The Habeas Corpus case, 1870

Print edition : May 11, 2018

ON July 10, 1869, 75-year-old Ameer Khan was arrested at his home in Calcutta. So was Hashmadad Khan. Both were suspected to be Wahabis, who were in the forefront of the Mutiny in 1857. They applied for a writ of habeas corpus before Justice Norman.

They were most fortunate in their choice of counsel. He was none other than Thomas Chisholm Anstey, a legend in his own lifetime. He was the first of English barristers who practised in the Bombay High Court. Anstey died in 1873 and was buried at Sewree in Bombay. An ardent Roman Catholic, he was also a man of marked scholarly bent. He was a devoted pupil of Carlyle and wrote a verbatim report of Carlyle’s lectures on European literature. A road was named after him on Malabar Hill in Bombay where J.R.D. Tata’s bungalow stood. It was off Carmichael Road.

In the Great Wahabi case, which Anstey argued towards the end of his career, he revealed his remarkable erudition, force of eloquence, courage, love of liberty and a deep sympathy for Indian aspirations. Anstey’s address to the court was regarded as “a monument of learning and forensic ability unsurpassed in the annals of criminal trials in India”. It was notable also for the judge’s courtesy, restraint in interruption, and for the learning displayed by both sides.

Anstey argued: “Allegiance and protection are inseparable. There is no distinction in the eye of the law between Englishmen and natives of this country. We came here as protectors of the natives. Equality is the rule of our government. Every native has all the rights of the Englishman, and you cannot debar him from the privileges conferred on him by the Magna Charta....

“I shall not make any comment on the glowing panegyric that has been pronounced upon the nobleman on whose behalf arbitrary power over two hundred millions of the inhabitants of this country has been demanded, further than this that I hope my learned friend will in another world receive as ample reward for it, as he is certainly likely to receive in this. For my part I shall do my duty without fear or favour. I, perhaps, may boast of the private friendship of the Noble Lord, but I value not the public patronage or the private friendship of any man one straw when it interferes with my duty to the client who trusts me with his case.

“He shall not hear from me any adulation, either now or hereafter, but he shall hear what the law thinks of its minister’s pretensions, of him who sends his counsel here to-day to cry on his behalf: ‘Will you not trust me, your ruler, who came out here, a real genuine Irish Peer, a member of Parliament, and who was so anxious to come out that he did not even wait till the termination of Parliament? Will you not trust me, who did all this?’ Well, my Lord, if it be so, Lord Mayo has one reward in this world for what he has been doing, in the praises of my learned friend; and yet I say that it is an unconstitutional pretension which he makes by the mouth of his counsel: ‘Trust me with arbitrary power.’ ...

“My Lord, the mofussil had trial by jury long before the coming of their hypocritical liberators. They had it until then, and so far as their conquerors have permitted it, they have it still; for everyone who knows anything at all of the history of juries, knows that until recently the jury of England was in all respects like that institution which flourishes still in the far west of India, where the government does not interfere, which obtains still beyond the British, among the uncorrupted, because un-Europeanised Rajpoots, I mean the institution called the punchayet, which consisted of persons who, whether through personal knowledge of the facts, or through personal knowledge of the party, or through the reputation of the district or vicinage to use the true expression, in which the fact were said to have occurred, were best able to come to a finding of a dictum, positive, direct, or indirect....

“My Lord, Sir William Jones’ comment is shown to be well deserved. He says: ‘ The progress of arbitrary power is commonly slow at first, and imperceptible to all but the vigilant, like the creeping of a tiger at night in a brake; and it behoves us, by all decent and legal means, to guard posterity against the ultimate spring from which nothing less than the doubtful horrors of civil war might be able to protect them.’

“I was desirous of impressing it forcibly on your minds; for, should our numerous fellow-subjects, who will, I trust, revisit their common country, carry back with them an indifference, contracted at this distance from it, to the principles of its public law, some future age (perhaps an age not very distant) may have just occasion to explain: ‘It had been happy for us if a British dominion had never been established in Asia.’ ... There is my gauntlet—it is open to any one to take it up and make it personal against me. I say ‘that the act of power and the act of tyranny is a nullity, the Regulation is no law, and every man in the real is bound to disobey it.’ ...

“If your Lordship be unable, I will not say unwilling, to contribute to this end, then it will now be decided that there is no law in this country. It behoves us in that case to look well to our words, to fear the caprices of the despot of the hour to whom the Ministers of the Crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then your Lordship’s decision be against us, I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed, or colour, except immediate departure, or open rebellion.” In 1950, Independent India enshrined preventive detention in its Constitution (Article 22).

Anstey’s colleague Ingram was even more aggressive: “After the able and exhaustive speech of my learned friend Mr Anstey, I am unwilling to take up the time of the court except very briefly. I shall endeavour to explain the meaning which your Lordship can attach to Regulation III of 1818 and I think I can show, that if it is capable of any meaning at all, the meaning which I shall point out to your Lordship is the only one which is possible....

“My Lord, I shall speak as fearlessly as an English counsel should speak, and if in the conduct of this case my sympathy and indignation are excited, I shall freely give vent to them. I shall not speak of the myrmidons who carried out this arrest; but I shall hold the Governor-General and the Lieutenant-Governor of India responsible for the folly and crime—a crime which was conceived by Sir William Grey, and continued and confirmed by the Governor-General of India. The Advocate General, upon the first day, made the most extraordinary statement which I ever heard in a court of justice. He denied that any municipal court could entertain this application. I attributed that statement to the surprise of an unready man, and thought the expression fell from him in an unguarded moment; but his repetition of that statement wears a very different aspect. It means that the Governor-General of India claims to be above all law. Before he could make a claim of that kind on behalf of any authority, what a change must have taken place in the Advocate General? He must have ceased to be a lawyer, and become a simple official – he must have surrendered his independence, and become an humble servant of the Crown.

The Advocate General: “I protest against these personal remarks for the honour and dignity of this court.”

Mr Justice Norman: “Mr Ingram, you have already used two or three expressions which are not altogether proper, especially with regard to Sir William Grey and Lord Mayo – You must remember the latter is the Viceroy of India, and, as such, is entitled to some degree of respect.”

Ingram: “In deference to your Lordship, I will give up what I claim to be the just right of counsel in asserting the liberty of his client.”

Justice Norman: “God forbid that I should stop the mouth of any counsel. At the same time it is my duty to remind you, that in making any observations, you should avoid, as far as you possibly can, anything like personality. Courtesy to your brethren of the Bar demands it.”

The Advocate General: “It matters not one farthing, as far as I am concerned, what the counsel may say. I merely ask your Lordship to support the dignity of this Court.”

Ingram: “I thought I had drawn a wise distinction between the officer and the man. The opposite side threw down a gage of battle to us, and they know perfectly well that the race which we counsel have to run is a race in which the goal cannot be reached without some little dust. If there are gentlemen so thin-skinned as to dread the slight wounds and scratches received in the combats of the forum, I would advise them to retire, and to leave the arena to men.” ...

Ingram concluded: “I undertake, my Lord, most solemnly to make Ameer Khan’s case and the folly of the Indian government a household word in England. The same eyes which wept over the afflictions of Poerio, who but for the humane efforts of Mr. Gladstone would not have emerged from the gloomy cells of Bomba, will weep over the afflictions of Ameer Khan. The English nation, my Lord, will be called upon to pronounce a verdict on this case. Can there be any doubt what that verdict will be? It will be written in the same letters, and the same burning words that appalled the soul of the Assyrian King: You, William Grey, and Lord Mayo, have oppressed the subjects of Britain, and have violated the English Law. ‘You have been weighed in the balance, and have been found wanting’.”

Anstey followed Ingram and said: “I do not wish to threaten His Excellency, but I do say, that this old man dies in the place of his restraint because of the opposition of the Governor-General and Council to his discharge, under the circumstances now before your Lordship, his blood will be on Lord Mayo in this world and in the next.” Anstey lost. But counsel had pleaded and the judge had heard a case by ones who challenged British rule in India.

In 1918, C.R. Das applied for a writ of habeas corpus on behalf of Narayan Vaidya of the Home Rule League. He was charged with sedition. The case was heard by H.V. Drake-Brockman, Judicial Commissioner, Nagpur, with whom Das clashed repeatedly. When the judge said Vaidya “ought to be ashamed” of himself, Das said: “I hope your honour has not made up your mind, and I submit, if your honour has, your honour ought not to have.”

On one statement by Vaidya, the judge said: “It is a lie, a malignant lie.”

Das retorted: “A malignant lie? Your honour’s observation fills me with trepidation for my client, if upon this you come to the conclusion that it is a malignant lie.

Court: That is my view.

Counsel: If your honour has formed views, your honour should not try this case at all.”

The judge bore no grudge. He ordered that Vaidya be set free. Counsel is perfectly entitled to ask a judge to recuse himself if he openly exhibits bias or partisanship. Fawning is out of place.

A.G. Noorani



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