Remembering The Pioneer Of Judicial Activism Justice P.N. Bhagwati On His Birth Anniversary

Upon his hoe and gazes on the ground,

The emptiness of ages on his face,

And on his back the burden of the world

The Man with the Hoe by Edwin Markham

Today marks the 99^th birth anniversary of an eminent judge, humanist, visionary and a legendary judge, Justice P.N. Bhagwati. Born on 21^st December, 1921 in Gujarat, Justice Bhagwati pursued his graduation in Mathematics from Elphinstone College, Mumbai followed by graduation in Law from Government Law College, Mumbai. An enthusiastic legal dignitary, Prafullachandra Natwarlal Bhagwati started practicing in Bombay High Court later in the year 1948. He was appointed as a judge of Gujarat High Court in 1960 followed by his alleviation to the Supreme Court in 1973, carrying out the legacy of his father Justice Natwarlal H. Bhagwati who served as judge at the Supreme Court from 1952 to 1959. Bhagwati later became the 17^th Chief Justice of India serving from July 12^th 1985 to December 20^th 1986. He died on June 16^th 2017 at 95 years of age.

KNOWING BHAGWATI: EARLY LIFE AND PROFESSION

In a line of work as big as the ocean, from the many luminaries Indian legal profession ever witnessed, J. Bhagwati had an unparallel charm, a bequest which was tough to match. Natwarlal Bhagwati had the responsibility of bringing up seven sons, a daughter and two cousins. Hailing from a poor family background, senior Bhagwati was a strict parent but ensured that his children are given an unerring upbringing. Jagdish Bhagwati, his younger brother attributed this to be reason behind the success of their family. According to him, due to poverty, his father never gave them money to eat in school canteen but never stopped them from spending hundreds of rupees for buying books. His father was a man of principles who passed on the right values to his children which enabled them to realize the most virtuous attributes of life.

J. Bhagwati was an avid follower of Mahatma Gandhi and his life was greatly influenced by Mahatma's readings and values, so much so that he discontinued his MA in economics to join the freedom movement. The Gandhian approach motivated him to realize the significance of public rights and the passion to fight for the right ignited in him from a very young age. This passion encouraged him to join the Congress Socialist Party in 1942 while the Quit India Movement was at a surge in India. In doing so, he was once jailed for distributing 'Congress Patrika', a journal banned at that time by the Britishers. At one such instance, he came home blooded after the British authorities had beaten him.

Bhagwati was a judge with a futuristic outlook who would always think way ahead of the time. Thanks to his judicial acumen combined with a philosophical instinct that the Indian legal jurisprudence reached to new heights due to his interpretation of the concepts of Locus Standi, access to justice and judicial activism. At the time when India was witnessing an outpouring gush of constitutionalism, he ensured that his judicial vision fills up the gap present in our constitutional jurisprudence.

Bhagwati's heart ached for millions of needy and deprived citizens which led him to evolve the concept of free legal aid to all. This vision paved the paths to the judgments of Hussainara Khatoon v. Home Secretary, State of Bihar (1980)[i] and Khatri v. State of Bihar (1981)[ii] wherein he held that Right to Legal Aid is an intrinsic and valuable right under the mandate of Art. 21 of the Indian Constitution which confers upon the State a legal obligation to provide a lawyer to the needy and under-privileged unable to afford the same.

His judicial interpretation was so far sighted that he never looked at the issues like present day problems but viewed them in the light of future responses which according to him was social philosophy. This interpretation was very well woven by him in the case of S.P. Gupta v. President of India & Ors. (1982)[iii] which led to the emergence of judicial activism as a concept in our jurisprudence. One such famous observation which will forever echo the legal peripherals is that from the Oleum Gas Leak case (1987)[iv] wherein he observed "Procedure being merely a hand-maiden of justice it should not stand in the way of access to justice to the weaker sections."

However, with being a judge of the highest court of the land comes a great responsibility and an even greater probability of inviting criticisms. Little did he know that his efforts for building the 'India of his dreams' would see a drastic fluctuation on him becoming one of the 7 judges in the bench of ADM Jabalpur case. While going in favour of the majority, the bench left scars so harsh on the legal jurisprudence that crippled India's democracy for years to come till the time it was overruled in 2017. The criticism played a major role in transforming Bhagwati's life to view the future cases with caution and prudence and more importantly, to remove the criticism of being part of the bench which gave India "blackest day in Indian history" to a judge who was known to be "pioneer of judicial activism". He later expressed his remorse to go against his moral sense by going with the majority judges.

THE BHAGWATI COURT: ACCOUNTS BY GEORGE H. GADBOIS

The famous Gadbois interviews give an insightful account of the judges and functioning of the Supreme Court of India between the years 1950 to 1989. The book "Judges of the Supreme Court of India, 1950 to 1989" presents the extracts of those interviews wherein Gadbois touched upon the aspect of the then judicial appointments made to Apex Court. In the 4 interviews he conducted with J. Bhagwati, he was able to understand Bhagwati's charisma to the maximum extent possible. He wrote "Bhagwati wanted 'activists' with the 'right judicial philosophy'. He was a zealous crusader for improving the lot of the nation's under classes, particularly opening the court's doors to the least privileged. He wanted judges who shared his passion for public interest litigation (PIL)."[v]

According to Gadbois, the average age of the judges to be appointed to the Supreme Court at that period was 58.5 and Justice Bhagwati happened to be the youngest judge to be appointed at 51 years of age. Bhagwati informed Gadbois that one of his constant struggles of being a Supreme Court judge also includes the responsibility of creating more rights in comparison with what are provided by the Constitution. He always felt the need of reforming the given set of rights in accordance with the contemporary era. He felt that the scope of Art. 21 and its connection with the doctrine of substantive due process must be in accordance with procedures established by law. Even when the government makes a law depriving rights of a person, it must be done in a just, fair and reasonable manner. He was influenced by the due process doctrine of the American Constitution to such a great extent that he incorporated it in the Indian constitutional jurisprudence even when the Court rejected the same in Maneka Gandhi case.

Another significant acknowledgement made by Bhagwati to Gadbois was his intention of there being a division of Supreme Court's jurisdiction. Bhagwati felt that the Supreme Court must exercise its jurisdiction in a two-fold manner; one, a court of appeal to deal with SLPs and ordinary appeals and two, a permanent constitution bench consisting of 5, 7 or 9 senior most judges to deal with special cases of constitutional challenges. When he made the suggestion of increasing the number of judges from 18 to 26 in the year 1986, the government did not show any interest to his suggestion.

He also confessed to Gadbois the lawyers did not have the habit of making good briefs as they were heavily dependent on the practice of making oral arguments, therefore, leading to poorly drafted petitions and SLP. He also expressed his inclination of having law clerks at the Supreme Court which were absent at that period of time.[vi] He however always expressed his displeasure against the government for now appointing dozens of his recommendations as judges to the top court. Only 5 of his recommendations were accepted, reason being his not so good equation with Justice Sen and an unenthusiastic government.

BHAGWATI AND HIS LOVE FOR HUMAN RIGHTS AND DEMOCRACY

Justice Bhagwati's love for human rights is not hidden from the world. This was perhaps the most significant attribute of his personality making him the crusader of rights. According to him, democracy is the driving force of human and commitment is the ultimate route in achieving an open society. While his admiration for democracy kept growing with time, right to free speech and expression remained the highest attribute given to the citizens democratically.

There is however a specific incident which made him realise the righteousness of this right: the famous Junius letter arrest. About 250 years ago in England, Junius letters were an initiative to write open letters criticising the then government between the years 1769 to 1772. Junius, a name derived from the second name of Brutus, was an anonymous identity given to the writer to speak against the monarchy government. About 69 letters were written during the period which resulted in a criminal prosecution against the newspaper for the offence of committing seditious libel. The jury after deliberating for 5 hours delivered the verdict of being 'not guilty' and the court was echoed with celebratory slogans. It was then that criticism of government was found to be inclusive of the right to free speech and freedom of press in England.

He recalled one same incident in India where a book "Extracts from Mao tse Tung" was banned by the Gujarat Government challenge to which came before the dvision bench of the High Court presided by J. Bhagwati himself. Being the admirer of free speech that he was, he observed the ban to be illegal and held that:[vii]

"It is not for the Government of the day nor for the judges presiding over the courts to decide what doctrine or philosophy is good for our people. It is for the people to choose what is best for them and in order that they may be able to make a wise decision and intelligent choice, free propagation of ideas is an essential requisite. The ideas propagated may be unorthodox and unconventional, they may disturb the complacency of a handful minority or they may challenge deep seated, sacred beliefs and question the most fundamental postulates of our social, political or economic thinking. There should be no ground for anxiety or apprehension in a country like ours which has always believed in the pursuit of truth, which never hesitated to receive new ideas and absorb them if found acceptable."

He considered the flow of receiving and transmitting ideas to be of utmost importance to India's democratic wheel. To ensure this, he rooted for setting up of Lok Pal and RTI Act in India which enable people to seek answers from government about the steps they undertake.

The fearlessness from which Justice Bhagwati saw the constitutional principles gave the Indian legal system a gift that will forever be cherished by the generations to come. Apart from the excellent insightful judge that he was, one characteristic that we all must persuaded by today is his ability of never losing hope. Even in the shakiest chapters of his life, he kept the hope alive and rose from the ashes like a phoenix.

In a later interview with India Today, when Justice Bhagwati was asked about what he feels for being the centre of controversies, he replied "Controversy has always chased me and I have always faced it squarely. There was a sentence in the speech of Gandhiji which he made on August 8, 1942. That sentence has always stuck in my mind. It ran like this: "Stare at the world though the world is bloodshot-eyes for you. Go ahead for fear of God within." I have always been of the view that if my conscience tells me what is correct then I should brave all opposition."[viii]

This is what Justice Bhagwati did; he stared at the world even when things were not the most favourable for him or the Chief Judicialship. His conscience and moral spirit made him a principled man and an even greater judge who with his prudent and judicious vision gave Indian legal jurisprudence those fundamental propositions which otherwise would leave us shallow. It gave us the best crusader of human rights and an even better pioneer of judicial activism we ever had.