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Remembering Justice Hidayatullah
by Prof. Upendra Baxi
Cite as : (1993) 1 SCC (Jour) 13
With the demise of Justice Hidayatullah, modern India has lost one of its most luminous jurists. The word 'jurist' is much debased in India; we have developed a tradition where knowledge, virtue and even wisdom come ex officio, to a point that every judge, sitting or retired, every Attorney and Advocate General, other law officers, chairpersons of Bar Councils and Associations, law ministers, senior members of the Bar, and even their leading munshis, are described as 'jurists'! In this context, Hidayatullah's life was a constant message on how not to be a jurist.
But he was a jurist in the most complete sense of the term: he lived the life of law and justice. Unsurprisingly, he was an effortless exemplar of judicial virtues. Possessing an unsurpassed grasp of comparative jurisprudence, he wore his learning lightly. His disdain for purple judicial prose arose out of mastery of judicial style. He knew the inner logic of judicial craftspersonship; he addressed the future of law through the idiom of the present. In his later years, he maintained a tough allergy to the efflorescence of variety of judicial activism spawned by judicial populism. He was a friendly critic of judicial process and power and constantly warned his successors in the Supreme Court against the excesses of rhetoric; but the new converts to judicial activism could not allow a fine regard for legality to curb their new messianic notion of judicial role. Justice Hidayatullah, in contrast, believed that judicial power is most effective when it is sensible of its limits; and although not an arch-conservative, he gladly subscribed to the growth of judicial power, in Edmund Burke's prescription, by "insensible degree".
He constantly, but affectionately, disagreed with me on my views on judicial activism. He used to publicly say that if in the United States every political question ultimately became a judicial one, in India thanks to people like me (referring here to the central thesiss in my Indian Supreme Court and Politics) every judicial question ultimately becomes a political one! I respectfully disagreed because I knew, and it is a matter of record, that Justice Hidayatullah himself was among the key shapers of the design of Indian democracy, and practices of power, through many an adjudicatory feat.
Justice Hidayatullah had strong objections to judges having incestuous relationship with politicians in power. His was the most memorable epigraphic contribution in the 1973 supersession discourse where he said that we must learn to distinguish between Justices who are forward-looking and those who merely look forward! He believed that the rule of law values can be most effectively promoted by developing a judicial esprit de corps, a collective solidarity in the defence of judicial independence as an arm of Indian democracy. If in the appointment of the Chief Justice of India a senior most judge is superseded, his advise to all his Brethren was that they indicate to the Union Executive that all of them will resign. Unfortunately, his successors failed to heed his sage counsel, making Indian apex judiciary a house divided, at least in several post-emergency years where internecine bickerings amongst India's top adjudicators slowly, but surely, damaged her best democratic icon.
Justice Hidayatullah was a gentleman judge; his times on the High Bench wore still civil times; when the rough and tumble of Indian politics was held within bounds of civilised conversation amongst men and women in power. And the Bar, was, in his times, still a learned profession, as yet undivided, in its loyalty to the administration of justice, when lawyers were, in the best tradition, officers of the Court. In this zodiac, he was able to lead judicial process to triumphant heights. Yet, poignantly, he continued to believe that the judiciary can remain even in changed times, marked by crisis of civility and death of dialogue, an oasis in the desert. If Justice Hidayatullah's vision of judicial power and process have helped shape the practices of the Bench and the Bar in the recent years, it is because of the resonance of his life and work and his benign, unobtrusive, presence for many long years after his laying down his office as the Chief Justice of India. Upon his demise, it would require a steadfast project of a memory and tradition to pursue his articulate vision of judicial power and process.
I met Justice Hidayatullah when I was invited to my first academic sojourn in India in the late sixties, when as Chief Justice of India he was the President of the Indian Law Institute. Lamented M.C. Setalvad (then Attorney General of India) and Professor G.S. Sharma (then Director, Indian Law Institute) and he constituted the editorial committee of the prestigious Journal of the Indian Law Institute. As the Joint Editor of the journal I was required to present the edited material of each quarterly issue to the committee. He was very prompt; within a week the material of about three hundred typed pages came back, with scribbles on the margin, and encirclings of grammatical/syntax errors. I was astonished that a Chief Justice of India had the time and patience to participate in copy-editing of a learned journal!
I came to know him and adore him for his non-hierarchical, fraternal approach at my first national seminar on Contract Law in India. Arshad, his son, and I hiked our way through China Peak in Mussoorie, it turned out that Pushpa's and Hadi's (as he was fondly called by his friends) anxiety was equally divided for both of us! A new social contract, as it were, was born out of this adventure.
After serving for about a year, when I visited 5, Krishna Menon Marg to say that I had to go back to Sydney to learn and teach jurisprudence and international law from and with Professor Julius Stone, he said to me, in words which I still recall, "Upen, you should have waited a little longer to learn Indian law." In retrospect, I know that I should have heeded his advise. He had far-sighted plans for revitalizing the Indian Law Institute, the day I was leaving for Australia he had obtained a grant of Rs 20 lakhs for the development of the Institute. No President of Institute before, and since, had been able to persuade the Government of India about the importance of investment on legal research and scholarship, which in the not too long a run is, after all, an investment in the rule of law and Indian constitutionalism.
As Chief Justice of India Hidayatullah continued to contribute steadily and luminously to legal literature, most of his contributions fortunately are available through the several volumes of A Judge's Miscellany. Remarkably he also continued to maintain his interest in legal education and research. Even when he occupied the high office of Vice-President of India, he remained the chairperson of the Legal Education Committee of the Bar Council of India. Many of us, who had privilege to work with him on the committees, would recall his meticulous attention to all items on the agenda, big as well as small. He took lively interest in all matters, whether they concerned equivalence of foreign curricula and degree for the purpose of admission to the Indian Bar or norms for recognition of colleges or curricular reform including the proposal for introduction of a five-year law course after school. He was fair and generous to a fault in handling articulation of opinion within the committee, even when some of these fell short or fail to reciprocate the same order for redeeming legal education. Justice Hidayatullah had a dream of doing an Indian Halsbury on the Indian Constitution and sought to bring in best possible contributions to produce a series of essays on constitutional developments in India. If the eventual results fell far below his expectations, he did have the satisfaction of having harnessed a large variety of talent in constitutional scholarship to an uncreative endeavour. In all these respects Chief Justice Hidayatullah has set yet another precedent of how justices, in the retirement, may contribute to growth and renovation for legal education and scholarship. One very much hopes that this will, unlike the rule of stare decisis, be honoured in observance rather than in breach.
Justice Hidayatullah had a premonition about his demise. When I met him in London in May, he told me that he may not live for more than a few months. I had hoped to meet him in Bombay but this, alas! was not to be. Chief Justice Hidayatullah lived a rich and full life and brought to bear his lively impress on all the democratic tasks he was summoned to perform for the nation. The memory of his good work and many-splendoured life should guide us to the inner imagination of law with replenishing gentle capacity of judicial process to tame the arrogance of power.
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