"Dissent Is The Basis for Tomorrow's Lawmaking": SC Judges Remember Justice Syed Mahmood: Colonial India's Dissenting Judge

"Dissent is the basis for tomorrow's lawmaking, one must remember. Sometimes, it is felt that if everybody goes on the same line and the same passageway, that is what should happen, forgetting that the legal minds are rendering opinions. There is nothing to be touchy about it. The opinion is what a particular judge feels should be the law and therefore, it is the jurisprudential development which takes place through these dissents which are extremely important because what was perceived to be a dissenting opinion, tomorrow can be a view to be adopted by the court because nothing in law is constant and that is the beauty of the subject", Justice S. K. Kaul has articulated.The judge was speaking at the Launch & Discussion of the book 'Syed Mahmood: Colonial India's Dissenting Judge'.Speaking of Justice Mahmood's dissent in Queen Empress v. Pohpi, Justice Kaul expressed, "Under the code of criminal procedure as it was applicable in 1891, a convict in appeal was required to be given a hearing but in practice, the Allahabad High Court considered that the convict had been given a fair hearing even if the convict was not present before the court or represented by a lawyer so long as the judge of the High Court had scrutinised the records of the case. Justice Mahmood referred this to the full court which consisted of four judges including Chief Justice John Edge. The majority upheld this practice. However, Justice Mahmood in his powerful dissent noted the gravity of the consequences that would follow up on the convict if he was not heard. Justice Mahmood declared that the right of being heard in appeal could not be diluted in any manner""Justice Mahmood's dissent is the position of law today. His manner of reading the principle of natural justice as a natural corollary of interpretation of law was such a powerful method that one cannot imagine any other method of statutory interpretation in the legal system as it has developed to this day. Today, we rightfully take the right of effective representation as granted while we find ways to improve the system of access to justice in the country.We have to remember the time period and the context when this opinion was given. We have taken many years post-independence to have adopted that, so his thought process was before time. It arose at a time when the contra was supposed to be the law of the land, and to lay down the basis for something to evolve in the post-independence constitutional structure, the judgment deserves to be a landmark in the history of the Indian legal system", continued Justice Kaul."My own encounter with Justice Mahmood came in 2020 as I was preparing the judgment in Raghunath v. Radhamohan. The case concerned a fairly routine question of determining the commencement of limitation with regard to the exercise of right of pre-emption. To trace the contours of right of pre-emption, I referred to Gobind Dayal v. Inayatullah, one of the earliest cases on the subject. Gobind Dayal's case was interesting as it involved enforcement of right of pre-emption between a Muslim vendor and a Hindu vendee. Since the right of pre-emption has its origins in Muslim law, the question was whether the right can be exercised against the party who was not Muslim but had merely dealt with the Muslim party. The Allahabad High Court held that it would not be equitable for a non-Muslim, merely on the ground of religion, to avail the right of pre-emption after knowing the conditions under which the property was possessed. I was struck by Justice Mahmood's opinion for the majority. It was not just a brilliant re-examination of the law of pre-emption as it stood at that time, but it also exhibited an original and innovative approach to what most of us would consider a fairly prosaic matter of contract and property law. He said colonial law would require application of native laws according to the religion of the parties to the suit, emphasising that it was for the protection of rights and not for deprivation of rights. He also noted the disapproval of practice of English judges in substituting their own views under the garb of justice and equity and running roughshod over established religious practises of Hindus and Muslims in the country. He was the paradigm of inherent dynamism that is necessary in judicial work...In his many confrontations with Chief Justice Edge, he would be reprimanded for slackness in his work. He reportedly considered this as a sign of Justice Edge's belief of his own racial superiority and countered this by preparing a detailed table of the number of hours put in by himself", spoke Justice Kaul."His work highlights the need for a judge to be firmly rooted in contemporary social realities. And secondly, it highlights that there is a requirement to keep their pulse on the new and upcoming social energies that are likely to disrupt present ways of thought. Having been the Chief Justice of 2 High Court, I say that we must constantly be in search of methods...

"Dissent Is The Basis for Tomorrow's Lawmaking": SC Judges Remember Justice Syed Mahmood: Colonial India's Dissenting Judge

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