When judges retire or pass away they are heard of no more except for the usual ritual farewells or obituaries and then they pass out of our lives and the legal system altogether. But it is not so in exceptional cases where, while we mourn their demise, we remember their lives and careers. One such exception is Justice P N Bhagwati whose recent departure has left a great void.
He was undoubtedly an extraordinary legal mind treading the untravelled path to render justice the ultimate aim of law.
Born on December 21, 1921 Prafullachandra Natwarlal Bhagwati had a brilliant academic career leading to an Honours in mathematics and then a law degree. Before that he actively participated in the freedom movement and courted arrest before going underground for about four months.
He started to practice in the Bombay High Court in 1948. He was appointed a judge of the then newly established Gujarat High Court in July 1960 at the age of 38—one of the youngest High Court judges. In 1967 he became Chief Justice of the Gujarat High Court. He was elevated to the Supreme Court in July 1973 and his term has been the longest tenure of a Supreme Court judge. His appointment to the Supreme Court coincided with the dawn of judicial activism and enlarged the universe of judicial discourse.
He was a great common law judge and like his illustrious forebears he blazed new trails by fashioning new tools and nudging the law a little forward. The judicial development of the common law which ‘has abundant riches’ is the reasoned application of its settled principles in current conditions. Great judges like Justice Bhagwati who have developed it have displayed a perceptive sense of legal history and responded to the needs of the times. The Court’s fidelity to the Constitution secures its own subordination. But fidelity and creativity are not necessarily antagonistic, with dedicated perspicacity they augment each other just as he showed with flourish.
His judgements covered the entire spectrum—complex areas such as legal control of government, rule of law, human rights, open government, judicial review of contractual powers of the state and of opacity in governmental transactions and above all his commitment to upholding constitutional values and enforcing constitutional limitations.
Justice Bhagwati’s endeavours in achieving a fusion of constitutionalism and humanism through his judgements and otherwise have been significant. He looked upon law as an instrument of social justice, a powerful instrument in the hands of a judge to usher in social and economic change. This philosophy guided all his judicial activities and was visible in all his pronouncements. He was full of compassion, breathing new life into the bare bones of the law to make it meaningful for the common man.
His judgement in Royappa gave a new dimension to Article 14—that what is arbitrary cannot be equal and would violate Article 14. Maneka Gandhi widened Article 21 infusing it with the concept of procedural due process and finally undid the law in Gopalan. Article 21 reached its full plenitude in Francis Coralie Mullin—life is not mere animal existence, the right to life is the right to live with basic human dignity.
Promissory estoppel was given a scholarly and juristic foundation in Motilal Padampat and Godfrey Philips and the executive was held to its promise. In Ramana Dayaram Shetty, the power of distributing largesse by the government through contracts or otherwise was brought under judicial review and made subject to the test of fairness. Justice D P Wadhwa held that repeated repromulgation of ordinances was a fraud on the Constitution. M C Mehta imposed the principles of strict and absolute liability in tort due to inherently dangerous and hazardous activity. In Bachan Singh he was the lone dissenter against upholding death penalty. Most importantly Justice Bhagwati along with Justice Krishna Iyer was instrumental in heralding the legal aid movement and introducing the PIL or Social Action Litigation as he preferred to call it.
The law regarding locus standi was liberalised and procedural requirements relaxed and made flexible so that access to justice was made easier. He also introduced the epistolary jurisdiction—letters written to judges were treated as writ petitions in public interest.
He said “a commitment to legality of the laws and the due process is the contribution of the Chandrachud Court” of which he was a formidable pillar. From 1978 to 1980 three exceptionally great judges sat in the first, second and third court rooms of the Supreme Court: Justices Chandrachud C J, Bhagwati J and Krishna Iyer J —some of the most eminent judges in the world. It cannot, however, be said that he was perfect.
One cannot but mention the infamous A D M Jabalpur judgement where he held (with the majority) that no remedy was available during an emergency even if the order of detention was illegal, malafide or unauthorised. No doubt, decades later he regretted that judgement. After the Congress was voted back to power in 1980, he wrote an open letter to Prime Minister Indira Gandhi congratulating her—speaking of her victory as the crimson sunrise of hope for the country. It is said that nothing corrupts a judge as ambition does. Views have been expressed, and perhaps justifiably, that Justice Bhagwati was not unaffected by this flaw.
All this does not detract from his greatness and his contribution to law. He was a warm person with no airs. I had the privilege of knowing him for over thirty five years. The individual contribution of judges is absorbed in the anonymity of the coral reef by which the judicial process shapes the law. Their name and fame are writ in water. In the course of a century, the acclaims of a bare handful survive. Justice Bhagwati belongs to that select company.
V Sudhish Pai
An expert on the Indian Constitution
Email: vsudhishpai@gmail.com