Saturday, October 8, 2011

Rule of Law

This is an unprecedented time in Indian history when a large number of important national issues from reservation controversy to major corruption scandals, from environmental pollution to Ram Janambhoomi – are being increasingly settled in court rooms across the country. Recently when debating on the Lokpal issue in the Rajya Sabha, leader of the opposition Arun Jaitley sarcastically commented that too many lawyers were advising the Prime Minister, the irony of the situation was not lost on any one.  Not only Jaitley himself is an eminent lawyer, there was a preponderance of lawyers on all three sides – government (Chidambaram, Sibal, Salman Khurshid, Pawan Bansal), Opposition (Jaitley, Sushma Swaraj, Ravishankar Prasad) and the Jan Lokpal team (Shanti Bhushan, his son Prashant, Santosh Hedge).
Calcutta High Court: the building was modelled after the Town Hall in Ypres, Belgium
In many ways, founding of High Courts in 1861 along with the coming into effect of Macaulay’s famous codes (though drafted in the 1830s, the codes fully came into effect in the 1860s) heralded a new era of justice and fair play for ordinary Indians. With the passage of time higher judicial system has been extended and strengthened by various means, most importantly by the founding of the Supreme Court in 1935. As the High Courts of Calcutta, Bombay and Madras celebrate their 150th anniversary this year, it is perhaps time to look at the interplay of Courts, men of law and politics in early modern India.

Though there were British courts in all three presidencies from at least late 18th century, the present system of High Courts came with the 1861 Act. It was part of an overall effort by the British government to reorganize Indian administration as they took over from the East India Company as a consequence of 1857.Though announced in 1861, three High Courts actually started functioning from 1862. Since then ordinary citizens of this country have consistently shown an unshakable faith in our judicial system.

Justice Ranade

Modern, organizational politics in India emerged largely out of the corridors of law courts. Around 35% members of two main pre-Congress organizations in Calcutta – Indian Association and Indian League - were lawyers. Same was true for Bombay, where three prominent lawyers Pherozeshah Mehta, K T Telang and Badruddin Tyabji founded the Bombay Presidency Association. The other prominent figure was of course Justice Mahadev Govind Ranade, who founded the Puna Sarvajanik Sabha. Even as the Indian National Congress replaced these early organizations, the situation did not change much in terms of leadership profile. Not only was the first President of Congress a barrister – W C Bonnerjee, but more than 1/3 participants in Congress annual sessions in initial years were lawyers. In fact the situation reached such a stage that in many district towns there was hardly any difference between the bar association and the district congress committee!
Sir Phirozeshah Mehta
Founding fathers were to be followed by generations of legal luminaries, who dedicated themselves to the national cause. Both Motilal Nehru and Chittaranjan Das - two of India’s top lawyers quit their profession in 1921 following Gandhiji’s call for non-cooperation. Both the first President and Prime Minister of India were lawyers and so were Pakistan’s first Governor General (Md Ali Jinnah) and Prime Minister (Liaquat Ali Khan). A large number of distinguished members of the Constituent Assembly were lawyers, whose best legacy is perhaps our glorious Constitution. A special mention must be made of two non-Congressmen Nehru graciously invited to join the first cabinet – Ambedkar and Shyama Prasad Mukherjee – though from different ends of the political spectrum – both were lawyers. And of course the father of the nation – Mahatma Gandhi, who was trained as a barrister in Inner Temple and called to the bar on 1891. After two failed attempts to establish himself as a lawyer in Bombay and Rajkot, he left for South Africa in 1893 to work as a lawyer and the rest is history.
On the face of it Jaitley’s criticism is unfair - not only today but in the last 150 years, lawyers have always dominated Indian politics. But the real sense of his criticism is true – a political problem needs a political and not legal remedy. Unlike today, lawyer-politicians of pre-independence period did not believe in deciding public issues in a court of law.
The very first modern political movement originated from the debate surrounding power of Judges. In 1883, Law Member of Vice-regal Council C P Ilbert proposed that in districts Indian Judges may be given the power to try British citizens – this prompted an outcry from English newspapers and pressure groups. In reply Indians took to the street and organized public meetings in support of this Bill. Though the government ultimately was forced to compromise but the Ilbert Bill agitation was the first lesson in modern political mobilization for Indians.  
Location of High Courts could act as a magnate for attracting talent and give a boost to urban growth – best example of this were Patna and Allahabad in North India. Some of the greatest social reformers and educators of that period were also associated with the Judicial system – in North India, - again from two different ends of the spectrum - came Sir Saiyyid Ahmed and Pandit Malviya. Similarly in Maharastra the most remarkable reformer was Justice Ranade, who also founded Prarthana Samaj.
Sir Ashutosh known as Bengal Tiger. As the first Indian VC, he transformed Calcutta University into a research institution, recruited C V Raman and S Radhakrishnan among others. Also the first President of Indian Science Congress 
A number of judges and lawyers were associated with social reform and Brahmo Samaj in Calcutta, including the very first Indian High Court Judge, Sambhu Nath Pandit (appointed in 1863). Most of the early Judges were prolific founders of educational institutions but the lawyer most revered as an educator was the first Indian Vice-Chancellor of Calcutta University, Sir Ashutosh Mukherjee(father of Shyama Prasad). 
Sir Muthuswamy Iyer
We have seen how early Courts have touched our lives in many spheres other than law. Let us conclude with an anecdote regarding High Court and growth of media – the appointment of Sir Muthuswamy Iyer as the first Indian Judge of Madras High Court in 1877 created a furore. In the face of vicious attack from the British-owned press Indian leaders realized they needed a voice of their own and thus the famous nationalist newspaper, The Hindu was born!

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