The nation is gearing up to celebrate the 75th Independence Day with the 'Har Ghar Tiranga' campaign launched by the Central government contributing to the mood with people now being allowed to hoist the national flag at home.

Interestingly, the Bombay High Court in 1947 had witnessed a one of a kind event where a British judge had unfurled and saluted the Indian National Flag before leaving for British shores.

This is a tale of the Bombay High Court's last British Chief Justice, Sir Leonard Stone who hoisted the national flag at the stroke of midnight on August 15 in the High Court premises.

The Last Scene

The Bombay High Court was established by the British exactly on this date, 160 years ago - August 14, 1862. It was done by a Letters Patent and was one of the three chartered High Courts established around the same time.

After 85 years, the British were leaving India.

Englishman Sir Leonard Stone was serving as the Chief Justice of the Bombay High Court.

Stone had assumed charge as Chief Justice of Bombay High Court on September 30, 1943 and had resigned soon after India's independence was declared.

However, he continued as a Chief Justice for another year before Justice MC Chagla took over and became the first non-British to occupy the post.

As the country woke up to independence, it fell upon Justice Stone to hoist the tricolour on the night of August 14.

At a special gathering which took place minutes before the dawn of August 15, 1947, Justice Stone unfurled and saluted the tricolour while other judges bowed before it.

The occasion was captured vividly by PB Vachha in his book ‘Famous Judges, Lawyers and Cases of Bombay’

On August 14, 1947, the members of the original and appellate side bar, solicitors, officers and the entire staff of the High Court, gathered at Central Court.

Fifteen minutes to midnight, then Chief Justice Stone and other judges of the High Court took their seat all dressed in full ceremonial court dress.

At 11.59 pm, CJ Stone addressed the gathering, observed a minute of silence and at stroke of midnight hoisted the flag inside the court. Simultaneously, the larger flag in the campus was unfurled.

Incidentally, August 14 is also the date on which the Bombay High Court came into existence. Established in 1862, the High Court will complete 160 years since inauguration.

Vachha described the event as an end to the long connection of Great Britain with India.

“Thus ended the long connection of Great Britain with law and justice in Bombay ...when the last British Chief Justice of Bombay rang down the curtain on the chequered history of British law courts in Bombay, and hoisted up the flag of Indian Independence,” Vachha wrote in his book.

He also commended the British for transferring power without bitterness or anger.

“It is a tribute to the discipline and good sense of the British people that, when the destined hour arrived, they relinquished their power over an Empire which they had held and ruled so long, and which they prized above all their other colonial possessions, without shedding a drop of blood or uttering in the hour of their departure an angry or bitter word,” he stated in his book about the last day.

In Sir Leonard Stone's words

Stone himself described the August 14 event as “an unforgettable night”.

His words are recorded in a book published by the Government Central Press celebrating centenary of the Bombay High Court from 1862 to 1962.

“That unforgettable night when power was transferred, the 14th/15th August 1947, when all the aspirations of a great people to be free, flowered and were consummated in those tense minutes when the hands of the clock in the Sessions Court, and the clocks all over India, rose to greet the midnight hour. There was rejoicing and triumph too: but triumph tinged with the ache of old friends parting. Emotions poised uniquely, blended in awareness, which requited worth, where worth had striven,” Stone said.

Vachha's book also contains excerpts of the speech which Stone gave to the audience gathered in the central court.

Stone had opined that by hoisting the national flag, judges, as administrators of law, were not only performing a public function, but also coming together to honour an emblem of the Union of India.

He also expressed his pride at getting an opportunity to raise the banner of independence.

"I am the last of a long line of English Chief Justices of the High Court of Judicature of Bombay... and I am proud that, it is by my hand and at my command, that the Banner of Independence should be raised in and upon this Court...” he said.

He also spoke on how Britain’s goodwill will be the most sincere considering the long association with India.

“Let us mutually forget those chapters in our joint history, which have not been happy, and let an abiding friendship endure between our two great races of freedom-loving peoples,” Stone said.

Bar and Bench speak

Bar and Bench spoke to members of the legal community about the event.

Retired Bombay High Court judges Justice Pradeep Nandrajog echoed Vachha's sentiment when he acknowledged that Stone's flag hoisting was indeed a great gesture.

"It was a recognition from him of the fact that justices shall henceforth dispense justice keeping in keeping with the motto Satyamev Jayate," he said.

Another retired judge Justice VM Kanade who is presently the Lokayukta of Maharashtra, said the gesture was a result of a non-violent movement.

"August 15 was a historic day which marked freedom of the country from the shackles of colonial rule. We are indebted to all the freedom fighters who fought or laid down their lives for our independence. Sir Leonard Stone hoisting the Indian flag is an example of peaceful transfer of power which was possible because of the non-violent movement of independence,” he said.

Retired judge Justice SC Dharmadhikari opined that the gesture of an Englishman unfurling the tricolour was to be seen as a culmination of all events that happened leading to the Independence of the country.

”The act of lowering the Union Jack and then hoisting the Indian tricolour signifies victory. However, until assumption of office by a Indian Chief Justice, the Protocol demanded that a sitting Chief Justice be given the honour. It might have been hurtful for someone to see their flag being brought down and another nation’s flag being hoisted," he said.

He proposed that after having fought a battle for 'self-rule' for so long, letting an English judge (who had stepped down as Chief Justice) to unfurl the flag could have been an indication that India does not want a feeling of animosity or enmity with Britain.

Allowing a British judge hoist the tricolour was a sign of brotherhood between the judges, after having sat together on the bench together for so long, Justice Dharmadhikari added.

There were also underlying sentiments amongst the lawyers that letting an English judge unfurl the national tricolour was the graciousness of the Indian judges.

Senior Advocate Rafique Dada opined that the gesture by Stone was merely fulfilling his duty as a Chief Justice of a Court, which as on August 15, had transformed into an Indian Court.

"He was a British Chief Justice of an Indian Court. As a Chief Justice he is duty bound to unfurl the flag, which is what he did. It was a good gesture on his part," Dada opined.

Dada also pondered over what Justice Stone may have gone through after India was declared independent.

"He must have felt as a British judge he took some harsh decisions, sometimes even against Indians. He may have thought that as an English judge, how could he be the Chief for Indian population, people may not accept him. But then High Court judges at that time have all taken harsh decisions, imprisoned their own people. The judge who convicted (Bal Gangadhar) Tilak was an Indian. But then the judge was appointed by the British government. Stone was also appointed by the British government, but eventually he became an Indian judge and as Chief Justice of an Indian court, it would have been anomalous to not hoist the flag".

The gesture was clear - it was to show that the judiciary was independent from the executive and would continue to keep its independence, Dada suggested.

Bombay Bar Association President Senior Advocate Nitin Thakker called the event as "passing on the baton from Stone to Chagla".

The gesture, he said, showed the respect for a new nation which was born at the time.

Senior Advocate Yusuf Muchhala said that the 75th independence day is indeed a proud moment for every Indian.

He said that it is pertinent to not politicise the Tiranga.

"We must not politicise any symbol of the nation. Right when it was unfurled for the first time, it was continued to be politicised from time to time for long," he stated.

However, he also maintained that he is not opposed to the 'Har Ghar Tiranga' campaign.

"After all, every Indian must love the land and its people. Simply loving the land and not the people is not true nationalism. You cannot divorce the land from the people. Looking after the people is true nationalism," he said.

Chartered High Courts - from protecting the crown to being guardian of fundamental rights

Interestingly, many of the High Courts in the country which stand as guardian of fundamental rights of Indian citizens, were established by the British long to entrench their rule in the sub-continent.

Three of the High Courts were established under the High Court's Act of 1861. The Calcutta High Court was the first - established on July 1, 1862. The Bombay and Madras High Courts were established on August 14 and 15 respectively the same year.

These courts were established the values of the crown and to protect the British government from the citizens, Dada and Warunjikar said.

One notable change after India became a republic and adopted our Constitution was that the Courts became custodians and supporters of the fundamental rights of the citizens.

"There were no concept of public interest litigation then. Plus no fundamental rights. The definition of State as expanded in 1979 to include instrumentalities of the State was not there," Justice Nandrajog added.

Justice Dharmadhikari reverberated this sentiment, adding that there also was a rise in the number of cases since State became a litigant, and the largest litigator.

"However, the main job of courts, of dispensing justice while applying the law in force continue to remain the same even after independence," he said.

This 75th Independence Day, Justice Stone's words continue to ring true.

"Go bravely, forward, fearless and undaunted, carry the torch of liberty high, so that this new India may be strong and happy and enjoy blessings of true freedom..."

Sources:

1. PB Vachha, Famous Judges, Lawyers and Cases of Bombay, Universal Law Publishing Co. (2011)

2. High Court of Bombay Centenary (1862-1962), Government Central Press, Bombay (1962)