Abstract
Abhinav Chandrachud’s monograph is no simple chronicle of the Bombay High Court. He is intrigued by the seamless transition this Court made from colonial India to independent India, and charts a history that might explain this phenomenon.
The incident of continuity is not unique to the Bombay High Court. In practically every respect, the structure of governance in India after 1947 remained what the British had crafted over their long rule. The laws, the bureaucracy, the police and India’s Constitution itself, all retain mechanisms from the colonial era. Does this suggest a progressive democratisation on the part of the British administration, or a reluctance on the part of free India’s rulers to alter the ethos? That is a question with no easy answer.
Yet, Chandrachud’s frame of reference leads him to special indices that mark the ease of transition in an institution of justice. These unique indices in case of the Bombay High Court are mapped through a variety of tools, such as class, education, recruiting process and the manner in which the cases are decided.
Law, justice and politics have always shared a negotiated space. The book looks at the terms on which the Bombay High Court negotiated the space, and how these terms changed between the nineteenth and the twentieth centuries. This High Court, Chandrachud seems to say, evolved a mode and manner to fashion a relatively smooth passage through independence, while political battles, the wars and violence raged all round in the real world. Was the world of the Bombay High Court unreal? Unlikely, but according to the book, it acquired a weltanschauung and came on its own in three ways.
First, although its judges lacked a security of tenure, now regarded as basic to a free judiciary—the Bombay High Court decided cases quite independently of the executive. Here, I will quote Chandrachud’s perspicacious remark that ‘it is not merely structure, but culture, which makes a judge independent’.
Second, the High Court had been Indianised long before independence. The majority of the lawyers practising in this court, a huge majority of the litigants and seven out of the eleven judges who served in it on the eve of independence were Indians. Independent India enabled foreign-born judges to continue on the bench even after the constitution came into force, thus fostering tradition.
Third, although the system was devised to make it exceedingly difficult for Indians to reach the higher echelons of the bar and the bench, race was often irrelevant to how the Bombay High Court functioned. Besides, there was no simplistic correspondence between an Indian judge and the Indian cause. Narayan Chandavarkar and Dinsha Davar decided political cases against the Indians, while some British judges were notoriously ‘pro native’.
The book’s six chapters are geared to illustrate the aforesaid three points.
The first chapter ‘Background’ outlines the court structure that evolved over time. Two streams of courts, which existed during the rule of the East India Company, were later combined into a common hierarchy. By the Charter issued by Queen Victoria under the Indian High Courts Act 1861, there came into existence the High Court of Judicature at Bombay, with its original and appellate sides. In a descending order of importance, the legal profession was divided into advocates, attorneys and pleaders. The qualifications prescribed made it difficult for an Indian to become an advocate, and yet by 1885, there were fifty-eight advocates and sixty-one attorneys in Bombay of whom over a third were Indians. With barristers and the civil service filling two-thirds of the judiciary, in the nineteenth century, it was difficult for the Indians to make it to the Bombay bench. The quota system was abolished in 1935. The impedimenta for legal education, practice and judicial appointments sat heavier on Indians.
The second chapter ‘The Rise of the Indian Judge’ would be of particular interest to a sociologist. Janardhan Wassoodew of the ‘Prabhu caste’ was an acting judge for a few months in 1864 and 1865. British lawyers refused to address him as ‘Lordship’ and one can imagine how hard it must all have been for him. Two decades later, Nanabhai Haridas became the first permanent Indian judge. Shortly before this, Romesh Chandra Mitter had been appointed the Chief Justice of Calcutta, causing much resentment among Britons. The Ilbert Bill of 1883 broke with the past by providing that Europeans may be tried by the Indian judges. Chandrachud mentions how the Bombay High Court gave an opinion in favour of this move though Calcutta (with the exception of R.C. Mitter) opposed it. Calcutta had a larger community of British planters and traders, which according to him explains the difference in the reaction.
Replete with quotations, allusions, and biographies of the early Indian judges Ranade, Haridas, Telang and Tyabji of the Bombay High Court, this chapter contains a wealth of detail.
Politically, the twentieth century saw an attempt to co-opt the Indian ‘public spirited lawyer’ and to dissuade the Western-educated Indian from turning nationalist.
The book notes that an increasing number of Indians had turned litigants. Between 1865 and 1947, only 3.5 per cent of the court’s cases had any British or European parties. Hindus made up 68 per cent, Muslims 12 per cent and Parsis 7 per cent of the decided cases. Chandrachud sees this as a popular endorsement of the legitimacy of the Court. How much was legitimacy and how much compulsion is another matter. It may well be that lives of the people were getting to be in thrall to the legal process from other causes, but the book does not examine this angle. However, newspaper comments on judicial appointments certainly suggest public interest in the process. They also show the force of the ‘native’ press, even in the early years of Crown rule after the uprising of 1857. At a time when the sedition laws were being honed for use, the tone and sharpness of some of these comments are startling.
Here is the English editor of the bilingual Indu Prakash commenting on the then Secretary of State, Lord George Hamilton, for using his office to make his friends happy.
His India is confined to the India Office, to his friends and admirers in England. If he can get nice posts for them or for their sons and relatives he thinks that he has done his duty by his Queen and country-and especially by the great dependency which he no doubt honestly considers as a vast field for exercising his patronage.
Reacting to the appointment of Kashinath Telang as a permanent Judge of the Bombay High Court in 1889, the Indu Prakash noted: ‘the absolute unanimity with which his appointment has been hailed by all communities fully justifies the wisdom of choice made by Government’.
The nationalist press seems to have keenly followed the Court.
The third chapter ‘Race, Class and the Bombay High Court’ would again be of special interest to the sociologist. The first permanent Indian Judge of the Bombay High Court, Nanabhai Haridas, was denied entry into a first-class carriage of a train because a British official and his wife did not want the ‘natives’ to enter their carriage. The same thing happened to Ranade when he was travelling on a train from Madras and a European Indian Civil Service (ICS) officer threw his bedding down on the floor and occupied his berth. On a voyage to England, Badruddin Tyabji was seated at a table on a ship, when a European exclaimed that he disapproved of an Indian seated at the same table, Tyabji is said to have retorted, ‘Sir, however distasteful my presence may be to you, your presence is still more distasteful to me’.
The undercurrents of racial snobbery (both ways) notwithstanding, a brotherhood was being forged, class and ‘breeding’ rather than race was the new bonding. Shared alumni reminiscences and elite privileges became the newer commonalities that replaced the segregations of the past. The brethren, as it were, became a class by themselves. To quote from the book, ‘though race defined the colonial experience, it only went so far in defining justice, during the colonial era’. Race also had little to do with how High Courts treated the lower courts, it says.
The fourth and fifth chapters are of greater interest to lawyers. The style of writing judgments and the nature of causes brought to court are a great mirror of the times. In ‘The Judicial Culture of the Court’, Abhinav Chandrachud wisely looks at the general run of cases, not merely the important or the sensational ones. Precedents were now set by the courts themselves, as less and less reliance was placed on ‘learned treatises’ even in matters of personal law. Tannika Sarkar and other historians have elsewhere written of this. On the appellate side, treatises by West and Buhler on Hindu Law used to be relied upon and on the original side, Halsbury’s Laws of England. As decades rolled on, the High Courts in India started relying on each other’s judgments or at least quoting them, even while differing. In sum, a codification of a new kind was occurring, that is even today influencing our jurisprudence. This was an era when many statutes were written for India. Chandrachud does mention an increasing reliance on Indian statutes. He would have done well to discuss how these legislations were seen in their early years by the High Court, not so much as a legal exercise, but as an insight into how the new colonial codes were applied by the judges to Indian life.
‘The Structural Peculiarities of a Colonial Judiciary’ is full of riveting anecdotes, as it describes how the executive controlled judges—with uncertainty of tenure, by superseding or removing the odd judge and with an infusion of Civil Service officers. The appointment of the Chief Justice was a matter of patronage. Yet, Chandrachud finds that in a full 50 per cent of the criminal cases brought before the court the accused were acquitted. That is no mean matter. Political trials were a different class that saw ‘special juries’ with Europeans constituting the majority and which were often predisposed to convict the accused.
There is an interesting discussion on the jury system. Abhinav does not mention this, but the system was abolished in Bombay only in 1960, after an 8-1 jury, swayed by his chivalrous charm and sterling military record, acquitted a naval Commander K.M. Nanavati, despite overwhelming legal evidence of murder. The High Court overturned the acquittal of Nanavati, Abhinav’s grandfather Y.V. Chandrachud, later Chief Justice of India, was the Public Pleader in the Nanavati case. I mention this as a quaint point of interest.
The sixth chapter ‘Independence of the Judiciary’ is in my view the richest chapter in the book. In the entire book, this is perhaps the chapter that deals most with complexity and confronts the political overtones of justice.
Judicial decisions, by and large, showed independence. One notes an interesting practice of those times. Aside from his judicial work, the Chief Justice seems to have often used his moral authority to ‘write’ to the government on matters of policy.
Leniency towards Europeans is hard to establish, says the book, for at no time were the Europeans more than 1 per cent of the number put on trial. While the low numbers may show a bias in the police system, it is insufficient data to infer judicial bias.
Tilak was denied bail by Ranade, a judge belonging to the same caste as himself, but granted bail by Badruddin Tyabji. In a later case of 1908, the jury convicting Tilak of sedition was packed with seven Europeans and two Parsis. The presiding Indian judge Dinsha Davar imposed upon Tilak a savage 6 years of transportation to Burma. In contrast to Broomfield’s dignified treatment of Gandhi years later, Davar went so far as to call Tilak ‘perverted” in his sentencing order.
Politics turned when Morley as Secretary of State rejected Viceroy Minto’s recommendation that Davar be appointed to the Viceroy’s Executive Council. Morley felt that Davar would be unpopular with the Indians because of his treatment of Tilak. By 1920, Gandhi in prison was worse that Gandhi free. So he was reprimanded rather than sent to prison. Chief Justice Mc Leon once made a nice point of distinction, to let off two lawyers who had signed the Satyagraha pledge. On the other hand, cases of police excesses were carefully referred only to British judges, who acquitted British sergeants accused of using violence against nationalist protesters.
Around the time of the Quit India movement, habeas corpus pleas were granted and wartime restrictions on liberty condemned even by the judges of British origin. Chandrachud quotes from the last of the British Chief Justices of the Bombay High Court, Leonard Stone (1943–47) who, in 1945, wrote a long memorial to the Secretary of State against measures that curbed individual liberty during World War II (WWII). He wrote that these wartime measures ‘provided for the detention of persons without trial, for the arrest of persons by the police without warrant, and for the censorship of habeas corpus petitions’. Stone advised the Secretary of State that it was a ‘sincere belief’ among ‘many responsible and respectable people in India’ that ‘grave abuses’ had taken place, and that the public faith in ‘justice had been impaired’. He concluded by saying that unless the situation was attended to, the ‘legislative-executive will continue to usurp judicial functions until justice is bankrupt’.
Through a fascinating mosaic of cases, Abhinav Chandrachud argues that although they were not above self-interest and sectarian loyalty, judges still ruled against the government. Why they did so, is not something to be pronounced upon, and is food for thought that the book provides through these instances.
What Chandrachud tends to ignore, is the larger ideological debate going on in the world at the time. The colonial engagement in India, as many have noted, affected both the ruler and the subject. Gandhi was a game changer in politics and in ideology, as even the politics in Britain came alive with the Indian question. These ideological exchanges would have been integral to understanding the seamless continuity, which is the object of the book. To consider the Bombay High Court an island in this scene of turbulence, offers an incomplete perspective.
Again, how much of all this was uniquely Bombay? Bombay was different in at least in one respect. It was emerging as the country’s foremost commercial centre. Communal denominations, such as the Bohras, Gujaratis and others, were acquiring business identities in ways unknown to other parts of India. How did this affect the High Court? More comparative references with the Madras and the Calcutta High Court would have enhanced this well-researched book.
In the book the term ‘decolonisation’ is used for the change of the judicial personnel from British to Indian. The reader would also be curious about any ideological shift, unless it is the case that there was none. Considering Jinnah’s stature in the Bombay bar, the reader is avid for some reference to the effect of Partition. The final chapter of the book, its ‘Conclusion’ attempts a generalisation, but could have been sharper. Though Hindu dissension on matters of social justice and women’s rights finds a quick mention (Ranade’s decision in the Rukhmabai that so irked Tilak), perhaps Abhinav Chandrachud’s next book will deal more with the effect of the fraught forties on this historic court.
The bibliography and the author’s visit to seventy or more libraries is impressive. A bit of humour would not have come amiss, in this extremely cogent, neatly woven and detail-rich account of the Bombay High Court.
Abhinav Chandrachud refers to Gillian Buckee’s 1972 thesis paper ‘An Examination of the Development and Structure of the Legal Profession at Allahabad 1866–1935’. Although her focus is the Allahabad High Court, she has looked at the coloniser’s general reasons for setting up a higher judiciary for India. The Montagu Chemsford Reforms of 1917 had the declared object of raising the standard of Indian lawyers, as a move towards self-government. In other words, politicisation was inherent in legal education itself.
So many important leaders of India’s freedom movement were lawyers—Jinnah, the Nehru father and son, Patel and Gandhi himself. Chandrachud does mention that Chief Justice Beaumont was furious when Motilal Setalvad quit as Advocate General to join the Quit India movement. Whether there was a more organic connection between the practice of law and nationalist consciousness, or at least whether political discourse led to liberal values in the judiciary is a point that will intrigue the reader.
Having mentioned liberal values, I shall end with a lovely quote included in the book, from C.J. Beaumont written in 1940 to the Prime Minister of Bombay B.G. Kher on prohibition. It speaks to so many concerns, present and past:
I have seen so much, during my life, of the evils of drink that I am whole-heartedly in favour of curtailing its consumption. But I am also a great believer in the virtues of liberty. To my mind, the proper way to tackle the drink question is to reduce the opportunities of obtaining alcohol and to provide counter attractions. If the Toddy booth and the Public House are to be abolished, it is necessary to provide something more attractive for the working man in his leisure time. You can’t make people moral by an Act of Parliament and if you can, it is a morality not worth having. To induce people not to elect to drink is surely so much better and more worthwhile than crudely using the power of the Government to force them to refrain from doing what they want to do. I am really telling you that non-violent methods are better than violent! Violence is none the less violence because sanctioned by law’.