In memory of Justice Bhagwati, great architect of Indian law and my friend

In a remarkable tour de force, Lord Denning remarked that the “task of a judge is on a higher plane. He most consciously seeks to mould the law to serve the needs of the time. He is not a mere working mechanic, a mere working mason, laying brick on brick. He must be an architect building a just society”.

With the passing away of former Chief Justice of India PN Bhagwati on June 15, 2017, India lost one of the greatest architects of Indian law and justice.

Before Emergency

Before Emergency, Bhagwati was acutely conscious of the vast arbitrariness in Indian governance. He devised a new interpretation of equality article to point to a promising rigorous judicial review of all actions of government. In this, he stepped away from a traditional administrative law to make it possible for judges to provide to question every arbitrary action of the powers that be.

In the Royappa vs Airports Authority (1979) and Ajay Hasia (1979) cases, he marked out a new constitutional terrain to treat anti-arbitrariness as not just an abuse of power but as a violation of equality itself. To be treated arbitrarily was to be treated unequally. In his judgment on promissory estoppel (Motilal Padampat (1979)), he landmarked yet an advance to ensure accountability from government so that government had to deliver on its promises and assurances.

In Maneka Gandhi’s case (1978), he reconnected the constitutional dispensation of equality, guaranteed freedom and liberty to expand the scope of judicial review. Just as American jurisprudence sported “due process” as a fundamental to the working of the American constitution, Bhagwati provided for “reasonableness” to become the cornerstone of India’s constitutional endeavours.

In creating or putting together new concepts, Bhagwati was not just an architect of ideas but ensured a rigorous pursuit of juristic techniques that weaved together ideas and concepts in ways that were both elegant and enduring. This is not an easy task. Most judges get lost in the maze of law unable to connect past and future. Not so, Bhagwati. He was a craftsman to present new approaches in a sound way and responsible so that he laid down "law" for the future beyond the exigencies of the case.

In this, he surpassed his colleagues. Bhagwati was greatly criticised for his role in the Preventive Detention decision (1976) during the Emergency when politicians, journalists and activists were jailed for being anti-national, though they were only against the dictatorial regime. In a 4:1 decision (Khanna dissenting), the majority judges (including Chandrachud and Bhagwati) refused to interfere with detentions even when the detentions were portrayed as malafide.

Way to ignominy

This was unheard of, and consolidated Indira Gandhi’s transition to dictatorship. After the Emergency, Justice Chandrachud apologised immediately to secure his chief justiceship. Bhagwati claimed that the law he interpreted totally ousted the court’s jurisdiction; and that this ouster of the jurisdiction of the courts left him helpless. Nobody, friend or foe, accepted this explanation.

Bhagwati could have found a way as Justice Khanna’s dissent demonstrated. Years later, he also apologised, explaining that during the hearing he had wavered but eventually made a wrong decision. His observation in the President’s Rule case and famous "legal aid" letter just after the Emergency led him to be criticised as a regime judge — for which he suffered ignominy.

As a friend, I know the agony he went through. We would be losing the wood for the trees, if this blot eclipses his judicial record seen as a whole; or his contribution to the march of Indian law. Post Emergency, the Supreme Court fell to its lowest nadir.

As group of judges whom I call the "gang of four" (Krishna Iyer, Bhagwati, Chinappa Reddy and Desai) diverted constitutional objectives to try to make the Supreme Court a "court of the people" to deal with matters that concerned the lives of the people such as atrocities (Bihar blindings), custodial crimes, and to advance the cause of social justice towards workers, peasants, farm labour, tribals, women and the non-privileged.

The Supreme Court embraced these concerns by directly intervening. Once again, Bhagwati was the craftsman of the jurisprudence of this era. Post Emergency, Krishna Iyer and Bhagwati also looked at the machinery of law to advance these causes. The new invention was "public interest law" to provide direct access to the Supreme Court over social causes. In this, the gang of four, with Bhagwati as its architect, succeeded eminently – although this legacy has suffered denouement in our times.

The parallel endeavour was to create a legal aid movement. It is on this that I worked with him over the years. We found that the government paid lip service to the mantra of legal aid without addressing the question of resources. Had Chief Justice Ranganath Mishra not hijacked the legal aid initiatives from Bhagwati, a more wholesome result would have emerged.

At a personal level, I had the gift of friendship from Bhagwati. He gave respect to all he met and was willing to learn to nurture ideas with humility. In these long years, I never saw him lose his temper in situations when other Indians would have.

He was a great judge, responsible for India’s democratic reconstruction of law and justice. He was the kindest of friends and the nicest of human beings. I was privileged to have known him.

(Courtesy of Mail Today.)

Also read: Remembering former CJI PN Bhagwati for his passion 'to render justice in spite of law'