Justice P.N. Bhagwati: Champion of Judicial Activism in Indian Jurisprudence
Prafullachandra Natwarlal Bhagwati remembered as a pioneer of the Public Interest Litigation and concept of absolute liability was born on December 21, 1921, in Gujarat. The 17th Chief Justice of India decorated with Padma Vibhushan and well known for judicial activism in contemporary Indian jurisprudence received his education in Mumbai from the Elphinstone College, Mumbai. Former Chief Justice of India started his career from the Bombay High Court and then in July 1960, was appointed as the Judge of the Gujarat High Court in the year 1960. He even went on to serve as the Governor of Gujarat briefly on two occasions. In July 1973, P N Bhagwati was appointed, a Judge of the Supreme Court of India. The family background of Justice Bhagwati is decorated with the father who was himself judge of Gujarat High Court and a brother who was reputed economist, Jagdish Bhagwati and another brother a famous neurosurgeon. In Poornima’s Advani publication, Indian Judiciary: A Tribute, it was mentioned, “It was chance encountered with Mahatma Gandhi, Father of the Nation, that changed his destiny to be a lawyer and judge. ” Legal luminaries is a section where Team Indian Law Watch covers such legal professionals who are inspirations for million of our readers.
Contemporary Indian jurisprudence owe a lot to Justice Bhagwati for judicial activism- Habeas Corpus case, Public Interest Litigation, environmental law, legal aid to the poor accused criminal in a trial, Christian women ‘s right to intestate succession and the famous Menaka Gandhi judgment to name a few have an important positive bearing on both the law of the land and the people of India. Furthermore, it was with the vision of Justice PN Bhagwati who, along with Justice V.R. Krishna Iyer who had introduced the concept of judicial activism in India.
1. Poverty and confinement is no obstruction to receive due legal representation. The accused by the reason of poverty, destitution, incommunicado were then not able to present their cases in the courts which denied the right to their due representation. Justice P.N. Bhagwati in Hussainara Khatoon vs. the State of Bihar (1979 SCR (3) 532) had introduced the concept that free legal aid is an inalienable element of reasonable, fair, and just procedure, therefore, is implicit in Article 21 of the Constitution. Hence, if due to the reason of poverty, destitution, improper communication, the accused is denied his right to be represented by lawyers before courts then it becomes the duty of the state to provide the same. Today, Legal aid is an important integral part of Indian judicial system doing the needful task for representing poor and destitute besides other eligible persons. The judgment left us with some important aspects:
- Every person has a right to be heard
- If the person is not able to afford a lawyer for any reason then the state has the duty to provide the legal assistance free of cost as per article 39A of the Constitution.
- Justice must prevail and the law should take its own course even in these conditions where the innocent is being deprived of his rights due to incapacity of his to meet the demands of justice
- Justice must not be demanding and it should be served free for those who are unable to afford it so that to maintain the sanctity of the Article 14 of the Constitution of India.
- Right to speedy trial is an inalienable part of article 21 of the Constitution of India and it should be guaranteed by the state and the duty of the justice system to go out of the way to meet the ends of justice.
The contributions of Justice Bhagwati to human rights, legal aid are so eminent that it led to his elections to World Congress on Human rights as its President in the year 1989.
2. He is the pioneer of the concept of the Public Interest Litigation (‘PIL’), thereby making the Supreme Court directly accessible to the common person. It became an important mechanism of shielding the interests of underprivileged and marginalized sections of the society. He is famous for having taken even postcards as the filing of PILs. The following lines are taken from the famous S.P. Gupta judgment:
“It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. The reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Aurobindo in his poem “Savitri”.
An inconclusive play is Reason’s toil;
Each strong idea can use her as its tool;
Accepting every brief she pleads her case, Open to every thought she cannot know.
We have therefore to rid our mind of any pre-conceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will if we want, but that would be rewriting the Constitution in the guise of interpretation. We must also remember that the Constitution is an organic instrument intended to endure and its provisions must be interpreted having regard to the constitutional objectives and goals and not in the light of how a particular Government may be acting at a given point of time. Judicial response to the problem of constitutional interpretation must not suffer from the fault of emotionalism or sentimentalism, which is likely to cloud the vision when Judges are confronted with issues of momentous importance. We must constantly bear in mind the famous words of Holmes J., in Northern Security Co. v. United States (1903) 193 US 197, where that great illustrious Judge said:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment, These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well-settled principles of law will bend.”
3. One of the earliest judgments given in favor of women maintenance was given by justice Bhagwati in Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi, (1977 AIR 1944) in which this case highlighted the Hindu female’s right to maintenance as a tangible right against property.
“1. The short question that arises for determination in this appeal is as to whether it is sub-section (1) or sub-section (2) of Section 14 of the Hindu Succession Act, 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If subsection (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the instrument. The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves. It is indeed unfortunate that though it became evident as far back as 1967 that subsections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property pre- scribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide the affairs of men, the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and un- moved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced .judicial conflict and put an end to needless litigation. This is a classic instance of a statutory provision, which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of an authority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory authorities in the country as also with the legal profession and immediately respond by making recommendations for suitable amendments whenever it iS found that a particular statutory provision is, by reason of inapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the result. it was intended to achieve. If there is a close interaction between the adjudicatory wing of the State and a dynamic and ever alert authority or body which response swiftly to the drawbacks and deficiencies in the law in action, much of the time and money, which is at present expended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty, and simplicity which alone can make it easily intelligible to the people.”
4. Justice Bhagwati was Chief Justice of the Gujarat High Court from September 1967 and one of the few judges who were part of the freedom movement, the impact of which can be seen in his thought process.
5. Another judgment he gave in favor of women is Mrs. Mary Roy Etc. v. State Of Kerala & Ors (1986 (2) SCC 209), The Supreme Court, in this case, held that the Christian women are entitled to have an equal share in their father’s property. This was a path-breaking judgment and sent shock waves throughout the country. Till then, a Christian daughter could inherit only one-fourth of the share of the sons in her father’s property. The Bench comprising of Chief Justice P.N. Bhagwati and Justice R.S. Pathak gave a liberal interpretation that benefited the Christian women in Kerala. The judgment prompted a repeal of the Cochin and Travancore Succession Acts and upheld the contents of Part-B states act, whose objective was to extend the application of the Indian Succession Act to the area which was governed by the discriminatory Travancore and Cochin Succession Acts. The judgment had its fair share of criticism too, leaving that aside, the holding by the Supreme Court offered Christian ladies much-needed assistance in obtaining their rights pertaining to intestate succession.
6. In Maneka Gandhi vs the Union of India (1978 AIR 597)when Maneka Gandhi was asked to return her passport in the public interest without stating the reason, in return she asked the office to give the statement of reason to which the office replied that “in the interest of general public“. She filed a writ petition in court to which Justice P N Bhagwati and Justice V R Krishna Iyer gave the verdict in her favor. He stated in the judgment that everyone has the right to life and liberty. Justice C.J. Beg concurring with justice Bhagwati said the right to travel and go outside the country is included in the right to life and personal liberty. Even Justice Chandrachud gave his opinion concurring with the verdict of justice Bhagawati.
7. In M.C Mehta vs the Union of India (1988 AIR 1115), when PN Bhagwati was the Chief Justice of India he introduced the concept of absolute liability in India. In this judgment it was held that if the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. The Court also pointed out that the measure of compensation in the kind of cases referred to must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
8. As in Bandhua Mukti Morcha vs Union of India & Ors.(1984 AIR 802) He stated that law does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. It is in a realization of this constitutional obligation that this Court has innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.
“The fundamental rights may be alleged to have been violated under various circumstances. The facts and circumstances differ from case to case. Whenever, however, there is an allegation of violation of fundamental rights, it becomes the responsibility and also the sacred duty of this Court to protect such fundamental rights guaranteed under the Constitution provided that this Court is satisfied that a case for interference by this Court appears prima facie to have been made out. very often the violation of fundamental rights is not admitted or accepted. On a proper consideration of the materials, the Court has to come to a conclusion whether there has been any violation of fundamental rights to enable the Court to grant appropriate reliefs in the matter. In various cases, because of the peculiar facts and circumstances of the case, the party approaching this Court for enforcement of fundamental rights may not be in a position to furnish all relevant materials and necessary particulars. If, however, on a consideration of the materials placed, the Court is satisfied that a proper probe into the matter is necessary for the larger interest of administration of justice and for enforcement of fundamental rights guaranteed, the Court, in view of the obligations and duty cast upon it of preserving and protecting fundamental rights, may require better and further materials to enable the Court to take appropriate action; and there cannot be anything improper in the proper exercise of Court’s jurisdiction under Article 32 of the Constitution to try to secure the necessary materials through the appropriate agency.”
9. Justice P.N. Bhagwati was also Vice Chairman of United Nations Human Rights Committee. He was the member of the Permanent Court of Arbitration at Hague. He was the first Indian to be appointed to United Nations Human Rights Committee in the year 1994 and in its very first meeting he added laurels for India by getting elected as its Vice Chairman.
A judge who delivered “justice for all” in his astounding career. The impact of his legal wisdom makes him most remembered judge till date, various laurels include a village named after him by the tribal community who benefited from his judgment a place, few enjoyed. The former Chief Justice of India left for heavenly abode in the year 2017 on June 15th but his life continues to be a message for all.
The article is the tribute of the Team Indian Law Watch to the Titan that passed away by narrating his journey for the present generation.
The legal researcher for the article is an Intern of Indian Law Watch Shivangi Gupta, BBA LLB, Vivekananda Institute of Legal Studies (2016-2021).