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Wednesday, July 18, 2018

The Law Must Take Its Course

A competent history of the judiciary in Bombay under British rule.

Written by Rajeev Dhavan | Published: July 7, 2015 5:53:23 pm

Book: An Independent Colonial Judiciary: A History Of The Bombay High Court During The British Raj 1862-1947
Author: Abhinav Chandrachud
Publication: Oxford University Press
Pages: 364
Price: Rs 895

Abhinav Chandrachud is a scholar of brilliant achievements and this is a wonderful book. Having created high courts from 1862, the British were careful about their jurisdiction and the judges they appointed. Although the high courts of Calcutta, Bombay and Madras had the writ jurisdiction, its outreach was eventually limited to the Presidency towns. This meant that, apart from habeas corpus, the colonial judiciary was deprived of the power to challenge the administrative acts of the Raj. There was no question of challenging legislative powers. These powers came only in 1950.

Amidst some lack of data, the sample shows a dominance of civil service judges amongst British (61.1 per cent) and Indian judges (20.7 per cent). Some 45 per cent of Indian judges were homegrown advocates or pleaders. Not all British judges were “high academic achievers (and) …unlike the Indians very few British judges pursued a graduate level education.” In time, the racist exclusion policy of appointing Indians was relaxed slowly first in Calcutta, then Madras, then Bombay. In 1891, a protest was made even over an Indian not being made first judge of the small causes court. It seems Bombay pursued a cooptation policy to appoint social and politically involved judges — Kashinath Trimbak Telang, Mahadev Govind Ranade, Badruddin Tyabji and NG Chandavarkar who was a “staunch British loyalist”. It has been rightly pointed out that before 1935, security of tenure was precarious — more so for Indians.

The law that was followed was increasingly codified as the Anglo-Indian codes — a post Benthamite experiment. The uncodified law as administered under the aegis of the Roman Law clausala: of justice, equity and good conscience, which was seen as importing English law into the Indian, although this is contested by articles in Bombay law journals themselves.

Curiously, the docket of the court did not increase over the first few decades despite demographic increases in the population. However, nationally, the Rankin Committee (1924) spoke of the huge problems of arrears that beset colonial judiciary. Indeed, Chandrachud himself quotes Governor Clarke as saying: “The masses of India are abnormally litigious”. Perhaps, further exploration was needed. There were, of course, controversial cases — Bal Gangadhar Tilak’s trial and Rukhmabai’s case and many others.

What needs to be tested is whether the Bombay judiciary was independent? In this review, I have referred to appointments, jurisdictional constraints, the litigational turnover and the controversial case syndrome. Perhaps, one way to test the independence of the judiciary would be to see the juristic performance of the judiciary in matters of personal law, land, revenue, crime and so on. This, the book does not do, thus obviating the most obvious test of decisional performance. But what cannot be lost sight of is that the judiciary was part, and not independent of the governance structure of the Raj. Its powers were clipped and imperial prejudices ran their course. Look at Jenkins, Chief Justice of Calcutta, saying: Indian subordinate judges would not be promoted unless they convicted Indians in political cases.

I take the view that even the high court judiciary was a special bureaucracy of the Raj. It declared its uniqueness with pomp, ceremony, costume attire and superiority, thereby elevating itself as something just and grand. But Washbook is surely right when he says that British justice was ‘Janus-faced’ – looking to and controlled by its masters and facing the populace as a divine goddess dispensing superior justice without fear or favour. We miss the link if we agree with Chandrachud that judges decided “not out of fear of reprisal but out of strategic self-interest or ideological bias.” Can we say that the Raj bias was missing? The judges were a part of the Raj, selected to do the Raj’s job and enforce the new mythical “rule of law” as its special gift. Within the “brooding omnipresence” of the Raj and its purposes, autonomy could hardly be denied to judges as indeed to any other bureaucracy of the Raj. But more research was needed to support the case for an independent judiciary. The book is marvelous — exemplary in its research and style, assertive in its views and Chandrachud is, most eminently, a gift to scholarship.

Rajeev Dhavan is a senior lawyer, Supreme Court of India

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