We remembered and paid tribute to Homi Seervai last week. Equally worthy of remembrance and reverence is D.D.Basu whom someone rightly referred to as the universal guru on constitutional law.
Durga Das Basu from Kolkata in the east and H.M. Seervai from Mumbai in the west were both erudite commentators on constitutional law with vastly different approaches to the subject: Seervai was more historical and critical of many of the interpretations of the Constitution by India's Supreme Court. Durga Das Basu had the distinction of writing a comparative study which made it more interesting since he gave ready references to comparable texts of Constitutions from different parts of the world: in fact by his work he introduced a new school of jurisprudence in India which goes by the name of "constitutional comparativism", as Fali Nariman has said.
Dr Durga Das Basu was a rare person of unique and manifold achievements- an ardent worshipper of Our Lady of the Common Law and an accomplished and lucid commentator thereon. As the Connecticut Bar Journal remarked "….Basu belongs to the league of Blackstone and Coke and Chancellor Kent. In time to come, the history of the Common Law will tell frequently of his name and his work." Great praise indeed and well deserved.
Durga Das Basu was born on 2nd February, 1910 in Sreefaltala in Khulna District in East Bengal as the eldest son of Sushila and Rakhal Das Basu. He had his schooling in Khulna District School and Daulatpur Hindu Academy. He obtained the Honours and Masters Degrees in Political Science reading at the Presidency College, Calcutta. He studied law at the Calcutta University Law College and obtained the LLB Degree in 1933 with a First Class First. Even as a student he had started writing small books on various legal subjects. He brought out a series of student friendly law books produced out of his own study during his student days. Rarely do we come across such instances. It is perhaps this temperament and inclination for academic writing that dissuaded him from taking up the practice of law. To adapt what Lord Maugham said of Sir Frederick Pollock (and people with such erudition), he has 'drawbacks almost necessarily incidental to his great qualifications; one who is at once too learned and too careful of his sentences, who speaks with the care a scholar writes, above all listens to himself- a fatal mistake- will always have the greatest difficulty in getting on' as an advocate. Basu joined the Bengal Civil Service (Judicial) in 1935 and served as a Munsiff in different places. The drafting of the Indian Constitution proved to be a turning point in his life.
He was a scholar and jurist of the highest repute. His writings attracted attention in India and abroad and his articles appeared in leading law journals. He was a pioneer in the field of study of Comparative Constitutional law. In September 1950, within nine months of the coming into force of the Constitution, when he was just 40 years and in subordinate judicial service, Basu wrote and brought out the pioneer commentary on the Constitution of India which won world wide acclaim. This was his first signal contribution to constitutionalism and constitutional jurisprudence. It is the most authoritative in that it saw the light of the day when there was no judicial gloss on the inarticulate text of the Constitution; the furrows laid by the first and later editions of the Commentary have remained, in the main, unsullied by judicial pronouncements. He started the work with a comparative approach and built on it. The purpose of such commentaries, as Joseph Story said, is to present to the readers 'the true view of the Constitution's powers as seen by its founders and confirmed and illustrated by the actual practice of government'.
While ostensibly a commentary on the Constitution of India, it is, in fact, a comparative treatise on the universal principles of justice and constitutional government which manifest themselves wherever the Anglo- American political system has been adopted. The book may, thus, be offered as a commentary also on foreign Constitutions, such as those of England, U.S.A., Canada, Australia, Eire, Japan, West Germany, Bangladesh, Nepal etc; with up- to- date references.
As Dr. Ambedkar, the architect of the Constitution said in his Foreword to the 1st Edition of the Commentary in 1950: "It is not a mere reproduction of the Articles of the Constitution. It is a real commentary in the sense that it does bring to the aid of the student analogous articles from other Constitutions and elucidation by foreign Courts of the meaning of analogous terms and phrases which it is difficult for Indians, who are not familiar with them, to understand and follow."
Lord Denning's tribute is worth repeating: "The best commentary on the Constitution of India that has been produced………A wonderful achievement…A work of research like Halsbury's Laws of England that will be of permanent value, not only for the present generation but for several generations to come…I am lost in admiration of the skill with which you have dealt with the subject and the clearness of your exposition. You have made a unique contribution to the jurisprudence of the world. You have rendered outstanding service to India and to us in England. It will be of permanent value for generations to come. Dr. Basu does indeed stand in the line of the great commentators from Blackstone onwards." Others who paid encomiums to the work included Prof Bernard Schwartz, Lord Chancellor, Lord Jowitt: "a work of great learning" and the Connecticut Bar Journal which wrote that it was "something like a pyramid constructed by the hand of one man alone."
It has been rightly said that the Indian Republic has, in Basu, found its Cooley. With his comparative method of study, Basu brought various national Constitutions on the same platform and demonstrated by the process of comparison, how humankind, irrespective of race, language or clime, has common political problems and that though the solutions to them may differ institutionally, there are certain fundamental principles underlying even such divergence. Because of this universality, his works are read all over the world including in non-English speaking countries. Indeed, it may be said that he introduced a new school of jurisprudence: 'Constitutional Comparativism' or 'Comparative Constitutionalism'.
In 1951 he was entrusted with the work of revising old statutes and in 1953 he joined the Union Law Ministry in New Delhi serving as Legal Advisor and then as Joint Secretary to the Union Law Commission. Between 1961 and 1963 he was a Member of the Union Law Commission under the chairmanship of Justice T.L.Venkatarama Ayyar, until he was elevated to the Calcutta High Court.
He has been one, and perhaps the only, great academic who has adorned the high Bench. His work has been referred to with respect and warmly eulogized by the highest authorities on the Bench and the Bar throughout the globe. Basu's eminence as a jurist was recognized and acknowledged by his appointment as a full time member of the Law Commission and then as a judge of the Calcutta High Court in the category of eminent jurists in 1963. He is a legend in the world of law. The worldwide recognition and encomiums that he received testify to his originality and eminence.
Basu was prolific and versatile as an author. His contribution to jurisprudence is not confined to Constitutional Law but includes authoritative treatises on other different branches of law. His books are prescribed by various Universities for different courses. His approach to and analysis of the law was objective and he was constructively critical of the judgments whenever warranted.
Apart from being conferred with honorary Doctorates from various Universities, he was awarded the Padma Bhushan. The National Research Professorship, the National Citizen's Award and the Honorary Fellowship of the Asiatic Society were also conferred on him. He participated in several International Conferences and Seminars and was a Guest Lecturer in a number of Universities across the globe. He delivered the prestigious Tagore Law Lectures of the Calcutta University in 1968-69 on 'Limited Government and Judicial Review,' which is indeed a classic and the Asutosh Memorial Lectures, 1976 of the Calcutta University on the Law of the Press. He also delivered the Honorary Professorship Lectures of the Benares Hindu University in 1980.
The concept of limited government and judicial review constitute the essence of our constitutional system and it involves three main elements- a written Constitution setting up and limiting the various organs of government; the Constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and if necessary, annulled. This sanction, in the modern constitutional world, is 'judicial review' which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution.
He impressed upon us that a proper study of constitutional law and its application requires not only a study of law, but also of constitutional history, political philosophy, political science and comparative government. A Constitution which embodies the principles of limited government rests on the courts and their power of judicial review by means of which alone the Constitution as an instrument of limited government can be maintained. Hence the imperative need for a very responsible, qualified and enlightened judiciary.
A passage from Basu's Tagore Law Lectures (pg 25, 26) appears apposite in the context "........ how powerful and, therefore, onerous is the engine of judicial review at the hands of judges of superior courts and what depth of knowledge and faith in constitutionalism is indispensible for working that engine.... We cannot but emphasise the importance of a proper personnel for the success of judicial review. In this country even those who are responsible for the selection of Judges sometimes lament over the performance of the Courts, forgetting that the original sin was perhaps of the critics themselves. Without meaning disrespect to anybody it would be profitable for all of us to recollect what Blackstone, himself a judge of the superior court, said over 200 years ago, 'Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. And yet the consequence of his ignorance is comparatively very trifling and small: his judgements may be examined, and his errors rectified by other courts. But how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question upon which the welfare and subsistence of whole families may depend..... where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress.' It may be added that in the sphere of Constitutional Law uninitiated decisions are likely not merely to bring disgrace upon the judge and those who appointed him, but loss of confidence in judicial review, nay, in the Constitution itself, upon which rests the life and breath of the Nation."
Basu was critical of both the doctrine of prospective overruling and the basic structure theory. It can be said that his was the view of a strict legal constructionist. His treatment of the legal principles is purely juristic having regard to the canons of juridical interpretation. The views and comments are of an impartial academician not tainted by any personal bias.
Professor H.W.R. Wade, comparing the academic and the judicial approaches, wrote to Sir Robin Cooke (later Lord Cooke of Thorndon) in January 1988: The academic wants everything clear and sharp and logical and in accordance with principle. The judge, on the other hand, always wants to have a way of escape, so that he cannot be driven into a corner by ruthless logic and compelled to decide contrary to what he wants. I am sure that this is a sound instinct for the administration of justice, but I am by my cloth obliged to protest when blurring becomes woolly thinking and blasphemy against basics.
Durga Das Basu always remained true to the academic's cloth. He possessed that rare quality -the integrity of scholarship. There are, of course, many instances where courts have been influenced by and accepted the views of academicians including Basu. Prof. Atiyah in his 1987 Hamlyn Lectures spoke of the complementary role of judges and academics in the development of the law: that while judges are engaged in the often very pragmatic business of deciding cases, it is scholars who are primarily responsible for the part played by reason and theory in the law. Durga Das Basu was indeed one such exemplar.-
An incident while he was a judge of the Calcutta High Court is worth mentioning. A Division Bench of which Basu was the junior member had heard and reserved judgment in a heavy matter. Thereafter the senior judge read out his prepared judgment. At the end of it Justice Basu dictated an extempore judgment neatly covering all aspects of the case and with reference to all the relevant decisions. After the Court rose, the senior judge embraced Basu and asked him how it was possible for him to have done that. Basu replied, typical of a scholar: "You, brother, read the law for this case. I have been reading it for a lifetime; I did not look up and prepare for this case."
Dr. Durga Das Basu had also the distinction of being a great Sanskrit scholar and well versed in our ancient lore and was adorned with various titles in that behalf. His work went beyond the frontiers of law. He was deeply spiritual and wrote on Comparative Religion also. Indeed, his work The Essence of Hinduism is exemplary. He enunciates with clarity and authority that the aim of every religion is to lead man to a higher life and anything that obstructs or does not aid that goal cannot be considered the essence of a religion. He had a passion for literature and poetry. He was a poet at heart and a philosopher in outlook and execution.
Cardozo said, ".. Our Lady of the Common Law- I say it with the humility that is due from an old and faithful servant- has become insatiable in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less." Basu knew this fully and lived that maxim.
Acharya Basu never rested on his laurels. He read and wrote all his life. It was total commitment and dedication. The same schedule of work was adhered to whether in Calcutta or outside. He would begin his reading and writing early in the morning. He actively carried on his research and writing up to the very end till his passing away on 16th May 1997 at the age of 87, producing creative literature almost every quarter of the year, covering Jurisprudence, Political Science and Religion simultaneously. His great works will never become obsolete or outdated. All his life he was unremittingly dedicated to the promotion of the spirit of constitutionalism. By his wide and varied writings and his lectures and even by his presence he helped to inculcate and sustain that spirit and culture.
I consider it a privilege and good luck to have personally known and been associated with Dr. Basu. I met him for the first time at his Rash Behari Avenue residence in Calcutta in 1984. The association which began that bright July morning flowered over a period of time. We used to discuss and write to each other about constitutional issues. He took my assistance in revising his Commentary on the Constitution and other works. It was a fulfilling and rewarding experience for me. All that came to an end with his demise. He was a warm and lovable person on whom all his learning sat lightly.
As a man he was simple in his tastes and habits. He was for long associated with various social, religious and charitable institutions. The motto of simple living and high thinking was exemplified in his life. He had the ability of seeing things in black and white and expressing himself in a pellucid and easy style. And any issue which he touched was illuminated by him with lambent light.
Such was the measure of the man who was a true scholar and rishi. In an environment where half-baked ideas reared by accident have sway, he refreshingly belonged to a different league. He ploughed the lonely furrow of scholarship and kept the silver flame of knowledge trim and bright from generation to generation, expending his life on significant but unadvertised work. Generations of lawyers, judges and academics were nurtured on his enunciation of constitutional principles and values. He was erudite and articulate. One who bent his energies in the pursuit of learning and knowledge for its own sake and in educating the citizenry in fostering constitutionalism, he has left the imprint of his personality on our lives and times and will continue to inspire us.
Carlyle in his French Revolution, describing the Battle of Valmy, notes the presence of Goethe- "One of the sort called Immortal, him mark!" This epithet aptly describes Durga Das Basu.
Views are personal.