A judicial heritage

Print edition : April 14, 2017

August 6, 1962: President S. Radhakrishnan at the inauguration of the centenary celebrations of Madras High Court. Photo: The Hindu Archives

The earliest courts to be established in India under a royal charter in 1862: the High Courts of Bombay (above), Calcutta and Madras. Photo: Vivek Bendre

The earliest courts to be established in India under a royal charter in 1862: the High Courts of Bombay, Calcutta (above) and Madras. Photo: SUNIL DAS

The earliest courts to be established in India under a royal charter in 1862: the High Courts of Bombay, Calcutta and Madras (above). Photo: The Hindu Archives

THE history of the judiciary is not just its legal history alone. It required the well-known architectural historian Chris Miele to sketch the legacy of the United Kingdom’s Supreme Court ( The Supreme Court of the United Kingdom: History, Art, Architecture, Merrell Publishers, 2010). Ruadhan Mac Cormaic has edited a comprehensive work on the Irish Supreme Court ( The Supreme Court, Penguin Ireland, 2017). Bernard Schwartz chronicled the legacy of the United States Supreme Court by covering all the “extralegal” facets of the institution ( A History of the Supreme Court, Oxford University Press, 1994). A People’s History of the Supreme Court by Peter Irons is another compendium on the U.S. Supreme Court that adopts a different approach. Fowler V. Harper described, in 1929, the work The Business of the Supreme Court (1928) by Felix Frankfurter and James M. Landis as “an attempt to reveal the story of political and economic strife which lies hidden beneath the technicalities which govern the jurisdiction of the federal courts”.

In India, several High Courts have brought out independent volumes on their traditions. However, the latest book in this genre, Courts of India: Past to Present, is a fabulous one, which deals with the Indian judicial heritage as a whole. Very often, one finds books that do not live up to their exaggerated titles. The volume under review is an exception, with an understated title that allows the contents to shine through.

Sandra F. Joireman, while referring to “the evolutionary and adaptive nature of common law”, has rightly said that “since Independence, India has changed its judicial system, within the bounds of the common law in ways that make the system quite different from (the) common law practised in England and America” (“The Evolution of the Common Law: Legal Development in Kenya and India”, 2006). To understand this fairly accurate statement on contemporary Indian law, one needs to study the history and evolution of legal institutions, formal and informal, indigenous and foreign. The volume under review is a comprehensive narrative on the past, leading to the present.

An emblematic work

This emblematic work contains splendid photographs but does not compromise on the text. It contains the history and, at times, the historiography, of the Indian judicial system. This is a collaborative effort of some of the best minds on the bench, the Bar and the intelligentsia from across the country. There is no single chronicler, but a collective creativity is writ large on the work. The editorial board consists of three sitting judges of the Supreme Court, Justices Sharad Arvind Bobde, Uday Umesh Lalit and Rohinton F. Nariman; Justice Ravindra Bhat of the Delhi High Court; and legal luminaries such as Raju Ramachandran, Sanjay Hegde, Indu Malhotra, K. Parameshwar, Madhavi Diwan and Gautam Bhatia. The contributors are experienced lawyers and researchers. The effort to associate young talents with the work is applaudable.

Although Justice T.S. Thakur, the former Chief Justice of India, has described the volume as “a modest beginning in the process of tracing the history of our judicial system”, it is a giant project that has, of course, kept a safe distance from contemporary controversies. However, there are dispassionate references to the latest judgments on judicial appointments in 2015 that resurrected the collegium system.

The book does not fall prey to institutional flattery. It treats even the Supreme Court as a court that is not infallible. As stated in the introduction, the volume endeavours “to present a well rounded overview, tapping into the institutional histories of numerous existing courts (in India)”. Judicial institutions are politically designed. More important than the court building is what takes place inside it. This volume, fortunately, attempts to deal with both. Its 10 chapters take the reader across a broad spectrum of history.

The first chapter clarifies “some of the basic philosophical foundations of ancient and medieval legal systems in India” by dealing with Hindu, Buddhist and Islamic traditions. Folio manuscripts of the Rgveda and the Dharmashastras and copperplate charters have been vividly photographed and presented. Stone sculptures, coins, portraits and paintings have been arranged to explain the Islamic juristic tradition. Administration of justice in certain tribal areas is dealt with separately. The reader is apprised of the structural hierarchy that prevailed in the Delhi Sultanate, the provincial Hindu Kingdom in Assam, the Maratha region, the Hindu dynasties in Kashmir and other dispensations during the Mughal period. Tables, charts, symbols and photographs have been imaginatively used throughout.

The second chapter deals with colonial conquests. The “diverse amalgam of religious codes, royal edicts and local customs (in India)” was confronted with the imported judicial systems of the imperial powers, the Portuguese, the French and the English.

The third chapter is on the trinity courts of Calcutta, Bombay and Madras from 1726 to 1860. The Mayor’s Court in Calcutta, Bombay and Madras were set up in 1753 on the strength of a royal charter issued by King George II. Copies of the proceedings and judgments in the volume include even handwritten verdicts. The lithograph of Sadar Diwani Adalat (1772), obtained from the High Court of Calcutta, is another illuminating piece. The depictions of Fort St. George and the Supreme Court of Madras are epitomes of a sporadic stream in India’s judicial history.

The fourth chapter explains “the slow death of diverse local customary practice and the reification of text-based, inflexible ‘personal law’”. The views of the High Court at Lahore, the courtroom where Bhagat Singh’s trial took place in 1930, and the edifice built from 1937 to 1940 are all exhilarating. The descriptions of the judicial systems in the princely states and the courts in other parts of India make for curious reading.

Privy Council and Federal Court
The Privy Council in England had been the appellate body for cases from India since 1726. The decisions of the faraway court were always unanimous. Questions of access to justice had a geographical and physical facet in terms of distance, and this principle applies to the Indian Supreme Court even today. One finds that the problem of acute pendency of cases is also rather universal. Institutional decentralisation is a valid judicial concept. The passages on the origin and evolution of the Privy Council in the fifth chapter are instructive.

The Privy Council had upheld the abolition of Sati after hearing Raja Ram Mohan Roy, who travelled to England to participate in the hearing. He was “seated prominently when the petition was heard”, it is said. Such glimpses into history make the volume distinctive. More importantly, the Privy Council “helped in the introduction of the concept of Rule of law” and led to the “introduction of common law in India”. Though common law is a hybrid system of customary practices and authoritative precedents, one can see that colonialism impacted the countries in South Asia that shared a common cultural history quite differently. A brief account of the Federal Court, which was the apex court in India, and its judges is equally illuminating.

The new judicial order created by the Supreme Court and the High Courts is discussed in the sixth chapter, which devotes considerable space to the Constituent Assembly debates. In 1921, Hari Singh Gour backed the demand for a national court headquartered in India to replace the Privy Council. This demand found a place in the Motilal Nehru Report.

Notations on the Constituent Assembly in the volume are precise and scholarly. The pages carry rare and precious moments in history, with pictures showing Jawaharlal Nehru delivering the historic “Tryst with Destiny” speech and scenes from the first day of the Constituent Assembly. Another picture of the members taking the oath in the Constituent Assembly in 1949 is equally captivating. Under the title “The opening of the Supreme Court”, there is a striking photograph of President Rajendra Prasad examining a prototype of the Supreme Court. Chapter Seven talks about the Supreme Court, “the conscience keeper of independent India”. Although the book describes the achievements of the court, it does not hesitate to indicate its institutional failures as well. The analysis, however, may call for a critical reading. The book implies that the rationale of the judgment in ADM Jabalpur, which validated the suspension of the fundamental rights during the Emergency, was corrected by the apex court in Ramdeo Chauhan (2010) in its introspective judgment. However, such doctrinal corrections seldom satisfy the democratic requirements of the country. The people wanted the Supreme Court to protect their fundamental rights when the state’s excesses were an immediate political reality. The court’s insensitivity during critical historical moments is bound to be the thematic premise for a political history of the Supreme Court.

Landmark judgments

The editors have done well to highlight landmark judgments through newspaper clippings. The clippings from The Hindu, inter alia, include the report on the judgment that struck down the move for the nationalisation of banks, the judgment in the Shah Bano case dealing with Muslim women’s right to maintenance, and the infamous judgment in ADM Jabalpur.

The report in The Hindu on April 28, 1976, had a striking title: “By 4-1 Majority, Supreme Court Rules: Detenus Can’t Move Courts for Enforcement of Rights During Emergency”. Justice H.R. Khanna was the only judge on the bench who upheld the non-negotiability of the fundamental rights by way of his monumental dissent. The New York Times filled up the blanks of history: “(I)f India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the (Indian) Supreme Court.” As Chief Justice Charles Evans Hughes of the U.S Supreme Court said, dissent on the bench is often “an appeal to the brooding spirit of law, to the intelligence of a future day”.

Amartya Sen once said: “Debates about justice—if they are going to relate to practicalities—cannot but be about comparisons” ( The Idea of Justice, Allen Lane, 2009). Taking one’s cue from Sen’s words, one is tempted to compare the account of post-independent judiciary in the book with a few chapters in a contemporary work on the judiciary in our neighbourhood, brought out by the Oxford University Press— A History of the Judiciary in Pakistan (Hamid Khan, 2016). In India, barring the short pestiferous period of the Emergency and a few instances of “disturbing” judgments, by and large, post-independent judiciary has tried to maintain the constitutional ethos.

Constitutionalism is always comparative, and its success or failure is tested in relative terms. It is its objectivity that elevates this book from being a ritualistic rhetoric of an official publication to being a people’s read.

Profiles of personalities are often narratives of the political situations and the legal contexts in which they functioned. No wonder, then, that a recent collection of the profiles of the Chief Justices of India is essentially a survey of the landmark judgments they authored ( Chief Justices of India in Profile, R.C. Yaduvanshi, Universal, 2016). This book is more than a celebratory work. It is not just a descriptive work as is courteously stated in the introduction. It is open and organic even while dealing with historical and political situations.

High Courts

The High Courts in India are older than the Supreme Court, and their institutional grandeur was, therefore, acknowledged. In a celebrated decision in L. Chandra Kumar (1997), the Supreme Court accepted the submissions made by Shanti Bhushan that “the High Courts had been in existence since the 19th century and were possessed of a hoary past, enabling them to win the confidence of the people” and “this prompted the framers of our Constitution to vest such constitutional jurisdiction in them”.

Justice V.R. Krishna Iyer had exclaimed at a full squad of the judges of the Allahabad High Court, about 80 in number, at a function: “This is not court; this is population.” So is the magnitude of the Allahabad legacy. The section on High Courts starts with Allahabad, by displaying its pre-independence emblem. The photographs of the spectacular buildings are impressive because of their clarity and size. There is a risk of the reader getting captivated by the panoramic views of these architectural wonders and, in the process, missing out on the instructive pieces of history scattered in the text—be it on public interest litigation or labour movements—held in the voluminous dockets of the various High Courts.

Theodore Roosevelt said that patriotism meant not only standing by one’s country but also opposing its misgovernance. Mark Twain put it more vividly: “Loyalty to country always. Loyalty to government, when it deserves it....”

Famous trials

Chapter Nine, which deals with famous trials of “cases that made history”, includes cases of patriotism as well. The tragedy of Bahadur Shah Zafar, the last emperor of the Mughal dynasty, who was captured, tried and sentenced without due legal representation, is unparalleled. The writer-emperor had the pen name “Zafar”, meaning “the winner”, an ironic suffix. He died in Rangoon (now Yangon) in solitude. History is perhaps created by losers, rather than by winners. After Bhadur Shah’s trial, there are narrations of the trials of Bal Gangadhar Tilak, Gandhi and Bhagat Singh. Other cases highlighted include the Alipore Bomb case, the Bhawal Sanyasi case, the Indian National Army (INA) case, the Nanavati case, the Mathura rape case, the Lady Chatterley’s Lover case and, finally, the Bombay blast case (1993).

The 10th chapter deals with the current court system and the legal profession. The significance of the world’s most powerful apex court is quite appropriately described, along with the High Courts. Notes on the subordinate judiciary and the tribunals create a federal imprint for the work. Prof. Upendra Baxi’s view that the district judiciary is not a subordinate judiciary is quite appropriately quoted.

The synergy between the photographs and the text and the arrangement of events, including seminal judgments, is excellent, making a perfect blend of the job carried out by the editors, the photographers and the writers. No monumental work of this nature can be the result of any one person’s work. The importance of editing and photography and their impact on the final outcome are clearly visible.

The convoluted language of law is a matter of serious concern. The plain language movement, advocated by Michele M. Asprey, carries a strong plea for simplifying law in all its facets ( Plain Language for Lawyers, Universal, 2002). Richard A. Posner, in Law & Literature, prescribed the “language test” pithily: “[To provide] a way into law that should be congenial to non-lawyers, as well as a way into literature that should be congenial to lawyers” (Universal Law Publishing Co., Indian Reprint, 2011). This book, clearly, satisfies Posner’s benchmark. The language of the book is simple and straightforward, for which the team of authors and editors deserves praise. Books, like monuments, are sometimes made to outlive the centuries. Courts of India satisfies this test.

Kaleeswaram Raj is a lawyer in the Supreme Court and in the Kerala High Court. He is the author of the book Rethinking Judicial Reforms: Reflections on Indian Legal System.

Email: kaleeswaramraj@gmail. com.