Constitution Day and Justice Vivian Bose

This year’s Constitution Day or Samvidhan Divas is of particular significance because it marks the beginning of the 75^th year of adopting our Constitution.   

The scope of  fundamental rights enumerated in Part III came up for consideration in the early years of our Republic. It is important to recount the contribution of Justice Vivian Bose in expounding core constitutional values and the significance and importance of the right to equality. 

A bench of five judges of the Calcutta High Court had quashed the conviction of 50 armed men who had raided a factory near Calcutta. The accused were convicted under the West Bengal Special Courts Ordinance, 1950. Section 5 thereof was held to be unconstitutional as there were no guidelines for assigning a particular case to the special court which had lesser procedural safeguards than those contained in the Code of Criminal Procedure.

The State appealed, and by a majority of 6:1, the appeal was dismissed in State of West Bengal v. Anwar Ali. Justice Patanjali Sastri allowed the appeal and was the dissenting judge. While Justices Fazl Ali, MC Mahajan, BK Mukherjea, SR Das and Chandrasekhara Aiyar declared only Section 5 invalid, Bose J went a step further and declared the entire Act to be unconstitutional. His brilliant judgment deserves to be read on every Constitution Day by every student, lawyer and judge. 

Justice Bose pointed out that the provisions of fundamental rights could not be read disregarding their historical background. In unforgettable words, he pointed out,

“They are not just dull lifeless words static and hide bound as in some mummified manuscript, but living flames intended to give life to a great nation and older its being, tongues of dynamic fire potent to mould the future as well as guide the present…When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind  is the most important of all.

It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad."

It is significant that Justice Bose did not allow the fact that the offences were serious in nature to cloud his judgment. Article 14 required that there should be a proper reason why some accused could be tried under one procedure while other similarly placed accused, facing equally serious charges, should be tried under a different and stricter  procedure. This judgment contains the most detailed exposition of the scope and the meaning of the phrase “equality before the law” which is the first part of Article 14.

A few years later, he had another occasion to consider the scope of Article 14 in Bidi Supply Co. v. Union of India. After referring to the earlier tests of classification, he remarked, 

“After having talked learnedly round and around the Article, the Court is no wiser than when it started...Article 14 sets out, to my mind, an attitude of mind, a way of life rather than a precise rule of law.”  

He pointed out that any judge can decide a question if a single principle is in issue, but most questions that come before the Supreme Court entail more than one principle and that is the heart of the difficulty. Finally, he observed that classifications which are made in utmost good faith, and are scientific and rational, can yet be bad because the object itself offends Article 14; the object itself must be struck down and not the mere  classification which, after all, is only a means of attaining the desired end.

Bidi Supply was an income-tax case where a writ petition was filed to restrain the transfer and assessment of an assessee. The Supreme Court quashed the order of transfer. Justice Bose concurred with this view, but went further and held that the impugned statutory provisions of the Income Tax Act, 1922 were violative of Article 14 and not merely the order of transfer.

Another interesting case - Dwarkadas Shrivas v. Sholapur Spg. & Wvg. Mills - was in relation to Article 31 and concerned with the validity of an Act whereby the management of a company was taken over. The takeover was struck down as the Supreme Court refused to permit such takeover in the exercise of its ‘police powers’. Justice Das held that the State had overstepped the limits of “police powers” and what had been done was nothing short of expropriation and was violative of Article 31. 

Justice Bose, in his concurring judgment, made the important point that the words such as “police powers”, “social control”, “eminent domain” were doubtful not because they were devoid of meaning, but because they had different shades of meaning in different countries and because they represent powers which spring from widely differing sources.   

His observations in the context of preventive detention are equally important. In S Krishnan v. State of Madras, the petitioner had challenged the validity of the Preventive Detention (Amendment) Act, 1951, which authorized detention to continue beyond the period of one year. While the majority upheld this law, Justice Bose once again delivered a brilliant dissent where he examined the scope of Articles 21 and 22. He referred to Article 22(4) which prohibited detention beyond three months, unless certain conditions were satisfied. 

In this article, it is not necessary to compare the majority and dissenting views in detail. What is important to note is his stress on the importance of liberty of a subject in a republican, democratic Constitution. He held,

“The court must look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution...the stress throughout is on the freedoms and any limitation placed on them are but regrettable necessities.”  

In memorable words, he pointed out that the Constitution was not made for those in brief authority, or for lawyers and dialecticians, but for the common people of India. He finally ended by noting that even though the petitioners were allegedly carrying on reprehensible activities, he would not allow his personal predilections to sway his judgment of the Constitution. He finally held that the detenus must be released and quoted two memorable passages by Lord Justice Scrutton who remarked in Rex v. Home Secretary that “It is, indeed, one test of belief in principles if you apply them to cases with which you have no sympathy at all.'' and that by Justice Holmes of the United States Supreme Court who held: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate.."

Justice Vivian Bose was appointed as a judge of the Nagpur High Court in 1936 and was elevated to the Supreme Court in 1951. He retired in June 1956 but was requested again under Article 128 to attend sittings of the Supreme Court and continued as a judge from September 1957 to September 1958. It is significant that despite many dissenting judgments and other decisions striking down statutory provisions, he was requested to continue as a Supreme Court Judge. 

Later, he headed the other Commissions of Enquiry and served as the President of the International Commission of Jurists from 1959 to 1966.  

He was a versatile person with interests in shooting, motoring, photography, magic and was the founder of the Boys Scout Organization in Central Province and Berar. He died on November 29, 1983, at the age of 92. He was the last surviving judge from the original bench. George Gadbois has an excellent but brief account of his life in his book Judges of the Supreme Court of India 1950-1989.

Arvind P Datar is a Senior Advocate of the Supreme Court.

He extends grateful thanks to Suchindran BN, who has written an excellent article titled Vivian Bose and the living Constitution — a tribute (2011-12) Indian J. Const. L. 1.