule that metaphors like strong drinks should never be mixed. Such mixtures lead only to confused thinking. I must confess that the mixture of Viceregal trains, dreams and boots is too potent for any assimilation. Is it my judgment that is solely responsible for making his Lordship feel once like an overheated locomotive with an inadequate safety valve drawing the Viceregal special train and then like innocent Alice, wondering at things she cannot understand? I may have thought it was, were it not for the fact that the other two learned judges, who were trained in the profession of law, reacted differently from Mr. Justice Rowland who, in the words used by Lord Justice Turner of the Judicial Committee in the Sivagunga Case, is ‘an unprofessional judge’ (9 M.I.A. 539, 601). Their Lordships the Chief Justice of India and Justice Sir Zafrullah Khan, after setting out in great detail the arguments on the points concluded: ‘The contentions put forward on behalf of the respondents in this part of the case found favour with Mr. Justice Sen in the court below and they undoubtedly raise substantial questions. In view, however, of the conclusions at which we have arrived on the main ground of attack against the validity of the Ordinance we do not consider it necessary to pronounce an opinion on these questions. Having introduced the technique of likening Judges whose opinions differ from his to characters in fiction, Mr. Justice Rowland will, I am sure, not take it amiss if I say that his manner of criticism of points of law which he does not appreciate make me wonder whether in him we have not a reincarnation of that well-known character in fiction – Bumble the beadle – who disliking an interpretation of the law explained: ‘The law is – an ass – an idiot.’ ( Oliver Twist, Chapter 41.)

“Mr. Justice Rowland’s judgment cannot of course have any authoritative value, it may have a persuasive value. I am however not persuaded. I shall therefore deal with the new Ordinance from the same standpoint as that which I look when examining the repealed Ordinance II of 1942 and even at the risk of again disturbing his Lordship’s composure. I shall try and avoid that attitude which Lord Atkin deprecates in the very case from which Mr. Justice Rowland sought to draw inspiration. I refer to the observations of Lord Atkin, which probably escaped the notice of Mr. Justice Rowland. They are as follows: ‘ I view with apprehension the attitude of Judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive’ ( Liversidge vs. Sir John Anderson 1942 A.C. 206, 244).” Both the fearlessness and the elegance of language would be hard to find today.

Judicial behaviour

Forty years ago, an American scholar, Prof. George H. Gadbois, Jr, wrote a well-researched essay on “Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges, 1950-1959” (Glendon Schubert and Daniel J. Danelski (Eds); Comparative Judicial Behaviour, Oxford University Press, 1969; pages 221-256). It portrayed the judges of the court in its halcyon era. One cannot truthfully assert that the standards of today are as high.

For all the high-flown rhetoric of judges, the Supreme Court of India has consistently over the years come down on the side of the mighty state in every case concerning security legislation, be it the Terrorist and Disruptive Activities (Prevention) Act (TADA) or the Armed Forces Special Powers Act. The judges have been illiberal. Contrast this with the approach of Canada’s Supreme Court on such legislation or that of the House of Lords in Britain, which has become increasingly liberal.

Tom Bingham died on September 11. He served as Master of the Rolls, Lord Chief Justice and Senior Law Lord in the House of Lords. He was acclaimed as “the greatest English judge since the Second World War”. A centre for the study of rule of law, named after him, opens this month. The Guardian called him “a radical… leading a new English revolution”. The government was stunned when, in 2004, he ruled that nine foreigners held in prison on suspicion of terrorism and with no prospect of trial had been detained illegally. In 2005, he held that evidence obtained by torture was inadmissible. He applied the rule of law to world affairs and opined that the war on Iraq was illegal.

This book contains the sixth Sir David Williams Lecture, at the University of Cambridge in 2006, on the rule of law. It is amazing how much learning is compressed in so slim a volume. The style is lucid without any of the florid rhetoric that judges of our Supreme Court revel in. Judges who arrogantly usurp the function of Parliament and proclaim themselves “problem-solvers” and “law givers” should note these words: “What is true of Ministers and officials is, generally, true of judges. As was said by Lord Shaw of Dunfermline nearly a century ago, ‘To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.’ Another senior judge more recently made a similar point: ‘And if it comes to the forensic crunch… it must be law, not discretion, which is in command.’ The job of judges is to apply the law, not to indulge their personal preferences. There are areas in which they are required to exercise a discretion, but such discretions are much more closely constrained than is always acknowledged.… The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.” In 1733, Thomas Fuller said, “Be you never so high, the Law is above you.” This, Bingham holds, applies to judges no less than Ministers.

Bingham illuminates the great landmarks since the Magna Carta (1215) with learning, right up to the Universal Declaration of Human Rights. He analyses the rich varied facets of the rule of law.

Censures on the U.S.

Bingham is unsparing in his censures on the United States’ systematic recourse to torture and on abuses like rendition of persons captured abroad in one country to stand trial in another. In 1993, the House of Lords held that courts should refuse to try a person brought to the United Kingdom in flagrant breach of international law.

“The United States has also authorised and carried out disappearances of alleged Al Qaeda members into secret prisons and conducted mass round-ups and secret arrests at home and abroad. It has claimed and exercised the right to detain without charge or trial anyone the President chooses to designate as an enemy combatant. The number of people rounded up and detained in Afghanistan, Iraq and other unidentified ‘black’ sites around the world is not known, but the Pentagon is said to have conceded that the United States has detained more than 80,000 people, of whom nearly 800 were held for a time at Guantanamo Bay. Some of these were as young as thirteen, and there were very few terrorists among them.”

Bingham is as severe on abuses in the U.K. “There has been gradual erosion of one of the most fundamental safeguards of personal liberty in this country: the limit on the time a person suspected of having committed a terrorist crime may be held in custody without being charged or released. In 1997 the period was four days. In 2000 it was raised to seven days, in 2003 to fourteen days, in 2006 to twenty-eight days. But this was not enough. In late 2005 the government sought to raise the limit to ninety days, although unable to point to a single case where a suspect had been held to the then current limit of fourteen days and released without charge for lack of evidence. This bid was roundly defeated in the House of Commons. Undeterred, the government attempted to increase the period to forty-two days, narrowly succeeding in the House of Commons and abandoning the attempt only after an overwhelming defeat in the House of Lords on 13 October 2008.”


JUSTICE HARILAL KANIA, the first Chief Justice of India, felicitating Governor-General C. Rajagopalachari in November 1947 as Prime Minister Jawaharlal Nehru watches.
JUSTICE HARILAL KANIA, the first Chief Justice of India, felicitating Governor-General C. Rajagopalachari in November 1947 as Prime Minister Jawaharlal Nehru watches.

In 2002, the Council of Europe delivered a sound warning. “The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indicriminate measures which would only undermine the fundamental values they seek to protect.”

Like Bingham, Lord Woolf also held the offices of Master of the Rolls and Lord Chief Justice. The book is a collection of his lectures and papers. They cover a wide spectrum from the judiciary to penal reform, civil justice and the international legal systems. Following recent reforms under the Constitutional Reform Act 2005, the old Office of Lord Chancellor has been abolished from May 2007. The Lord Chancellor became the Head of a Ministry of Justice. Other changes to the Lord Chancellor’s role include his role in judicial appointments, which has become limited to saying ‘no’ to one candidate recommended by the independent Judicial Appointments Commission; there is a new system for dealing with complaints; the Lord Chief Justice is now Head of the Judiciary; and the Lord Chancellor is no longer a member of the House of Lords.

Many of the themes debated in our press are discussed in this volume incisively – the clash between the executive and the judiciary, the role of the media, judicial detachment, and so on.

The clamour for the blood of Afzal Guru, orchestrated by the Bharatiya Janata Party (BJP), makes these remarks particularly relevant: “The real test of the Human Rights Act arises when individuals or minorities attract the antagonism of the majority of the public; for example, when the tabloids are in full cry. Then, the courts must, without regard for their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the Human Rights Act is the need to respect the dignity of every individual by ensuring he or she is not subject to discrimination.”

Both these judges had an excellent academic background. More, they were products of a legal culture which grew over a thousand years. As Chief Justice Harilal Kania observed, India acquired it “on a platter”.

Britain’s legal culture

There is no better compilation of the historic texts which record the development of Britain’s legal and political culture than the volume of documents compiled by Peter Kellner. Its subtitle tells it all: “1,000 years in Pursuit of British Liberty”. It begins with 930 and ends with Paul Dacre’s speech to the Society of Editors in 2008, in which he remarked: “The Freedom of the Press is far too important to be left to the somewhat desiccated values of a single judge.” Each document is carefully sourced. All the majestic utterances in history are to be found here. It is indispensable to lawyers, students of history and politics.

“The habeas corpus is the single advantage which our government has over that of other countries,” Dr Johnson told Boswell in 1760. In 1777, Charles James Fox described habeas corpus as “the great palladium of the liberties of the subject” and deplored the “insolence and temerity” of those “who could thus dare to snatch it from the people”.

India is the only democracy in the world whose Constitution itself sanctions preventive detention and thus curbs the great writ.Prof. Paul D. Halliday’s book is a history of the writ, which yields interesting conclusions. He examined nearly 5,000 surviving writs to get to the heart of the Great Writ of Liberty. It is a history of the writ from the 15th to the 18th century so that the book will change the way people understand the development of the writ and democracy. Halliday examines the imperial experience – legislative action of the 18th and 19th centuries, how it undermined the writ’s utility and the negative impact apparent in the empire in the 19th and 20th centuries.

“My intention has been to offer a history of habeas corpus that is better grounded empirically and broader conceptually than the one still routinely invoked in courtrooms and public debate. The final chapters explore aspects of the nineteenth and twentieth centuries, but I make no attempt to draw lines out of the past to arrive on one moment or set of issues, nor do I want to suggest where the writ might or must go from here. Rather than seeing law’s past moving with a logic that requires it to resolve on a particular point, the book concludes by highlighting the paradoxical ways that the writ does and does not work – the many human values that law does and does not realise in operation.”

He has delved into the archives of the court of King’s Bench, England’s greatest common law court and the court to which most prisoners went for habeas corpus.Supporting the entire book is information gained from a quadrennial survey of habeas use from 1500 to 1800, made possible by examining the records of King’s Bench. This is a work of history not law. But it explains the law. Even our long Constitution rests on conventions. Neil Parpworth’s book provides a comprehensive guide to the conventions of the parliamentary system to the growing administrative law and the law on civil liberties. It is remarkably up to date. The law is stated as on February 1, 2010.




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