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Of Judicial Courage in Testing Times

With respect to the independence of the judiciary, there is a tendency to conflate the independence of the institution with that of the individual in the institution. An independent judiciary requires not only systems and norms designed to prevent interference but also individuals prepared to uphold such independence at great cost. One such individual was Justice Syed Mahmood who served in the Allahabad High Court during British Rule.

When speaking of judicial courage, members of the legal fraternity generally point to Justice H R Khanna, the former judge of the Supreme Court of India who penned a brave dissent in the ADM Jabalpur case—a dissent that cost him his chance of becoming the Chief Justice of India (Diwan 2008; Narrain 2022). The New York Times (1976), at that time, famously said,

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court.

Years after the Emergency was lifted and India found its way to a measure of freedom and democracy, we still await that monument to Justice Khanna. (I am discounting the rather terrible portrait of his that hangs in courtroom 1 of the Supreme Court of India.)

Justice Khanna is particularly appreciated for sticking to his stand on rights and the rule of law even though it went against the government of the day which had just imposed an Emergency, suspending fundamental rights. He seems to have been aware even prior to his dissenting opinion becoming public that he was going to pay a price for it (Khanna 1985). Nonetheless, he took the position that he did in the context of the ADM Jabalpur case (ADM Jabalpur v Shivakant Shukla 1976).

Judicial courage is at the heart of what constitutes judicial independence. It is a willingness to stick to principles and act in the interests of the institution, the Constitution, and the public even when it might result in adverse consequences. While institutions and systems in the Constitution can, to some extent, prevent institutional interference in the work of a judge, they will be rendered irrelevant if judges themselves do not show a modicum of personal independence and courage in taking the positions that they should take.

The recent weeks have seen an unusual but welcome assertion of judicial independence and display of judicial courage. Justice H P Sandesh of the Karnataka High Court made a startling observation in open court that he had been indirectly threatened with transfer for having taken on the Additional Director General of Police (ADGP) in charge of the Anti-Corruption Bureau (ACB) in Karnataka. Justice Sandesh had made harsh observations about the conduct and investigations of the ACB in several corruption cases that had come before him. What was perhaps most startling about his revelation was the fact that the indirect threat of transfer came from a fellow sitting judge of the Karnataka High Court (Ambarish 2022).

Justice Sandesh was not content with just stating this in open court. He even recorded it, in an order, as well spelling out exactly the circumstances and nature of the “threat” he received (Sarda 2022). As on date, the ADGP and the Indian Administrative Service (IAS) officer indi­cted, both have approached the Supreme Court through a special leave petition and the directions seeking their service records, B Summary Reports have been stayed (Rajagopal 2022).

Justice Sandesh’s experience also highlights that the pressure can come from within the institution to conform. It is not just the political executive that wants the judiciary to conform but there may be an eager willingness within the judiciary to do so and ensure conformity with the executive’s desires. Even as judges look to favour the union government to get favourable post-retirement positions and the collegium watches silently as the centre discards established law and procedure in the appointment process (Kumar 2022), it is refreshing to see at least one judge refusing to go with the tide.

Showing judicial courage by going against the tide is one of the themes of a recent book authored by Mohammad Nasir and Samreen Ahmed about the first great dissenter of the Indian judiciary—Justice Syed Mahmood (Nasir and Ahmed 2022).

India’s First Dissenting Judge

While he’s been nearly forgotten outside of the Allahabad High Court, Justice Mahmood was a remarkable individual, not just because of the times he lived in but because of his achievements. He was the first native Indian judge on the bench of the Allahabad High Court during British rule. Along with his father, Syed Ahmed Khan, he co-founded the institution that is now known as the Aligarh Muslim University (AMU). He was one of the rare Indians in those times to have obtained a foreign degree from Cambridge University and called to the Bar from Lincoln’s Inn (Nasir and Ahmed 2022).

In the book, the authors cover both his contribution to the development of what is now the AMU and his six years as a judge of the Allahabad High Court. His contribution to the setting up and nurturing of AMU in its early days is a must-read for anyone thinking about the state of education in India today. His judgments, even the dissenting ones, continue to be cited with favour by the Supreme Court as recently as 2020 (Raghunath v Radha Mohan). However, for the purposes of this column, I will focus only on his dissents and the cause of his eventual resignation from the high court, only six years into his term.

While Justice Mahmood’s dissents cover several areas of law, one of the most important here is perhaps Queen Empress v Pohpi and Others ([1891] ILR 13 Allahabad 171) given its implications on criminal justice. In this case, Justice Mahmood, in a powerful dissent, read into the then Code of Criminal Procedure, the right to be heard by an advocate in a criminal appeal before the high court. While the majority of the bench held that when an accused or their lawyer did not appear in court for appeal hearing, the court was justified in proceeding with the matter without them. Justice Mahmood relied on the basic principles of natural justice to hold that a provision could not be interpreted as to deny a prisoner their right of being heard in appeal. His position is now the law, as it stands, showing the far-sightedness of his thinking.

Perhaps unsurprisingly, his dissents did not go down well with the establishment, not least of all, the Chief Justice of Allahabad, John Edge. He was on the bench when Mahmood dissented in the Queen Express case and after his dissent stopped assigning criminal cases to him (Nasir and Ahmed 2022: 114). The Chief Justice’s unhappiness with Justice Mahmood ranged from his personal habits (alcoholism and smoking) all the way to interfering unnecessarily in the admini­stration of the high court (Nasir and Ahmed 2022: 87–88). Justice Mahmood did not back down. He alleged that Edge’s attitude to running the court was monarchical and did not treat fellow judges with the respect they deserved (Nasir and Ahmed 2022: 89–92). In responding to the allegations relating to personal habits and laziness, Justice Mahmood responded with a chart outlining the number of hours of work that he had put in as a high court judge and how he was better than others with a comparable term on the bench.

Needless to say, this did not soothe any tempers, and though he planned to litigate against Chief Justice Edge’s accusations against him, Justice Mahmood preferred to resign. This, he believed, was the only way to assert his dignity and independence in the face of what he perceived as tyranny within the judiciary. In his resignation letter, he states that he would rather not continue being a judge in a set-up where one’s career depends on the “frowns and smiles” of the Chief Justice (Nasir and Ahmed 2022: 100).

Conclusions

Nasir and Ahmed’s book on Justice Mahmood draws a neat line between his dissents and his eventual falling out with Chief Justice Edge. While the questions that arose before the Allahabad High Court in those days were not the kinds of constitutional and political questions that arise today, they were nonetheless important questions of civil liberties. While the Constitution undoubtedly expanded upon the civil liberties that Indians enjoy, even the earliest versions of the Code of Criminal Procedure guaranteed certain civil liberties to Indians and remedy against their violation. Justice Mahmood, in his own way, and wherever possible, expanded the scope of such civil liberties and his dissents have, in fact, become law through subsequent amendments to the Code of Criminal Procedure.

Even as discussions about the independence of the judiciary continue, it is helpful to remember that as much as systems are designed to prevent structural interference in the working of the judiciary, they will fail if a judge lacks the independence of spirit and personal attributes necessary to function in an independent manner. The examples of Justice Mahmood, Justice Khanna and, now, Justice Sandesh show that even as systems fail and conformism prevails, a streak of independence and integrity has run through the judiciary in India no matter what the surrounding circumstances are.

References

Ambarish, B (2022): “Karnataka HC Judge Receives ‘Transfer Threat’ for Remark against ACB Official,” Deccan Herald, 4 July, viewed on 20 July 2022, https://www.deccanherald.com/state/top-karnataka-stories/karnataka-hc-judge-receives-transfer-threat-for-remark-against-acb-official-1123779.html.

Diwan, Anil (2008): “A Profile in Judicial Courage,” Hindu, 7 March, viewed on 20 July 2022, https://indialawyers.wordpress.com/2010/02/01/a-profile-in-judicial-courage/.

Khanna, Hans Raj (1985): Neither Roses Nor Thorns, Lucknow: Eastern Book Company.

Kumar, Alok Prasanna (2022): “Appointing High Court Judges–II,” Economic & Political Weekly, Vol 57, No 8, pp 10–12.

Narrain, Arvind (2022): “The Contemporary Relevance of Internal Emergency 1975–77,” Leaflet, 25 June, viewed on 20 July 2022, https://theleaflet.in/the-contemporary-relevance-of-internal-emergency-1975-77/.

Nasir, M and Ahmed S (2022): Syed Mahmood: Colonial India’s Dissenting Judge, New Delhi: Bloomsbury India.

New York Times (1976): “Fading Hope in India,” 30 April, viewed on 12 July 2022, https://www.nytimes.com/1976/04/30/archives/fading-hope-in-india.html?.

Rajagopal, Krishnadas (2022): “Supreme Court Stays orders by Karnataka HC against ACB in Bail Plea Hearing, Calls Them ‘Unconnected,’ ‘Irrelevant’,” Hindu, 18 July, viewed on 20 July 2022, https://www.thehindu.com/news/national/sc-stays-orders-passed-by-karnataka-hc-judge-against-acb-in-bail-plea-hearing-calls-it-unconnected-irrelevant/article65653632.ece.

Sarda, Kanu (2022): “Karnataka Judge Records Transfer Threats over Remarks against ACB in Official Order,” India Today, 13 July, viewed on 20 July 2022, https://www.indiatoday.in/law/story/karnataka-judge-records-transfer-threats-over-remarks-against-acb-in-official-order-1974905-2022-07-13.

Cases CITED

ADM Jabalpur v Shivakant Shukla (1976): 2 SCC 521.

Queen Empress v Pohpi and Others (1891): ILR 13 Allahabad 171.

Raghunath v Radha Mohan (2020): SCC Online SC 828.

 

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Updated On : 23rd Jul, 2022
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