As the Bombay High Court enters the 150th year of its existence, it is time to look ahead and not only at the past
It is a remarkable milestone when any single institution anywhere can claim to have functioned for a full 150 years without interruption. When that institution is a court of law, it affords all of us — not just the lawyers and judges — a very special opportunity.
There are many things about courts and the legal system that are easy to deride and mock. It is much more difficult to gauge how much worse our lives and existence might have been without them. Of all professions, law is unique in at least one way: it only operates in a collective and collaborative manner out of a defined set of “living” buildings that are open to the public. This is not always apparent, and one consequence is that we take courts for granted: they are immutable and ageless and we pay them too little attention. This is a mistake, for a law court (and this includes collectorate offices which often function as, or are close to, formal courts) is often the hub of every city and town. A planned city may or may not include a temple, mosque or church; every town plan provides for a court. This has been true throughout history. Courts have always been the stabilizing forces of all human societies, and there is probably not an instance of any large society in history without some form of a court system.
It is this constant interaction between people and courts that demands we pay closer attention to the way courts function and to their facilities and infrastructure. Successive official reports demonstrate inadequacies in these matters and their effects: a staggering backlog of cases (expected to take 300 years to clear), too few judges per capita, crowded and dismal court rooms, confusing and complex procedures. There is a great deal of truth in the assertion that this situation of endless delay suits only the government, the country’s biggest litigant. But any government genuinely interested in the social, financial and economic progress of India must jettison its narrow interest as a litigant and must ensure enough facilities, personnel and infrastructure for the quick litigation disposal. 30 years to trial of any case is absurd, and is at least 28 years too many.
In a world that seems to have gone quite utterly mad, the lone voice of sanity is more consistently that of the judiciary than any other institution. And this has always been the case: at crucial times in independent India’s history, and in dealing with matters of wide public importance, our High Courts have by and large stayed true to their course.
There have been notable exceptions, to be sure. The trial of Bal Gangadhar Tilak at the Bombay High Court, during the British regime, was not something of which the Bombay High Court has ever been proud. In an act of profound redemption, it now has, engraved on a marble plaque outside the Central Court where he was tried, an inscription of his famous words before he was convicted:
“In spite of the verdict of the Jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than by my remaining free”.
During the Emergency of 1975, it was the High Courts which repeatedly spoke for civil rights, and later history proved them right. The legendary N P Nathwani v The Commissioner of Police1 case provides a startling illustration. The Commissioner of Police attempted to prohibit a public meeting called by several eminent lawyers (including MC Chagla, former Chief Justice of Bombay, and JC Shah, former Chief Justice of India) on 18 October 1975 at — yet another irony — Jinnah Hall. This was an entirely private meeting; yet, out of abundant caution, Nathwani, the meeting’s convenor, sought police permission. This was refused and the meeting was banned. Nathwani filed a Writ Petition which was heard by Chief Justice Kantawala and Justice Tulzapurkar. The petitioners were represented by Nani Palkhivala, Ram Jethmalani, KS Cooper, Anil Divan, Soli Sorabjee and 153 other lawyers. Both judges held the prohibitory order to be illegal. Justice Tulzapurkar delivered a separate, concurring judgement in which, in an astonishing display of juristic ingenuity, summarised almost everything likely to be discussed at the public meeting, effectively rendering the ban meaningless. He said:
“Therefore, even during the Emergencies that are currently in operation it is legitimate for any citizen to say that the proclamations of Emergency, which are legislative acts on the part of the President are unjustified or unwarranted; it is legitimate for any citizen to say that these Emergencies are being kept alive for suppressing democratic dissent and criticism and that these should be ended; it is legitimate for any citizen to say that the Presidential Order dated June 27, 1975, which in its blanket form purports to take away the remedy by way of habeas corpus to challenge his detention even if it is made mala fide be revoked; and it is further legitimate for any citizen-to say that Parliament should meet to disapprove two Proclamation and the Presidential Order dated June 27, 1975, Of course, all these things could be said by any citizen subject to one proviso that the manner in which all this is said by him does not constitute a ‘prejudicial act’ as defined in Rule 36(e) of Defence and Internal Security of India Rules, 1971 which according to the settled law of this country means that while saying all these things there should be no incitement to violence …”
Today, between them, the High Courts and the Supreme Court are engaged as never before with the most fundamental issues that lie before us; issues that will shape our future: corruption of every stripe, state-sponsorship of armed militias, communalism. These are complex and trying issues for any institution. But here you have it: there is no other institution that can so completely address them, or with such authority.
This history-shaping role of our courts is also not new. A surprising number of the architects of modern India were lawyers and practiced for some time within, or were enrolled by, our High Courts: Dr Ambedkar, Mahatma Gandhi, Jawaharlal Nehru, Mohammed Ali Jinnah, Pherozshah Mehta, Bhulabhai Desai, KM Munshi, Sardar Patel and others were all lawyers, some with thriving practices. There is no other single profession or institution with this kind of contribution to modern Indian history. And while it may seem today an unfair comparison for any number of reasons, surely it is not accident that between them the major political parties of today count among their leaders a very large number of practicing lawyers.
This 14 August, the Bombay High Court begins a new chapter in its own history: the Bombay High Court as we know it today was formally inaugurated on 14 August 1862, 150 years ago next August (the date was purely providential). In that century and a half, the Bombay High Court has faced increasing problems: space, procedures, facilities and more. It is acutely aware of these. So are other courts. Some, like the Delhi High Court, have already taken enormous strides in addressing them. Now the Bombay High Court too is on the verge of very significant systemic changes that harness technology and law and make for greater efficiency and speed. It is still too early for the details, but the changes appear to be radical, and for the better, all directed to one constituency: the people.
So when this Sunday morning, 14 August 2011, lawyers and judges meet in the Bombay High Court, it is not only to celebrate the court’s past but also to reaffirm its commitment to the future and to public justice.
It is a remarkable milestone when any single institution anywhere can claim to have functioned for a full 150 years without interruption. When that institution is a court of law, it affords all of us -- not just the lawyers and judges -- a very special opportunity.