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The Incomparable Vivian Bose

V. Sudhish Pai
9 Jun 2021 5:52 AM GMT
The Incomparable Vivian Bose
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It is given to very few to earn great laurels, leave an indelible imprint on men and matters and illumine the landscape with their effulgence. Justice Vivian Bose is one such legend- an all time great. Vivian Bose belonged to the distinguished Bose family which migrated from Bengal to what was then known as Central Provinces and Berar and made an indelible mark on different walks of life. His grandfather, Sir Bipin Krishna Bose was looked upon as one of the makers of Central Provinces. The father was Lalit Mohun Bose. Vivian had an Indian father, an English mother and an American wife. Born on June 9, 1891, he was educated in famous institutions like Dulwich College and Pembroke College at Cambridge University. He was called to the Bar from Middle Temple. He then came and started practice in Nagpur. Vivian Bose was married to Irene, the daughter of Dr. John Mott who won the Nobel Prize in 1946. In Nagpur he was the Principal of the University Law College, Government Advocate and Standing Counsel to the Government of Central Provinces. He was then appointed Additional Judicial Commissioner, Nagpur, and thereafter he became Judge of Nagpur High Court. He rose to be Chief Justice of that Court before he was elevated to the Supreme Court on March 5, 1951.

It is difficult to do justice to the content of so manifold a nature and so full a life as that of Vivian Bose. His life was spent mainly in the service of the law; his triumphs and achievements stand written in the records of the Nagpur High Court and the Supreme Court. Justice Bose was a great judge because he had the learning, the breadth of vision and the judicial statesmanship necessary for administering the great provisions of the Constitution. It is said that a wise man is a detached man. The detachment is not from grosser interests like one's advancement in life or gain. It is something more subtle. A wise man is one who is exempt from the handicap of his past. Justice Bose was such a man. It was this quality of detachment and seeing things from afar off which made him the judge we so much revere, much more than his learning, his acuteness and his industry. He was a scholar. He was deeply learned in all branches of the law. But people rightly ask for more than scholarship of a judge, and they are right in this, for "while scholarship may clear the thickets, it can build very little. In the end, a judge will be estimated in terms of his outlook and his nature." Justice Bose tried to free the administration of justice from the tyranny of slogans and outmoded formulae when some of his brethren, who came from the world of affairs, imprisoned themselves, in the ephemeral past. His knowledge and grasp were quick and correct. He was well known for his great candour and catholicity and was generous enough to admit whenever he was in error; his tentative views had but a frail hold on existence.

So competent an appraiser as that illustrious lawyer M.K. Nambyar was of the view that while all other qualities of a good judge are required to be possessed by judges at all levels, for a judge at the Supreme Court level four qualities are indispensable- vision, compassion, creativity and courage. He said in his life he had seen one such judge whom he could never forget. And he singled out Vivian Bose as the judge with all the four qualities in abundance. M.C. Setalvad with his characteristic discernment said: "Bose was a very able person and his interests lay in many fields, including scouting and the International Jurists Commission. He was extremely unorthodox in his approach to many questions of law and was a great lover of liberty. Indeed, many of his judgments contained evidence of his strong antipathy to forms and legalism and his deep attachment to the true principles and purposes underlying all law and legal provisions. He had also other great qualities."

Justice Bose did not derive distinction from the distorting significance of the so-called great cases. Some cases are born great and a judge shares its greatness by sharing the great occasion. Other cases achieve distinction through the creative power of the judge. Justice Bose was such a judge, who imparted intellectual significance to cases, great or small, whether of inflamed public interest or of recondite technicality.

Vivian Bose was a judicial activist known for breaking new ground in law. He did it quietly without indulging in activism of the exhibitionist type. Sitting as a High Court Judge he held (prior to the Constitution) that a forest officer was engaged in a commercial activity of the State and therefore the defence of sovereign immunity was not available in a case of tort committed by him (Secy of State vs. Sheoramjee, AIR 1952 Nag 213). In Pannnalal vs. Bhaiyalal (AIR 1937 Nag 281) he held that uninterrupted settled possession of even less than 12 years was a defence to protect possession except against a true owner. The signature of a document being admitted or proved, the burden shifts to the signatory to avoid the consequence of the document, because no one is known to append his signature to a document without agreeing to be bound by it.(Dalchand Mulchand vs Hasanbi, AIR 1938 Nag 152)

He has been characterized as a great lover of liberty. Several of his important decisions show that he was a staunch upholder of the liberty of the subject, and was never weary to champion the cause of personal liberty whenever he found arbitrary restrictions upon it. Vivian Bose's judgeship of the Supreme Court was marked by sturdy independence and originality of thought and approach. He was a man of strong principles, reluctant to compromise his values. He never hesitated to plough a lonely furrow and give a dissenting judgment even when he found himself in a minority of one. "The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years. Read some of the great dissents……and feel after the cooling time of the better part of a century, the flow and fire of a faith that was content to bide its hour. The prophet and martyr do not see the hooting throng. Their eyes are fixed on the eternities."(Benjamin Cardozo, Law and Literature) Even when he was concurring, Justice Bose made provisions for the brooding spirit of the future: He wrote separate judgments adopting his own line of reasoning and bringing to bear a fresh approach to the problem which served as stellar pointers.

He was perhaps a little ahead of his time in the exposition of legal norms and standards on issues of fundamental rights. He was the first to lay down that any action which is not reasonable, just and fair is violative of Art 14. That was way back in Anwar Ali Sarkar (AIR 1952 SC 75) a quarter of a century before Maneka Gandhi's case. He also took the view in Virendra Singh vs. State of UP (AIR 1954 SC 447) that the plea of 'act of state' is not available after the Constitution, against a former employee of a princely State since there can be no act of state against its own citizens. He admirably laid down in Raj Narain Singh (AIR 1954 SC 569) that the ratio in cases where each judge writes a separate opinion and it is difficult to find out the ratio, as in Re Delhi Laws case (AIR 1951 SC 332) would be the common minimum that is found in all the judgments.

Cardozo remarked that a judge must think of himself as an artist, who, although must know the handbooks, should never trust them for his guidance; in the end he must always rely upon his almost instinctive sense of where the line lay between the word and the purpose which lay behind it, he must somehow manage to be true to both. Justice Bose was an exemplar in this. For, this ability is born out of wisdom which he had in abundance. It has been said that the duty of a judge is to mould and extend the law and without usurping jurisdiction amplify its remedies to advance the cause of substantial justice. In his judicial life and work and moulding of legal principles Vivian Bose demonstrated this as an artist and achieved this admirably.

Vivian Bose had a masterly command of English language and a great felicity of style. It was reputed that whenever the judges had to put forward their views in elegant language the task was entrusted to Vivian Bose. He was an inimitable master of purple prose. Many of his judgments bear ample testimony to this. When we think of him and read his writings we feel the presence of "Those grand old masters, those bards sublime/ Whose distant footsteps echo through the corridors of time."

Vivian Bose's life and work were not confined to the law alone in which he was undoubtedly a great master. He was a man of many parts. His interests were wide and varied. He was a Member of the International Commission of Jurists and for seven years from 1959 to 1966 he was the President of the Commission. He was very much interested in scouting and rose to be the Chief Commissioner of Scouts in India.

He travelled extensively all over the world and he preferred to do so by car whether within the country itself or outside. He had a passion for cars and motoring. He was a slow driver driving at the dangerous speed of twenty miles per hour. He drove throughout the country as part of his Scouts activities. He had a Mercedes station wagon. The luggage compartment would be full of tinned provisions and assorted supplies including gas-cylinder, cooker and home- baked bread. All kinds of spares were also carried. You had extra towels, blankets and what not! On top of all these was spread a tarpaulin and on which was a bed for Vivian's Siamese cat Marco. There was also spare bedding and a sand box for Marco in case of emergencies.

As Chief Justice of the Nagpur High Court, Vivian Bose was once driving his car and proceeding to some District headquarters. On the highway he noticed a Police jeep parked. Justice Bose with his penchant for repairing cars, stopped his car to enquire and offer help. The Police Inspector who was standing at some distance shouted that if he knew something, he could try his hand. Vivian Bose soon set right the problem. As Bose started his car the Inspector enquired as to where he was going, opened the rear door and sat in the back seat. Vivian Bose quietly drove and reached the town and dropped the Inspector at the Police Station as required by him. Thereafter he proceeded to the Inspection Bungalow where he was to halt. The District officials received him there. The Police Inspector who was driven and dropped by him also turned up at the Inspection Bungalow. On being called in by the Superintendent of Police, to his utter surprise and shock, the Inspector saw the person who had driven him seated there and realized it was the Chief Justice. The poor man fainted and Justice Bose revived him. All the while, all others were watching in dismay not knowing what was happening. Only while leaving Justice Bose told the officials what had transpired and left strict instructions that no action whatsoever be taken against the Inspector. Such was the measure of the man.

One of his favourite past times was magic. He was a fantastic magician. He would organize magic shows in his house. Once in response to a repeated query by a brother judge (while hearing a criminal appeal) as to how it was possible to plant money on the accused, Vivian Bose asked him to kindly check his pocket. To the amazement and amusement of everyone in the Court and the embarrassment of the doubting judge he found on putting his hand in his pocket a ten-rupee currency note. Vivian Bose was also a keen photographer. He had a zest for music, particularly Western classical music and would make radio and broadcast equipment himself.

Vivian Bose was averse to being carried away by populism and said in that context: "… I haven't been what you might call popular for I have never striven to do the popular thing, but what I conceived to be the right thing. A man in my position who strives after mere popularity would not be fit to occupy it….'' He was a perfect gentleman, soft spoken and looked more like a Christian missionary than a judge. In his personal life, he observed every norm of human dignity. He was extremely humble and unassuming- the hall mark of true greatness. He would never use his official staff for domestic purposes. He preferred to drive his own car and he could be seen quite often in the queue on Saturday mornings at the small post office outside Gymkhana Club waiting to buy postage stamps for his personal correspondence. His friend and admirer Justice Hidayatullah said of him: "It is rare to find a man who has done so much or achieved so many things. A successful lawyer, a great judge, a seasoned scout, photographer, magician, water-diviner and traveller, what more could we expect of a man?''

Years ago Harold Laski in a tribute to Justice Holmes described the qualities of a great judge. A great judge must be a great man. He must have a full sense of the seamless web of life, a grasp of the endless tradition from which he cannot escape. He must be able to catch a glimpse of the ultimate in the immediate, of the universal in the particular. He must be a statesman as well as a jurist; thinker as well as lawyer. He must have a constant sense of essential power and yet be capable of humility in its exercise. He must be the servant of justice, not its master, the conscience of the community and not of its dominant interests. He is perhaps the rarest of human types- in being supremely himself he must be supremely selfless. He has to be in the great world and yet aloof from it; to observe and to examine without seeking to influence. These are stern and exacting tests, but they set out an ideal and a goal, distant and remote from the reach of most, but still for the attainment of which there should be ceaseless striving and sustained effort. Vivian Bose more than fulfilled these criteria and his claim to greatness as a judge is unquestioned and unparalleled.

Vivian Bose spent his last years in his farm house on the outskirts of Bangalore. He passed away full of years and honours on November 29, 1983 at the ripe age of 92 years. "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 Vivian Bose belongs to the select company of great judges and is a legendary figure.

On his 130th birth anniversary, it is appropriate for us to remember and pay homage to him. In doing so, we remind ourselves of his awesome legacy and of our great responsibility to be true inheritors of that heritage. The love and respect with which we salute his memory is a measure of his greatness both in law and in life. This was a Man. When comes such another?

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