Voice of a bygone era

Print edition : February 08, 2013

AMONG over 200 judges, including 39 Chief Justices, who have served on the Supreme Court of India so far, Justice P.N. Bhagwati is one judge who will not be easily forgotten.

He served on the court longer than anybody else and is arguably one of the best known Indian judges worldwide. His semi-autobiographical book My Tryst with Justice is naturally an indispensable acquisition for every serious law library in India. It is succinctly written, and its 202 pages offer the reader various glimpses into Bhagwati’s life: his family (his father, N.H. Bhagwati, was a Supreme Court judge; his “magnificent seven” brothers include the economist Jagdish Bhagwati); his education (he was once an “undisciplined” law student who attended classes infrequently); his days as a lawyer; his involvement in the freedom struggle (during which he lost his front upper teeth to lathi blows); his tenure as a judge and as the Chief Justice of the High Court of Gujarat and the Supreme Court of India respectively (including his judicial philosophy); and his work in various international human rights bodies.

Very few Supreme Court judges have written autobiographies. Bhagwati’s book holds the potential to shed some light on an important era in India’s judicial and political history.

However, the book is perhaps more interesting for what it does not say than for what it does. Bhagwati does not mention the habeas corpus case (1976) in which he, along with three other Supreme Court judges, regrettably held that the right to life, including the right to challenge arbitrary detentions via the writ of habeas corpus, could be suspended during the Emergency. In the recent past, Bhagwati did “plead guilty” for his decision in the case, and even said in an interview that he was going to write in his memoirs how he had been “persuaded” by his colleagues to agree with the decision in that case. His book’s silence on the issue is, therefore, interesting, especially given that much of the book is dedicated to Bhagwati’s work in the field of human rights.

Is the reader permitted to forgive Bhagwati for omitting a reference to the habeas corpus case in his memoirs? The answer depends on whether the reader believes that the great judge must only be remembered for the habeas corpus case and not much else, the one blot on his otherwise illustrious, nearly 26-year-long career as a judge. On page 114, Justice Bhagwati says that during his judicial career he was “deeply impressed by the judgments and writings of great judges like Holmes (and) Frankfurter”, both United States Supreme Court judges. But if Bhagwati cannot be called a “great” judge for siding with the majority in the habeas corpus case, how can Holmes and Frankfurter be? Oliver Wendell Holmes is notorious for having shamefully upheld a law under which the State of Virginia could forcibly sterilise the mentally disabled.

In that infamous case, Buck vs Bell (1927), Holmes crassly wrote: “Three generations of imbeciles are enough.” Many years later, in Korematsu vs U.S. (1944), a majority of the U.S. Supreme Court, including Felix Frankfurter, upheld a military order issued during the Second World War under which American citizens of Japanese descent were arbitrarily detained in internment camps. The case was decided on the technical ground that the right to “the equal protection of the laws” under the U.S. Constitution was only available against the States but not the federal government, a position that was later overruled.

Both these “great” judges, Holmes and Frankfurter, had seriously flawed decisions to their credit on issues as grave as personal liberty and reproductive privacy. However, on balance, history seems to have forgiven Holmes and Frankfurter for these flaws.

Holmes is remembered less for his majority opinion in Buck vs Bell than for his dissenting opinion in the case of Lochner vs U.S., where the U.S. Supreme Court struck down a social welfare statute on the grounds that it interfered with the freedom of contract. In that case, Holmes famously said, “The 14th Amendment does not enact Mr Herbert Spencer’s Social Statics”. This statement, not the disturbing “Three generations of imbeciles is enough”, is considered his abiding legacy to American constitutional discourse. Equally, Frankfurter is remembered less for his opinion in Korematsu than for his learning and his preference for judicial restraint.

When India’s own Constitution was being drafted, years after the Korematsu decision, the constitutional adviser to the Constituent Assembly of India, B.N. Rau, chose to meet with Frankfurter, and the meeting hugely impacted the text of India’s Constitution (amongst other things, the “due process clause” was removed from its text as a consequence of it). As imperfect human beings, Holmes and Frankfurter were imperfect justices who made serious mistakes, but their illustrious and eventful careers have not been reduced in contemporary narratives to the one egregious mistake they made during their long judicial careers, particularly given that they did a lot of good on the Bench too.

If Holmes had his Buck vs Bell and Frankfurter his Korematsu, must Bhagwati be remembered only for being on the wrong side of history in A.D.M. Jabalpur vs Shivkant Shukla? If so, we must quit our hagiographical references to Holmes and Frankfurter and condemn them equally to eternal historiographical damnation. It is rare for any judge worth reading about to have had a career without controversy, and Bhagwati’s tenure on the Bench was no exception.

The one shortcoming in Bhagwati’s book, though, is that it does not candidly deal with the controversies and low points of his career, and the reader is forced to read between the lines. When Indira Gandhi came back to power after the Janata Party interregnum, Bhagwati wrote her a letter of praise which was leaked to the press. In it, he said, “Today the reddish glow of the rising sun is holding out the promise of a bright sunshine.” He was criticised for writing the letter, amongst others, by the noted constitutional scholar, H.M. Seervai, who pointed out that in a case decided a few years earlier ( Rajasthan vs Union, 1977), Bhagwati had described the Indira Gandhi government’s electoral defeat in the harshest of terms, calling it a “crushing defeat” and “symptomatic of complete alienation between the government and the people”.

Seervai, who was Bhagwati’s former colleague in the chambers of Sir Jamshetji Kanga, had also criticised Bhagwati’s articulation of the doctrine of “arbitrariness” in the landmark case Maneka Gandhi vs Union (1978). Bhagwati does not speak of the letter in his memoirs. Instead, he tells us what he thinks of H.M. Seervai and his book on constitutional law: “He [Seervai] was a very able advocate but was a little rigid and opinionated in his views. He has written a book on the Constitution of India but in my opinion in that book he has projected his own opinions instead of giving a fair balanced view about the constitutional position as laid down by the Supreme Court of India” (pages 39-40).

Bhagwati’s memoirs are not entirely devoid of reference to controversy. It is often said that he had less than cordial relations with his colleagues on the Supreme Court Bench. In one of the rare revelations in his book, Bhagwati writes about how he missed out on being appointed in 1972 to the Supreme Court of India despite Chief Justice J.C. Shah’s recommendation, because Justices S.M. Sikri and J.M. Shelat persuaded Shah that “as a retiring Chief Justice he had no right to recommend Justice Bhagwati for appointment to the Supreme Court”.

However, this story of Bhagwati’s missed early elevation to the Supreme Court is the last that the reader hears on the matter of his relations with his predecessor. Bhagwati also writes disapprovingly of Justice Pathak, who succeeded him as the Chief Justice of India, on the issue of the chairmanship of the committee for implementing legal aid schemes at the Centre. He writes:

“I expected that owing to my zeal and commitment to realise legal aid for all citizens, I would be continued as the Chairman of the Legal Aid Organisation even after my retirement. However, Justice Pathak, who succeeded me as the Chief Justice of India, insisted that he should be appointed Chairman and the Government of India yielded to his pressure and appointed him as the Chairman…, even though he had no commitment to the legal aid programme. This decision, according to me, was taken in order to benefit the holder of the office of CJI…” (page 94).

Though Bhagwati offers a disclaimer in the preface that the book is not an autobiography, he does not acknowledge that his stellar career had its low points, too. Bhagwati writes that he spent his judicial career “blazing a trail of judicial creativity and innovation which breathed new life into the dry words of the constitutional provisions relating to Fundamental Rights and Directive Principles…”, but he does not tell us how he weathered the trials and tribulations of judicial decision-making and got over the mistakes he made as a judge. Far too much of the book reads like a curriculum vitae rather than a candid autobiographical account. But perhaps this assessment is based on the fact that we have come to expect far too much of Bhagwati, who is now 91. Without a doubt, the book offers the reader an invaluable insight into the voice of a bygone era, one in which “public interest litigation” had few, if any, pejorative connotations, and judicial activism was a part of the ruling spirit of the times.

One hardly ever gets to hear the following words, taken from the book’s epilogue, any more: “Law is like plasticine in the hands of a great judge. He can make what he wills out of it provided he has the requisite skill and craftsmanship and a vision of the future in interpreting and crafting the law”.

Abhinav Chandrachud is a doctoral candidate at Stanford Law School, U.S.