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Famous Judges, Lawyers and Cases of Bombay by P. B. Vachha. Published in 2011 by Universal Law Publishing Company Private Limited, New Delhi, India. Pp: 367 + xlv. Price: Rs 550 (discounted price Rs 440).

This ‘unofficial’ history of the Bombay High Court (BHC) has received a new lease of life. Reprinted after 50 years, in time for the 150th anniversary of the High Court, it relives the highs and lows of legal existence in Bombay as viewed by Pherozeshah Vachha, an acerbic and trenchant advocate who had been asked to undertake the task by the Chief Justice in 1961. The original intent was to publish it officially on the occasion of the Court’s centenary in 1962. 

The 79-year-old Vachha "agreed on condition that he should have a free hand to write in his own way, and express his views and comments on men and matters,” notes India’s former attorney general Soli Sorabjee in his Introduction. "When the manuscript was with the High Court, objections were raised by the Centenary Celebrations Committee to some of the views expressed or the manner of expressing them.” Almost all the objections were met and the author even agreed to the insertion of a Note at the beginning of the book stating that the views expressed were those of the author. 

The sticking point was Vachha’s refusal to delete the Postscript to the Second Tilak Trial in which he has criticized the placing of a marble tablet outside the Central Court Room where (Lokmanya) Tilak was tried, 50 years after the event. On it is inscribed the freedom fighter’s famous response to the verdict of guilty on charge of sedition: "There are higher powers that rule the destinies of men and nations; and I think, it may be the Will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.” Though he appreciated Tilak’s memorable words, Vachha wrote, "Courts of law are not the right and proper places for political and patriotic memorials and demonstrations.”

As notes Sorabjee, "Vachha was faced with the alternative of either withdrawing the Postscript from the History or withdrawing the History from the High Court.” Though the work, as Vachha notes in his Preface, "entailed immense labor involving, besides the perusal of the books I have enumerated, careful research into and study of a large number of voluminous files from the records of the High Court for the last 100 years and more,” Vachha chose the second alternative. Close friends and some leading members of the Bar however worked out a compromise, namely that the chronicle be published without the involvement of the Centenary Celebrations Committee and so the history came to be titled Famous Judges, Lawyers and Cases of Bombay, a judicial history of Bombay during the British period, Sorabjee informs us.

Recalling how the town and island of Bombay, such as it then was, passed into British hands as part of the dowry of the Portuguese princess Catherine of Braganza when she married King Charles II, Vachha notes in his Preface that "Providence had willed that the destiny of Bombay should be linked with the destiny of the British Empire in India, which of course nobody dreamt of in 1661, least of all the Royal bridegroom in the midst of his mistresses, favorites and buffoons… However, there was one Englishman of the day whose prophetic vision foresaw the future greatness of ‘the city which by God’s assistance is intended to be built.’ This was Gerald Aungier, Governor of Bombay from 1669 to 1677,” …since the Portuguese authorities delayed parting with it on one pretext or another until 1668. Aungier was the real founder of Bombay. He was also the first Englishman to lay truly and well the foundation of British justice in Bombay in 1672.”

However, Aungier’s ideals of public service and good governance were not shared by many of his compatriots. He inaugurated the first British Court of Justice with due pomp and ceremony, but the directors of the East India Company who had leased the island for £ 10 per annum refused to send out any lawyers fearing they would be "stirring up strife and contention” and relied instead on employees who "are now coming which are not only scholars but have studied something both of civil and common law.” 

After Aungier’s untimely death in 1677 matters deteriorated and justice was not meted out except as suited the Governor and the Company and eventually was left in the "crude hands” of the Governor and his Council. Lawlessness continued until 1718 when Governor Charles Boone set up a court on more liberal lines consisting of Chief Justice Laurence Parker, five English judges, one Portuguese, one Hindu, one Mohammedan and one Parsi. They were advised to "Remember always to try the cause and never the person, neither regarding the face of the poor nor of the rich in judgment.” To this, Vachha comments, "capital advice, not superfluous even in our more civilized days, when judges may not regard the face of the rich or the poor, but are prone to regard the face of the advocate by whom the parties are represented.”

Vachha, who cites 20 authorities in his appendix, not counting the files and reports of the BHC over 100 years "written in hand on fragile paper with faded ink,” takes the reader through those primitive times when earnest judges, armed with good conscience and commonsense, tried to provide the basics of justice despite a variety of handicaps.

Writing about the establishment of the Mayor’s Court by the Charter of 1726, Vachha notes that the principles and practices of English courts became slowly manifest and though the Governor in Council was the first court of appeal, ultimate appeal to the King’s Privy Council fettered local arbitrariness. Also, these courts were originally meant for the resolution of conflicts between the Company’s factories and branches. They were not expected to adjudicate over disputes between the people of India which "should be decided among themselves, according to their own customs.” The Charter of 1753 expressly excluded such suits from the court’s jurisdiction. Nonetheless, Indian confidence in English justice was determined by the concept that an Englishman would have "no motive to hold the scales of justice unevenly between Indian disputants” except for direct bribery. This confidence grew as better lawyers and judges began to serve in Bombay and Indians increasingly turned to them for all their legal requirements, rarely finding their trust misplaced.

In his easy, uncluttered storytelling of the development of the British legal establishment Vachha takes the reader through the Recorder’s Court by the Charter of 1798, the changes in British and Indian environments and growth of British power. The more liberal Whig ascendancy in England was reflected in practice in India. The Recorder who presided over the court had to be a barrister of not less than five years’ standing. He was assisted by a Hindu pundit and a Muslim moulvi in determining cases concerning these communities. 

Vachha considers Sir James Mackintosh who assumed office as Recorder in 1802 as "perhaps the most distinguished man who has occupied the Bombay Bench.” Firm on principles but full of charity towards individuals, he struggled single-handed for nine years to provide justice to Indians against the despotic power of the Company’s servants and suffered slights and rebuffs from the Anglo-Indian society of which they and he were a part. Alas, the combination of an unsuitable climate and virtual social ostracism led to short spells of office and frequent deaths. As Vachha puts it, "the life of Bombay judges during the first quarter of the 19th century was a dismal record of high mortality coupled with high judicial morality… Mackintosh was the only Bombay judge who survived to return to England, a broken and disappointed man.”

The last Recorder Sir Edward West became the first judge of the Supreme Court of Bombay established by the Statute of 1823. The history of clashes with the executive continued, as "these judges courageously stood up for justice and fair play to Indians and curbed the excesses, extortions and depredations of their countrymen.” Though now trained barristers occupied Bar and Bench, they were all Britishers. There is no record of an Indian lawyer practicing in either the Recorder’s Court or the Supreme Court. Vachha quotes the Bombay City Gazetteer who quotes from F. D. Drewitt’s Bombay in the Days of George IV: "The position of a judge sent out from England by the Crown was not an enviable one. The King’s judges were appointed to act as a check on the Company and a protection to the natives of India against oppression and extortion. They took oath to administer justice without fear or favor. Naturally, the Company regarded them with suspicion and dislike; and did all that was possible to restrict their powers and limit their jurisdiction.”

The liberal Whig spirit in England, characterized by Edmund Burke, had led to the impeachment of Governor General Warren Hastings which laid bare the "monstrous abuses of a trading Company vested with absolute and irresponsible powers” before the British Parliament and people. The judges who came to India were "trained at the feet of Burke” and brought with them the prevailing political and judicial systems which eventually led to the development of Indian political institutions and "the Indianization of the Government of India,” notes Vachha.

However, the East India Company did encourage the systematic development of the indigenous laws of India. Confused, uncertain and opaque, these laws were almost impossible to administer. From the earliest time, the Company encouraged and assisted both European and Indian scholars to research, study and systematize them. The laws of the Shastras and Shariat were explored, collated and translated by Sanskrit, Persian and Arabic scholars. Hindu law was particularly difficult due to its antiquity. Vachha quotes J. D. Mayne, the first English lawyer to systematize Hindu law, who deplored the tendency of English judges, particularly in the Privy Council, to "to listen to no voices except those that came from the tomb,” and adds that it was only when Hindu Law came to be administered by Hindu judges like Kashinath Trimbak Telang and Mahadeo Govind Ranade that the modern liberal, progressive spirit entered the interpretation of the Sashtras. And it was these laws and customs of the native population that guided the Sudder Adawlut courts of the mofussil.

By 1852 the need was felt to combine the legal and judicial experience of the British barristers who worked in the Supreme Court with the knowledge and experience of Indian customs, usages and laws possessed by civil servants who presided in the Adawluts. The Indian High Courts Act of 1861 established High Courts of Judicature at Calcutta, Madras and Bombay and abolished the Supreme Courts and Sudder Adawluts in these Presidencies. This overhaul of the judicial system was also the result of the Crown assuming the entire sovereignty of British India after the uprising of 1857. Under the Act the judges were appointed by the Sovereign and held office at her will, "thus making them independent of the government of India as well as the local government. At least one third of the judges, including the Chief Justice, were to be barristers of the UK; another one-third  were to be recruited from the judicial branch of the Indian Civil Service (ICS); and the remaining places were made available to members of the subordinate judiciary and Indian lawyers practicing in the High Court.”

John Duncan Inverarity emerges as Vachha’s favorite advocate. He is described as "endowed with physical as well as moral and forensic courage …a born fighter; but he always fought fairly and with clean weapons, never taking advantage of the weakness or inexperience of either the judge or his opponent.” D. N. Bahadurji was the first Indian to be appointed acting Advocate-General of Bombay. "A formidable and irrepressible fighter, very stubborn, never abandoning or conceding a point… he lived a strenuous, solitary and difficult life under the shadow of a great domestic tragedy; and it speaks volumes for the strength of his mind and nerves to have practiced so long and with such success, in circumstances of unparalleled distress.” Mohammed Ali Jinnah’s professional manner was rather superior and conceited, and he stood somewhat aloof and was not very popular with the Bar. But he was unquestionably a great fighting advocate who stood up for his clients’ cause against all odds. Sir Dinshaw Mulla had a "rare talent for writing legal text-books, which for their lucidity and accuracy became not only popular all over India, but even authoritative.”

Writing about Sir Pherozeshah Mehta, Vachha notes, "The normal career of a lawyer who has both professional and political ambitions, is expressed in the cynical twist given to the grammatical degrees of comparison, ‘on, onner, onest,’ as applied to lawyer politicians. First get on and make your pile at the Bar; next with the prestige and profits gained at the Bar, get the honors; and lastly when you have both… you can afford to be honest (onest). In Pherozeshah’s case there is no trace of this mode of progress. Reversing the normal method of aspiring lawyer-politicians, it was his distinction in political and public life that ultimately helped Pherozeshah to make his pile (not very considerable) as a lawyer… Pheroze­shah’s claim to a place among the eminent advocates of the Bombay Bar is due more to his eminence as a valiant advocate of public rights against the Government of India…”

"The situation in which a son is in active practice at the Bar while his father is on the Bench, has frequently arisen in the Bombay High Court as well as elsewhere… The reverse situation with the son on the Bench and the father in active practice at the Bar has seldom if ever, arisen. It happened in the case of the Coyajees. While the father was at the top of his practice and prestige, his son N. H. C. Coyajee was raised to the Bench in 1943 and continued as a judge during the last 12 years of his father’s (Hormuzdyar) practice at the Bar… In view of his commanding position at the Bar at the time, there would have been no adverse comment if he had appeared before his son, but he never did, and spared the son the embarrassment of making a choice…”

Vachha is lavish in his praise of the judges who stood up to do the right thing in the face of governmental and social displeasure; he is equally ready to show up their flaws. "One thing has to be kept in mind — the fact that almost every man has a dual — a sort of Jekyll and Hyde — personality within himself. A judge may be very amiable and charming in private life. He may be quite different on the Bench. A good man may make a bad judge; a great advocate, a very poor judge.”  He also tells us that several of the early English judges, particularly the ICS men, were noted for their Oriental learning, their interest in the history and literature of India and their literary pursuits. He recalls how Sir John Jardine, trying a case of sedition against a Gujarati poet, laid down "very sound and wholesome principles relating to the law of sedition and criminal libel, to the effect that the writing should be read as a whole, giving due weight to all its parts; that the court must have regard to the theme, purpose, tone and spirit of the poem as a whole and allowance should be made for poetic licence and rhetoric.” He writes about Ranade’s intimate knowledge of the social and economic life of the peasants and agriculturists in the Deccan and the pedantic Sir Narayan Ganesh Chandavarkar, "entirely devoid of a sense of humor.” 

Vachha contrasts Justice Dinshaw Davar’s observations on the conviction of Tilak and Justice Broomfield’s treatment of Mahatma Gandhi, both of whom were tried for seditious publications: "Tilak demands change in the methods and attitude of Government. Gandhi preaches open overthrow and destruction of the British Raj. Yet Tilak left the court with the stigma of a dangerous convict, reprimanded and admonished by the judge in strong, scathing terms. Gandhi took his departure in an odour of sanctity and a blaze of glory. The latter, though a worse sinner from the standpoint of law, was treated both by the prosecuting counsel and the judge with restraint and respect bordering on veneration… Davar belonged to the old school of ‘die-hards’ who sincerely believed in the beneficence of British rule in India. Besides, he had the one-track, unjudicial mind of the militant advocate, which he carried with him from the Bar to the Bench.” Vignettes of historical cases and especially the chapter on "Conflicts between the Executive and Judiciary” make for fascinating reading. Though Vachha’s history ends with India’s independence, we know that the tradition continues.

Vachha gives a detailed account of how the last British Chief Justice Sir Leonard Stone conducted the handing over of judicial power to Independent India on the night of August 14, 1947. He speaks of the "irony of history” that the British connection with the administration of law and justice in India ended when it had reached its "liberal, sympathetic, progressive” peak. "The irony is further underlined by the fact that this political awakening of the Indian people itself was primarily due to the teachings of England. It was English education that opened the eyes of Indians to their rights and liberties… an eventuality and a consummation which Macaulay, the great champion of English and Western education, foresaw without flinching, a century before it came about.”      

A. S .M.