Part of Speech by Hon’ble Mr. Justice R.F. Nariman before SCBA

The present YouTube video is a part of the memorable speech delivered by Hon’ble Mr Justice Rohinton Nariman, Judge Supreme Court of India in a gathering of advocates organized by the Supreme Court Bar Association. In his session, the Hon’ble Justice talks on various points touching upon the highest points reached by legal luminaries across the world citing an example of Lord Marshall from the US, Lord Mansfield from the UK to Hon’ble Mr Justice B.K.Mukherjee from India. 

The Reflections on the Lecture Series by Hon’ble Justice Rohinton Fali Nariman

The present YouTube video is a part of the memorable speech by Hon’ble Mr Justice Rohinton Nariman, Judge Supreme Court of India in a gathering of advocates organized by Supreme Court Bar Association. In his session the Hon’ble Justice talks on various points touching upon the highest points reached by legal luminaries across the world citing an example from Lord Marshall from the US, Lord Mansfield from the UK to Justice B.K.Mukherjee from India. The write up below captures some of the details around his speech while including the content of the above video.

800th Centennial year of Magna Carta was celebrated, whose mention is in the current speech of Hon’ble Mr Justice Nariman, Judge Supreme Court of India uploaded here on the website from YouTube. Magna Carta Libertatum (Medieval Latin for “the Great Charter of the Liberties“), commonly called Magna Carta (also Magna Charta; “Great Charter”), is a charter of rights in French agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. It was drafted in language that was not something easily understood by common people. It promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. None of the sides stood behind their commitments. Pope Innocent III annulled the Charter almost immediately leading to the First Baron War. What was reflected upon from the above document for attention was Article 39, which is similar to article 21 of the Indian Constitution. It does not speak of life but speaks of liberty. This article in Magna Carta provided for King has to respect both liberty and property. Article 40 provided that King would not sell justice either will we delay or deny justice.

The three names that found reference in Justice Nariman’s speech was Lord Mansfield of UK who served the King’s Bench as Chief Justice (18th century), Lord Marshall of US (19th century); Lord B.K. Mukherjee of India (20th century) for each of them had liberty at its heart and was the great exponent of the law as they saw it. While Lord Mansfield who had great practical wisdom who relied upon the principle propounded that law should follow the merchant. He gave the law of good faith in the contract and abolished slavery by declaring it unlawful. Precedent didn’t matter for Lord Mansfield. As per the deep observations shared by Justice Nariman, he was regarded him as a very unusual judge. In a commercial matter while giving his opinion to Governor of Jamaica he said- Do exactly as your heart and head says and be careful not to give reasons. Because if you give reasons you are bound to be wrong but your conclusion is bound to be right. Justice Mansfield thus laid the foundation of the law of merchant, as we know it today. He was the one who infused morality into the law. In those days, present consideration for a contract was given weight and least of all no consideration. Lord Mansfield said for a promise made by minor who became major promise for clearing debt during minority although it will not be a contract as it is in nature of promise but will act as estoppel and because it forms estoppel ‘I’ will honour it even if it is not a contract. Businessman often makes an agreement, which is clumsy. Law of merchant develops very slowly principle by principle and not case by case.

Justice B.K. Mukherjee born on the date when the nation of India was born i.e. August 15. One of the great judgments delivered by him was a dissent in N.B.Khare’s judgment reported in 1950. N.B. Khare’s judgment that was the leader of Hindu Mahasabha challenged the externment order passed against him in East Punjab Safety Act.

Dr N.B. Khare vs. The State of Delhi judgment (1950 AIR 211, 1950 SCR 519)Section -4 sub-section (1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March 1949, and was to be in force until the 14th August, 1951, provided that “The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.”   Sub-section (3) of s. 4 provided that “an order under sub-section. (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof,” and sub-section. (6) laid down that “when an order has been made in respect of any person under any of the clauses under s. 4, sub-section. (1) or sub-section. (9.) the grounds of it may be communicated to him by the authority making the order, and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under s. 3, sub-section. (4).” The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under Article 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of  the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territory of India which was guaranteed by Article 19 (1) (d) of   the Constitution and were accordingly void under Article 13 (1) of the Constitution.

Justice Mukherjee gave a dissenting judgment that though certain authorities   can be invested with power to make initial orders on their own satisfaction in cases of this description, and s. 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order could be passed by the Provincial Government  or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for an indefinite period of time without giving the aggrieved person an opportunity to say what he has got to say against the order; and inasmuch as sub-sections. (3) of s. 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given the power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub-section. (3) are manifestly unreasonable.   The provisions of sub-section (6) of s. 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made. Neither sub-section. (3) nor sub-section.  (6) of s. 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of Article 19 (5) and these provisions of the Act were consequently void and inoperative under Article 13 (1) of the Constitution, and the externment order was illegal.

In Bharat Bank Judgment (1950 AIR 188, 1950 SCR 459), Justice Mukherjee was again the dissenting judge concurring with him was Justice Patanjali Sastri. The Hon’ble Judge held that an Industrial Tribunal functioning under the Industrial Tribunal Act is not a judicial tribunal. Its hearing procedure is not like one in court and the award that it pronounced is not have effect unless the government publishes and even if it publishes legislature still has the power to annul it. The nature of the determinations made and the materials and considerations on which it has to decide a dispute are also such that the powers of an appellate court cannot be exercised fully and effectively in respect of them and such determinations are therefore outside the purview of Article 136 of the Constitution.

Ameerunnissa Begum And Others vs. Mahboob Begum And Others (1953 AIR 91, 1953 SCR 404).Walid Ullah was a noble in Nizam’s domain who had married several women’s and a dispute arose with regard to two of them claiming to be his wife. A British agent was asked to look into it and was rajpramukh. In this judgment, a nobleman of Hyderabad died in the year 1936 when it was under the rule of the Nizam, and disputes as to succession arose between his legally married wife and two ladies, Mehboob Begum and Kadiran Begum, who claimed to be his wives. After protracted proceedings before several non-judicial bodies a report adverse to the latter was made in January 1950, but before the Nizam could issue a firman in accordance with it, Hyderabad became a part of the Indian Union and the Constitution of India came into force. An enactment called the Waliuddowla Succession Act, 1950, was therefore passed by the Hyderabad Legislature which provided that the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the wealth of the late Nawab are hereby dismissed” and that the above decision “cannot be called in question in any court of law. Held, that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community, in Courts of law, the Act was discriminatory; that there was no rational or reasonable basis for the discrimination, and the Act contravened the provisions of Article 14 of the Constitution and was therefore void. An arbitrary act, which follows to be so unreasonable, is so discriminatory, can be considered violative of article 14 of the Constitution.

The Doctrine of Colourable legislation

K.C. Gajapati Narayan Deo and other vs. the State of Orissa  (1953 AIR 375 1954 SCR 1) There is nothing like malafide to be attached to the legislature. Either it’s in power of legislature or not and hence arrived at the doctrine of pith and substance. Here the argument was based on Canadian judgment. These are applications under Article 226 of the Constitution for the issue of mandatory writs against the State of Orissa restraining them from issuing any notifications or taking any other steps under the Orissa Estates Abolition Act, 1 of 1952, in so far as the estates to which these applications relate. These eight applications concern eight permanently settled estates of the ex-Madras area, which since 1-4-1936, became part of the then newly formed State of Orissa.

Held

(i) that the question whether a law was colourable legislation and as such void did not depend on the. motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears, on proper, examination, to be a mere pretence or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. The provision contained in section 37 of the Orissa Estates Abolition Act, 1950, for payment of compensation by 30   annual instalments is not a piece of colourable legislation.   It comes clearly within entry 42 of List   III of Schedule VII of the Constitution. [The question whether the provisions of the Madras Estates Land (Orissa Amendment) Act, 1947, which empowered the Collector to settle and reduce rents were void because  they involved an improper delegation of legislative powers to the executive and contravened article 14 of the Constitution was raised, but with the consent of the counsel, their Lordships decided to leave the question open as it did not relate to the validity of the Orissa Estates Abolition Act, which was the subject-matter in dispute in the present case.

The Doctrine of Pith and Substance.

The Commissioner, Hindu .. vs Sri Lakshmindra Thirtha Swamiar  (16 April 1954)

It gave us judgment distinction on tax and fee (for something paid on special service). Went on several provision of Hindu Endowment Act and struck on most.

This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed & petition, presented by the respondent under article 226 of the Constitution, and directed a writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in connection with a Math, known as the Shirur Math, of which the petitioner happens to be the head or superior. It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religion Endowments Act (Act II of 1927), was in force and the writ was prayed for against the Hindu Religious Endowments Board constituted under that Act, which -was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act.

In this work the author has analyzed the case of Ram Jawayya Kapur v State of Punjab, where the Supreme Court of India (SC) had to deal with the question of extent of executive power and executive function in a situation where the executive was alleged to have violated the fundamental rights of the citizen vested in them by the Constitution of India without a legislative sanction. This landmark judgment delivered by our apex court in the wake of our independence is now acting as a touchstone for understanding the federal feature of the Indian Constitution through the separation of powers. How a cabinet is like a hyphen or a buckle that joins the legislature and the executive. What is the executive power but the residue after we have dealt with Legislature and judiciary?

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