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Books > History > Legends in Law (Our Great Forebears)
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Legends in Law (Our Great Forebears)
Legends in Law (Our Great Forebears)
Description
About The Author

Started the general practice if law more than a quarter of a century ago. Joined the chambers of late Shri S.G. Sundaraswamy, renowned Senior Advocate and former Advocate General, Karnataka- Was closely associated with and assisted him for many years in several important cases especially in the field of Public Law. Practice in various branches of law- mainly in Civil Law, Constitutional Law and Administrative Law matters. Apart from private clientele, has appeared for and advised various institution- Banks, Companies, Public Sector Undertakings, Statutory Boards & Corporations & Universities. Government Advocate, High Court of Karnataka, Bangalore- 1999-2006. Handled important and sensitive litigation on behalf of the State of Karnataka in the High Court & the Supreme Court.

Member- Indian Law Institute, New Delhi, Karnataka (India) Section of the International Commission of Jurists. Participated in several seminars and presented papers and authored articles on different subjects. Assisted Dr. Durga Das Basu, the world renowned commentator on Constitutional Law in the revision of his Commentary on the Constitution- 1993-1997. Has been a Resource Person at the National Judicial Academy, Bhopal for continuing legal education for Judges. Contributor to the Restatement of Indian Law. Senior Research Scholar-Law Commission of Karnataka.

 

Foreword

It is both a pleasure and a privilege to affix this Foreword to Sri Sudhish Pai's eminently readable account of the lives of some celebrities in the field of law. This branch of legal literature which gives to the legal profession a sense of legal history and belonging is yet in its infancy in India. In England, we have the monumental work of Lord Campbell on the "Lives of the Lord Chancellors and the Chief Justices." There are many biographies of eminent men of law in the United Kingdom and the United States of America which critically evaluate the contribution of eminent lawyers and judges. The biographies of Justice Holmes by G. Edward White, of Justice Benjamin Cardozo by Andrew L. Kaufman, of Judge Learned Hand by Gerald Gunther and of Lord Oenning edited by Jowell and McAulsan are some of the superb contributions to legal literature. Those chronicles, apart from providing interesting personal accounts, trace the common golden thread that runs through the creative work of the great masters whose lives those biographies record and the enduring importance of their contribution to civilization.

All biographers perhaps share one thing in common - the emotion of hero-worship in their hearts, at times concealed and at other times like Boswell's over flowing. Their aim, of course, is to preserve for posterity something heroic they have found in their subjects, worth preserving and passing-on. Sudhish Pai's "Legends in Law: Our Great Forebears" is a worthy endeavour to inform the present generation of lawyers of what distinguished some of our great forebears in the law and set them apart from the pedestrian tribe.

There is perhaps inadequate public debate in India on the great issues that come before the courts. In the words of Lord Bryce, 'No feature of the Government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration and been more frequently misunderstood than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution.' The lives of the great lawyers, both as advocates and judges, demonstrate this underlying theme. Though their own lives inspire awe and respect for their individual greatness and achievements, it is the advancement of the cause of justice that their lives were dedicated to is what is of importance to posterity.

There must, in every form of government, be something fundamental, something like a Magna Carta which would be unalterable. As Lord Acton said "The great question is to discover not what governments prescribe, but what they ought to prescribe; for no prescription is valid against the conscience of mankind". It is, indeed, academic scholars who postulated implied limitations on the power of Governments. Prof. Conrad's assertion that 'any amending body organized within the statutory scheme, howsoever verbally unlimited its powers, cannot by the very structure change the fundamental pillars supporting its constitutional authority' is amongst the arguments that persuaded Justice Khanna to take the view he did in Kesavananda.

"To look at the law you must look it as a bad man"; "a word is the skin of a living thought" are some the fond epigrams of that 'exceptionally resonant and accessible intellect' that Justice Oliver Wendell Holmes was. He was also the author of the not so famous exhortation; "three generations of imbeciles are enough". But to Edward White, Holmes' biographer "Holmes was also an enticing personality. He was exceptionally attractive, especially as he aged and his countenance, with its piercing eyes, shock of white hair, and prominent moustache, seemed to reflect the roles of soldier and jurist that had been so important in his life. He was by all accounts a memorable companion and conversationalist, and his letters, in contradistinction to those of most of his judicial colleagues, rival those of the most celebrated correspondents in their stylistic facility and substantive interest".

On the romantic side Holmes' comparison of English and American women is a small window to his sense of chivalry. In a famous letter Holmes refers to a female friend at whose feet he had 'somewhat vainly laid the devotion of a faithful heart'. His biographer says that England served as a liberating atmosphere for Holmes and refers to one of Holmes' letters written to the wife of Fredrick Pollock in which he says ... 'You may say what you like about American women - and I won't be unpatriotic - but English women are brought up, it seems to be, to realize that it is an object to be charming; that man is a dangerous animal .... and that a sexless bonhomie is not the ideal relation ... ' Harold Laski later wrote to Holmes that Englishwomen had remembered Holmes in the 1890s as 'the most perfect flirt in London' .... who had a 'provocative gleam' in his eye. But Sudhish Pai's subjects do not seem to provide the reader with such amusement. The book does not reveal any long-awaited secrets or appeal otherwise to elemental curiosity .

Speaking of another great biographer of Judge Learned Hand, Justice Lewis Powell said:

As a biographer's subject, Learned Hand must inspire feelings of both gratitude and intimidation. Hand left his chronicler a rich source of material. In addition to thousands of judicial opinions and many public speeches, the great judge left a monumental correspondence with leading figures in law and letters, including Oliver Wendell Holmes, Jr., Felix Frankfurter, Walter Lippmann, and Bernard Berenson. So the Learned Hand Papers confront the biographer with the task of reviewing more than 100,000 items, an awesome physical task in itself. Happily, the honor of serving as Hand's biographer fell to Professor Gerald Gunther of the Stanford Law School.

Gerald Gunther refers to Learned Hand's striking name and equally striking looks. The finest tribute to Learned Hand came from his biographer who said that the major legal legacy of Learned Hand lay in his demonstration that "wise and detached judging is in fact humanly possible". This is a great assurance and hope to all those who profess the occupation of judging others.

The travails of biographers visit them from strange and un- expected sources. Two Siamese cats were accused of trashing valuable drafts of script of a biography and two small dogs were singled out for 'less than impeccable control of their bodily functions.' This is a familiar ring of what domestic pets did to Newton's research.

Sudhish Pai is a gifted lawyer with a profound sense of the importance of professional ethics, high standards of professional detachment and rectitude and a deep faith in the judicial process. His disdain for the vulgar prizes of the profession has set him apart. He has set for himself the highest professional standards at a time when professional success seems to be achievable by means other than professional excellence. I have known him since his student days in the law course about 30 years ago. In an environment where half-baked concepts picked up by chance predominate, Sudhish refreshingly belongs to a genre which still believes in ploughng the lonely furrow of scholarship and keeping the silver lamp of learning trim and bright.

Pai with his characteristic thoroughness has approached with an apostolic fervour his heroes whose life and work he has so beautifully chronicled in this book. While writing about Justice Asutosh Mookerjee and the versatility of his great gifts, Sudhish refers to the great judge'S accomplishments as a mathematician. Very few lawyers of the present day know that Sir Asutosh was a member of the Royal Society of Edinburgh for his prowess in mathematical sciences. Sudhish Pai himself is a keen student of Mathematics. It is indeed a pity that this accomplished lawyer's expertise in public law-Constitutional law and Administrative law- has virtually gone unnoticed, let alone honoured. That is a sad reflection on the spirit of the times.

This work on the lives of some of the legendary lawyers and judges of the past is an inspiring document. It holds a mirror to the present generation and tells us who we really are in comparison. The subjects of the book span a period of about 150 years and have made their contribution in different branches of the law -as judges or lawyers or scholars- and in other fields of human endeavor and achievement as well. The editorial policy of the author has rightly chosen these subjects and sought to convey through their lives and work- their values and traits- great learning, deep commitment and dedication, simple living and high thinking. The life of each of them was veritably a 'sadhana'- perseverance marked by professional discipline. That is the underlying common theme which inspired them and which indeed is their entitlement to our respect and admiration. A well furnished mind is as rare as a well lived life. Their minds were well furnished and their lives well lived. The message also is, as aptly and beautifully put by Sarat Bose to P.B. Mukharji, 'that pursuit of professional success cannot be a mechanical pursuit for money and that nothing could be more tragic if the man lost himself, his mind and life in the pursuit of mere wealth'.

The lives of these eminent men demonstrate the truth of Learned Hands aphorism: values are ultimate, they admit of no reduction below themselves. It is a sense of values which enabled these persons and which will enable us to find joy and contentment in life and in work. Speaking of them we may echo with the poet:

Lives of great men all remind us
We can make our lives sublime,
And, departing, leave behind us,
Footprints on the sands of time;
Footprints that perhaps another
Sailing over life's solemn main,
A forlorn and ship wrecked brother,
Seeing, shall take heart again.

The times we live in are characterized by a loss of the sense of values. Books such as this will help to replenish life and make it fuller and richer. The correspondence included in the book brings out Sudhish's closeness to some of the heroes and gives the work greater authenticity. It also reveals their qualities of greatness and goodness-'that best portion of a good man's life, his little, nameless, unremembered acts, of kindness and of love.'

Sri. M.G. Arora of Universal Law Publishing Company deserves our deepest appreciation for bringing out this publication which is a splendid recollection of the high standards by which the Bar and Bench had enriched our lives. Sri. Arora's dedication to law and legal studies goes beyond mere commercial interests. His over-arching mission is to provide the legal profession access to legal literature, particularly the legal classics, at affordable price. He has been relentlessly pursuing this goal for over half a century. He has grown two blades of grass where one grew and deserves the better of mankind. The trouble that Universal has taken to bring out many legal classics in low priced editions is praise-worthy. This service to the profession is invaluable and compels our admiration and gratitude.

The author and the publisher deserve to be complimented for bringing out this delightful addition to legal literature.

 

Preface

This work is the author's humble tribute to our great forebears in the field of law. Amongst various obligations that men owe to society and one another, there is the Rishi runa-the debt or obligation due to scholars. This is an attempt to discharge such a debt. Each one of the persons whose life and work is portrayed here was great, noble and inspiring. It is for us the present generation to be aware of our past - its glory and traditions - of the men who made it possible and to carry the banner forward.

The inspiration and guidance for undertaking this task came from none other than Shri M.N. Venkatachaliah, former Chief Justice of India. When Justice Venkatachaliah was conferred a Doctorate by the Uttaranchal University, the then President of India and Chancellor of the University Dr. A.P.J. Abdul Kalam wanted that a write-up about Justice Venkatachaliah-his life and work - be brought out. However, Justice Venkatachaliah was not in favour of any such exercise. Instead, he suggested that the present generation should have an awareness of the great names in the law and the splendid, dedicated work done by them. There is complete dearth of such material in India and writing something in that behalf would be both useful and worthwhile. This is very much unlike in the West where serious research is undertaken on the life and work of great men in the field of law and magnificent publications are brought out. To cite just one instance, Andrew L. Kaufman wrote a biography of justice Cardozo after about 40 years of research. Venkatachaliah, J. asked me to write about such great men and inspired me by his talk and example for which I am grateful. He himself is a shining symbol and inheritor of the legacy and a devout pilgrim in that exciting and fascinating pilgrimage.

I am deeply indebted to Justice Venkatachaliah for graciously blessing this work with his illuminating Foreword. I shall say no more because from one's master one simply receives.

The pen - portraits of the great men of law as compiled herein have been arranged (as far as possible) chronologically as per their dates of birth. Each one of them is great and unique and the order does not bear any relation to their relative eminence or contribution.

The pen portraits are not presented through fresh or original study or research but are based on material already available in various works/books such as:

• The High Court at Calcutta - Centenary Souvenir
• Famous Judges, Lawyers and Cases of Bombay - P.B. Vachha
• A Century Completed- A History of the Madras High Court - V.C Gopalratnam
• High Court of Judicature at Allahabad-Post Centenary Silver Jubilee Commemoration Volume
• My Life, Law and Other Things - M.C Setalvad
• Roses in December - An Autobiography - M.C Chagla
• My Own Boswell- M. Hidayatullah.
• A Judge's Miscellany (Second Series) - M. Hidayatullah.
• K.K. Mathew on Democracy, Equality and Freedom - Edited by Upendra Baxi.
• Judiciary in India and the Judicial Process - Tagore Law Lectures - H.R. Khanna
• Neither Roses nor Thorns - H.R. Khanna.
• B.N. Rau -Constitutional Adviser - E.S. Venkataramaiah
• A Statesman among Jurists - A Biography of Dr. Alladi Krishnaswami-Alladi Kuppuswami
• Sarat Chandra Bose - Commemoration Volume
• Some Makers of Indian Law - Tagore Law Lectures - M.N. Venkatachaliah
• Nani Palkhivala - Selected Writings - Edited by L.M.
Singhvi, M.R. Pai & S. Ramakrishnan
• Nani Palkhivala - A Role Model, Edited by Maj. Gen Nilendra Kumar
• Nani A. Palkhivala - A Life - M.V. Kamath
• Sir Ashutosh - Our Grandfather - Purnendu Kumar Banerjee
• The Seervai Legacy and Evoking H.M. Seervai - Both edited by Feroza Seervai
• Before Memory Fades - An Autobiography - Fali S. Nariman
• Six Decades of Law, Politics & Diplomacy - Some Reminiscences and Reflections - B. Sen
• Material on Shri M.K Nambyar - very graciously sent by Shri KK Venugopal and Shri Krishnan Venugopal
The same is gratefully acknowledged.
I have to acknowledge with gratitude the guidance, encouragement and support that I received from Justice Chittatosh Mookerjee and Shri Soli Sorabjee.

I am extremely grateful to Justice Chittatosh Mookerjee, Shri Fall Nariman, Shri Soli Sorabjee and Justice R.V. Raveendran for their kind words of appreciation.

Many thanks are due to Justice Chittatosh Mookerjee, Shri B.A.
Palkhivala, Shri Subrata Bose* and Shri Lakshrninarayanan Venkatachari** for making available photographs of many of the celebrities.

I also greatly appreciate and thank Universal Law Publishing Company for the keen interest they have taken in this work which has been brought out with efficiency and elegance.

My thanks are due to my wife Vijaya and son Sushant for their unstinted cooperation and assistance without which it would have been difficult to bring out this work.

I must also thank my friend and colleague Shri Srinivasa Murthy for his support and co-operation.

If this serves even in a small measure as a benefit and inspiration to the readers the effort would have been more than rewarded.

The book is humbly dedicated to Shri M.N. Venkatachallah - a great judge and a good human being.

 

Contents

 

Foreword v
Appreciations xi
Preface xvii
Table of Cases xxv
LAW - PHILOSOPHY - VALUES - DEVELOPMENT  
Law 1
Humanities - Lawyer - An Architect 3
Holmes' Vision 3
A Legacy - Its Significance 3
Justice and Rule of Law 4
Constitution and Constitutional Values 5
HISTORY OF THE COURTS - THEIR ORIGIN AND EVOLUTION - POWERS AND FUNCTIONS  
Law and Justice Delivery System in Ancient India 8
The Medieval Period 9
Systems of Western Law 9
The Advent of British in India 10
The Entry of English Common Law 10
The Royal Charters - Establishment of Courts 11
Supreme Courts in Presidency Towns 12
Development of Judicial System First, then a Body of Law 12
Two Parallel Systems 13
Letters Patent High Courts in the Presidency Towns 14
Letters Patent 1862/1865 15
Other High Courts 18
Privy Council, Federal Court, Supreme Court 19
High Courts under the Constitution 19
Judicial Process 20
Jurisdiction - Original and Appellate 21
Court of Record - Inherent Jurisdiction 21
Contempt of Court 23
Right to Life and Liberty 25
Habeas Corpus 26
Personal Liberty and National Security 27 27
Other Writs 27 27
Admiralty Jurisdiction 28 28
Judicial Review 29 29
Constitutional Foundations of Judicial Review 30 30
Anti Majoritarian Implications of Judicial Review 31 31
The Incoming Tides 33 33
Legitimacy of the Judicial Process 33
COMMON LAW - ITS ADAPTABILITY AND TRANSFORMATION IN THE LEGAL SYSTEM 35
MEN OF LAW  
Great Men of Law - Their Hallmarks 39
Makers of Indian Law a Representative Constellation 41
Bames Peacock 43
Sumboo Nath Pundit 49
J.D. Mayne 53
T. Muthuswamy Iyer 57
S. Subramania Iyer 63
V. Bhashyam Ayyangar 69
Gooroodas Banerjee 75
Rashbehary Ghose 79
J.D. Inverarity 85
Syed Mahmood 95
Eardley Norton 101
Lawrence Jenkins 109
Asutosh Mookerjee 115
S.P. Sinha 131
C.R. Das 135
Murray Coutts-Trotter 141
Jamshedji Kanga 147
Tej Bahadur Sapm 157
John Beaumont 163
Bhulabhai Desai 171
Maurices Gwyer 181
George Rankin 189
S. Varadachariar 195
Alladi Krishnaswami A yyar 201
Motilal C. Setalvad 219
Shah Sulaiman 231
B.N.Rau 239
K.N.Katju 251
Sarat Chandra Bose 255
Vivian Bose 267
Bijan Kumar Mukherjea 275
C.K. Daphtary 283
T.L. Venkatarama Ayyar 297
M.K. Nambyar 303
M.C. Chagla 313
K.SubbaRao 327
M. Hidayatullah 333
H.M. Seervai 347
Durga Das Basu 361
K.K.Mathew 367
H.R. Khanna 375
N.A. Palkhivala 385
AN AFTERWORD - THE TORCHBEARERS OF THE LEGACY 413
LETTERS 416

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Legends in Law (Our Great Forebears)

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About The Author

Started the general practice if law more than a quarter of a century ago. Joined the chambers of late Shri S.G. Sundaraswamy, renowned Senior Advocate and former Advocate General, Karnataka- Was closely associated with and assisted him for many years in several important cases especially in the field of Public Law. Practice in various branches of law- mainly in Civil Law, Constitutional Law and Administrative Law matters. Apart from private clientele, has appeared for and advised various institution- Banks, Companies, Public Sector Undertakings, Statutory Boards & Corporations & Universities. Government Advocate, High Court of Karnataka, Bangalore- 1999-2006. Handled important and sensitive litigation on behalf of the State of Karnataka in the High Court & the Supreme Court.

Member- Indian Law Institute, New Delhi, Karnataka (India) Section of the International Commission of Jurists. Participated in several seminars and presented papers and authored articles on different subjects. Assisted Dr. Durga Das Basu, the world renowned commentator on Constitutional Law in the revision of his Commentary on the Constitution- 1993-1997. Has been a Resource Person at the National Judicial Academy, Bhopal for continuing legal education for Judges. Contributor to the Restatement of Indian Law. Senior Research Scholar-Law Commission of Karnataka.

 

Foreword

It is both a pleasure and a privilege to affix this Foreword to Sri Sudhish Pai's eminently readable account of the lives of some celebrities in the field of law. This branch of legal literature which gives to the legal profession a sense of legal history and belonging is yet in its infancy in India. In England, we have the monumental work of Lord Campbell on the "Lives of the Lord Chancellors and the Chief Justices." There are many biographies of eminent men of law in the United Kingdom and the United States of America which critically evaluate the contribution of eminent lawyers and judges. The biographies of Justice Holmes by G. Edward White, of Justice Benjamin Cardozo by Andrew L. Kaufman, of Judge Learned Hand by Gerald Gunther and of Lord Oenning edited by Jowell and McAulsan are some of the superb contributions to legal literature. Those chronicles, apart from providing interesting personal accounts, trace the common golden thread that runs through the creative work of the great masters whose lives those biographies record and the enduring importance of their contribution to civilization.

All biographers perhaps share one thing in common - the emotion of hero-worship in their hearts, at times concealed and at other times like Boswell's over flowing. Their aim, of course, is to preserve for posterity something heroic they have found in their subjects, worth preserving and passing-on. Sudhish Pai's "Legends in Law: Our Great Forebears" is a worthy endeavour to inform the present generation of lawyers of what distinguished some of our great forebears in the law and set them apart from the pedestrian tribe.

There is perhaps inadequate public debate in India on the great issues that come before the courts. In the words of Lord Bryce, 'No feature of the Government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration and been more frequently misunderstood than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution.' The lives of the great lawyers, both as advocates and judges, demonstrate this underlying theme. Though their own lives inspire awe and respect for their individual greatness and achievements, it is the advancement of the cause of justice that their lives were dedicated to is what is of importance to posterity.

There must, in every form of government, be something fundamental, something like a Magna Carta which would be unalterable. As Lord Acton said "The great question is to discover not what governments prescribe, but what they ought to prescribe; for no prescription is valid against the conscience of mankind". It is, indeed, academic scholars who postulated implied limitations on the power of Governments. Prof. Conrad's assertion that 'any amending body organized within the statutory scheme, howsoever verbally unlimited its powers, cannot by the very structure change the fundamental pillars supporting its constitutional authority' is amongst the arguments that persuaded Justice Khanna to take the view he did in Kesavananda.

"To look at the law you must look it as a bad man"; "a word is the skin of a living thought" are some the fond epigrams of that 'exceptionally resonant and accessible intellect' that Justice Oliver Wendell Holmes was. He was also the author of the not so famous exhortation; "three generations of imbeciles are enough". But to Edward White, Holmes' biographer "Holmes was also an enticing personality. He was exceptionally attractive, especially as he aged and his countenance, with its piercing eyes, shock of white hair, and prominent moustache, seemed to reflect the roles of soldier and jurist that had been so important in his life. He was by all accounts a memorable companion and conversationalist, and his letters, in contradistinction to those of most of his judicial colleagues, rival those of the most celebrated correspondents in their stylistic facility and substantive interest".

On the romantic side Holmes' comparison of English and American women is a small window to his sense of chivalry. In a famous letter Holmes refers to a female friend at whose feet he had 'somewhat vainly laid the devotion of a faithful heart'. His biographer says that England served as a liberating atmosphere for Holmes and refers to one of Holmes' letters written to the wife of Fredrick Pollock in which he says ... 'You may say what you like about American women - and I won't be unpatriotic - but English women are brought up, it seems to be, to realize that it is an object to be charming; that man is a dangerous animal .... and that a sexless bonhomie is not the ideal relation ... ' Harold Laski later wrote to Holmes that Englishwomen had remembered Holmes in the 1890s as 'the most perfect flirt in London' .... who had a 'provocative gleam' in his eye. But Sudhish Pai's subjects do not seem to provide the reader with such amusement. The book does not reveal any long-awaited secrets or appeal otherwise to elemental curiosity .

Speaking of another great biographer of Judge Learned Hand, Justice Lewis Powell said:

As a biographer's subject, Learned Hand must inspire feelings of both gratitude and intimidation. Hand left his chronicler a rich source of material. In addition to thousands of judicial opinions and many public speeches, the great judge left a monumental correspondence with leading figures in law and letters, including Oliver Wendell Holmes, Jr., Felix Frankfurter, Walter Lippmann, and Bernard Berenson. So the Learned Hand Papers confront the biographer with the task of reviewing more than 100,000 items, an awesome physical task in itself. Happily, the honor of serving as Hand's biographer fell to Professor Gerald Gunther of the Stanford Law School.

Gerald Gunther refers to Learned Hand's striking name and equally striking looks. The finest tribute to Learned Hand came from his biographer who said that the major legal legacy of Learned Hand lay in his demonstration that "wise and detached judging is in fact humanly possible". This is a great assurance and hope to all those who profess the occupation of judging others.

The travails of biographers visit them from strange and un- expected sources. Two Siamese cats were accused of trashing valuable drafts of script of a biography and two small dogs were singled out for 'less than impeccable control of their bodily functions.' This is a familiar ring of what domestic pets did to Newton's research.

Sudhish Pai is a gifted lawyer with a profound sense of the importance of professional ethics, high standards of professional detachment and rectitude and a deep faith in the judicial process. His disdain for the vulgar prizes of the profession has set him apart. He has set for himself the highest professional standards at a time when professional success seems to be achievable by means other than professional excellence. I have known him since his student days in the law course about 30 years ago. In an environment where half-baked concepts picked up by chance predominate, Sudhish refreshingly belongs to a genre which still believes in ploughng the lonely furrow of scholarship and keeping the silver lamp of learning trim and bright.

Pai with his characteristic thoroughness has approached with an apostolic fervour his heroes whose life and work he has so beautifully chronicled in this book. While writing about Justice Asutosh Mookerjee and the versatility of his great gifts, Sudhish refers to the great judge'S accomplishments as a mathematician. Very few lawyers of the present day know that Sir Asutosh was a member of the Royal Society of Edinburgh for his prowess in mathematical sciences. Sudhish Pai himself is a keen student of Mathematics. It is indeed a pity that this accomplished lawyer's expertise in public law-Constitutional law and Administrative law- has virtually gone unnoticed, let alone honoured. That is a sad reflection on the spirit of the times.

This work on the lives of some of the legendary lawyers and judges of the past is an inspiring document. It holds a mirror to the present generation and tells us who we really are in comparison. The subjects of the book span a period of about 150 years and have made their contribution in different branches of the law -as judges or lawyers or scholars- and in other fields of human endeavor and achievement as well. The editorial policy of the author has rightly chosen these subjects and sought to convey through their lives and work- their values and traits- great learning, deep commitment and dedication, simple living and high thinking. The life of each of them was veritably a 'sadhana'- perseverance marked by professional discipline. That is the underlying common theme which inspired them and which indeed is their entitlement to our respect and admiration. A well furnished mind is as rare as a well lived life. Their minds were well furnished and their lives well lived. The message also is, as aptly and beautifully put by Sarat Bose to P.B. Mukharji, 'that pursuit of professional success cannot be a mechanical pursuit for money and that nothing could be more tragic if the man lost himself, his mind and life in the pursuit of mere wealth'.

The lives of these eminent men demonstrate the truth of Learned Hands aphorism: values are ultimate, they admit of no reduction below themselves. It is a sense of values which enabled these persons and which will enable us to find joy and contentment in life and in work. Speaking of them we may echo with the poet:

Lives of great men all remind us
We can make our lives sublime,
And, departing, leave behind us,
Footprints on the sands of time;
Footprints that perhaps another
Sailing over life's solemn main,
A forlorn and ship wrecked brother,
Seeing, shall take heart again.

The times we live in are characterized by a loss of the sense of values. Books such as this will help to replenish life and make it fuller and richer. The correspondence included in the book brings out Sudhish's closeness to some of the heroes and gives the work greater authenticity. It also reveals their qualities of greatness and goodness-'that best portion of a good man's life, his little, nameless, unremembered acts, of kindness and of love.'

Sri. M.G. Arora of Universal Law Publishing Company deserves our deepest appreciation for bringing out this publication which is a splendid recollection of the high standards by which the Bar and Bench had enriched our lives. Sri. Arora's dedication to law and legal studies goes beyond mere commercial interests. His over-arching mission is to provide the legal profession access to legal literature, particularly the legal classics, at affordable price. He has been relentlessly pursuing this goal for over half a century. He has grown two blades of grass where one grew and deserves the better of mankind. The trouble that Universal has taken to bring out many legal classics in low priced editions is praise-worthy. This service to the profession is invaluable and compels our admiration and gratitude.

The author and the publisher deserve to be complimented for bringing out this delightful addition to legal literature.

 

Preface

This work is the author's humble tribute to our great forebears in the field of law. Amongst various obligations that men owe to society and one another, there is the Rishi runa-the debt or obligation due to scholars. This is an attempt to discharge such a debt. Each one of the persons whose life and work is portrayed here was great, noble and inspiring. It is for us the present generation to be aware of our past - its glory and traditions - of the men who made it possible and to carry the banner forward.

The inspiration and guidance for undertaking this task came from none other than Shri M.N. Venkatachaliah, former Chief Justice of India. When Justice Venkatachaliah was conferred a Doctorate by the Uttaranchal University, the then President of India and Chancellor of the University Dr. A.P.J. Abdul Kalam wanted that a write-up about Justice Venkatachaliah-his life and work - be brought out. However, Justice Venkatachaliah was not in favour of any such exercise. Instead, he suggested that the present generation should have an awareness of the great names in the law and the splendid, dedicated work done by them. There is complete dearth of such material in India and writing something in that behalf would be both useful and worthwhile. This is very much unlike in the West where serious research is undertaken on the life and work of great men in the field of law and magnificent publications are brought out. To cite just one instance, Andrew L. Kaufman wrote a biography of justice Cardozo after about 40 years of research. Venkatachaliah, J. asked me to write about such great men and inspired me by his talk and example for which I am grateful. He himself is a shining symbol and inheritor of the legacy and a devout pilgrim in that exciting and fascinating pilgrimage.

I am deeply indebted to Justice Venkatachaliah for graciously blessing this work with his illuminating Foreword. I shall say no more because from one's master one simply receives.

The pen - portraits of the great men of law as compiled herein have been arranged (as far as possible) chronologically as per their dates of birth. Each one of them is great and unique and the order does not bear any relation to their relative eminence or contribution.

The pen portraits are not presented through fresh or original study or research but are based on material already available in various works/books such as:

• The High Court at Calcutta - Centenary Souvenir
• Famous Judges, Lawyers and Cases of Bombay - P.B. Vachha
• A Century Completed- A History of the Madras High Court - V.C Gopalratnam
• High Court of Judicature at Allahabad-Post Centenary Silver Jubilee Commemoration Volume
• My Life, Law and Other Things - M.C Setalvad
• Roses in December - An Autobiography - M.C Chagla
• My Own Boswell- M. Hidayatullah.
• A Judge's Miscellany (Second Series) - M. Hidayatullah.
• K.K. Mathew on Democracy, Equality and Freedom - Edited by Upendra Baxi.
• Judiciary in India and the Judicial Process - Tagore Law Lectures - H.R. Khanna
• Neither Roses nor Thorns - H.R. Khanna.
• B.N. Rau -Constitutional Adviser - E.S. Venkataramaiah
• A Statesman among Jurists - A Biography of Dr. Alladi Krishnaswami-Alladi Kuppuswami
• Sarat Chandra Bose - Commemoration Volume
• Some Makers of Indian Law - Tagore Law Lectures - M.N. Venkatachaliah
• Nani Palkhivala - Selected Writings - Edited by L.M.
Singhvi, M.R. Pai & S. Ramakrishnan
• Nani Palkhivala - A Role Model, Edited by Maj. Gen Nilendra Kumar
• Nani A. Palkhivala - A Life - M.V. Kamath
• Sir Ashutosh - Our Grandfather - Purnendu Kumar Banerjee
• The Seervai Legacy and Evoking H.M. Seervai - Both edited by Feroza Seervai
• Before Memory Fades - An Autobiography - Fali S. Nariman
• Six Decades of Law, Politics & Diplomacy - Some Reminiscences and Reflections - B. Sen
• Material on Shri M.K Nambyar - very graciously sent by Shri KK Venugopal and Shri Krishnan Venugopal
The same is gratefully acknowledged.
I have to acknowledge with gratitude the guidance, encouragement and support that I received from Justice Chittatosh Mookerjee and Shri Soli Sorabjee.

I am extremely grateful to Justice Chittatosh Mookerjee, Shri Fall Nariman, Shri Soli Sorabjee and Justice R.V. Raveendran for their kind words of appreciation.

Many thanks are due to Justice Chittatosh Mookerjee, Shri B.A.
Palkhivala, Shri Subrata Bose* and Shri Lakshrninarayanan Venkatachari** for making available photographs of many of the celebrities.

I also greatly appreciate and thank Universal Law Publishing Company for the keen interest they have taken in this work which has been brought out with efficiency and elegance.

My thanks are due to my wife Vijaya and son Sushant for their unstinted cooperation and assistance without which it would have been difficult to bring out this work.

I must also thank my friend and colleague Shri Srinivasa Murthy for his support and co-operation.

If this serves even in a small measure as a benefit and inspiration to the readers the effort would have been more than rewarded.

The book is humbly dedicated to Shri M.N. Venkatachallah - a great judge and a good human being.

 

Contents

 

Foreword v
Appreciations xi
Preface xvii
Table of Cases xxv
LAW - PHILOSOPHY - VALUES - DEVELOPMENT  
Law 1
Humanities - Lawyer - An Architect 3
Holmes' Vision 3
A Legacy - Its Significance 3
Justice and Rule of Law 4
Constitution and Constitutional Values 5
HISTORY OF THE COURTS - THEIR ORIGIN AND EVOLUTION - POWERS AND FUNCTIONS  
Law and Justice Delivery System in Ancient India 8
The Medieval Period 9
Systems of Western Law 9
The Advent of British in India 10
The Entry of English Common Law 10
The Royal Charters - Establishment of Courts 11
Supreme Courts in Presidency Towns 12
Development of Judicial System First, then a Body of Law 12
Two Parallel Systems 13
Letters Patent High Courts in the Presidency Towns 14
Letters Patent 1862/1865 15
Other High Courts 18
Privy Council, Federal Court, Supreme Court 19
High Courts under the Constitution 19
Judicial Process 20
Jurisdiction - Original and Appellate 21
Court of Record - Inherent Jurisdiction 21
Contempt of Court 23
Right to Life and Liberty 25
Habeas Corpus 26
Personal Liberty and National Security 27 27
Other Writs 27 27
Admiralty Jurisdiction 28 28
Judicial Review 29 29
Constitutional Foundations of Judicial Review 30 30
Anti Majoritarian Implications of Judicial Review 31 31
The Incoming Tides 33 33
Legitimacy of the Judicial Process 33
COMMON LAW - ITS ADAPTABILITY AND TRANSFORMATION IN THE LEGAL SYSTEM 35
MEN OF LAW  
Great Men of Law - Their Hallmarks 39
Makers of Indian Law a Representative Constellation 41
Bames Peacock 43
Sumboo Nath Pundit 49
J.D. Mayne 53
T. Muthuswamy Iyer 57
S. Subramania Iyer 63
V. Bhashyam Ayyangar 69
Gooroodas Banerjee 75
Rashbehary Ghose 79
J.D. Inverarity 85
Syed Mahmood 95
Eardley Norton 101
Lawrence Jenkins 109
Asutosh Mookerjee 115
S.P. Sinha 131
C.R. Das 135
Murray Coutts-Trotter 141
Jamshedji Kanga 147
Tej Bahadur Sapm 157
John Beaumont 163
Bhulabhai Desai 171
Maurices Gwyer 181
George Rankin 189
S. Varadachariar 195
Alladi Krishnaswami A yyar 201
Motilal C. Setalvad 219
Shah Sulaiman 231
B.N.Rau 239
K.N.Katju 251
Sarat Chandra Bose 255
Vivian Bose 267
Bijan Kumar Mukherjea 275
C.K. Daphtary 283
T.L. Venkatarama Ayyar 297
M.K. Nambyar 303
M.C. Chagla 313
K.SubbaRao 327
M. Hidayatullah 333
H.M. Seervai 347
Durga Das Basu 361
K.K.Mathew 367
H.R. Khanna 375
N.A. Palkhivala 385
AN AFTERWORD - THE TORCHBEARERS OF THE LEGACY 413
LETTERS 416

Sample Pages








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