"Dissent Is The Basis for Tomorrow's Lawmaking": SC Judges Remember Justice Syed Mahmood: Colonial India's Dissenting Judge


18 Sep 2022 2:21 PM GMT

  • Dissent Is The Basis for Tomorrows Lawmaking: SC Judges Remember Justice Syed Mahmood: Colonial Indias Dissenting Judge

    "Dissent is the basis for tomorrow's lawmaking, one must remember. Sometimes, it is felt that if everybody goes on the same line and the same passageway, that is what should happen, forgetting that the legal minds are rendering opinions. There is nothing to be touchy about it. The opinion is what a particular judge feels should be the law and therefore, it is the jurisprudential development...

    "Dissent is the basis for tomorrow's lawmaking, one must remember. Sometimes, it is felt that if everybody goes on the same line and the same passageway, that is what should happen, forgetting that the legal minds are rendering opinions. There is nothing to be touchy about it. The opinion is what a particular judge feels should be the law and therefore, it is the jurisprudential development which takes place through these dissents which are extremely important because what was perceived to be a dissenting opinion, tomorrow can be a view to be adopted by the court because nothing in law is constant and that is the beauty of the subject", Justice S. K. Kaul has articulated.

    The judge was speaking at the Launch & Discussion of the book 'Syed Mahmood: Colonial India's Dissenting Judge'.
    Speaking of Justice Mahmood's dissent in Queen Empress v. Pohpi, Justice Kaul expressed, "Under the code of criminal procedure as it was applicable in 1891, a convict in appeal was required to be given a hearing but in practice, the Allahabad High Court considered that the convict had been given a fair hearing even if the convict was not present before the court or represented by a lawyer so long as the judge of the High Court had scrutinised the records of the case. Justice Mahmood referred this to the full court which consisted of four judges including Chief Justice John Edge. The majority upheld this practice. However, Justice Mahmood in his powerful dissent noted the gravity of the consequences that would follow up on the convict if he was not heard. Justice Mahmood declared that the right of being heard in appeal could not be diluted in any manner"
    "Justice Mahmood's dissent is the position of law today. His manner of reading the principle of natural justice as a natural corollary of interpretation of law was such a powerful method that one cannot imagine any other method of statutory interpretation in the legal system as it has developed to this day. Today, we rightfully take the right of effective representation as granted while we find ways to improve the system of access to justice in the country.We have to remember the time period and the context when this opinion was given. We have taken many years post-independence to have adopted that, so his thought process was before time. It arose at a time when the contra was supposed to be the law of the land, and to lay down the basis for something to evolve in the post-independence constitutional structure, the judgment deserves to be a landmark in the history of the Indian legal system", continued Justice Kaul.
    "My own encounter with Justice Mahmood came in 2020 as I was preparing the judgment in Raghunath v. Radhamohan. The case concerned a fairly routine question of determining the commencement of limitation with regard to the exercise of right of pre-emption. To trace the contours of right of pre-emption, I referred to Gobind Dayal v. Inayatullah, one of the earliest cases on the subject. Gobind Dayal's case was interesting as it involved enforcement of right of pre-emption between a Muslim vendor and a Hindu vendee. Since the right of pre-emption has its origins in Muslim law, the question was whether the right can be exercised against the party who was not Muslim but had merely dealt with the Muslim party. The Allahabad High Court held that it would not be equitable for a non-Muslim, merely on the ground of religion, to avail the right of pre-emption after knowing the conditions under which the property was possessed. I was struck by Justice Mahmood's opinion for the majority. It was not just a brilliant re-examination of the law of pre-emption as it stood at that time, but it also exhibited an original and innovative approach to what most of us would consider a fairly prosaic matter of contract and property law. He said colonial law would require application of native laws according to the religion of the parties to the suit, emphasising that it was for the protection of rights and not for deprivation of rights. He also noted the disapproval of practice of English judges in substituting their own views under the garb of justice and equity and running roughshod over established religious practises of Hindus and Muslims in the country. He was the paradigm of inherent dynamism that is necessary in judicial work...In his many confrontations with Chief Justice Edge, he would be reprimanded for slackness in his work. He reportedly considered this as a sign of Justice Edge's belief of his own racial superiority and countered this by preparing a detailed table of the number of hours put in by himself", spoke Justice Kaul.
    "His work highlights the need for a judge to be firmly rooted in contemporary social realities. And secondly, it highlights that there is a requirement to keep their pulse on the new and upcoming social energies that are likely to disrupt present ways of thought. Having been the Chief Justice of 2 High Court, I say that we must constantly be in search of methods that enhance the efficient functioning of the court. In our time, perhaps we can work towards bridging access to justice by reducing pendency of cases in our courts. This can be done so using innovative techniques such as mediation, digitisation of courtroom processes etc", continued Justice Kaul.
    Justice Kaul described Justice Mahmood as the "foremost exemplar of judicial courage and integrity" and that his life and work continues to be relevant even today, in this day and age. Justice Kaul expressed that "as a member of the Indian legal fraternity", "it is our duty to be aware of our own roots and to know about legal icons from the subcontinent" and that "the discovery of our past and of people such as Justice Mahmood serves to inspire us in our work and renews our commitment to the ideals of rule of law"
    In his turn, Justice Ravindra Bhat also discussed the Pohpi dissent and how it was the "earliest and finest expositions of natural justice highlighting its importance powerfully but without any fanfare" and how Justice Mahmood "brought out the stark absurdity of the situation and went on to write that powerful dissent"- "I became aware of this decision when Justice Verma quoted it in the hearing in Jamaat-e-Islami Hind in 1994 where the government tried to withhold documents without claiming privilege in support of its argument to ban certain organisations"
    "Then there was Mata Din v. Kazim Hussain in which Justice Mahmood dissented from the majority opinion that gave a very narrow interpretation to the word property. The majority decision was to the effect that property is something tangible, that is some physical object. This judgment was later on overruled. Justice Mahmood's idea resonates today when intangibles such as intellectual property, like data, are far more valuable than tangible property", continued Justice Bhat.
    "The authors of this book have taken pains to find out that seven of his judgments have been cited in no less than four other countries- Kenya, Malaysia, Pakistan and Bangladesh, apart from our own Supreme Court which has affirmed many of his judgments. Like a great chief Justice of almost a century later, Justice Subba Rao, we have Mahmood who was far ahead of his times and his decisions were incorporated in majority judgments much later...For some of us, Justice Syed Mahmood is a beacon, who the authors of this book have styled as 'colonial India's dissenting judge'...This book could not have come in a more timely manner to showcase to this generation of lawyers and academics that there were brilliant minds in the late 19 century who have richly contributed to the evolution of Indian jurisprudence and the Indian society", signed off Justice Bhat.
    Justice Sudhanshu Dhulia also canvassed Pohpi- "In the old criminal procedure code, when an appeal was filed before the High Court, the word was that the appellant has to be heard. Remember, those were the times when the punishment for murder was death or life imprisonment, but generally it was death. If a judge had chosen to give life imprisonment, he had to assign reasons for why not death. Today, it is the opposite; death penalty is only for rarest of rare cases. 'Hearing' meant that even if the person who has been convicted by the trial court and is in appeal before the High Court is not represented by a lawyer and he cannot even be present before the court in person, the court used to think that if the judge has read the file, he has been heard. Mahmood found this very weird, he referred it to full bench. Chief Justice Edge constituted a full bench of four judges. Majority held there is nothing wrong in it, that if a person is not even represented by a lawyer nor is he there in person because he is in jail, but if the judges have seen the file, it will amount to hearing. Mahmood gave his famous and hard-hitting descent that this is the British law in India and the sooner it is abrogated the better. He was the only Indian in the entire High Court. There was nothing like 304 of the criminal procedure code. 304 today requires that if the accused is not represented, it is the duty of the court to provide him legal assistance. We now have the national legal services authority and State legal services authorities. Look at the time he said it in, in 1891. This was one aspect of his personality which appeals to me"
    "The second aspect of his personality was when Justice Muthuswamy Iyer of the Madras High Court had come to meet Mahmood. People asked Mahmood about Justice Muthuswamy Iyer, what he thinks about him. He said, 'Justice Muthuswamy Iyer is a great judge, he is much greater than me'. When asked why he said so, he replied 'look, I am a judge of the law, Justice Muthuswamy Iyer is a judge of the fact; and a Judge of the fact is always greater than a judge of law'...When I first read it as a young lawyer, I really didn't understand the meaning of it because I always thought that fact everybody can read but it is the law which is more important because you have to understand the law. But believe me today as a judge we understand that a judge of fact is much greater than a judge of law", continued Justice Dhulia.
    "After he had to resign, and we know the circumstances in which he had to resign, he went to Lucknow and started practising in the chief Commissioner's court and he became the top lawyer there. But very soon that practice also went away because of his habits. But at that time his junior was Satish Chandra Banerjee and there was a day when the junior had a very high fever and Mahmood told him to stay at home and he took care of him and did not sleep the whole night and he used to come and check his temperature...There is a thought I always have about the circumstances in which Mahmood had to resign. Some aspects have been touched upon but apart from that there are many other aspects which need to be explored, the side of Mahmood has to be heard, because he wrote long letters to the commissioner as to what had happened. A book can be written about it where the prosecution story should be narrated by Justice John Edge that this is what Justice Mahmood was, and defence has to be given by Justice Mahmood as to what he was not and what he was. Final judgment is to be given by some lawyer like Satish Chandra Banerjee", concluded Justice Dhulia.

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