Why has the Madras High Court been overlooked in appointments to the Supreme Court?

Bar & Bench June 18 2019
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 NL Rajah

The last appointment of a judge of the Madras High Court to the Supreme Court was in 2014, when Hon’ble Justice R Banumanthi was elevated. There is a general anguish and feeling at the Bar that the Madras High Court deserves much better given its pre-eminent position as a reputed chartered High Court.  

The Madras Bar Association (which incidentally is the oldest bar association of any High Court in the country having been started in 1865) has also passed a resolution earnestly requesting the Supreme Court to address this grievance.

One would concede that with different interests representing rivalrous diversities clamouring for representation in the Supreme Court, the job of the Collegium is not very easy. However, the fact that no appointments from the Madras High Court have been made for five long years leaves the Madras Bar with a sense of dejection.

This is all the more so when one looks at the long and glorious association of the Madras High Court with the Supreme Court. Such involvement can be traced to four distinct phases. 

The idea of a Supreme Court

The idea of a Supreme Court of India, during colonial times, was first proposed by Sir Hari Singh Gour. The proposal was strongly supported by Mohammed Ali Jinnah, but opposed by Jawaharlal Nehru. 

Sir Hari Singh Gour had moved his resolution in the Central Assembly on March 26, 1921. The Government of India circulated the resolution to the High Courts, Bar Associations and the “Local Governments” for their response and reactions. 

According to AG Noorani, the well recognised jurist, the most well-considered opinion came from the Madras High Court. Eardley Norton, speaking for the Madras High Court said,

For my part, I welcome it, and I welcome it because I look upon it as a further manifestation of the assertion of that nationalism which it was the object of these reforms to foster and to encourage”.

On the question of whether the country would have the adequate legal talent to man such a court, he observed,

That there is plenty of legal intelligence in this country, both Indian and English, of that I am satisfied. More than once the Privy Council have openly complimented the Indian judges in this country, from the time of the late Mr Justice Mahmood of Allahabad down to recent days upon the possession of the legal and judicial intelligence not inferior to their own. And I have no doubt whatever that if and when this Supreme Court comes into existence, we shall find plenty of indigenous talent, English and Indian, to discharge with intellectual credit the grave and varied functions of an accomplished court of final jurisdiction.”

AG Noorani also points out that the Advocate General of Madras, Sir CP Ramaswami Aiyar, wrote an able opinion from Ootacamund, dated July 11, 1921. He was one of the few to spare the time for a carefully considered response. 

Bombay was hostile to the idea. Two High Court judges and the Chief Justice, Sir Norman Macleod, as well as the government,  opposed it. The Calcutta High Court also opposed the idea.

The last word belonged to HLL Allison, Secretary to the Government of Bihar and Orissa.

The Governor, he said, noted that opinion was divided. Small wonder that when the “papers” reached Delhi, Gour’s resolution was defeated.

Involvement with the Federal Court 

It is well accepted in legal circles that the Federal Court was the predecessor to the Supreme Court of India.

Jinnah, in the 30s, renewed the fight at the Federal Structure Sub-committee of the Second Round Table Conference in London on October 27, 1931, for the establishment of an apex court in India. He favoured the establishment of a Federal Court having jurisdiction only in matters relating to the Constitution.

The personnel of the court will be qualified in those constitutional matters as constitutional lawyers, because the questions dealt with will arise, as we have contemplated, between the Federation and the Units and between the Units inter se. Further, I maintain, Sir, that it should be open to any subject, if his right is invaded or attacked – relating to the Constitution, of course, or arising out of the Constitution – to go to the Federal Court direct.

The three sessions of the Indian Round Table Conference resulted in widespread agreement among the parties involved that a Federal Court was imperative to interpret the new Constitution (the Government of India Act 1935) and to serve as the forum for the decision of disputes between the Federation and its constituent units. Thus, the Federal court came to be established. 

An important category of decisions rendered by the Federal Court under its appellate jurisdiction (a considerable number of which came from the Madras High Court) which deserve some mention are those which may be classified as having social or economic importance, i.e., cases in which legislation designed to remove certain social and economic ills underwent judicial scrutiny.

The Court in ALSPPL Subrahmanyan Chettiar v. Muttuswami Goundan, Advocate - General of Madras, upheld the validity of the Madras Agriculturists Relief Act of 1938, the aim of which was to enable agriculturist-debtors to have their debts reduced. 

In Manikkasundara Bhattar and Others v. RS Nayudu and Others, The Madras Temple Entry Authorisation and Indemnity Act of 1939, the aim of which was “the removal of the disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples,” was upheld by the Federal Court. 

The Madras High Court’s greatest contribution to the Federal Court was in lending to that court the services of Sir S Varadachariar. Sir Varadachariar had a meteoric rise in the profession. He was the only Indian to have served as an Acting Chief Justice of the Federal Court.

In a case that generated a lot of controversies and, more importantly, unease to the British government, Acting Chief Justice S Varadachariar and Sir Muhamad Zafrullah Khan ruled in favour of the citizen Benoarilal Sharma in a matter relating to preventive detention, while the British judge ruled against him. The judgment of the Calcutta High Court setting aside the detention was upheld by the Federal Court.

Giving shape to the concept of the Supreme Court of India 

Although the present Supreme Court of India did not supersede the Federal Court until January 26, 1950, in the early months of 1947, even before the realization of national independence, the Constituent Assembly of India appointed a committee composed of five distinguished jurists, and instructed this group to prepare a report containing their suggestions and recommendations regarding changes which should be made in the central judiciary after independence.

These five members were S Varadachariar, Alladi Krishnaswami Ayyar, BL Mitter, KM Munshi, and BN Rao. It is therefore to the credit of the Madras High Court that two of the five members who were selected to determine the Constitution and functions of the Supreme Court of India were from the Madras High Court. 

Once submitted, this Report was turned over to the powerful Union Constitution Committee, which was under the Chairmanship of Pandit Jawaharlal Nehru on July 21, 1947. This committee submitted to the President of the Constituent Assembly its Report on the Principles of the Union Constitution.

Clause 18 of this Report made it clear that all recommendations of the Ad Hoc Committee had been accepted by the Nehru Committee with one exception—both modes of appointment of judges suggested for consideration by the Ad Hoc Committee (which were more on the lines of the NJAC) were rejected.

They were replaced by a recommendation that “a Judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court and such judges of the High Courts as may be necessary for the purpose.”

Therefore, the Madras High Court has played an important and significant role in the formation of the Supreme Court.

Involvement with the Supreme Court in its formative days

The authorised strength of the Supreme Court of India on its formation was eight, including the Chief Justice of India. The first judge to be appointed directly to the Supreme Court of India after the COI came into effect was once again a judge of the Madras High Court, namely Justice N Chandrasekara Aiyar.

Again, the Supreme Court in its initial years drew judges largely from the Madras High Court. Of the first 28 judges of the Supreme Court of India, regional representation was as follows: Madras (6), Bombay (4), Calcutta (4), Patna (4), Allahabad (4), Nagpur (3), Punjab (2) and Orissa (1). 

In the initial years, four important cases from Madras helped the Supreme Court define its powers and jurisdiction under the Constitution of India. Romesh Thappar v. State of Madras, decided in 1950 immediately after the Supreme Court was formed, determined the question as to whether a litigant could directly approach the Supreme Court invoking its powers under Article 32 without exhausting the remedies provided to them under Article 226.

The Supreme Court replied that since Article 32 itself bestowed a fundamental right on the citizen of the country to approach the Supreme Court in case of infringement of fundamental rights, it cannot refuse to entertain applications seeking protection against infringement of such rights.

Decided the same year was the other historic case of AK Gopalan v. State of Madras. Much of the discussion revolves around the scope of Article 21 and 22. It set the tone for much constitutional debate and deliberation on the concepts of personal liberty and freedom.

Immediately thereafter in 1951 came the judgment in State of Madras v. Champakam Dorairajan, which was also momentous because it struck down the rule of reservation put in place by the Government of Madras Presidency. The decision marked the first parting of ways between the Executive and the Judiciary. This also led to the very first amendment to the Constitution of India in the form of sub-article (4) to Article 15 of the Constitution of India.

Following this in 1953, in State of Madras v. VG Row, the Supreme Court upheld a decision of the Madras High Court holding that Section 15 (2) (b) of the Criminal Law Amendment Acts and amendments in so far as they imposed illegal restrictions on a citizen’s right to form associations was void under Article 19 (4). 

It is noteworthy that in all four judgments, Justice Patanjali Sastri, an illustrious judge of the Madras High Court who had been elevated to the Supreme Court, was part of the Bench. He went on to become the second Chief Justice of India, a post he held with great distinction till he retired in 1954.

Thus, the association of the Madras High court with the Supreme Court has been a long and enduring one. As a chartered High Court and a court with immense stature and experience in the administration of justice, there was a huge duty cast on the representatives of the Madras High Court to dependably guide the establishment and conduct of the Supreme Court in the early days of its existence. It can be asserted without any fear of contradiction that this court had discharged that responsibility with great care and distinction without ever claiming any credit for its efforts. 

If the response to all of the above is that it is an old hat, one would remind the reader there is much in the workings of the Madras High Court that is commendable even today.

We are one of the High Courts with the largest number of women judges. While other High Courts have not given representation to members of the depressed classes on the Bench, we can claim that the Madras High Court has implemented concepts of social justice in letter and spirit.

We were the first to establish mediation centres in our High Court. The Court has expended tremendous efforts in maintaining its heritage and traditions.

All the above is not to seek some special status for the Madras High Court, but to merely to ask, “Should we be so badly ignored?"   

NL Rajah

The author is a Senior Advocate practicing at the Madras High Court.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.

 

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