“No hope” might just be the hope!

Kapil Sibal was the rockstar lawyer whom I admired right from my law school days. In fact, he came into my frame of vision when he represented the tainted Supreme Court judge Justice V Ramaswami in Parliament during his failed impeachment motion in the early nineties.

Sibal got attention and well-deserved recognition even without the amplifying social media tools of today. Over the years, I have greatly admired and followed the career of this illustrious lawyer - to power and out, from prime mover to chief dissenter and then finally a change of heart. None of this made any impact on his enviable legal skills and, more importantly, on his amiable and affable personality which has never let success get to him.

So when it was reported that Sibal publicly expressed his “no-confidence” in India’s Supreme Court, it was indeed alarming, though I must confess, not surprising to me.

However, what was of great value for me was that finally, an established lawyer who had nothing to gain and yet everything to lose, actually chose to shun the culture of ‘silence’ that seems to have afflicted the leading stars of the Bar. It is said that the Bar is the ‘Mother of the Bench’. The Bar is the Bench’s fiercest critic while, at the same time, its most passionate defender. It is this freedom to critique that ensures the protection of the independence of the judiciary!

I have already told the tale about how Mohammad Ali Jinnah refused to attend a Bar hosted dinner in honour of a judge who had unfairly convicted his great friend Bal Gangadhar Tilak for sedition, only to be knighted in return by the colonial government. So here I tell some more tales of the outspoken Bar in colonial times in the hope that it shall also inspire you, living in the Republic of India, to speak up.

In 1845, the Times reported that Chief Justice of the Supreme Court at Bombay, the short tempered Sir Henry Roper, during a hearing, had flared up at the Advocate General Le-Mesurier and repeatedly asked him to sit down in an “imperious tone”. When the local press widely covered this incident, the Chief Justice simply denied it as untrue. Unlike many court reporters of today, not only did the reporter make an affidavit deposing to what he had actually heard in court, he also gleefully reported “After a few growls from the Bench, the matter was allowed to be dropped."

A few years down the line in December 1876, as Chief Justice Michael Roberts Westropp was planning his Christmas vacation to Matheran, he had an unexpected visitor at his residence - the former Advocate General Mayhew - who urgently applied for rule nisi for his client. The Chief Justice was not satisfied and sent him packing to come back the next day with a better affidavit. Mayhew prepared a better affidavit and on the next day moved the same application before Justice Pinhey, who was more forthcoming. When the Chief Justice heard about it, he was furious. Mayhew, in his defence, contended that he actually believed that Westropp had left town. Evidently, he had not. In January, Westropp constituted a bench of himself and Pinhey and demanded an explanation of Mayhew for what he perceived as “sharp practice”. Mayhew continued to plead innocence. The Chief Justice was not pacified as he felt that his defence was “pure fabrication”. Strictures were passed.

This is when the Bombay Bar got into action. At a special meeting, it condemned the judges and constituted its own fact-finding committee headed by Advocate General Marriot and included several senior barristers. The Committee exonerated poor Mayhew and its report was handed over by Marriot to the Chief Justice. While the Chief disagreed with the finding, the message was clear that the Bar would not only stand by its members, but would also act as a check against judicial high-handedness.

The tiff between the pompous Justice Mirza Ali Akbar Khan and barrister DN Bahadurji is also remembered by the Bombay Bar. In the middle of a cross-examination, when the clock struck four, Mirza brusquely directed Bahadurji to conclude by 5 o’clock, as the witness had to leave Bombay that evening and his lordship also had some engagements. When the clock struck five and the counsel was in the middle of his cross, Mirza J directed him to stop. Bahadurji protested and said he had an hour more to cover. The judge said he had given an undertaking to conclude. The lawyer insisted he had not. The judge at this stage referred to his notes and said it was so recorded there and it was his “rambling” cross-examination that had caused the delay. At this stage, Bahadurji said that the judges notes were “wrong”. Mirza flared up and dramatically rose to leave his courtroom, warning Bahadurji that his action was contumacious and that he was giving the lawyer time to reflect till Monday morning and return with an apology. The Bar again sprang into action and by the time Mirza sat in his court, the room was packed like sardines. Whether it was the show of strength by the Bar or the calming effect of an intervening weekend, we will never know, but Justice Mirza backed off and only observed that keeping the dignity of the Court in mind, he had decided to take no further notice of the incident.

The same Mirza J clashed with another rockstar of the Bombay Bar, the future father of Pakistan. During a hearing, Justice Mirza had made some observations which had prompted Jinnah to blurt out something to the effect that he did not “care a brass button” as to what Mirza J had just said. Jinnah immediately realized his mistake and tried to downplay his comment. The judge was not in a mood to relent and at this point he roped in Chimanlal Harilal Setalvad, who was the opposing counsel.

“What do you think, Sir Chimanlal? Is not this clear contempt of court?”

The shrewd Chimanlal was not ready to bite the bait. Also, in an act quite reflective of the solidarity of the Bar, a phenomenon fast ebbing with its politicization, Setalvad replied,

“It is a matter entirely between Your Lordship and Mr Jinnah; and I can have no opinion to express.”

In 1926, one of India’s oldest High Courts got to witness a great instance of Bar solidarity. The Allahabad High Court Bench of Justices BJ Dalal and AGP Pullan, both members of the Indian Civil Services, and both extremely well read, were causing heartburn to a lot of vakils. They would tell the lawyers that they had read all the case papers and that there was no necessity to argue, and that they should simply answer the Court's queries. Lawyers who could not build their cases the way they wanted to soon petitioned the Vakils Association, which was under the leadership of the legendary Sir Tej Bahadur Sapru. The enraged Sapru was quick to summon a meeting of the Association, which promptly passed a resolution seeking a proper hearing from the Bench. It fell upon the hapless Pandit Shyam Kishan Dar, Secretary of the Association, to sign off on this missive. Promptly, Dar was summoned by Acting Chief Justice Sir Cecil Walsh, who demanded an apology. Dar pointed out that he was simply a messenger. Walsh would have none of it, and equally promptly issued a notice of contempt.

When Sapru heard of this, he ensured that every member of the Vakils Association signed off on identical letters. Not to be cowed down, Walsh retaliated with a contempt notice for each letter writer. Soon, every member of the association was facing contempt action! A team of barristers that included BE O’Conor and Bidhubhushan Malik was constituted. Chief Justice Walsh placed the matter before himself. However, Sir Benjamin Linday, the senior puisne judge, refused to participate in such a ‘ridiculous’ proceeding. When one after another, all the other English judges took the same view, the Chief had no alternative but to requisition Sir Shah Mohammad Sulaiman. He agreed on the condition that he be given just 24 hours to mediate a solution first. Those hours proved crucial, as Sulaiman J negotiated a climbdown with a mutual exchange of apologies and the case was never taken up for hearing!

This is not to say that as a lawyer one must subscribe to a herd mentality and not question the collective wisdom of the Bar. Comes to mind another legendary lawyer who fought a trial against the villain of Jallianwalah Bagh, Lieutenant Governor of Punjab, Micheal O’Dwyer, in a British court. When Sir Chettur Sankaran Nair, after completing his degree, was permitted to join as a chamber junior to Sir Horatio Shepherd, who would himself one day go on to become the Chief Justice of the Madras High Court, the Madras Bar came in the way. It had passed a resolution that no Indian vakil should work as a junior to an English barrister. This was against Nair’s principle that no lawyer should be denied the right to chose his senior. So he defied the Bar resolution, inviting a boycott by the native lawyers. Nair was unflummoxed and went onto himself one day sit in the same High Court as a justice.

So while Sibal’s vote of no-confidence is deeply saddening, it also marks a beginning of something significant - the stalwarts of the Bar finding in themselves the courage of legends past like Jinnah and Sapru. This could just be the beginning of the Bar awakening to its responsibility to protect the Bench.

In the immortal words of John Lennon,

“You may say I’m a dreamer, but I’m not the only one…..”

Sanjoy Ghose is a Senior Advocate of the Delhi High Court.

The Bombay anecdotes are from PB Vacha’s “Famous Judges, Lawyers and Cases of Bombay”, Universal Law Publishing Co. (2012 reprint).