This post is hopefully the first of a loosely-linked set of posts on colonial continuity in the Indian judiciary.As noted in the title, this post is a brief biographical sketch of Sir Orby Howell Mootham, the second-last British Chief Justice of an Indian High Court and the third-last British judge to serve in India. (Only Donald Falshaw, Chief Justice of the Punjab High Court, and Wiliam Broome of the Allahabad High Court outlasted Mootham. I have previously written about Broome for this blog.)

Mootham is an interesting historical figure. As I have previously written, his scholarship (on Indian history and international law) has attracted greater attention and acclaim than his service in India, and he has left more published works behind than any other ‘British judge in independent India’. His life and career flitted between fields – as a scholar, lawyer and judge, serving in the UK, Burma (Myanmar) and India.

Mootham was born in 1901. He graduated with an MSc in Economics from the University of London and was called to the Bar in 1926.[1] As a young man, he assisted Hersch Lauterpacht (later a prominent scholar of international law and judge of the International Court of Justice) in his early writings on John Westlake; Lauterpacht later reciprocated ‘Mootham’s earlier kindness’[2] by assisting Mootham with his PhD thesis, The Doctrine of Continuous Voyage, 1756-1815. This thesis (published in 1927[3]) continues to be cited by contemporary scholars.[4]

Mootham began practice at the bar in Rangoon (now Yangon) in 1927, having apparently been unable to afford to build a practice in England. In 1939, he published Burmese Buddhist Law, favourably received at the time[5] and still cited in more recent times.[6] Mootham served as Deputy Judge Advocate in Burma (1940-1942), as assistant to the Judge Advocate General in India (1942-1945), as Chief Judicial Officer in Burma (1945), and as an acting judge of the Rangoon High Court (1945-1946).[7] During this period, Mootham married Maria Niemoller in 1931; twin children Dolf and Beatrix were born in 1933. In childhood, both children spoke German, their mother’s language, before English.

Mootham was appointed to the Allahabad High Court in 1946. He was appointed as Chief Justice of that Court in 1956.[8] Until 1961 (the year of his retirement from Allahabad), Mootham returned to England each second summer. His obituary in The Times claims that Vikram Seth’s inclusion of Justice Bailey, ‘an Englishman who had served with the judicial service of the ICS and had stayed on after Independence’, among the judges of the fictional Brahmpur High Court in A Suitable Boy[9] was in ‘modelled on Mootham’.[10]

Mootham retired from the Allahabad High Court in 1961; he was knighted the following year. He returned to England, serving as legal adviser to the Commonwealth Relations Office (1961-1963), as chairman of the North London Medical Appeals Tribunal (1963-1974) and as deputy chairman of Quarter Sessions in Essex (1964-1971).[11] In retirement, he continued to write on Indian law and history,[12] most prominently in his 1983 book The East India Company’s Sadar Courts 1801-1834 (published by the Indian Law Institute). At the time of the publication of The East India Company’s Sadar Courts, it was noted that the Indian Law Institute had ‘reversed a long-standing rule of solely publishing works by Indian citizens’ through Mootham’s publication;[13] this work continues to be cited.[14]

Mootham died in 1995. Shortly before his death, he was visited by R. S. Pathak, former Chief Justice of the Supreme Court of India. At Mootham’s death, he was described as ‘a rare surviving link with the 1920s Raj’ and (incorrectly) as ‘probably the last Englishman to be a judge in the new state [India]’ (although he was probably the last surviving British judge to have served in independent India).[15] His daughter Beatrix died in 2004; his son Dolf died in 2015.

Why is Sir Orby Howell Mootham, who left India more than 50 years ago and died more than 20 years ago, of continuing interest? Unlike William Broome, he did not take Indian citizenship or live the rest of his life in India. Mootham’s legal scholarship, although remaining in circulation, encountered consistent criticism for a lack of due advertence to historical context.[16] To take an interest in India and Indian law, as Mootham did, need not, of course, be an example of any genuine love for India itself (outside the colonial project); the production and development of colonial knowledge may serve as a means for the exertion of power over colonial territories,[17] and as a means by which colonial control may be established and maintained.[18] Mootham’s interest in India is hence of limited value in determining how he saw India, how he viewed his loyalties (whether to the former colonial power, to which he returned following his service, or to the nation in which he spent much of his career and to which he devoted much of his legal and scholarly work) or, indeed, how he was in turn viewed by the Indian state, bar and populace.

Mootham is nonetheless interesting because of his mode of engagement with India: one of the last of a generation of British judges to serve in India, one of the few to have transitioned from Indian service to a continued legal career in Britain (as opposed to retirement or service elsewhere in the Commonwealth), and yet one of the few whose engagement with Indian law and history continued following his judicial service. He is the last known ‘British judge in India’ to have practiced at the bar in South Asia (rather than solely as a service judge), and the only one known to have coupled practical experience in adjudication with broader theoretical interest in Indian (and South Asian) legal doctrines. His career is principally interesting because it appears so unusual.

[1] ‘Sir Orby Mootham: Obituary’, The Times, 4 August 1995 (“The Times obituary”).

[2] Elihu Lauterpacht, The Life of Hersch Lauterpacht (2010) 60.

[3] O. H. Mootham, ‘The Doctrine of Continuous Voyage, 1756-1815’ (1927) 8 British Yearbook of International Law 62.

[4] See e.g. Tara Helfman, ‘Neutrality, the Law of Nations, and the Natural Law Tradition: A Study of the Seven Years’ War’ (2005) 50 Yale Journal of International Law 549, 580n189.

[5] S. V. Fitzgerald, ‘Burmese Buddhist Law by O. H. Mootham’ (1940) 10 Bulletin of the School of Oriental and African Studies 822 (“Fitzgerald 1940”).

[6] See e.g. Mitra Sharafi, ‘The Marital Patchwork of Colonial South Asia: Forum Shopping from Britain to Baroda’ (2010) 28 Law and History Review 979, 995.

[7] The Times obituary.

[8] This appointment was only made possible by the enactment of the First Amendment to the Constitution in 1951.

[9] Vikram Seth, A Suitable Boy (1993) 743.

[10] The Times obituary.

[11] Ibid.

[12] See e.g. Sir Orby Mootham, ‘Constitutional Writs in India’ in Anderson (ed), Changing Law in Developing Countries (1963); Sir Orby Howell Mootham, The High Court for the North-Western Provinces 1866-1876.

[13] A. T. Reyes, ‘The East India’s Company Sadar Courts 1801-1834’ (1984) 43 Cambridge Law Journal 411, 411 (“Reyes 1984”).

[14] See e.g. Raymond Cocks, ‘‘Sustaining the Character of a Judge’: Conflict within the Legal Thought of British India’ (2014) 35 Journal of Legal History 44.

[15] The Times obituary.

[16] Fitzgerald 1940, 822; Reyes 1984, 411.

[17] Elizabeth Kolsky, ‘Introduction’ in Agha and Kolsky (eds), Fringes of Empire 5.

[18] Bernard S. Cohn, Colonialism and Its Forms of Knowledge: The British in India (1996) 3.