Sir Ashutosh Mukherjee’s legacy in law

It is given to very few persons to receive high honours, attain exceptional scholarship and become legends while not compromising on the highest standards of integrity and independence. Sir Ashutosh Mukherjee was pre-eminently such a person. June 29 marks his 160^th birth anniversary and May 25 was the centenary of his passing.

Mathematician, lawyer, judge, jurist, educationist - Ashutosh Mukherjee was all this and more. He left his profound impact in all these fields, bringing to bear a refreshingly new thinking and fresh approach on all that he did. The range of his mind and intellect and the gamut of his activities and accomplishments are so astounding that one is left wondering how so much could be achieved in the span of only 60 years. The three great driving forces of civilisation - science, law and education - found a remarkable meeting point in Sir Ashutosh. He drifted to law, to use his own words. That proved to be a great bounty to law. His forty years of association with law and his career as a lawyer and a judge perhaps surpass many of his other achievements. Here, we shall dwell upon only his work and contribution in the field of law, particularly as a judge.

He joined the Bar in 1888 and was a junior of the legendary Sir Rash Behari Ghose. Combining extraordinary intellect and unremitting industry, he soon made a mark as a skilled and successful practitioner and a luminous and prodigious scholar and built up a considerable practice. In 1898, at the young age of 34, he delivered the prestigious Tagore Law Lectures on the Law of Perpetuities in British India. The Tagore Law Professorship is regarded as the pole star on the eastern horizon of jurisprudence. The lectures were marked by his characteristic thoroughness. He concluded his lectures saying,

“It has been my constant endeavor to present to you not merely the precepts of the law as they are, but also the reasons for their present form. This process by which we trace legal rules and formulas to the first principles that lie at the foundation of our system of jurisprudence may occasionally appear to be dry and uninteresting; but once you are familiar with it, let me assure you, you will find nothing more stimulating to your intellect. Never forget that in the words of one of the foremost jurists of this generation (quoting what Sir Fredrick Pollock wrote to his senior Lord Lindley). Law is neither a trade nor a solemn jugglery, but a true and living science.”

A couple of instances will bear out the excellence of whatever he did. As Sir Rash Behari’s articled junior, Ashutosh greatly assisted the senior in bringing out the second edition of his Tagore Law Lectures on the Law of Mortgages and the great jurist acknowledged it in his preface to the book.  As a young lawyer appearing for the appellant in a criminal appeal with his keen knowledge of Mathematics, he applied the laws of Hydrodynamics to successfully disprove the prosecution case against his client and secure his acquittal.

Before he could reach the top of the profession, Ashutosh Mukherjee was appointed a judge of the Calcutta High Court in June 1904. While this deprived the nation of his active participation and service in public life, it turned out to be a blessing for education and the judiciary.

For the next almost twenty years, Ashutosh Mukherjee adorned the Bench of the Calcutta High Court as one of its brightest ornaments. Sir Ashutosh officiated as Chief Justice of the Calcutta High Court for a few months in 1920 and was felicitated both by the public and in the High Court. Justice Hidayatullah places him among the six most eminent judges that India has produced and says that his learning was vast, his knowledge deep and exact, and his exposition of law complete. Sir Ashutosh’s eminence as a jurist was due to his great erudition and broad outlook. He was a lawyer’s lawyer and a judge’s judge. His elevation and tenure on the Bench significantly expanded the universe of judicial discourse.

As a judge, he had an open mind till the end. He used to repeat that a member of the Bench ceased to be a judge if he were opinionated and did not keep an open mind all the time; when it is claimed by one that he knows everything it only shows his ignorance; it is never too late to be a student and that is no disparagement even for a judge. Indeed, a judge’s knowledge should help initiate and steer a debate and discussion rather than foreclose one. He appeared in the Honors in Law and Doctorate in Law examinations when he was himself a member of the Senate and of the Syndicate in the University.

Sir Ashutosh possessed utmost judicial integrity. Adverting to what is expected of a judge, he observed that it should not be assumed that arguments of counsel are necessary to enable the court to arrive at a sound conclusion, and whether the case is argued by counsel or not, the court should accurately ascertain the facts, apply its own knowledge of the law to the facts ascertained, and if the law is doubtful, the court should search, if necessary, into the authorities before it pronounces a decision. Justice Mukherjee practiced this almost to perfection. He did not elect between rival arguments. He drew on material whether presented in arguments or not and formed his opinion after making all the necessary research for a proper application of the law.

In a case where the documents were in Arabic, he studiously learnt and mastered Arabic, read the original texts and rendered judgment. He belonged to that class of judges who first inform themselves about the principles, so that they may save themselves from judging amiss. Judges are necessarily conditioned in their function by the material placed before them in the arguments and by the anxiety not to impair judicial consistency. But a judge with deep knowledge of the philosophy of law and the ways of men, even while working within such limits, transfers experience into law and performs a genuine act of creation. Sir Ashutosh Mukherjee was such a supreme creative genius. He enriched legal thought and contributed to the development of law.

Ashutosh Mukherjee believed and maintained that in order to formulate new principles of law, one must make a comprehensive survey of the great historic prospect which stretches out from the Roman times to its recent developments in all well-ordered polities. Such knowledge can never be fruitless, for it has been well said that law is but the product of human life, the expression of the human mind, the declaration of the social will for the satisfaction of human needs. He cultivated a thorough knowledge of almost every system of law. His quest for principles took him far afield to the decisions of American courts - not merely the Supreme Court of the United States, but also of the state courts - and to the decisions of the highest courts of the then British colonies.

It is said that there are two things which a judge has mainly to do - to make the law wisely and to administer the law sagaciously. This ideal was always before Sir Ashutosh. To him, law was essentially a science of principles to be applied in the light of man’s social evolution and required from men of law the highest kind of integrity – the integrity of scholarship which he displayed in full measure as a judge. While on the Bench, he gave an astoundingly large number of judgments. There are more than two thousand reported judgments of his which cover every aspect of law. All of them are eminently readable and authoritatively lay down the legal position with precision, clarity and elegance. Many of his judgments have been referred to with approval by the Privy Council and the Supreme Court. They bear the unmistakable impress of his personality and have contributed in no small measure in shaping the law.

He believed that judges owed great responsibility to the society, to give expression to its aspirations and values. While he was aware of the significance of the past, he was conscious of the fact that law was made for man and not the other way around. He has, therefore, been described as a historical and sociological jurist. He believed with Dean Roscoe Pound that law must be stable and yet it cannot stand still. He was aware that there was no escape for the law from the struggles of life and that the course of law has to run parallel to the course of life. His approach to law and his judgments show his earnest desire to adapt the law to the felt necessities of the time. Like all great men, he was ahead of his times in his juristic conceptions as also in other matters and problems facing society, to meet the demands of a changing world.

In delivering judgments, Sir Ashutosh was animated by the idea that judgments are also a source of law manifested in the judges’ process of reasoning and interpretation. Judges are often called upon to analyse cases and apply general rules in ways not pre-meditated by the legislators and that the voice of the judges on matters not indicated in the statutes has a decisive weight because of the necessities imposed by logic and by practical considerations. He believed that the best way of developing the law in accordance with the requirements of the day was by decisions of courts.

"The jurist even as a spokesman for the court cannot escape from being himself."

This is very true of Sir Ashutosh also. In law, even when rules are compelling and cases fall upon one another in dull monotony, the manner and the personality of a judge appear in the interstices of his opinions. Ashutosh was always himself among his various brother judges, the distinctive style of his opinions always standing out. It has been rightly said that you can see the man and the judge through his judgments. It is of interest and significance that even when he was concurring, Sir Ashutosh generally wrote separate, concurring judgments adopting his own line of reasoning, referring to various relevant authorities and bringing to bear a fresh approach to the problem on hand. Equally interesting and significant is the fact that he is never known to have written a dissenting judgment. Perhaps the other judges always agreed with him.

He would enunciate a principle and reason upon it closely and logically. His power of reasoning made it possible to distinguish with ease between different principles and to define the respective spheres of their application. His judgments are a repository of all cases that might possibly have a bearing on the question at issue. His greatness lay in his delineation of the subject matter of the case, not merely as an analytical jurist, but from a historical and sociological perspective also. One such typical example is Bhupathi Nath Smritithirtha - a classic judgment regarding dedication by a will.It was held here that bequest to trustees for establishment and worship of an idol after the testator’s death is valid as a disposition for a religious purpose.  

He looked upon the rule of precedents as the greatest safeguard of the rule of law and the most effective check on judicial arbitrariness and uncertainty of law. He did not rely on precedents because of laziness to rework a problem once solved or as a device to save time and energy. He was happy to note that the idea or principle which struck him had already inhabited other minds and he always acknowledged his sources. He cited foreign decisions, as he himself said, merely to indicate that his conclusions were based upon substantial grounds of convenience and justice and not upon any artificial or technical reasons peculiar to any particular system of jurisprudence.

But he was no slave of precedents and never hesitated to depart from them whenever warranted. He paid attention not so much to the actual decision as to the principle underlying the decision. We have the famous case of Debi Prasad Chaudhuri holding that alienation by a Hindu widow of her husband’s estate effected with the consent of the next reversioner for the time being raises a rebuttable presumption of legal necessity. This was a trailblazing judgment where he differed from the view of Sir Gooroodas Banerjee. Sir Ashutosh’s view was approved by the Privy Council paying him glowing tributes. There is also the well known case of Chandra Benode Kundu, where he overruled judgments which had held the field for over two decades.

In his judicial pronouncements, Sir Ashutosh recognized the importance of the sense of legal history in ensuring that judicially declared principles advanced the interest of the society at large. Law knows no finer hour than when it cuts through formal concepts and transitory emotions to come to the rescue of the oppressed citizen. Justice Mukherjee always believed and said that procedure is the handmaiden of justice and if there was no procedure for something which the justice of the cause warranted or required, he would devise some procedure and render justice. His great passion was to do real justice.

One of his foremost qualities was courage and fearlessness, which earned him the appellation the Bengal Tiger. He had a brave heart and that was the secret of his independence. Fearlessness is a sine qua non for the growth of other noble qualities, wrote Mahatma Gandhi in Young India. It is the first requisite of a judge, for fearlessness alone can maintain the rule of law. He also showed as a judge that the ultimate guarantee of personal liberty is the personality of the judge and that liberty is safe not in the hands of the ignorant, but with judges of adequate knowledge.

The usual practice was for newly appointed judges to be put on the Division Bench with Sir Ashutosh presiding. He was indeed a trainer of judges. One typical example of such a new judge sitting with Sir Ashutosh was Sir George Rankin, who in time became Chief Justice of the Calcutta High Court. He was truly like a student and kept a notebook which had the senior judge’s suggestions and corrections.

It is to be noted that it was Sir Ashutosh Mukherjee who was responsible for establishing the University Law College in Calcutta. Earlier, law was taught in different colleges of the Province. It was in 1908-1909 that a separate college for the study of law was started. The proposal was mooted and carried forward by Sir Ashutosh as Vice-Chancellor. He impressed on us that the chief purpose of legal education was to impart to the students knowledge, not of practical details, but of fundamental principles, to teach them to draw the right conclusions from the premises.

He took a very noble view of the legal profession and of lawyers’ role in society. The growth of his mind as a jurist is a very illuminating chapter of his life. “The labyrinth,” as he advised students, “was to be penetrated by skill and mastered by a frequent survey of landmarks.” We need to remind ourselves of his wise admonition:

“It is the paramount duty of the lawyer to promote reverence for law. Laws may be unjust or unsuited to the times; but so long as they stand unrepealed, it is the high office of the lawyer to see that they are respected and obeyed. Reverence for law makes for social order.”

Ashutosh Mukherjee retired from the Bench in December 1923. Then Advocate General BL Mitter said on Justice Mukherjee’s retirement: “No junior felt embarrassed in your court where good law was well administered. In the maze and labyrinth of adjudged cases, you ever walked with a firm step holding aloft the torch of justice” represents perhaps the best and the most ideal in a judge. Ashutosh Mukherjee was that. It was said that his career as a judge was characterised by profound learning, great ability, marked independence, unerring patience and uniform courtesy. No judge could have aspired for any greater encomium. Sir Ashutosh belongs to that select class and is rightly regarded as one of our most celebrated judges.

Perhaps no other judge in India had such varied interests making such enormous demands on his time. Seldom has so much been packed into one human life and it was so very distinguished, inspiring and ennobling. Simple living and high thinking were his hallmarks. He aimed at excellence in all that he did and exemplified in his life the exhortation in the great Chandogya Upanishadic verse: yadeva vidyaya karoti, shradhaya, upanishada, tadeva viryavattaram bhavati – whatever is done with vidya (knowledge), shradha (faith, conviction, dedication – the totality of positive attitudes) and upanishad (deep thinking- contemplation) becomes supremely efficient.

Sir Ashutosh Mukherjee was indeed a multi-faceted personality and law was one of the great manifestations of that genius. His life and work are as relevant today as ever. They will continue to inspire and ennoble us. We treasure his memory and cherish his ideals and aspirations. To borrow Arthur Mee’s tribute to Socrates: Sir Ashutosh stood tall among his fellowmen, he was like a ‘mountain peak that dazzles in the last rays of the setting sun, a strange figure, almost lost to us in the mists of time, but living in the minds and hearts of men as long as right is might and life is stronger than death’.

V Sudhish Pai is a jurist and Senior Advocate of the Karnataka High Court.