A.N.Ray CJI – an unwitting visionary?

Justice Ajit Nath Ray, who retired as Chief Justice of India on 28.1.1977, died on December 25, 2010 at the ripe age of 99. On the date of his retirement when memories of his tenure as CJI were fresh, he was not a popular man; the Bar decided not to offer him a customary cup of farewell tea. Why recall him after 34 years of his uneventful retired life? I, having been part of those tumultuous days, feel that the little that is recorded of those days do a lot of injustice to truth. At any rate one honest version should be recorded for posterity’s sake – may be as an invitation for another honest contradiction.

Justice Ray was a stickler to convention and etiquette and a no nonsense judge. He was no respecter of faces. Needless to say that he was scrupulously honest and hence universally respected. He did not hesitate to record his dissent even when he was a loner as he did in the Bank Nationalisation Case (1970) and in the Privy Purse Abolition Case (1971) – both – 11 judge Benches – and in the historic Kesavananda Bharati case he was one of the six dissenters.

To the surprise of all, in April, 1973 Justice Ray, the consistent dissenter, in favour of the Government, was appointed Chief Justice of India superseding three Judges senior to him. Protests from the Bar were spontaneous and overwhelming. Though seniority as a criterion for appointing a CJ was not part of the Constitution nor of any law, it was a convention followed since 1950 – a sort of home made device to minimize executive interference. Whether that contraption with a conveyor-belt morality of ensuring the first to be placed reaches the destination first – is good for the judiciary has for long been a controversial question. Perhaps, with a more satisfactory machinery of selection in place ‘seniority’ should be dispensed with in favour of suitability as it is in the rest of the civilized world.

However, no one accused Ray J of scheming. And no one ever doubted that if he were to decline the offer many down the line would have grabbed the chance – the Government’s move to supersede would not have been frustrated.

Mr.B.Sen, the senior most among the living Senior Advocates of India in his recently published memoirs recalls, “Chief Justice A.N. Ray was an able and upright judge, quick in decision making and an able administrator. During his tenure as Chief Justice, a good deal of prevailing malpractices concerning listing of cases were sought to be removed. As a man, he was humble, scrupulously honest, deeply religious and a loyal friend. He was somewhat reserved and he made no effort to placate the vocal members of the Bar who were critical of him.” Such of us who were eye witnesses to that era endorse Sen.’s views fully.

With that great Jurist Judge K.K.Mathew as his constant companion, Ray CJ was a party to many landmark judgments. Sample excerpts from a few of his judgments – as a puisne judge and as CJI – may help shed light on his judicial personality.

Bennett Coleman & Co. v. Union of India & Ors. (1973) 2 SCR 757, 759
“It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.”

K. Ramadas Shenoy v. The Chief Officers, Town Municipal, Council, Udipi & Ors. – (1975) 1 SCR 680
“It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by municipalities in such cases.

The Courts enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.”

In this statement of law lies the genesis of PILs of the future.

Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr. (1975) 2 SCR 674
“The Government is a government of laws and not of men. It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the Government which is trading with the pubic and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Hohfeld treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do as fairly without discrimination and without unfair procedure. Reputation is a part of person’s character and personality. Blacklisting tarnishes one’s reputation.”

His judgments during the emergency also highlight the importance of the principles of natural justice.

Unfortunately however he is remembered for the judgment in ADM, Jabalpur v. Shukla,(1976) a case in which the crucial issue was whether the source of right of a person to life and personal liberty was Art.21 of the Constitution and if so when that Article stood suspended during an emergency, whether a person’s life or liberty was solely at the mercy of the executive?.

Appeals against anti-emergency Judgments by over a dozen High Courts were about to be heard by a five-member Bench consisting of A.N. Ray, CJ, M.H. Beg and three other junior judges. The Bench was obviously hand picked. Late Nani Palkhivala reportedly refused to appear for the citizen before this Bench – he felt that it would be a futile exercise. Fali Nariman in his memoirs recounts how late C.K. Daphtary, a doyen of the Bar persuaded Chief Justice Ray to reconstitute the Bench on some acceptable basis like seniority. The implication was that in the Bench of senior most five, Khanna Chandrachud and Bhagwati JJ would also be included – the expectation of Daphthary, Palkhivala and others being that the trio would decide against the government. “Show me the judge and I’ll tell the law” was as valid a saying then as it is believed to be now.

If the original formation of the Bench was for securing a verdict for the emergency regime, why did the CJ agree to radically change the composition? Was it because in reality he was indifferent to the out come (– hard to concede -) or was he confident that the substitutes were also ‘safe’ fielders? As it turned out to be, Khanna, J. was the sole dissenter for the citizen.

Constant ostracism coupled with stage managed inducers like fake attempt on his life, made Ray CJ to feel hounded and paranoid. He was lead to believe that outside the government, he had no friends. Obviously at the beckoning of the government he embarked upon a mission impossible to over turn the ‘basic structure’ theory established by the 7:6 majority in Keshavananda case; that verdict would be an impediment to the grandiose mutilations made and proposed to the Constitution. He was accused of allowing the executive to transfer ‘inconvenient’ judges. At a time when all freedoms were in limbo, even rumors could add up to make Ray CJ the judicial face of the hated emergency – unworthy of a farewell tea.

A brief recounting of the important events and developments after the declaration of emergency on 25th June, 1975 would be useful.

The electoral laws were amended drastically with retrospective effect to nullify the disqualification of Mrs. Indira Gandhi. In addition, in August, 1985, the Constitution (39th Amendment) Act was passed under which a new Art.329A was added. According to this Article, election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election shall be called in question except before “an authority”. Any pending Election Petition would abate. On November 7’ 1975 the Supreme Court set aside the judgment of the Allahabad High Court disqualifying Mrs.Gandhi. On 1st September, 1976, the Constitution (42nd Amendment) Bill was introduced with the provisions, inter alia, to amend Article 368 dealing with the power of the Parliament to amend the Constitution. The amended provision would remove all restrictions on the parliament’s power of amendment -.in effect Kesavananda Bharti’s basic structure principle would be no longer good law. A new chapter for the constitution of new Tribunals, though innocent-looking were sinister in design; they were to render the existing judicial system completely ineffective. The concept of All India Judicial Service introduced by that amendment was to have the Judiciary entirely under the control of the Executive as was the case in respect of other All India Services. The amending Bill was passed and it became a law.

This was the scenario when the year 1976 ended. In January, 1977, the emergency regime became smug enough to announce general elections to the Lok Sabha. The elections were expected to be sham and the programmes of total demolition of a democratic set-up were postponed to an era after elections – all to give a colour of legitimacy. The complacence was generated partly by the ‘jee huzoor’ intelligence wing that had no option but to please the masters and supported by the confidence that the Judiciary also stood subjugated.

What would have happened if the ADM Jabalpur case were to be decided against the Government? Sanjay Gandhi was known to be ruthless and rash. Was there anything anybody could do if the Courts were to be shut down? The answer was No. Perhaps the pliant judiciary unwittingly contributed to the end of the illegitimate regime though none of the judges – not even A.N.Ray CJ – could be accused of ‘stooping to conquer’ by feigning surrender.

On retirement Ray, CJI, dedicated his life to the service of Sri Rama Krishna Mission, with whom he had long association. It is said that in 1980, after Mrs. Indira Gandhi returned to power, A.N. Ray was asked if he would agree to be our Ambassador to the USA or High Commissioner to the U.K. following the precedents of other worthies. Ray CJ declined the offer – to him the office that he last held was the ultimate.

Why remember him now? One of the many answers is, while skeletons start tumbling the day after a Chief Justice retires, Ray CJ had ‘nothing to declare’; the second one is his story is in reality the history of our Supreme Court – of the entire judiciary during the emergency – which is worth recording.