Justice Bhagwati- A Titan- A Centennial Tribute

Born on December 21, 1921 Prafullachandra Natwarlal Bhagwati was the eldest son of Justice Natwarlal Harilal Bhagwati who himself was a judge of the Supreme Court in the 1950s, and Smt. Saraswati. There were seven siblings, whom Bhagwati described as the magnificent seven. They were known as seven gems; but of all of them the eldest was the brightest. Praful, as he was fondly called, had a brilliant academic career studying at Elphinstone College, Mumbai leading to a Master's degree in Mathematics and then obtained a Law Degree, having studied at the Government Law College, Mumbai. Prior to that he actively participated in the freedom movement and courted arrest before going underground for about four months. He was also well versed in Sanskrit.

He started practice on the Original Side of the Bombay High Court in June 1948, joining the celebrated chamber of the legendary Sir Jamshedji Kanga which chamber then had very distinguished lawyers including Homi Seervai and Nani Palkhivala. He was appointed a judge of the then newly established Gujarat High Court in July 1960 at the age of 38- one of the youngest High Court judges. While his practice as a lawyer was for 12 years, his tenure on the bench was for 26 years and 5 months. In 1967 he became Chief Justice of the Gujarat High Court. He was elevated to the Supreme Court in July 1973 and his has been the longest tenure of a Supreme Court judge. His appointment to the Supreme Court coincided with the dawn of judicial activism. His judicial career particularly in the Supreme Court enlarged the universe of judicial discourse and it was distinguished by exemplary creativity and innovation. Firmly rooted in the fundamentals the range of his deep ploughing mind was truly amazing.

He was a remarkable legal and social philosopher and he 'recognized judicial power as an invitation, an instrument and an inspiration for social change'. As Mauro Cappelletti observes, Judges have become the trustees of a new conception of 'limited' government—limited, that is, by constitutional and also by transnational mandates. At the same time, they have also become the trustees of an 'enlarged' government—enlarged, that is, to fulfill the new goals of the social state. Justice Bhagwati was fully conscious of this and duly fulfilled that obligation.

He was a very great common law judge and like his illustrious forebears he blazed new trails by fashioning new tools and nudging the law a little forward. The common law is judge made law the continuing development of which is the integral part of the constitutional function of the judiciary. The judicial development of the common law which 'has abundant riches' is the reasoned application of its settled principles in current conditions. Its genius lies in its capacity for evolution and adaptability to cope with the demands of the times. Great Judges like Justice Bhagwati who have developed it have displayed a perceptive sense of legal history and responded to the felt needs of the times. The Court's fidelity to the Constitution secures its own subordination. But fidelity and creativity are not necessarily antagonistic, with dedicated perspicacity they augment each other. He showed this with flourish. Indeed, more than a builder and consolidator, Praful Bhagwati was an innovator and creator par excellence. He breathed new life into the law and endeavoured to bring law on speaking terms with justice.

His judgments cover the entire spectrum – such complex areas as legal control of government, rule of law, human rights, open government, judicial review of contractual powers of the State and of opacity in governmental transactions and above all his commitment to constitutionalism and the great values of humanism. The essence of constitutionalism is limited government, holding everyone in authority accountable. He captured the fundamentals of constitutionalism and our system of government when he laid down "..The Constitution is the paramount law of the land. Every organ of Government derives its authority from the Constitution and it has to act within the limits of that authority. It is for the Court to uphold the constitutional values and enforce the constitutional limitations." Humanism may be said to be the sum total of all human rights concerns which make life worth living and meaningful. It is the fusion of constitutionalism and humanism that can bring about a conflict free, happy and contended society, which is the end of all laws and good government. Justice Bhagwati's endeavours in achieving this through his judgments and otherwise have been substantial and significant.

As he said, "For me, law was not a given dictum to be blindly followed by the courts. It is for the courts to invest the words used by the legislature with meaning and content and to make out of them, a living organism suited to meet the needs of a changing society and fulfil the hopes and aspirations of the large masses of people in the country."

The views and philosophy of a judge particularly of the Supreme Court must appear in his judgments. As he himself said Justice Bhagwati looked upon law as an instrument of social justice, a powerful instrument in the hands of a judge to bring about social and economic change. This philosophy guided and inspired all his judicial activities and was transparently visible in all his pronouncements.

He was a warm person full of compassion which imbued all his work, filling the form of justice with the ardour of life. He had genuine concern for the poor and the downtrodden. He was extremely conscious of the fact that the Constitution and the laws are also for a common man, 'the butcher, the baker and the candle stick maker' and did everything in his power to make that realistic. He had a pro-citizen approach and litigants, particularly the marginalised and drown trodden sections of the community looked forward to have their cases before him. He spoke of the three A-s: awareness of rights, access to justice, availability of remedies.

He was, however, fully conscious of the import of Justice Robert Jackson's observation regarding judging: "The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court's day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. These are the competing considerations involved in judging any measures which government may take to suppress or disadvantage its opponents and critics."

His judgement in Royappa gave a new dimension to Art 14- that arbitrariness and equality are inconsistent and what is arbitrary cannot be equal and would violate Art 14. Maneka Gandhi widened Art 21 and infused it with the concept of procedural due process and finally undid the law in Gopalan. Art 21 reached its full plenitude in Francis Coralie Mullin- life is not mere animal existence- the right to life is the right to live with basic human dignity. The doctrine of promissory estoppel was given a scholarly and juristic foundation in Motilal Padampat and Godfrey Philips and the executive was held to its promise. In Ramana Dayaram Shetty the power of distributing largesse by Government through contracts or otherwise was brought under judicial review and arbitrary or discriminatory dealings with Government's own property were made subject to the test of fairness. D.C.Wadhwa held that repeated repromulgation of Ordinances was a fraud on the Constitution. M.C.Mehta imposed the principles of strict and absolute liability in tort due to inherently dangerous and hazardous activity. In Bachan Singh he was the lone dissenter against upholding death penalty. Most importantly Justice Bhagwati along with Justice Krishna Iyer was (primarily) instrumental in heralding the legal aid movement and introducing Public Interest Litigation (PIL) or Social Action Litigation as he preferred to call it- the law regarding locus standi was liberalised and procedural requirements relaxed and made flexible so that access to justice was rendered easier particularly for the marginalised sections. "Where a legal wrong or legal injury is caused to a person or a determinable class of persons who are unable to approach the Court for relief, any member of the public can maintain an application for appropriate relief...Any member of the public having sufficient interest can maintain an action for judicial redress for public injury." He also introduced the epistolary jurisdiction- letters written to judges were treated as writ petitions in public interest.

He said extra curially 'a commitment to legality of the laws and the procedural due process is the contribution of the Chandrachud Court' of which he was a formidable pillar. In the years 1978 to 1980 three exceptionally great judges sat in the first, second and third court rooms of the Supreme Court. Chandrachud,CJ, Bhagwati,J and Krishna Iyer,J who counted amongst some of the most eminent judges anywhere in the world.

The man was as great as the judge. Legions of lawyers who appeared before him and yet others who came in contact with him always remember his kindliness and grace and humility. In the court room there was no raising of voices or bad temper. He was always pleasant, never rude or insulting, and encouraging lawyers, particularly the juniors with a smile. He would not allow seniors to bully the juniors; he would point out deficiencies in their case and help them suggesting solutions and guide and train them to present their cases. His contribution in rearing the junior Bar was note-worthy. He would patiently hear even the junior most lawyer with an open mind and a keenness to render justice. Counsel were never hustled through. Lawyers and litigants had the satisfaction of having got a full and fair hearing.

Kapil Sibal remembers Bhagwati's judicious approach and open mindedness. Way back in 1974 when Sibal was a very junior practitioner in the Supreme Court, he had an election matter before a bench of Justices Palekar, Bhagwati and Sarkaria. There was a judgment of Bhagwati, J. which concluded against Sibal the point that he was canvassing. The young lawyer in his youthful enthusiasm politely contended that the said judgment was wrong. The judge asked counsel to explain why he thought the judgment was not correct and heard him patiently and attentively. The final judgment went against Sibal's client because on one issue the Court held against him. But the contention canvassed by Sibal that there was a flaw in the earlier judgment of the Supreme Court was accepted. Justice Bhagwati wrote a concurring judgment gracefully acknowledging that his earlier view was not correct and upholding Sibal's contention. This was the judge!

All this is not to say that he was perfect 'without the scars and the wrinkles'. He had his failings which simply show that he was human and human beings like stars in the sky have their dark spots. One cannot but mention the infamous ADM Jabalpur judgment where he held (with the majority) that no remedy was available during an emergency even if the order of detention was illegal, malafide or unauthorised. The treason of the intellectual, it is said, consists in his not speaking out loud and clear for the values he holds dear and sacred. No doubt decades later he regretted that judgement. But that cannot absolve him. After the Congress was voted back to power in 1980, he wrote an open letter to Prime Minister Indira Gandhi congratulating her-speaking of her victory as the crimson sunrise of hope for the country. This conduct of a sitting judge is something unheard of. It is said that nothing corrupts a judge as ambition. Views have been expressed, and perhaps justifiably, that Justice Bhagwati was not unaffected by this flaw. It has also been remarked that his crowning mistake in I Judges' case was to treat Chief Justice Chandrachud as a litigant in the case.

Having filled the scales on either side, all this, however, does not detract from his greatness otherwise and his stellar contribution to the humane development of law. Post retirement, he continued to keep himself busy in a variety of activities almost till the very end. He was a Fellow of the American Academy of Arts and Sciences. He was a member of the UN Human Rights Committee as also its Chairman. He was a member of the Committee of Experts of the ILO as well as Chancellor of Sri Satya Sai Institute of Higher Learning. He was awarded Padma Vibhushan.

He was a warm and affable person with no airs. I had the privilege of knowing him for over thirty five years. I had the opportunity and honour, when I was studying law, of interviewing him at Bangalore on the eve of his 60^th birthday on December 20, 1981. I continued to be in touch with him through letters and phone calls till his passing. He very graciously attended the release of my first book-Legends in Law, in New Delhi in November, 2012.

Justice Bhagwati answered the final summons of his Maker on June 15, 2017 bringing to a close a many-splendoured life. His demise removed a mountain peak from the legal landscape. The world of law and humankind were rendered poorer.

The individual contribution of judges is absorbed in the anonymity of the coral reef by which the judicial process shapes the law. Their name and fame are writ in water. In the course of a century, the acclaim of a bare handful survives. Justice Bhagwati's place in that select band is secure.

Views are personal

Author is a Senior Advocate at Karnataka High Court