In a new book published this month, “An Independent, Colonial Judiciary”, I explore the history of the Bombay High Court during the British Raj. The book seeks an answer to one central question: why did the court transition so seamlessly from colonialism to independence? When M.C. Chagla became the first Indian Chief Justice of the Bombay High Court, Indian lawyers wrote to him that he must maintain, rather than undo, the “high standards” set up by the British Chief Justices who had preceded him. The answer, I found, in brief, was that the court stood for something quite apart from colonialism during the colonial period:
The Bombay High Court went through a gradual process of decolonization such that independence in 1947 did not represent a radical or substantial break from the past. Even in the 1860s, its “Appellate Side” Bar was dominated not by Britons but by Indians. Starting in the 1880s, the solicitors who appeared before the court’s “Original Side” were, increasingly, Indians. By the 1920s, the Bar was almost entirely Indian in its composition. And by the 1940s, nearly every judge of the court was an Indian.
In a colonial India in which racism was rampant, the Bombay High Court was a place where an Indian was likely to have encountered less racism than elsewhere. Indians were denied membership at elite social clubs like the Byculla Club or Yacht Club in Bombay, and Indians were often denied a first class seat or a seat at a dining table on a train or ship in the colonial period. By contrast, race did not predict how judges decided cases – Indian judges like Davar and Chandavarkar decided cases against Indian political leaders like Tilak and Savarkar, while a British Chief Justice, Lawrence Jenkins, almost single-handedly helped Indian lawyers to excel at the Bar. To this day, Lawrence Jenkins occupies pride of place at the Bombay High Court – his portrait hangs alongside Chagla’s in the Chief Justice’s courtroom, and his statue stands beside Mulla’s at the judges’ entrance of the court. A Welsh Chief Justice, Jenkins was so hated by his British brethren that he was called a “scoundrel” in open court by a British judge in Madras- a judge who was consequently forced to resign. It was seniority, not race, that determined which of the two judges on a “Division Bench” got to write the judgment in a case. At the higher levels of the profession, litigants hired lawyers based on how good they were in court. Like Sir Jamshedji Kanga or J.D. Inverarity, if you were capable of making an outstanding argument in court, it mattered little to the litigant whether you were Indian or Briton, Hindu or Muslim. The Indian and British judges of the court shared warm personal relations off the bench. Gentlemen judges like Badruddin Tyabji and M.C. Chagla- products of education in England – shared close bonds with their British counterparts. A very tiny proportion of cases before the court (in fact, less than 1% of the court’s docket) involved white litigants – thus, there were scarce opportunities for the court to act in a racist manner in favor of white litigants.
The court functioned independently of the other branches of government. Since 1899, a de facto “good behavior” tenure was in place, and it was informally understood that judges would not be removed except for misbehavior. Non-political criminal cases were as often decided in favor of the accused as they were decided in favor of the prosecution. Political criminal cases like the Tilak case were often decided in favor of the government – but it is debatable whether the outcomes of these cases were brought about on account of any political pressure exerted on the court’s judges. Successive Chief Justices of the court fought the executive on administrative matters, in order to retain the court’s independence.
Among other things, the book also debunks some of the old myths and hagiographical stories which abound about the High Court’s history. Take the story of Sir John Peter Grant – held out as the one example of the quintessential independent judge. The book reveals that there’s more to his story than meets the eye (he was a Crown judge during the East India Company’s reign in India, when a judge was expected to police the administration to a far greater extent than later on; also, Grant was recalled to England, and he eventually had to resign his office). Another myth- it was said that Governor Mountstuart Elphinstone had challenged Chief Justice Edward West to a gun duel. This, I found, was not true. As Elphinstone wrote in a letter to West in 1826, “To challenge a Chief Justice is one of the last things that would have entered into my imagination.” Yet another myth- the Government Law College was, during the colonial period, a prestigious school at which one could study. Quite the opposite, I found that even in 1889, the Government Law School (as it was then called) was termed “little better than a farce, a sham and a delusion”, and its own alumni tended to distance themselves from it. Indians who wanted a prestigious legal education went to England to get called to the Bar at one of the Inns of Court, and to get a degree from Oxford or Cambridge.