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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Book Review
Bombay High Court & Beyond
It traces the growth of judicial institutions from 1672 through the establishment of the High Court in 1862 and up to 1947

What does one expect from a book on judges, lawyers and cases? Possibly, a narration of selected stories and events around courts presented from the perspective of the writer. Or a historian's idea of how judicial institutions got shaped by the events of the past and how they, in turn, influenced the socio-political developments of the country. Vachha's book contains all these and more, written in a style that is at once lucid, interesting, and instructive. In fact, the book was originally commissioned by the Bombay High Court to be the official history of the court and intended for release on the occasion of its Centenary in 1962. However, following a difference of opinion over the inclusion of a Postscript to the 'Second Tilak Trial' insisted upon by the author, it was published independently of the Court.

The book under review is a re-publication, enriched by a comprehensive and insightful introduction by another famous lawyer and writer from Bombay , Soli J. Sorabjee. It traces the growth of judicial institutions in Bombay , from 1672 through the establishment of the High Court in 1862 and up to the time the colonial rulers finally departed in 1947. This it does by looking at some of the famous cases tried during the period, mostly criminal trials including the three sedition trials of Tilak (1897, 1909, 1916) and of Mahatma Gandhi (1922). The writer makes it interesting even for the lay readers by spicing the narration with anecdotes related to the careers and personalities of eminent lawyers and judges involved in these trials.

Evolution of courts

The first six of the 15 chapters in the book are devoted to the evolution of courts up to 1862, when the High Court was established under a Royal Charter. Here are a couple of quotable quotes from some writers the author cites: "Courts in British India have not only strengthened the judicial conception of rights and personality, but have multiplied them"; "Bending law to the cause of justice, British judges interpreted and got round the puzzling Vedic text of legal disabilities of women under Hindu Law to participate in the enjoyment of property."

In the next six chapters, Vachha gives an incisive analysis of the role of ICS judges (in contrast to the lawyer-judges) in the administration of justice, the professional life of some eminent advocates and judges of the Bombay Bar, the not-too-friendly relations between the Barristers and the native lawyers, conflicts between the Bar and the Bench, and the admission of the first lady-advocate to the Bar in 1923.

The most interesting part of the book is the one that deals with conflicts between the Executive and the Judiciary, and the momentous cases that made history in British India . Of the three sedition trials of B.G. Tilak, the most controversial is said to be the second one, which related to certain articles published in Kesari in 1908. In the post-script, the author cites certain comments Chief Justice Chagla had made in the context of Tilak's conviction and expresses his disapproval of them. This is what Chagla had said: "Convictions of Tilak were a technical compliance with justice; but we are here emphatically to state that they were a flagrant denial of substantial justice . The verdict is not of much value . We must always await the inevitable verdict of history; and the inevitable verdict of history is that those two convictions are condemned as having been intended to suppress the voice of freedom and patriotism ."

But Vachha asks, ". if judges henceforth will have to decide cases with an eye, not to the law and evidence, or even to the Supreme Court, but to the 'inevitable verdict of history', which of course is to be taken as always infallible and final, what will happen to law and justice? In point of fact, the verdicts of History are no more inevitable or infallible than those of judges and juries; and, in any case, [they] are utterly irrelevant in the context of judicial pronouncements". That gives an idea of the personality of Vachha and his concept of advocacy and approach to writing legal history.

And then there is the 1922 sedition case against Gandhiji in respect of two articles published in Young India . To everyone's surprise, Gandhiji endorsed the prosecution's line of argument and said that "Preaching disaffection towards the existing system of Government has become almost a passion with me . and if I am set free, I would still do the same . I had to make my choice. I had either to submit to a system which I considered has done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips . I am, therefore, here to submit not to a light penalty but to the highest penalty . The only course open to you, Mr. Judge, is, either to resign your post or inflict on me the severest penalty"!!

Advocacy of a different kind, the like of which the British Empire had never known before and for which the celebrated British sense of justice had no fair response. Having convicted Gandhi for six years' imprisonment, the judge wrote ".if the course of events in India should make it possible for Government to reduce the period and release you, nobody would be better pleased than I."

The book must be compulsory reading for every student of law, and students should be encouraged to look for such writings about courts in other parts of the country as well. Also, someone should take up the task of updating the inspiring story of famous lawyers and judges of Bombay from 1947 onwards with the same professionalism of a historian which Vachha has displayed in his endeavour.

N.R. Madhava Menon
 
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