Mohammed Hidayatullah is one of those rare persons- distinguished and versatile and who adorned everything that he touched. Youngest Advocate General, High Court Judge and Chief Justice, Judge of the Supreme Court and Chief Justice of India, Vice President and Acting President twice, he was all this and more. On his 120th birth anniversary it is but appropriate that we remember him and draw inspiration from his life and work which were outstanding and respectfully light his memory.
Born at Nagpur on 17 December, 1905 in a well-known family hailing from Benaras, Hadi, as he was affectionately called, was the youngest son of Khan Bahadur Hafiz Mohammed Wilayatullah, I.S.O., Kaiser-i-Hind. He was educated at Anjuman High School, Nagpur whose then Headmaster, J. Sen, along with the student Hidayatullah, was sworn in as a judge of the Nagpur High Court on the same day in 1946. (Justice J. Sen is the father of Justice A.P. Sen who was judge of the Supreme Court). He passed the Matriculation examination at Raipur in 1922 standing first in Chattisgarh. Collegiate education was at Morris College, Nagpur, his subjects being English Literature, History, Logic and Persian and then at Trinity College, Cambridge for English Tripos.
While at Cambridge he participated in debates and also public speaking. Homi Bhabha, the great scientist was one of his contemporaries there. He was called to the Bar from Lincoln's Inn in January 1930. He eventually became a Bencher of that Inn. His teachers in law included such famous names as Professor Holland for Real and Personal Property, Dr. A.D. McNair for Contracts, Professor Winfield for Torts and Professor Goodhart for Jurisprudence. Hidayatullah says that no teacher in any college or university that he knew came up to McNair in the easy manner in which he imparted knowledge. His fifty minutes seemed only fifteen and even those students reading subjects other than law attended his lectures.
On return to India Hidayatullah joined the Bar at Nagpur and steadily gathered a lucrative practice. He began mainly on the criminal side and then moved on to exclusive practice on the civil side. In 1936, the Judicial Commissioner's Court at Nagpur became a full-fledged High Court. His years at the Bar brought him in close contact with a galaxy of legal talent.
On joining the Bar Hidayatullah began a thorough study of law which 'he knew only in patches.' To begin with he chose Criminal Law and read through all the leading statutes- The Indian Penal Code, The Criminal Procedure Code and the Evidence Act. Then he read and summarized every Privy Council case on these three subjects and went through every Full Bench case of the Judicial Commissioner's Court in Nagpur. Work though slow in coming, increased steadily. His first year's professional income was only Rs. 50 which compared well with Lord Haldane's income of 31.10 pounds in his first year of practice. But over the years Hidayatullah was left far behind.
The Nagpur Bar then had some very famous lawyers. The most notable was Dr. Hari Singh Gour. He was the author of many classic treatises on different subjects still in use, having run into many editions. Hidayatullah says that he was amongst the six best lawyers in the country and greatly sought. It is said that he hardly read a brief fully but he had the uncanny knack of fastening on a salient point and finding an unanswerable argument with which he floored the opponent. In a case in which Hidayatullah was associated with Dr. Gour, he (Dr. Gour) appeared to have read not more than a dozen papers which were heavily marked. The judge noticed that Sir Hari Singh was not fully prepared and asked Hidayatullah to begin. Sir Hari Singh willingly gave the papers to Hidayatullah and left the court whispering, “Carry on till the recess.” Hidayatullah did so and managed to avoid serious argument. Dr. Gour promptly returned for the post-lunch session. With the permission of the Court he took over and without knowing what had been done earlier, he launched into an argument for only 15 minutes and the case was won on that argument. Sir Hari Singh had a special chair in the Bar room which none dared to use and he had permitted Hidayatullah to use it in his absence. This was a mark of singular recognition for Hidayatullah from a top lawyer.
There was a case which Hidayatullah won by sheer chance. It was the case of his uncle and it was before Chief Justice Gilbert Stone and Justice Vivian Bose. Opposing him was M.R. Bobde (the grand uncle of S.A.Bobde, former CJI) a most successful lawyer who was gifted with the faculty of discovering a line of attack for which the adversary was not prepared. Hidayatullah and his team had tried to anticipate all that might be said by Bobde. Yet he came out with a point and a Calcutta ruling to support it. Hidayatullah was taken aback. There were only 20 minutes left for the lunch break. The Chief Justice stopped Bobde and called upon Hidayatullah to reply to that point adding that otherwise the appeal would have to be allowed. Hidayatullah pleaded with the Court to hear the rest of the argument and that he would in five minutes either give a convincing reply or concede the point. Sir Gilbert offered to give those five minutes then itself. However, Justice Bose who had faith in Hidayatullah agreed to give him a hearing later and the arguments continued. Hidayatullah rushed to the library during the interval. His colleagues mentioned a Privy Council case as possibly furnishing a reply. He went to get the volume of the Indian Appeals from the shelf and by mistake pulled out a wrong volume. To his great dismay and relief he found at the page mentioned by them a Privy Council case which was on all fours and furnished a complete answer. When the Court reassembled Sir Gilbert asked Hidayatullah to reply to the point and be brief. Hidayatullah said that he had promised not to take more than five minutes but he was cutting it down to two minutes. The law reports were handed over to the judges and Hidayatullah drew their attention to the relevant passages which the judges read and then looked at each other. When the Chief Justice asked Bobde whether he had seen the case, he replied: I have seen it now and have nothing further to say. Such are the ways of Fate and such is fate of cases!
Hidayatullah's practice picked up. He furnished in style his new chambers- the first chambers in the new High Court building- which were allotted to him. Hidayatullah also taught law for some years from 1934 to 1942 and lectured on Jurisprudence, Mohammedan Law, Contracts, Torts, Constitutional Law and the Law of Succession. His lectures were noted for their thoroughness and lucidity. Among his pupils were many who rose to the top at the Bar and on the Bench and in public life.
In 1938 he put in his first appearance before the Federal Court in the case of the Motor Spirits Act, AIR 1939 FC 1: 1939 FCR 18: 49 MLW 36. Sometime in 1941 or 1942, Hidayatullah went from Nagpur to Madras to consult Sir Alladi Krishnaswami Ayyar in the famous Takoli case which went up to the Privy Council. Kaushalendra Rao (later a judge of the M.P. High Court) accompanied him. Alladi looked into the papers and after hearing Hidayatullah explain the points asked him to write a note on the case and also his own opinion. Hidayatullah had the benefit of using Alladi's well-equipped library and worked on the matter for three or four days. He prepared a note and also stated his opinion in detail with reasons. Alladi kept it for two days to study the matter after which he said: “If you can write like this why have you come to consult me?” and he signed the opinion stating that he had nothing to add. Nothing could be more encouraging and complimentary to a young lawyer and that too coming as it did from a lawyer of the highest calibre. Hidayatullah always treasured this in his memory.
In 1942 Hidayatullah was appointed Government Pleader and J. Sen was then the Advocate General. In 1943 at the young age of 37 he was appointed Advocate General. He appeared in the Federal Court in some very important cases like Reference by the Governor General-re: levy of sales tax on motor spirits and lubricants by Central Provinces and Berar; Challenge to the Special Criminal Courts (Repeal) Ordinance and the Estate Duty Reference case. His work and arguments won encomiums from the Court and from such legal luminaries like B.L. Mitter-Advocate General for India and Sir Alladi Krishnaswamy Ayyar.
One of his first tasks as Advocate General was to defend the Special Criminal Courts (Repeal) Ordinance, 1943 where the entire High Court Bar was ranged against him. While the hearing in the High Court was going on, Sir Patrick Spens, Chief Justice of the Federal Court visited the High Court. Hidayatullah was on his feet and the Chief Justice heard him argue that the words 'in accordance with the Code of Criminal Procedure' meant more than if the words had been 'under the Code of Criminal Procedure' and contended that these words excluded all questions of compliance or non-compliance with the procedure as laid down in the Code. After the argument was developed for sometime Chief Justice Spens interrupted Hidayatullah and said, “I am afraid I must hear this argument only in Delhi.” He then left and sent word through the Registrar of the High Court that Hidayatullah should assist at the hearing of the appeals before the Federal Court arising out of orders passed by other High Courts regarding challenge to the same Ordinance. Ultimately the Federal Court upheld the Ordinance. Sir B.L. Mitter, the then Advocate-General for India congratulated Hidayatullah. “The Ordinance stands. The youngest Advocate General is by no means the last to be reckoned with.”
In the Estate Duty Reference Hidayatullah was able to persuade Alladi who was appearing as Amicus 'to drift a little to the side of the Province' and this brought forth a remark from Justice Varadachariar that Hidayatullah might regard that as his greatest achievement at the Bar.
There was an arbitration before Sir B.N. Rau of a dispute between the Reserve Bank of India and the Central Provinces relating to some rioting and carrying away of currency chests by the mobs and whether the loss so occasioned should fall on the Reserve Bank or the Provincial Government. At the commencement of the arbitration it would appear that Hidayatullah who was appearing for the Government had a feeling that the sole arbitrator Sir Benegal felt that Hidayatullah and his team were too young and inexperienced to offer him any real assistance as opposed to the experienced English counsel for the Bank. But Hidayatullah's preparation was thorough and exhaustive and his presentation was neat and convincing. At the end of Hidayatullah's arguments for the respondent Government Sir Benegal warmly shook hands and left and he said very complimentary things about Hidayatullah.
Hidayatullah was sworn in as an acting judge of the Nagpur High Court on 25 June, 1946 and as a permanent judge from 13 August, 1946. Thus began a glorious chapter of a quarter of a century on the Bench.
Hidayatullah's first case as a judge dealt with the question as to which school of Hindu Law applied to Komtis in the Chanda District. His judgement in that case won the approval and praise of Chief Justice Bhavani Shankar Niyogi who referred to it as a well-considered and scholarly one. It also happened early in his judicial career that Chief Justice Frederick Grille wrote an order dismissing a case for non prosecution as soon as it was called though the counsel came almost immediately and apologised for being late and was ready to go on. While the Chief Justice stuck to his order, Hidayatullah refused to sign the order. Grille left the court in great resentment and Hidayatullah went to his chambers. Grille realized his mistake and came to Hidayatullah's chamber. They went to the court and adjourned the case after Grille recalled his order. The incident demonstrates Hidayatullah's independence and correct judicial temperament.
Hidayatullah's versatility and creativity are well known. He, however, believed in judicial creativity in a manner conforming to the established juristic norms, rightly shunning adhocism. In 1954 he became the Chief Justice of the Nagpur High Court and on re-organization of States became the first Chief Justice of the Madhya Pradesh High Court on 1st November, 1956 with the principal seat of the High Court at Jabalpur. It fell to him to organise and set up the new High Court of Madhya Pradesh.
Some incidents are worth mentioning. To put it in his own words: (See: My Own Boswell, pp. 190,191,199,200)
Sometime in 1957 during the Chief Justices' Conference, Chief Justice S.R. Das after dinner at Justice Vivian Bose's place asked me what I thought of the Chief Justiceship of Calcutta. I replied “I think nothing of it.”………… Later his son-in-law A.K. Sen (Minister for Law)…suggested that I should swap places with K.C. Das Gupta (Chief Justice of the Calcutta High Court) who would then be brought to the Supreme Court…. I would get a chance when Justice Imam retired. This meant that I was to get, what had then become, a Muslim seat in the Supreme Court. I rejected the proposal outright……. Later I came to the Supreme Court before Das Gupta and thus became a second Muslim Judge.
In 1958 Hidayatullah was elevated to the Supreme Court and sworn in on 1st December, 1958. The story of that appointment is as follows. In the last week of November 1958 Hidayatullah was summoned from the badminton court to take a call from Delhi. While he thought that it would be Vivian Bose the caller from the other end said that he was Das, and to the query “which Das”, the answer was, “Das, Chief Justice of India”. The Chief Justice told Hidayatullah that he wanted him in the Supreme Court the following Monday and asked whether he could make it. Many things had to be sorted out. Hidayatullah replied that he had not received any order and that he would have in any case to send a health certificate and hand over charge to his successor. Justice S.R. Das replied that it was the Chief Justice of India telling him that all that was required would happen. And he gave him a week's time to get everything arranged and hung up. This clearly brings out how judicial appointments were made in those days.
On 25th February, 1968, Hidayatullah became the eleventh Chief Justice of India. There is an interesting prelude to this. Sometime earlier Hidayatullah presided over a meeting in honour of Mehr Baba, a saint who had assumed silence for many years. After the meeting the tape recorded reports were sent to the saint. He sent Hidayatullah a cryptic message: 'Remember me on my next birthday.' None understood its significance then. Later it came to be known that his birthday was 25th February and that was the day Hidayatullah was sworn in as Chief Justice of India.
During his tenure as Chief Justice of India, he served as Acting President in 1969, following the demise of President Zakir Hussain and the resignation of Vice President, V.V. Giri. Hidayatullah retired on 16th December, 1970. From August 1979 to August 1984 he was Vice President of India-unanimously elected to that high office and presided over the Rajya Sabha with grace, dignity and distinction. He was again Acting President for sometime in 1982.
Hidayatullah was always courteous and encouraging to the Bar. His court was lively – the proceedings full of wit and humour. There was a case before the Full Bench of the Nagpur High Court in which Setalvad was appearing. Setalvad appeared to have been in an intolerant mood and Hidayatullah too was snapped at. Justice Hidayatullah repeatedly referred to a case that Setalvad had cited and talked of Lord Sumner. Setalvad said, “The judgement is not by Lord Sumner, it is by Justice Hamilton.” And Hidayatullah replied to Setalvad's great embarrassment, “Same person. He later became Lord Sumner.” While speaking of his first day in the Supreme Court Justice Hidayatullah mentions that during the course of arguments in a Transport case he said to Daphtary: “Your permits have expired and buses run on permits.” He should have said 'with' instead of 'on.' And Daphtary pulled his leg as anticipated remarking “My Lord I thought buses run on petrol.” Hidayatullah paid him back saying “You are right. In America it is called gas. But they cannot run on your gas!”
Once, Justice Hidayatullah sent the draft of his judgement to one of his colleagues who rarely shared his views. He returned the draft with sharp adverse comments in the margin and at the foot of the draft wrote, “Please do not read the marginal comments. They are not for your eyes.” Hidayatullah promptly sent back the draft with a note, “Please do not worry, I never read anything that you write.”
The reminiscences of B. Sen, one of the senior-most practitioners in the Supreme Court are worth recalling: (See: Six Decades of Law, Politics & Diplomacy, p. 81).
Justice Hidayatullah brought to the Court a great deal of learning and a fund of good humour. His knowledge of constitutional law could hardly be matched by anyone else, whether at the Bench or at the Bar; and that included not only an in-depth knowledge of the Constitution of India and the Government of India Act, but also the Canadian, US and Australian Constitutions and the entire gamut of case law that had developed around their interpretation. He was never known to have given a wrong reference when he wanted counsel to cite a case. He was always courteous but occasionally pulled the leg of some senior counsel. During tense moments in heated debates, a witty interjection by him could ease the situation.
Once, during arguments in the Presidential reference about the powers of the U.P. legislature and the courts, counsel was asserting that 'lex et consuetudino parliamenti' was the supreme law and kept repeating this over and over again. Gajendragadkar, who was presiding, was getting impatient. He curtly told the counsel, a very senior member, to be a bit serious. At that tense moment, Hidayatullah interrupted with a smile, '…………why don't you say “law and custom of Parliament” so that we all can understand you!' Hidayatullah was a scholar and familiar with many languages. He was very popular both with the Bar and his brother judges. On another occasion, Sachin Chaudhuri, was arguing a case involving the design of a ship. Gajendragadkar appeared to be quite puzzled and was about to the start the usual 'Why should we interfere under Article 136?' Hidayatullah came to our rescue: 'Why don't you take us for an inspection of the ship and educate us?' The Chief Justice got the message. He sat back in his chair and began jotting down points.
Justice Hidayatullah was of the view that judgements of the courts were becoming more and more diffuse and the simplicity of exposition was being lost. Quoting Dr. Johnson he compared badly written judicial opinions to a meal which is 'ill- killed, ill- dressed, ill- cooked and ill- served.' A judge writing his judgements must exhibit the stamp of literature and liberal culture. He was a master of the spoken and written word - a scholar and jurist in every sense. His judgements are learned and well written and bear the stamp of authority. Hidayatullah has said that when he delivered judgement in court in big cases, he had sleepless nights framing the judgement in his head. It is said that Sir William Grant did the same and Churchill did the same for his speeches. The judge was ready not with summaries of the material on record and the submissions but with a clear mental picture of what to say and how much to say. The judgements of Lord Stowell, Lord Macmillan and Lord Reid are exemplars.
In a tribute to Justice Mahmood, Hidayatullah said of judgements: “Knowledge, therefore, of the learning on the subject is the first requisite; and this knowledge for a proper decision must be acquired before an attempt is made to solve the problem. And next the result must be stated in the grand manner.” Justice Hidayatullah fulfilled all these requisites in ample measure. His judgments covered the entire spectrum of law.
The Privy Purse case went on almost till about the end of his tenure. Shah, J anticipating the shortness of time prepared his judgement and circulated it though Hidayatullah had undertaken to write the leading judgement. On seeing Shah's draft judgement Hidayatullah prepared his own judgement in 24 hours. This was his last judgement in his long judicial career. He felt a little sorry that his was not the main judgement in the case but only a concurring one, the majority of other judges having already assented to Shah's opinion. That was his dedication and sense of duty and the eagerness to discharge judicial functions till the very end. The Presidential Order derecognising the erstwhile Indian rulers was struck down. Hidayatullah CJ described the President's orders as midnight orders. The allusion was to President Adam's 'midnight appointments and midnight judges' in the US and the famous painting by Lisa Biganzoli showing Adams making 'midnight appointments.'
Nariman writes that a fitting epitaph for Hidayatullah is: He never wrote bad judgements – only elegant ones, eminently readable by one and all. He had the gift of easy and felicitous expression, a flair for the appropriate turn of phrase- le mot juste- whether in judgements or in other speeches and writings. His extra judicial writings and speeches which are many are equally impressive and not wanting in humour. He delivered the prestigious Tagore Law Lectures for 1958 on the subject Evolution of the Rights in Property. He took the view that the right to property as a fundamental right was an anachronism and had the effect of diluting the basic human rights guaranteed in Part III of the Constitution. Delivering the Sri Ram Memorial Lectures in February 1972, Hidayatullah said “…But an election manifesto is one thing and amending the basic structure of the Constitution is quite another.” This was before the Kesavananda case and it seems to have generated ideas of great moment. This was also Palkhivala's argument which was considered and accepted by the Supreme Court in Kesavananda Bharati case. His introduction to Mulla's classic work on Mohammedan Law which he edited is a masterpiece of elegance and precision.
He was a man of letters- well read in the classics- 'a cultivated man'- to use Justice Frankfurter's felicitous phrase. He quotes Roscoe Pound to say that great lawyers had been a great factor in legal history and further writes: (See: A Judge's Miscellany [Second Series]) Coleridge (in Table Talk) recommended all statesmen to read Grotius, Bynkershock, Puffendorf, Wolf and Vattel and Judge Learned Hand added to the list Acton and Maitland, Thucydides, Gibbon and Carlyle, Homer, Dante, Shakespeare and Milton; Machiavelli, Montaigne and Rabelais; Plato, Bacon, Hume and Kant. Recently I read the revised and enlarged edition of Rene A. Wormser's book, 'The Story of the Law' and he has given an account of 'men who made the law.' As I read it, I felt that my life was wasted, for I had left so many gaps in my reading.
Apart from his singular success and eminence in the field of law, his interest in and contribution to other fields of activity was astounding. He was at various points of time Dean, Faculty of Law, Nagpur University; Chancellor of the Delhi, Punjab and Hyderabad Universities and of the Jamia Millia Islamia. Appointed Honorary Bencher of Lincoln's Inn in 1968, he was also the President of Honour, Inns of Court Society, India. He was associated with several organizations- national and international, to mention only a few- he was President International Law Association (Indian Branch), President of the Indian Red Cross Society, Member of the Executive Council of the World Assembly of Judges, Member of the International Council of Former Scouts and Guides, Member of the World Association for Orphans and Abandoned Children, a Settlor of the Jawaharlal Nehru Cambridge University Trust. He represented India at several conferences, won many awards and was awarded many honorary doctorates.
He was the favourite of Fortune and honours sought him like iron filings the magnet. He held many positions and played many roles. His pursuits and interests were multifarious. He was a man of many parts. 'He was a Gandhian in ideology, essentially cosmopolitan in outlook, truly Indian in culture, a poet at heart and an activist in thought'. His virtues were equal to his genius. He commanded both respect and admiration.
As a man he was humane and jovial. I have heard about this incident from former Chief Justice J.S. Verma. Once when Hidayatullah was the Chief Justice of the High Court he was in a workshop for repair of his car. A young lawyer also came to that workshop and found the Chief Justice's car parked there and blocking his way. Impetuously he shouted and enquired whether the Chief Justice's car alone would be attended to. He got down and walked forward and lo and behold found the Chief Justice himself crouching in front of his car overseeing the repair. Hidayatullah got up and walked to the young lawyer and tried to find out what the problem was with his car. As Chief Justice of India he used to drive his car, go shopping, buy tickets standing in the queue at the theatre and see a picture!
Hidayatullah was charming and gracious, simple and lovable. He had a repertoire of anecdotes apt for various occasions. He was a great raconteur and could keep you mesmerised with his narration and conversation. He was one of those who could occasionally poke fun at himself. Once he was sitting amidst a distinguished gathering at a dinner at the Cambridge University. There was some discussion about the theory of relativity and Hidayatullah aired his views with a certain measure of authority. The elderly gentleman sitting next to him and whose identity he did not know remarked that Hidayatullah's views were interesting and invited him for a cup of tea. That gentleman was the world-renowned physicist Sir Arthur Eddington, one of the few persons, apart from Einstein, who understood the theory of relativity. Narrating this incident Hidayatullah said that he did not pick up the courage to go for that cup of tea and face Eddington.
Hidayatullah very tellingly sums up his experiences:
In all my judicial actions, I was true to myself and it was only thus that I was able to do my duty to my own satisfaction. That others were pleased or displeased was incidental. Whatever respect the Bar and the public gave me was for this reason. I have no regrets about any case decided by me as a judge.
One lesson I learnt with soreness. It is that one loses friends more rapidly than one makes them. I lost the friendship of chief justices and judges for whom I could not find berths in the Supreme Court. The same happened in the case of some deans and vice-chancellors who were also aspirants. Some of them turned their pens against me with a venom which highlighted their disappointment. Such friends were not friends and such flatterers were not admirers. They were self-seekers and their professions of affection or admiration were not genuine. “The Shepherd in Virgil grew at last acquainted with love, and found him a native of the rocks.” After all, Bierce in 'The Devil's Dictionary' defines 'Friendless' as one having no favours to bestow.”
Hidayatullah passed away on 18th September, 1992 at the age of 87 remaining active till the very end. He lived a full and purposeful life which serves as a lesson and an inspiration.
At the Full Court Reference on his demise the then Chief Justice of India Justice M.H. Kania said “……. He possessed in himself a rare combination of erudition, charm, wit and friendliness. He was perhaps the last of the great generations of Judges who were held in awe and respect combined with affection by the entire Bar.”
As Chief Justice J.S. Verma wrote:
As with flowers, so with men
They blossom, bloom and wither away….
But there are some who always
Leave a fragrance behind…….
Justice Hidayatullah's fragrance will always remain.
Indeed to those who have passed their lives in the law and even others, his is undoubtedly clarum et venerabile nomen- an illustrious and venerable name.
Author is Senior Advocate, Supreme Court of India. Views Are Personal.