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India: different laws for different categories of citizens vs one law for all

Tuesday 13 October 2009, by siawi2

Frontline, Volume 26 - Issue 21 :: Oct. 10-23, 2009

ESSAY

Jinnah’s case for a supreme court

by A.G. Noorani

Had Indians united in support of a final court of appeal in 1921, moves for reform of personal laws of Hindus and Muslims would have accelerated.
THE HINDU PHOTO LIBRARY

M.A. Jinnah’s case for the establishment of a Supreme Court in India was opposed not only by British members of the government in the 1920s but also by Motilal Nehru, leader of the Swarajists.

“THEN you find in the Privy Council, for which I have great respect – although I have no hesitation in saying that the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Muhammedan law – with regard to common law the English law, of which they are the masters, undoubtedly they command the greatest respect of every practitioner and of every judge in this country,†Mohammed Ali Jinnah said in the Central Legislative Assembly on February 17, 1925.

He was speaking in support of a resolution moved by one of India’s distinguished jurists, Sir Hari Singh Gour, for the establishment of a Supreme Court in India. He was opposed not only by the British members of the government but also by Motilal Nehru, leader of the Swarajists. The arguments against the motion ranged from the ludicrous to the self-destructive. One of them, incredibly, was that Delhi was too small to house the court though the country’s capital was being moved to the city from Calcutta. Jinnah replied, “Delhi is big enough and long enough. Miles and miles of buildings are cropping up, which are enough to dazzle anybody, and why cannot we locate the court in a small building?â€

He went on to say, “I have great respect for Pandit Motilal Nehru, but I most emphatically differ from him on this subject. He said that as long as we have not got Swaraj, the federal state of government that Sir Hari Singh Gour contemplated, we must wait… We must get power in our hands and then immediately we will consider the question of establishing a Supreme Court.†Jinnah pleaded with Motilal Nehru “to hesitate and think before he goes into the government lobby on this question. Sir, I want the Supreme Court to be established… I ask the Members of this Assembly not to be led away and I also appeal to my Swarajist friends not to go into the government lobby and vote.†As for himself, Jinnah said, “I am always afraid of government when they agree with me.†The resolution was defeated. It had been moved in 1922, as we shall see.

That episode reflects the weaknesses in India’s political culture: the extremist all-or-nothing stance, with a marked disdain for the practical. Had Indians united in support of Gour’s demand and pressed for the establishment of a Supreme Court, the study of constitutional law would have received a fillip, a fine band of constitutional lawyers would have grown and the moves for reform of the personal laws of Hindus and Muslims would have accelerated. The Privy Council, for instance, refused to consult the recognised sources of the Sharia Islamic law and slavishly followed commentaries. Anglo-Muhammedan law, rather than the Sharia, was enforced. Pakistan’s Supreme Court discarded the self-imposed curb, and, relying on the Sharia itself, interpreted the law in a liberal spirit. What was little realised by the lawyers of the day was that where the rights of the citizen were concerned, the Privy Council performed the role of an instrument of colonial control.

In 1931, the Privy Council behaved badly in Bhagat Singh’s case, to the delight of the British rulers in India. Lord Dunedin rejected his petition summarily. Sir Edward Chamier, Legal Adviser to the Secretary of State for India, gleefully reported to New Delhi: “With any other President I think the petition would have been admitted to a regular hearing†(see the writer’s book Indian Political Trials, page 215, for the text of the letter). A Supreme Court in India would have behaved differently.

During the Quit India movement, the Privy Council reversed one ruling of the Federal Court after another that upheld the citizen’s rights. M.C. Setalvad hinted at the influence of “considerations of policy†on the Privy Council’s rulings (War and Civil Liberties, 1946; page 67).

The background to the debate in 1925 is relevant. Even of greater contemporary relevance is the scheme for the highest court – rather, courts – which Jinnah expounded at the Round Table Conference in 1931. The first is fully recorded in Papers on Dr. H. S. Gour’s Resolution in the Legislative Assembly regarding the establishment of an ultimate Court of Appeal in India (Superintendent, Government Central Press, Simla, 1922). It is a collector’s prize. The second is recorded in Indian Round Table Conference (Second Session, 7th September, 1931-1st December, 1931; Proceedings of Federal Structure Committee and Minorities (Volume 11); (Government of India; Central Publication Branch, 1932; pages 765-795). One wonders how many, rather how few, of the Members of the Constituent Assembly who drafted the Constitution were familiar with the treasure trove that lay in the proceedings and reports of these committees of the Round Table Conference. Lawyers of the highest eminence sat on them. One of them, Dr. B.R. Ambedkar, was a solitary link between the deliberations at the Round Table Conference and those in the Assembly, a little over a decade and a half later.

Gour’s persuasive speech

Gour had moved his resolution in the Central Assembly, which met in the Assembly Chamber in the Imperial Secretariat in Delhi – its new home was still under construction – on March 26, 1921. It read thus: “This Assembly recommends to the Governor General in Council to be so pleased as to take early steps to establish a Court of Ultimate Appeal in India for the trial of Civil Appeals now determined by the Privy Council in England and as the court of final appeal against convictions for serious offences occasioning the failure of justice.â€

The mover recalled the structure and history of the Privy Council’s work in Australia, Canada and South Africa. “The Judicial Committee of the Privy Council is not a tribunal or a Court, but merely an advisory body constituted and intended to advise the King in his capacity as the highest tribunal for his Dominions… from the very inception up to the present day the Judicial Committee has remained a court of necessity, a court which merely exists because there is no lawfully constituted court to replace it.†Law Lords who heard appeals in the House of Lords served also in the Privy Council.

The process entailed expense and delays. “We cannot forget that the court is situated some 8,000 miles distant from India, and we cannot also forget that it is a court in which we cannot be directly represented. We are only represented in their Lordships’ court through the Solicitor who works for us in London. But you will remember, some five years back, Lord Haldane, when he was Lord Chancellor of England, contributed an article to a legal journal which was widely circulated and discussed in this country, in which he suggested the establishment of a Privy Council in this country; and more latterly, the present Lord Chancellor, Lord Birkenhead, in his articles to The Times, a summary of which is available to us here, has recommended the strengthening of that court by appointing some Indian jurists and lawyers and also by raising the salary of their Lordships of the Privy Council and by making certain other reforms.â€

It was a very persuasive speech. The Privy Council would continue to exist. It could admit cases only by special leave. “All we desire is that the Supreme Court constituted in this country should lighten the work of the Privy Council… the majority of the judges would come from this country, and it would be possible to import two or three judges from England to strengthen the Bench for the determination of Indian cases.â€

The Law Member of the Viceroy’s Executive Council was Sir Tej Bahadur Sapru. He moved an amendment to the motion for its circulation in order to elicit public opinion, which Gour readily accepted. The motion was passed as amended:

It read thus: “This Assembly recommends to the Governor-General in Council to be so pleased as to take early steps to collect the opinions of the Local Governments, the High Courts, and other legal authorities and to ascertain public opinion generally as to the desirability of establishing a Supreme Court of Appeal in India for the trial of civil appeals and its relation to the Privy Council and as to whether such court of appeal should also have any jurisdiction in regard to criminal cases.â€

India was a unitary state until 1937. The Provinces had “Local Governments†which had powers devolved on them by the Centre, not of their own right. It was, of course, right to elicit public opinion. T.V. Sashagiri Ayyar opined that English judges commanded greater confidence than did Indian judges.

A British supporter

The Supreme Court of India will complete 60 years on January 26, 2010.
The best speech was made by Eardley Norton, who dominated the Calcutta Bar as well as the Madras Bar. He led for the prosecution in Aurobindo Ghose’s case but also led C.R. Das for the defence in Nirmal Kanta Roy’s case. He was a member of the Indian National Congress and a staunch supporter of civil liberties.

Independent India has no interest in such persons whose independence and integrity were vastly superior to most of those who flocked to the Congress standard in later years.

Norton said: “For my part, I welcome it, and I welcome it because I look upon it as a further manifestation of the assertion of that nationalism which it was the object of these reforms to foster and to encourage. There are many objects which have been removed by legislation from our control, upon which an embargo has been placed, such, for instance, as the ecclesiastical, the military and the political departments. They are at present outside our jurisdiction, though I hope that in the years to come, my Honourable colleagues in this House will lay their profane hands as well upon those sacred arks. But, at present, the motion with regard to the Supreme Court deals with a subject over which we have particular jurisdiction, namely, over law and legal tribunals, and I think that it would be idle to assert that if this country is in time to clothe itself with the full powers, privileges and responsibilities of a country entitled to self-government, it would be idle, I say, to assert that it shall not possess the right to have its own Supreme Court or final Court of both civil and criminal appeal established in India.

“That there is plenty of legal intelligence in this country, both Indian and English, of that I am satisfied. More than once the Privy Council have openly complimented the Indian judges in this country, from the time of the late Mr. Justice Mahmood of Allahabad down to recent days upon the possession of the legal and judicial intelligence not inferior to their own. And I have no doubt whatever that if and when this Supreme Court comes into existence, we shall find plenty of indigenous talent, English and Indian, to discharge with intellectual credit the grave and varied functions of an accomplished court of final jurisdiction.

“Some of us, I admit, have at times, felt some little doubt as to whether, if this court is to be manned by a purely Indian element, it could own that complete power of self-detachment and impartiality and inamenability to collateral and outside influences which almost invariably exist at Home. I am one of those, however, who believe that if these qualities do not exist here at present – (a question upon which I do not wish to enter now) … these indispensable virtues will also be acquired in the fullness of time, that Indians in this country will find themselves hardening into the same standard of morality as exists elsewhere and be as immune from accessibility and extraneous considerations and influences as we claim ourselves to be. Of that I have little doubt. They only want time.

“They want a more comprehensive, a more courteous, a more friendly and trustful treatment by Englishmen to make them feel that the absence of moral backbone is not an inherent and lasting disqualification to their fitness for the highest office. If they do not possess this particular class of virtue, there is no reason to suppose that they will not acquire it at a further stage of their political education. I think they will.†No Indian could have spoken more passionately.

The Government of India circulated the resolution to the High Courts, Bar Associations and the “Local Governments†. The most liberal response came from Madras, the worst from Bombay and Lahore. The points on which opinion was sought were “(1) the desirability of establishing a Supreme Court of Appeal in India for the trial of civil appeals; (2) the location of such a court, if established; (3) the qualifications to be required of, and the emoluments to be paid to, the members of such a court, if established; (4) the relation which such a court bear in the Judicial Committee of the Privy Council; (5) the extent to which, if such a court is established, the right of appeal to His Majesty in Council should be barred; (6) whether the court should also have any jurisdiction in regard to criminal cases; and (7) the effect of the establishment of such a court upon the suggestion which has been made to establish an Imperial Court of Appeal which would combine the judicial functions of the House of Lords and the Judicial Committee†.

The Advocate-General of Madras, Sir C.P. Ramaswami Aiyar, wrote an able opinion from Ootacamund, dated July 11, 1921. He was one of the few to spare the time for a carefully considered response. “I am in favour of the establishment of a Supreme Court of Appeal in India. This reform as well as the creation of an independent and homogeneous India Bar seem to me to be the necessary concomitants of the political evolution that is taking place in this country, though their justification is quite irrespective of political considerations. According to my conception of the future political development of India on Federal Lines, I consider that this court would also be increasingly concerned with the limits of the powers of the executive and of the legislature and also the limits of the respective powers of Central and Local Governments.†He thus anticipated a federal structure.

The Privy Council would remain and, like all others, he praised its work. “At the present day, however, a demand has arisen for the inauguration of a Supreme Court in this country for the following reasons: (a) It is felt in many quarters that the Judicial Committee has not been sufficiently responsive to the growth of legal ideals and the advances made by Indian society. (b) The drawbacks of the system of delivering a single judgment and the consequent impossibility of a free discussion of principles by all the members of the court are being commented upon.†Dissenting as well as concurring judgments were not permissible since in form the Privy Council merely tendered its humble “advice†to the Crown. Sir C.P. Ramaswami Aiyar noted that the system “has led and must lead to an imperfect appreciation of many aspects of a case, especially where the personal law of the parties or any matter involving an examination of customs or religious or quasi-religious usages or legal doctrines are concerned.

“Recent decisions of the Judicial Committee in regard to the rights of holders of impartible estates and of junior members in their families and in regard to the law relating to the administration of religious endowments have reinforced arguments and as the above. It cannot be contended that the inclusion of one or two retired Indian judges can have the effect of overcoming these difficulties especially when it is considered that the personal law is often different in different provinces. Considerations such as these as well as the paramount idea that the dominions should be a self-contained unit of legal as well as of political administration, have led to the creation of Supreme Courts in Canada, Australia and South Africa and in my opinion, these arguments apply not with less but with more force to this country.

“As against these arguments, there are two which could with great justice be advanced on the other side. Firstly a detachment from the local atmosphere and local influences which is often of peculiar value; and secondly the frequent presence on the Bench of the most eminent representatives of the English Judiciary. It is, indeed, hardly possible to overestimate the value of the second of these factors. But if the recruitment of the Supreme Court proceeds on the basis of enlisting the best available talent both in India and in England, the problem may be partially solved. On the whole, therefore, my conclusion is that the balance of convenience as well as the highest expediency is in favour of the establishment of such a Supreme Court in India†(emphasis added throughout).

There was near unanimity on the seat of the court – Delhi. Justice Spencer noted that the Dominions “enjoy temperate climates in which Judges may continue to discharge their judicial functions with unimpaired energy and acumen even to a very advanced age, as in England†. Conditions “on the plains†of India were forbidding. They evidently did not affect his judgments in the Madras High Court. His colleague Justice Coutts Trotter was all for the Supreme Court and even for the total elimination of the Privy Council, subject to two conditions, high salaries to attract talent and that “the court sit in the cold weather only†.

Bombay was hostile to the idea. Two High Court judges and the Chief Justice, Sir Norman Macleod, as well as the government opposed it. The Bombay Bar Association, evidently divided, sat uneasily on the fence – supporting the idea “in theory†but withholding opinion having regard to “purely Indian conditions†. Apparently, none of the leaders of the Bombay Bar, then at the height of its glory, cared to spare time to pen an opinion.

Impeccable logic

The Calcutta High Court opposed the proposal. One of the most distinguished members of the government, Sir Abdur Rahim, a former judge, wrote a vigorous dissent: “I regret that I have formed a conclusion on this question different from that of my Hon’ble colleagues and I consider it my duty especially as I have been associated for a considerable time with the administration of justice both at the bar and on the Bench to put my views on record. I am not disposed to minimise the significance of the fact that the majority of those who were consulted including the High Court at Calcutta, the Calcutta Bar and the Vakils’ Association and several prominent Barristers and Pleaders have advised against the establishment of a final Court of Appeal in India. On the other hand considerable importance should be attached to the views of the British Indian Association which represent very important and extensive landed interests and of the Bengal National Chamber of Commerce and the Marwari Association who represent the Indian Commercial Community of the classes who resort from Bengal to the Privy Council for a final decision of their legal disputes. When these important public bodies have emphasised in clear terms the need for establishing a final Court of Appeal in India, it seems to me that it would hardly be correct to say that ‘there is no public demand’ for such a Court.â€

While he praised the Privy Council, “at the same time there can be no doubt that it is an anomaly in face of the great constitutional progress that India has made in recent times that the country should not be self-contained in its judicial arrangements. The Judicial Committee are at a great disadvantage in dealing with important questions of Hindu and Mohammadan law most of which can be satisfactorily solved only by a reference to original Sanskrit and Arabic text books. It is difficult to induce men who have held high judicial office in India and whose pronouncements on the Hindu and Mohammadan laws would command the respect and confidence of the public to accept a seat in the Judicial Committee, nor is it often possible in England to secure the services of Barristers who can be regarded as a specialists in these systems of law.

“Again it should not be forgotten that the general law of India has now been mostly embodied in codes and other enactments of Indian legislature and it is always an advantage to a court charged with the duty of construing legislative enactments if it be familiar with the machinery of legislation of the country, the conditions in which it works and the circumstances which gave rise to a particular enactment.†The logic was impeccable.

D.N. Basu, Secretary, the Bar Library Club, Calcutta, opposed the proposal for a reason that we would do well to heed. In 1958, the Law Commission headed by M.C. Setalvad and comprising judges of the eminence of M.C. Chagla expressed a similar view in the 14th Report. Basu wrote: “We desire to speak with all possible respect, but at the same time we are unable to shut our eyes to the fact that judicial appointments in India seldom depend solely on merit or ability. In some cases there are racial claims peculiar to India which are forced upon the Indian government and which it is felt impolitic to ignore. In other cases there have been instances of appointments for political reasons or more often disqualification for such reasons – a state of things not peculiar to India. We view with apprehension a Court of Final Appeal in India appointed on these principles, and are of the opinion that such a court would not command public confidence. We are not able to suggest any method whereby these principles could be excluded and appointments made on merit and ability only, even if there be a sufficient number of persons available of adequate merit and ability to form a full Court of Appeal which we are disposed to doubt.

“We consider that if there is to be reform, it should be in the direction of strengthening the present tribunal from the point of view of Indian law. In spite of the prestige and past history of the Judicial Committee, we believe that a certain amount of dissatisfaction exists in India with regard to its present working. A comparison of the Reports in Moore’s Indian Appeals with those of the later Indian Appeals indicates that this dissatisfaction is not altogether without warrant. We are aware that any suggestion for the improvement of the present system is not strictly within the scope of this letter.†The doctor could prescribe no cure for the malady he had accurately diagnosed.

Cost and distance

Dr B.R. Ambedkar was the solitary link between the deliberations at the two Round Table Conferences and the Constituent Assembly.
One of the greatest Indian judges, Sir Shah Mohamad Sulaiman of the Allahabad High Court, who excelled in the realms of science and education, besides law, wrote: “I am of opinion that in a vast country like India, with so many High Courts, Chief Courts and Judicial Commissioner’s Courts the establishment of a Supreme Court of Appeal is almost a necessity. Being located in India the judges constituting it are likely to be more familiar with local conditions, customs of the people and local laws of the country. The right of appeal to a final court is a very valuable right indeed. It not only fills the litigants with confidence in the administration of justice and a satisfaction that their claims can be well threshed out, but it is also conducive to placing a check on the occasional arbitrariness of High Courts. The cost of an appeal to the Privy Council is almost prohibitive. The location of the ultimate Court of Appeal in India is sure to reduce the costs considerably and thereby bring it within easier reach. Though the number of appeals is bound to increase substantially, the increase will not necessarily be a calamity. In any case it will tend to bring about a greater uniformity of decisions in the various High Courts. At the present day the length of distance is a serious obstacle and makes the highest court almost inaccessible to litigants. They can never personally instruct their solicitors and have to rest content with sending meagre and imperfect instructions by correspondence. It is impossible for them to watch and see how their cases are actually conducted.â€

The last word must belong to H.L.L. Allison, Secretary to the Government of Bihar and Orissa (the two were split in 1937). The Governor, he said, noted that opinion was divided. He felt that the idea was premature. If the court is set up, its location “should be in a hill station in summer and at Delhi in winter. This might attract some who would not otherwise accept office. Its location at the headquarters of an existing High Court would not appear to be desirable.â€

Small wonder that when the “Papers†reached Delhi, Gour’s resolution was defeated, thanks to no small extent to Motilal Nehru’s short-sightedness.

Jinnah’s fight

Jinnah, however, renewed the fight at the Federal Structure Sub-committee of the Second Round Table Conference in London on October 27, 1931. He favoured giving jurisdiction to the Federal Court only in matters relating to the Constitution and arising out of the Constitution. “The personnel of the court will be qualified in those constitutional matters as constitutional lawyers, because the questions dealt with will arise, as we have contemplated, between the Federation and the Units and between the Units inter se. Further, I maintain, Sir, that it should be open to any subject, if his right is invaded or attacked – relating to the Constitution, of course, or arising out of the Constitution – to go to the Federal Court direct.â€

But, not in respect of “Federal Laws†generally. The Penal Code and the Criminal Procedure Code and the Civil Procedure Code were also Central laws. Else, the court would be “overworked†, as the Supreme Court is today. However, “if there is any measure which infringes any provision of the Constitution – which includes fundamental rights and many other things – if it infringes any provision of the Constitution which affects any subject or any community or any class and if an objection is raised, by at least a majority of two-thirds, that it affects their particular right under the Constitution, that measure ought to be suspended and within one month that party or a member of the party or community should be entitled to file an action.†This is what the Constitution of Sri Lanka provides – reference of the Bill for the court’s ruling before it is enacted as law.

Such a separation of jurisdiction would promote specialisation. “If you separate your Federal Court, and if you will, in making the appointments, select the personnel of that court which will be specially qualified in matters arising out of the Constitution, you will then, I think set up a court which will be the most desirable court. We know, Sir, that this is an age of specialists. In India, we have not yet risen to that height. You will be surprised to hear – and I think my friends here will bear me out – that in India, in the morning, you are arguing complicated question of Hindu law, and in the afternoon, you are dealing with a case of light and air and easements, and perhaps the next day you are dealing with case of a commercial kind, and a third day, perhaps, you are dealing with a divorce action, and a fourth day you are dealing with an admiralty action.â€

We have had judges in the Supreme Court who were not known for familiarity with constitutional law. In one well-known case, the judge only knew criminal law truly well. He deferred to colleagues on other matters, especially on constitutional law.

Jinnah, therefore, proposed the establishment of three courts at the apex – a Federal Court on constitutional matters, a Supreme Court to hear appeals on federal laws with appellate jurisdiction over the High Courts to replace the Privy Council, and a Criminal Court of Appeal.

“Above all, Sir, I cannot understand why India should not aspire to its own Supreme Court. Why should India be the only exception that is permanently tied down to the Privy Council here? Other Dominions have got it. There can, therefore, be no question as to the necessity and as to the justice of this; and accordingly I say that we should have a Supreme Court.â€

The Basic Law of Germany (1949) establishes the Federal Constitutional Court as well as the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal Social Court. They do not impair the dignity of the Constitutional Court one bit.

Jinnah was strongly against the appointment of additional judges. “I remember, in my High Court, recently knocking against about half a dozen judges, who had been on the Bench, roaming about in the corridors of the High Court with briefs in their hands.â€

Sir Tej Bahadur Sapru: “Or possibly without briefs!â€

Jinnah: “It is demoralising to the Bench, it is demoralising to the profession. I think it is an undesirable practice. Once you appoint a judge, let him remain there. It may be passed on the ground of economy, but I think in the long run it does more harm. It may save a little money, but I think it can be better managed with a little manipulation. We have in India judges going on leave very often.â€

On January 26, 2010, the Supreme Court will have completed 60 years of service to the nation. It does not present a very inspiring picture in some vital respects.

The time has surely come for a calm, comprehensive review with a view to improving the institution – a truly independent audit