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Full Court Reference in Memory of The Late Justice M. Hidayatullah
by M.H. Kania, Chief Justice of India
Cite as : (1992) 4 SCC (Jour) 1
Mr Solicitor General, Mr President of the Supreme Court Bar Association, Members of the Bar, Ladies and Gentlemen,
To some it comes in the prime of youth, to some it comes in old age but some time or the other to one and all comes the summons from the Great Beyond which must be obeyed. To Justice Mohammed Hidayatullah, the summons came in the 87th year of his life in the early hours of the morning of the 18th of this month. We are gathered here today to pay our humble tributes to his memory.
Justice Hidayatullah was born in 1905 in the well-known family of Khan Bahadur Hafiz Mohammed Wilayatullah. It was an upper-class family. His father was a poet of all-India repute who wrote poems in Urdu and probably it must have been from him that Justice Hidayatullah got his love for language and literature. In fact he could himself write well in Urdu. Justice Hidayatullah made good use of the advantages which his birth in a cultured and reputed family gave him. He had his college education in the prestigious Morris College at Nagpur where he secured the Phillips Scholarship and the Malak Gold Medal. After graduating from Nagpur University, he went to England and did his Post-graduation from Trinity College, Cambridge. For the last several years he was regarded by the Trinity College as one of its most distinguished alumni. He was called to the Bar from Lincoln's Inn when he was just 25 years old. He had the distinction of being the youngest Advocate General of a State, Madhya Pradesh, in 1943 and the youngest Chief Justice of a High Court when he was appointed to the High Court of Madhya Pradesh in 1954. In his time he was the youngest judge of the Supreme Court of India to which he was appointed in 1958. By his keen intellect, his knowledge of law, his love for literature and by his dedication to his work as a Judge, he carved out a place for himself in the Supreme Court and was appointed as the Chief Justice of India on February 25, 1968. He adorned that office for a period of over two years. It was during this period that, when the then President of India, Dr Zakir Hussain died suddenly, in harness, on May 3, 1969, Justice Hidayatullah was called upon to act as the President of India for a brief period which was made memorable because of the visit of the American President Mr Richard Nixon to India. After his retirement, Justice Hidayatullah was elected as the Vice-President of India by a consensus among different parties and occupied that high office with distinction from 1979 to August 1984. During his tenure as the Vice-President he won the respect of all concerned for his impartiality and independence.
Throughout his career as a Judge he displayed a quick grasp and keen intellect coupled with good manners and courtesy. He had a sharp and ready wit but never put it to use to hurt others. He was a lover of literature and this became clear to anyone who had the occasion to go through his judgments.
He was one of the few judges who could occasionally poke fun at himself. He told me that once he was sitting at a dinner at the Cambridge University where a number of distinguished persons had been invited. Next to him was an elderly gentleman whose identity he did not know. There was some discussion about the theory of relativity and Justice Hidayatullah aired his own views with a certain measure of authority. His neighbour told him that his views were interesting and invited him for a cup of tea in the next two or three days. Later on Justice Hidayatullah found out that he had been talking to the world renowned physicist Sir Arthur Eddington who was reputed as one of the few persons apart from Einstein who understood the theory of relativity. Justice Hidayatullah never picked up the courage to go for that cup of tea and face Sir Arthur Eddington. However, if somebody tried to use his wit at Justice Hidayatullah's expense, he was quite capable of dealing with it. He circulated a draft of a judgment to one of his colleagues who rarely shared his views. The colleague sent back the draft to Justice Hidayatullah with several sharp adverse comments in the margin and then at the foot of the draft wrote "Please do not read the marginal comments. They are not for your eyes". He promptly sent back the draft with a note "Please do not worry, I never read anything which you write".
During his long tenure in the Supreme Court he was a party to a number of landmark judgments including the judgment in Golaknath case1 which took the view that the Parliament had no power to cut down the Fundamental Rights by constitutional amendment. His judgment in the case of Ranjit D. Udeshi2 dealing with the law of obscenity, displayed a flair for literature which is not so common among our judges. His judgments where he took the view that the works contracts should be really treated as divisible for the purposes of sales tax has now found acceptance by way of amendment of the relevant constitutional entries and the relevant laws.
After retirement he wrote a number of books, the most notable being his autobiography titled "My Own Boswell" and "A Judge's Miscellany" which highlights his sense of humour and his excellent memory. He also wrote a book on the Right to Property.
Justice Hidayatullah was a warm and friendly person who could mix with one and all on even terms. In the company of the learned he could stand up to any scholar. In the company of children he could be as playful and light-hearted as them. He was as welcome at a gathering of eminent lawyers and Judges as at a gathering of young people. He could mix with them all freely and make every one feel at home. Such qualities are given only to a few and he was lucky enough to possess them all.
To me, his death comes as a personal loss. Although we had some common relatives, I came to know him personally only in the end of 1969 soon after I was appointed as the Judge of the Bombay High Court. He was at that time the Chief Justice of India and was to retire in a month or two. Frankly I was a little hesitant about talking to him freely because of the high position held by him but I found that he was friendliness itself. In the course of years I came to know him much better and for the last several years I came to regard him almost as an elder relative. My family and I have received from him the kindness and affection which one could expect only from an elderly relative. I came to learn from my former colleagues in Bombay and colleagues here that whenever anyone of them needed a word of advice or encouragement Justice Hidayatullah was always willing to spare time for them, however, busy he might be. He possessed in himself a rare combination of erudition, charm, wit and friendliness. He was perhaps the last of the great generation of Judges who were held in awe and respect combined with affection by the entire Bar. He had all things which Fortune can confer on its chosen few. He was born well, got an excellent education, put it to the best use and attained all the positions which a judge could hope to attain. He also occupied the second highest post in the country and acted in the highest post. Destiny also gave him a loving family and a wide circle of friends and acquaintances, finally an active life even right till the time of his death which came at a ripe old age. Although he has died in the fullness of years and honours, his death has come as a great loss to the entire legal profession and to the country itself. For his own family members it must be a much greater loss. Our hearts go out to them in sympathy. May his soul rest in peace.
ADDRESS BY THE SOLICITOR GENERAL OF INDIA
My Lord the Chief Justice and My Lords,
On behalf of the learned Attorney General, my colleagues and myself, may I associate ourselves with the thoughts and sentiments expressed by my Lord the Chief Justice, and add a few words of my own.
It is difficult to speak about Justice Hidayatullah for fear of not being able to do enough justice to the many and varied qualities of one of the most illustrious personalities this country has produced.
It is a unique distinction not given to others for one man to have been the Head of the State, the Head of the Indian Judiciary and the Presiding Officer of the Upper House of Parliament. He performed the functions of each of these exalted offices in a manner most befitting the same.
Justice Hidayatullah was born in one of the most enlightened families of the then Central Provinces known for its literary achievements. It is easy to see the profound influence which his family background had on the many qualities of Justice Hidayatullah. Reading his autobiography, we learn that his father, Khan Bahadur Hafiz Mohammed Wilayatullah was an outstanding student and perhaps never stood second in his examinations. Khan Bahadur Wilayatullah at the age of nine knew the whole Koran in Arabic by heart.
Justice Hidayatullah was given the best of education by his parents and he excelled himself at all stages. He studied in Morris College, Nagpur which was the premier college in the Central Provinces and Berar where he won the prestigious Phillips scholarship and secured the Malak Gold Medal. Then he proceeded to England and joined the Trinity College in Cambridge. Later he joined the Lincoln's Inn, London and was called to the English Bar in 1930. Lincoln's Inn was to honour him later by making him a Honorary Bencher.
Justice Hidayatullah set up practice as an Advocate in the Judicial Commissioner's Court at Nagpur. He soon made his mark on the criminal side and there was hardly any sensational criminal case in which he did not appear. His rise in the legal profession was meteoric. Government Pleader, Advocate General, puisne Judge of Nagpur High Court, Chief Justice of Nagpur High Court, Chief Justice of Madhya Pradesh High Court, puisne Judge of the Supreme Court and the Chief Justice of India I at every stage at an incredibly young age.
Very interestingly he tells us in his autobiography that when he was admitted to the lowest Kindergarten Class in School he was presented before the Head Master Mr J. Sen; and 36 years later in 1946, both Mr Sen and Mr Hidayatullah were sworn in as His Majesty's Judges as colleagues on the Bench of the Nagpur High Court.
It is part of history that while the Chief Justice of India, he acted as the President of India for a short while. After his retirement as the Chief Justice he was again called upon to serve the nation as the Vice-President of India to which office he was elected unopposed in the year 1979.
To whichever position he was elevated, he performed his duties and functions with distinction and sincerity.
In fact sincerity was one of the characteristics in his attitude to life in general and his own life style. A sense of humility permeated his entire conduct. Anecdotes are told by members of the Bar of having seen him queue up behind them in shops in Connaught Place waiting for his turn like any other customer. He sometimes used to drive down personally in his Rover car for making ordinary purchases.
After his retirement as the Chief Justice of India, Justice Hidayatullah engaged in literary pursuits. Several books were published including the two "Judge's Miscellany", the "USA and India" and his autobiography.
During his spare time he advised parties who consulted him and also conducted a number of arbitration cases as the sole Arbitrator. As he put it, his awards made the parties equally happy or equally unhappy. None of his awards were ever questioned.
I had the good fortune of being briefed in one of such arbitrations before him against the Late Mr S.N. Kacker. I had the great privilege of knowing and observing him at close quarters in the relaxed atmosphere of the arbitration proceedings. Apart from his legal acumen and ability, which were well known, what impressed us greatly was his ability to grasp and master with ease a wealth of technical and engineering details which the case involved. The lighter side of his character also came through and he enlivened the proceedings and particularly the coffee breaks with witty stories and anecdotes. One day, addressing himself particularly to me, he said that he did not know many stories from Bengal but nevertheless he narrated two for us from his own collection, if I may use that expression. These stories brought out accurately and very clearly the local flavour of a District Court in rural Bengal.
We are very sad at the passing away of such a multifaceted personality. Our thoughts and hearts go out to the bereaved family and we join your Lordships in expressing our deepest sympathies and condolences to them and in paying our very humble tribute to the memory of Justice Mohammed Hidayatullah.
REFERENCE BY SH. R.K. JAIN, PRESIDENT
SUPREME COURT BAR ASSOCIATION
My Lord the Chief Justice, My Lords, and the Members of the Bar. We have assembled here today to pay tributes to Justice Mr Hidayatullah, former Chief Justice of India, who died in the early morning of the 18th of September, 1992 at his residence in Bombay following a massive heart attack.
Justice Hidayatullah was born on the December 17, 1905, at Betul, now in Madhya Pradesh. After completing his initial education at Government High School, Raipur, he enrolled with the prestigious Morris College of Nagpur where he was awarded the Phillips Scholarship and the Malak Gold Medal.
After completing his Bachelor's Degree in 1926, Justice Hidayatullah went to Trinity College, Cambridge. He was called to the Bar at Lincoln's Inn.
After his return from England, he was enrolled as an Advocate in 1930. In a short span he distinguished himself as a lawyer and was appointed a Government Pleader in 1942. In 1943 Justice Hidayatullah had the distinction of being appointed the youngest Advocate General. He became the youngest Chief Justice of Nagpur High Court in the year 1954. Subsequently, he became Chief Justice of Madhya Pradesh High Court in the year 1956 and a Judge of this Court in the year 1958. In 1968 he became the Chief Justice of India and retired in December 1970.
Justice Hidayatullah was a very well-read and a widely travelled man. He was a scholar and author of several publications. He had written a number of books including "Democracy in India", Judicial Process "South-West Africa Case' Judicial Methods, "A Judge's Miscellany", and had edited "Mulla's Mohammedan Law". He had also written his autobiography, "My Own Boswell". His last work titled "Indian Constitution" is still in the press.
Apart from being singularly successful both at the Bar and the Bench, his popularity and interest in the academic world remains unsurpassed. He had been Dean, Faculty of Law, Nagpur University; Chancellor of Delhi and Punjab Universities during 1979-84 and Chancellor of Jamia Milia Islamia during 1969-85.
Besides, he was President of International Law Association (Indian Branch), President of Indian Red Cross Society and President of Bombay Natural History Society. He was closely associated with Hunger Project of USA, World Association of Orphans and Abandoned Children (Geneva), and Independent Commission on International Humanitarian Issues (1982-84).
Justice Hidayatullah was the Vice-President of India during 1979 to 1984 and acting President in 1969 and 1982.
Justice Hidayatullah acclaimed many national and international awards and honours including the Order of the British Empire in 1946, Order of the Yugoslav Flag with Sash (1970), Medallion and Plaque of Marit Philconsa Manila (1970) and Knight of Mark Twain (1971).
His interests, perceptions and pursuits were so vast and varied that perhaps one cannot give an honest account of any of them in a short time. He was a well-behaved, well-mannered and a well-dressed person. He was a Gandhian in ideology, essentially cosmopolitan in outlook, truly Indian in culture , a poet at heart and an activist in thoughts.
He was a champion and crusader of Human Rights much before the idea and the movement gained ground both in India and abroad. Through his numerous judicial pronouncements spreading over a period of nearly 12 years, he consciously adopted a liberal approach towards the interpretation of Human Rights and Liberties. His basic postulate was that the Fundamental Rights enshrined in Chapter III of the Constitution cannot be abridged or abrogated by anyone. He was of the firm view that no organ of the State can violate Fundamental Rights.
In State of M.P. v. Shobharam3, he would painstakingly uphold the constitutional right of an accused to be defended by a lawyer of his own choice. In Rev. Father W. Proost4, he would again strenuously defend, the Fundamental Rights of minority institutions guaranteed under Article 30(1) of the Constitution by explaining the interrelationship of Articles 30(1) and 29(1). He held that the two Articles create two separate rights and the width of one cannot be curtailed by introducing in it considerations on which the other is based.
In Ranjit D. Udeshi5, while dealing with the ambit and scope of freedom of speech and expression, he observed: (AIR p. 885, para 8)
"The cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge."
He would however, disallow any exercise of this right which is inconsistent with public morals and decency. Nevertheless, he, himself being a connoisseur of art, would say:
"Where obscenity and art are mixed art must be so preponderating as to throw the obscenity into shadow."
In K.A. Abbas6, dealing with a similar problem and continuing from where he had left in Udeshi_3, Justice Hidayatullah said: (SCC p. 800, para 48)
"The artistic appeal or presentation of an episode robs it of its vulgarity and harm...."
In Dr Ram Manohar Lohia7, he explained the intricate relationship of the concepts of law and order, public order and the security of the State, by imagining three concentric circles. He said: (AIR pp. 758-59, para 52)
"Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an Act may affect law and order but not public order, just as an act may affect public order but not security of the State."
In Madhu Limaye v. S.D.M. Monghyr8, he further clarified the law by stating that: (SCC p. 755, para 19)
"The State is at the centre and the society surrounds it. Disturbances of society go in a broad spectrum from more disturbance of the serenity of life to jeopardy of the State. The acts become graver (and graver) as we journey from the peripheral of the largest circle towards the centre. In this journey we travel first through public tranquility, then through public order and lastly to the security of the State."
Justice Hidayatullah was equally emphatic and anxious in upholding Fundamental Rights vis-a-vis the Legislature. Thus, in Golaknath case9, after referring to international developments in the arena of Human Rights, he observed: (AIR p. 1700, para 146)
"Liberty of the Individual has to be Fundamental and it has been so declared by the people.... To change the Fundamental part of Individual's liberty is a usurpation of constituent functions because they have been placed outside the scope of the power of the constituted Parliament."
He however did not intend that the Fundamental Rights are not subject to change or modification. Accordingly he held: (AIR p. 1704, para 162)
"In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity."
He carried his theme of giving fullest meaning to Fundamental Rights to its logical conclusion, when he raised the lone dissenting voice in Naresh Shridhar Mirajkar10 as against a majority of eight learned judges, holding that the Judges, both in their administrative as well as judicial capacity are not totally immune from the challenge of infringement of fundamental guarantees. He said: (AIR p. 29, para 102)
"It is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution cannot be completely excluded."
By way of illustration he says: (AIR p. 29, para 102)
"If a Judge, without any reason, orders the members of say one political party out of his Court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against such an order, the defect on which relief can be claimed, is the breach of fundamental rights."
Justice Hidayatullah was for a strict discipline for the Judges. He was always of the view that the Judges in all Courts must act with responsibility and if there is a mistake on the part of the Court, then the litigants should not suffer on account of that mistake. Speaking for the Court in Jang Singh v. Brij Lal11, he said: (AIR p. 1633, para 6)
"There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake."
Justice Hidayatullah's contribution to the legal systems as also to the political, social and cultural systems is immense. His statesmanship in the Indian polity and his relevance to the Indian society will be felt more strongly with the passage of time. His understanding of such diversified fields as philosophy, politics, law, religion, literature, art, history and other aspects of human and social life truly makes him an outstanding personality.
Above all, Justice Hidayatullah was a great human being. He had been very considerate and polite both at the Bar and the Bench. His contemporary Supreme Court staff members bear witness to his kind-heartedness and large-heartedness.
Justice Hidayatullah, is survived by his wife Mrs Pushpa Shah and a son Arshad Hidayatullah who is a leading member of the Bar. I on behalf of the members of the Bar and my own behalf offer my heartfelt condolences to the bereaved family. May his soul rest in peace.
- Golaknath v. State of Punjab, AIR 1967 SC 1643
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- Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881
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- AIR 1966 SC 1910
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- W. Proost v. State of Bihar, AIR 1969 SC 465
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- Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881
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- K.A. Abbas v. Union of India, (1970) 2 SCC 780: AIR 1971 SC 481
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- Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740
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- (1970) 3 SCC 746
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- Golaknath v. State of Punjab, AIR 1967 SC 1643
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- Naresh S. Mirajkar v. State of Maharashtra, AIR 1967 SC 1
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- AIR 1966 SC 1631
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