V RAMASUBRAMANIAM IN THE HINDU
The Madras High Court was one of the few courts to which even litigants added excitement.
While celebrating an important milestone in the history of a court, we normally tend to remember only the lawyers who stood and argued, and the Judges who sat and decided cases. But, the contribution of litigants was in no way less significant. Persons of eminence, whose names have gone into the history of India, have appeared as litigants in the Madras High Court and fought many a battle. The names of two of them merit mentioning.
Annie Besant was involved in two famous cases decided by the Madras High Court. One related to the guardianship and custody of two minors and another related to the freedom of the press.
Narayaniah, a retired tehsildar and a member of the Theosophical Society, entrusted the custody of two of his sons, Krishnamurthi and Nityananda, to Annie Besant in March 1910. Annie Besant claimed that the elder son, Krishnamurthi, was likely to develop spiritual powers and become “a vehicle” for the manifestation of supernatural phenomena. After she took the boys to England, Narayaniah filed a suit in the District Court, Chengalpet, seeking custody of the minor sons.
The suit was withdrawn from the District Court and transferred to the High Court and tried by Justice Bakewell. Interestingly, both parties admitted that they were financed in the litigation by some third parties, which impelled the court to observe that some question other than the welfare of the children had influenced the litigation.
Narayaniah made allegations of immoral and improper conduct against Leadbeater, a prominent member of the Theosophical Society, with reference to the children. Annie Besant denied the allegations and claimed that the suit was politically motivated. She also made allegations against The Hindu, contending that a malignant campaign against her and the Society was carried on in the newspaper, at the instigation of Catherine Tingley and Nanjunda Rao. The Hindu filed an application to strike out certain portions of the written statement, which contained allegations against it.
By a judgment on April 15, 1913, Justice Bakewell declared the boys wards of the court and decreed the suit directing Annie Besant to hand over custody to the father. Deviating from the normal rule that litigation costs would always follow the event, Justice Bakewell directed the plaintiff, the successful party, to bear the costs, on the ground that several Commissions had to be appointed and witnesses examined at several places. The allegations of immoral conduct made against Leadbeater were rejected as unbelievable.
Annie Besant appealed, and Narayaniah filed cross-objections on the question of costs. A Division Bench dismissed the appeal and allowed Narayaniah’s cross-objections. However, the Privy Council reversed the decision, after the boys expressed a desire to continue their education in England. After their return to India, the Theosophical Society anointed the elder boy as a World Teacher in the “Order of the Star in the East.” In 1929, he denounced the claim that he was a messiah and dissolved the Order. Eventually, he became an independent thinker and celebrated philosopher. He was J. Krishnamurthi.
While Sir C.P. Ramaswamy Aiyar appeared along with Subbaraya Iyer for Narayaniah, Annie Besant appeared in person and argued. Though C.P. Ramaswamy Aiyar appeared against Annie Besant, he maintained a very high degree of dignity and professional etiquette, which impelled her to laud him as a lawyer of unfailing fairness. At one stage of the battle, Narayanaiah wanted to initiate contempt proceedings against Annie Besant for her failure to comply with a court order. But C.P. Ramaswamy Aiyar prevailed upon his client not to do so. Touched by his gesture, Annie Besant sought, after the case was over, C.P. Ramaswamy Aiyar’s cooperation, in her educational and political work. A great friendship blossomed between the two, which led to C.P. RamaswamyAiyar becoming the Vice-President of the Home Rule League.
An interesting corollary of the custody dispute was the contempt of court proceedings initiated by Annie Besant against The Hindu for the publication of two items. The first was the entire plaint. Annie Besant charged that the items published tended to have a bearing on the questions at issue in the suit. After finding that the written statement of Annie Besant was also published in the newspaper, Justice Bakewell dismissed the contempt petition, holding that there was nothing to suggest any interference in the administration of justice. The Judge also recorded a finding that the contempt application was not made purely with a desire that the fountain of justice should remain undefiled, but as part of the warfare between the parties.
While in the custody dispute Annie Besant took exception to the role played by the press, she herself had to fight state oppression of the media in the next case.
In July 1914, Annie Besant purchased a printing press from where a newspaper, Madras Standard, was being published. She changed its name to New India and started publishing it from August 1914. As required under the Press and Registration of Books Act, 1867, Annie Besant filed a declaration in December 1914 before the Chief Presidency Magistrate. He accepted it without demanding any security. But, after more than a year, the Chief Presidency Magistrate suo motu passed an order, dated May 22, 1916, demanding that she deposit Rs.2,000 as security. The order was complied with.
A series of articles came to be published in New India in June 1916. Some of these criticised the bureaucracy, some related to the unlawful reservation of compartments in certain trains for Europeans and Eurasians. One was a reproduction of an article published in The Herald, London, under the headline, “The price of liberty.” Another was by Bipin Chandra Pal about the assassination of Superintendent of Police Basanth Kumar Chatterjee of Calcutta. One criticised the demand made on Bal Gangadhar Tilak for a security bond of Rs.40,000 on charges of sedition, when he was about to go abroad to prosecute his suit against Sir Valentine Chirole.
Taking exception to these articles, Governor-in-Council of Bombay issued an order on June 29, 1916, under the Defence of India Rules, 1915, prohibiting Annie Besant from entering, residing or remaining in the Province of Bombay. The order was published by Annie Besant in New India on July 10, 1916, under the headline, “Ave Caesar,” followed by another set of articles. The Governor-in-Council issued a declaration under Section 4 of the Press Act, forfeiting the amount of Rs.2,000 deposited by Annie Besant in respect of the New India Printing Works, Madras, and ordering the forfeiture of all copies of New India.
Annie Besant moved two motions, one against the order of the Chief Presidency Magistrate, dated May 22, 1916, demanding security, and another challenging the government order directing forfeiture of the security deposit and copies of the newspaper. In the former, C.P. Ramaswamy Aiyar appeared for Annie Besant. In the latter, she appeared in person and made a passionate plea for the freedom of the press before a Special Bench of the Madras High Court. But the Bench dismissed the petitions; the Privy Council upheld the decision.
Another illustrious litigant to appear was Nani Palkhivala. Advocate A.C. Sampath Iyengar of Mylapore, filed a suit in the Original Side against Sir Jamshedji B. Kanga, N.A. Palkhivala, and N.M. Tripathi Ltd. His claim was that The Law and Practice of Income Tax authored by Sir Jamshedji B. Kanga and Palkhivala infringed his copyrights in the book authored by him under the title The Indian Income Tax Act.
The Attorney General for India appeared for the defendants along with H.M. Seervai. Palkhiwala examined himself as a witness and subjected himself to extensive cross-examination. At that time Palkhivala had not become a name to reckon with. Yet, Justice Panchapakesa Ayyar understood his potential and remarked about him in his judgment: “he… struck me as a competent and alert lawyer, who was thoroughly conversant with the Income Tax Act and Law, and was very well informed with every part of his book, and could give a cogent account of any part of it, regarding the scheme, arrangement, analysis, conclusion, criticism, etc. He struck me also as giving his evidence in a straight-forward fashion.”
Ultimately, the Judge dismissed the suit after recording a finding that sometimes authors, unlike businessmen, act on impulses. Exhibiting a high degree of grace at the threshold of a great victory, Palkhivala and Sir Jamshedji Kanga agreed not to press for costs. The decision in that case became one of the landmark decisions on the Copyright Act, and what Palkhivala, the second defendant in the suit, became in the next two decades, is history.
The Madras High Court is perhaps one of the very few courts, to which even the litigants added lustre in those days.
(Justice V. Ramasubramanian is a Judge of the Madras High Court.)