Justice Dixon - mediator and Judge

WHEN Owen Dixon came to the subcontinent as United Nations mediator on Kashmir on May 27, 1950, he had acquired, deservedly, high repute as Judge of Australia's apex court, the High Court. Strangely enough, there was no interaction between him and the Bench and the Bar in India or in Pakistan. India's experiment in federalism and its vibrant democracy did not interest him. He came within a few feet, if not inches, of solving the Kashmir dispute and bagging the Nobel Prize for Peace. He gave up impatiently, impetuously rather, and left on August 23, 1950, vowing never to return to the region.

This biography explains the man, exposing, unwittingly, the flaws in his outlook, temperament and character, and recording his dazzling subsequent career as one of the greatest Chief Justices of Australia and one of the great Judges of the second half of the last century.

Justice Felix Frankfurter of the United States Supreme Court and Lord Simonds, Lord Chancellor, and other English Law Lords regarded him as the greatest exponent of the common law of his generation anywhere in the world. He served as Judge of the High Court from 1929 to 1964 and as Chief Justice from 1952 to 1964. In between, he was Minister to the U.S. from 1942 to 1944, heading his country's legation there. He won the respect of his Indian counterpart, Girja Shankar Bajpai.

Precedents for this incongruity, if not impropriety, are not exactly inspiring ones: Lord Reading, the Lord Chief Justice, and Muhammad Zafrullah Khan of our Federal Court; a born politician. For one who even disapproved of Judges sitting on Commissions of Inquiry set up by statute on matters of political implications, Dixon's conduct was strange. Especially in one who otherwise lived up to the highest standards of personal and judicial conduct. But Dixon was keenly interested in foreign affairs. In Australia, one finds, Judges and men in power spoke freely to each other. Dixon was to commit graver improprieties of this kind as Chief Justice.

The book reveals a man whose heart belonged to England where he would have loved to settle, but for its climate and his finances. He was steeped in English literature and history and read Greek and Latin classics in the original. He hated the people here. One prefers not to quote his cheap comments on them. Many a Colonel Blimp admired the region while retaining his complexes. Not so, Dixon. On August 19, shortly before his departure, he wrote to Alan Watt, Secretary of the Department of External Affairs in Canberra: "One thing my experience has taught me and that is how utterly impossible it is for us to relax the White Australia policy. If we do relax it, we only increase the danger to our safety as well as we make our own society impossible. But whatever we do, the danger of India to Australia in the future can hardly be exaggerated, that is unless it is eliminated by a still greater danger."

The biographer's explanation is remarkable indeed. "Perhaps he believed on the basis of his experience in the subcontinent, that a large and cohesive minority group, ethnically or religiously distinct, inevitably spelt trouble for any host country" (emphasis added throughout). Evidently, neither Ireland nor Europe had instilled this belief. The biographer's "explanation", absurd as it is, reflects his largely uncritical approach to his subject. Much more was expected of an Associate Professor and Head of English Literature at Monash University. A man's greatness, if based on solid record, like Dixon's, is not diminished if his faults and foibles are candidly acknowledged.

Little does Philip Ayres realise the significance and consequence of Dixon's failure in Kashmir. He would have earned a place in history and done lasting service to peace. No mediator came anywhere as close to success. None else could have. None other made as fair and incisive an analysis and in such elegant prose. But to Ayres, this was but an interlude and he was content not to know any better. He did not consult the excellent paper by William Alan Reid, though he was aware of it, and deprived himself of its rich insights (vide the writer's article The Dixon Plan, Frontline; October 25, 2002). He has consulted Dixon's papers as, indeed, had Reid. The chapter on mediation in Kashmir is interesting only for some quotes from them. Unlike Reid, the author is utterly unfamiliar with the region.

The truth is that Dixon had in a bold, imaginative, yet realistic, effort secured the agreement of both India and Pakistan to a plebiscite limited to the Vale of Kashmir with outright partition of the rest of the State between them. He proposed, most unrealistically, an interim regime during the plebiscite, which India could not possibly have accepted. He did not care to try any alternatives; simply threw up the sponge and quit bad-mouthing the region and its people. Even beautiful Kashmir, he "saw it all through a bacteriological haze and wondered why either side wanted it". He had taken ill. From May-August the weather in Delhi and Karachi could be terrible. He did not like the food. The hosts seem not to have done very much to alleviate his discomforts.

The disclosures, few as they are, deserve note. Dixon met the Prime Minister (as then called) of Kashmir, Sheikh Muhammad Abdullah, on June 10, 1950. He "thought independence for Kashmir should be an option in any plebiscite" in addition to accession to India or Pakistan. He also met Chaudhury Ghulam Abbas, the Sheikh's rival. "Despite differences, both men believed that the people of Jammu and Kashmir should determine their own future; in Sheikh Abdullah's view even if the result were to be partition."

Before embarking on the mission in any depth, he realised its complexity. "I would have been wiser to leave to somebody better qualified". An overall plebiscite was all but impossible to arrange. "The simple fact was that Nehru knew that if a fair plebiscite were held for the whole territory India would lose it". True; but in its train, bloodshed and movement of refugees would have followed.

Dixon met Nehru on July 26. It was an important meeting. "They talked for ninety minutes and the details are of enduring interest for two reasons; first, the Dixon plan is still accepted as the best ever tabled to resolve the Kashmir dispute, a dispute that remains unresolved early in the twenty-first century, and secondly, many of the details in Dixon's private record of this discussion, and subsequent ones with Nehru's Ministers, are not disclosed in his report to the Security Council. Nehru said that India was willing to give Pakistan guarantees regarding the waters of the Chenab River and conceded that the territory to the west of the ceasefire line, where it ran north and south, would go at once to Pakistan, but he would not concede Dixon's argument that the eastern boundary of the strongly Muslim territory to be allotted to Pakistan would have to be well east of the ceasefire line. The tehsil, or province of Ladakh (Buddhist) would go entirely to India. Nehru was vague about where he regarded the Muslim territory in the north as beginning, and his attitude to Jammu was also less than clear. On the other hand he seemed willing to concede to Pakistan all of the considerable territory to the north of the ceasefire line, where it ran east and west. He agreed with Dixon's definition of the Valley of Kashmir as the area within the top of the watershed of the mountains surrounding it, in other words as defined in terms of the direction of river flows from their sources. Dixon's detailed knowledge of the physical features of these mountains is revealed in the discussion: Nehru claimed that the Kishanganga might be a suitable boundary. `I said "that that was a boundary on the other side of the watershed'." The line Nehru offered corresponded to the then ceasefire line; the present Line of Control, broadly.

Dixon met Girja Shankar Bajpai, Secretary-General of the Ministry of External Affairs and others, on July 29. "I said my opinion was that beginning south, a line should be drawn as the westerly boundary, which approximately followed the west boundary of the District of Jammu to the boundary between the tehsils of Rampur and Riasi, and then up that boundary beside the Pir Panjal Pass until you reached a point, not far south of the ceasefire line, where it turns to the east. Thence I would draw a line down through the Tragbal Pass to Haramukh and then follow round the south boundary of the district of Baramulla and the east and the south boundary of the district of Anantnag until it met again the boundary between the tehsils of Rampur and Riasi. I produced a map and indicated the course of the boundary. I said that if it became necessary, I felt I should throw my weight in favour of this view, because for the reasons I gave... , I thought it was both unwise and mistaken to follow closely the ceasefire line."

The Nehru-Liaquat conference in Delhi, under Dixon's aegis (July 20-25), failed but Dixon immediately hit upon the partial plebiscite idea - the Dixon plan, as it is still nostalgically recalled in Kashmir. "I am told by some that they (his alternatives) will produce settlement," he wrote to Chief Justice John Latham on July 28.

Dixon's meeting with Liaquat in Karachi was a success. Partial plebiscite was acceptable to him, Dixon informed Nehru on August 15. To his daughter Anne, he wrote the next day "of course I must stick to the job but I am rather sick of them all and want to be at home". The desire prevailed over the resolve, eventually.

Nehru did not like his proposals on the modus operandi of a plebiscite and invited him back to Delhi. "Mr. Nehru suggested that I should come down to hear an explanation of his point of view so as to avoid misunderstanding. It is only too evident that India wants to win the plebiscite and feels that too much fairness and freedom at the taking of the vote might not be helpful in allowing her to secure the result... The Pakistanis have repeatedly expressed the view that India would never agree unless she was left in a position, by herself or her supporters, to sway the vote by a show of force and by other improper means. I did not think that Mr. Nehru would take a stand against precautions evidently necessary to remove such dangers and suspicions of them, but the strained arguments and the ill-temper of the telegram he sent me are characteristic of a man instinctively aware that he is taking up an untenable position and not very proud of it... ."

They met on August 19. The author's summary of the talks (pages 211-212) is unfair to Nehru. It is scrappy, Reid's account is far more detailed. Dixon left Delhi on August 23 for Karachi en route to New York for his report to the U.N., which he described as "a miracle of incompetence".

What Mountbatten told him when they met on April 7, 1956, touched the core of the matter. He blamed "his lawyers, including Stafford Cripps, for advising him that as the Princes of India had the power to incorporate their States with India or Pakistan, they should be allowed to do so without reference to the popular will". Dixon himself expressed a similar view on June 17, 1950: "The proximate cause lies in the haste of the British withdrawal and the insufficient care and skill in providing for the disposal of the independent (princely) states." Mountbatten was not honest. In 1947, he fully endorsed the Paramountcy doctrine. So did every British government.

While the author is wrong in treating the mediation as an interlude, Indian readers would be remiss in neglecting his superb account of the Judge's views and record.

Under Chief Justice Rehnquist, the U.S. Supreme Court has descended to an all-time low as its decision which gave the Presidency to George W. Bush showed. It was political. But even in 1950, Dixon sagely observed: "The Supreme Court is by no means good. Recent appointments have made it even more political than it was, and its legal equipment is low. Frankfurter himself seems to me to be more lonely, and his judgments show that he has allowed his tendency to reflective utterance, and to the use of aphorisms and smart sayings, to increase at the expense of his analytical capacity. I think it is less a sign of age than a desire to say something which will interest himself, knowing that it will scarcely be likely to interest his colleagues." In recent years, these failings have begun to afflict Judges of our Supreme Court as well. It began with Justice M. Hidayatullah.

The government of Menzies, a friend of Dixon's, had passed the Communist Party Dissolution Act, 1950. People thronged the court room when the High Court heard the case. Dixon joined the majority in holding the Act invalid. He said: "History and not only ancient history, shows that in countries where democratic institutions have been unconditionally superseded, it has been done not seldom by those holding the executive power."

He was a sharp critic of the Privy Council. Its members did little work and had little understanding of federalism. In 1956, Dixon criticised the Privy Council in a judgment: "Federalism is a form of government the nature of which is seldom adequately understood in all its bearings by those whose fortune it is to live under a unitary system. The problems of federalism and the considerations governing their solution assume a different aspect to those whose lives are spent under the operations of a federal Constitution, particularly if by education, practice and study they have been brought to think about the constitutional conceptions and modes of reasoning which belong to federalism as commonplace and familiar ideas. A unitary system presents no analogies and, indeed on the contrary, it forms a background against which many of the conceptions and distinctions inherent in federalism must strike the mind as strange and exotic refinements."

In 1963, he refused to follow the House of Lords. Dixon's erudition was matched by wit. It was spontaneous and refined unlike the laboured, inelegant ventures in wit of some Judges. His judgment in a case involving some magazines charged with obscenity bears quotation in extenso: "The pages contain nothing prurient, lewd or licentious... Why then has this literature been considered unduly to emphasise matters of sex and exhibit a tendency to deprave? It is because the lovers are depicted as loving passionately. They embrace and they embrace closely. Their kisses, although pure are full and perhaps prolonged... Moreover, the eyes of the heroine are drawn with lids either drooping or unduly raised and her lips, though drawn in black and white, are obviously rosy as lipstick can make them... The convention that requires formal introduction seems safely to be ignored by the heroines and there is no reason to suppose that it is observed in the circles in which they and the expected readers move... What they contain is an affront to the intelligence of the reader but hardly a real threat to her morals. The stories are extremely silly, the letter press is stupid, the drawings are artless and crude and the situations are absurd. But we are not concerned with the damage done to the intellect or for the matter to the eyesight of the readers of these foolish periodicals." Note that while he detested the writing and ridiculed its readers, he did not press the law of obscenity to suppress it. He had a similar approach to the law of contempt. It was not to be abused for the defence of the judge - who ought to sue for libel - but only to uphold the authority of the court, when truly necessary.

At a time when in the name of "judicial activism" judicial subjectivity and arbitrariness, in cheerful disregard of the law and the Constitution, have become fashionable, Dixon's warnings acquire added weight. His paper Concerning Judicial Method is a classic. "It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which, in reason, might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience... The objection is that the judge wrests the law to his own authority. No doubt he supposes that it is to do a great right. And he may not acknowledge that for the purpose he must do more than a little wrong."

Dixon added: "Indeed there is a fundamental contradiction when such a course is taken. The purpose of the court which does it is to establish as law a better rule or doctrine. For this the court looks to the binding effect of its decisions as precedents. Treating itself as possessed of a paramount authority over the law in virtue of the doctrine of judicial precedent, it sets at nought every relevant judicial precedent of the past. It is for this reason that it has been said that the conscious judicial innovator is bound under the doctrine of precedents by no authority except the error he committed yesterday."

Many who were critical of Dixon's approach adopted it when the excesses of the innovators became evident. He himself was never afraid of innovation. But he believed that judicial creativity lay in extending settled law, not in subverting it. Modest as only a true scholar can be, "he was ever a loyal servant of a developing Law, and not its unfettered master".

He scorned intrigue and intriguers on the Bench and kept politicians at arms length. He was opposed to the appointment, as Chief Justices, of John Latham and Garfield Barwick. Both were political appointees.

This makes it all the more inexcusable for Dixon to discuss the Suez Crisis with the Governor-General Richard Casey and, worse still, repeatedly advise the Governors of Victoria and Western Australia on constitutional crises at their requests, (pages 235, 249, 255, and 275). It was grossly improper for the Chief Justice to do so and was a lapse from judicial standards he lauded and upheld.

Dixon died at the age of 86 in 1972. Four years later, the High Court and the country were rocked in a bitter controversy in the wake of Governor-General John Kerr's dismissal of Gough Whitlam from his office as Prime Minister, on November 11, 1975.

It became known later that Chief Justice Barwick had advised the Governor-General. On June 14, 1976, The National Times published the texts of his letter to the Governor-General, dated November 10, 1975, along with Justice Lionel Murphy's letter to the Chief Justice of November 13.

It was in response to the Chief Justice's letter informing the Judges of his advice. Murphy sharply criticised the Chief Justice for compromising the court and dissociated himself from it. Two other Judges verbally joined in the disapproval. One is not sure whether Dixon thus confided in his colleagues. Kerr published Barwick's advice in his autobiography Matters for Judgment (1978), but omitted to mention the controversy it had aroused.

Barwick, a far inferior Judge and smaller man, followed Dixon's precedent. It was a sorry lapse in a truly great Judge who merited every praise that he received when he breathed his last.