15 August- Bombay High Court and a Supersession

Bombay HC

[Happy 74th Independence Day to my fellow Indians!]

74 years ago, India attained independence from its erstwhile colonial masters. On the eve of 15 August 1947 Pt. Jawaharlal Nehru (first Prime Minister of India) made his famous ‘Tryst with Destiny’ speech wherein he remarked that ‘at the stroke of the midnight hour, when the world sleeps, India will awaken to life and freedom’. The day was the culmination of years of blood, sweat and tears of millions of Indians who fought for the nation’s freedom. Finally, India was no longer enslaved but the master of its destiny.

On that night, celebrations were organised all over India and flag hoisting ceremonies were conducted. One such ceremony was organised at the Bombay High Court and the happenings therein make for an interesting story. I shall discuss this episode in today’s post.

In 1947, the Chief Justice of the Bombay High Court was Sir Leonard Stone. He was an excellent jurist and an able Judge. On the night of 14 August 1947, Judges of the High Court (in ceremonial dresses), members of the Bar and others had assembled in the Central Court for the flag hoisting. A temporary flag post was put up near the seat of the Chief Justice. At midnight, Justice Stone unfurled the Indian National Flag and saluted it. Thereafter, he gave a speech on the momentous occasion wherein he remarked,

“Our sentiments on this momentous occasion must first turn in prayer that this great endeavour may be crowned with happiness and success; secondly, in self-dedication by all the citizens of the new state in service to their state, in loyalty to its laws and in human sympathy and kindness to all mankind; and thirdly, in rejoicing that the wishes and aspirations of the people of this sub-continent to be free and independent are being consummated and that it is in the times of our lives that these things should happen, so that we are present to bear witness to them…

This night the nations greet with goodwill and friendship, the Union of India, arising to independence; and I know that the good wishes of none can be so strong or so sincere as those of my own countrymen; for after all we and you have been long associated. Let us mutually forget those chapters in our joint history which have not been happy, and let an abiding friendship endure between our two great races of freedom loving people…

The hills of time stand before us. They are shrouded in the mists of uncertainty and doubt which envelope a troubled world. Go bravely, forward, fearless and undaunted, carry the torch of liberty high, so that this new India may be strong and happy, and enjoy the blessings of true freedom, and so that you may take your place in the councils of the nations, living at home and abroad in mutual trust and concord and at peace. MAY GOD SO WILL

It is believed that the next day, Justice Stone realised that it was time for his departure from the Court, since the first Chief Justice of the Bombay High Court post-independence should be an Indian. Therefore, he reluctantly resigned. His reluctance stemmed from his love for the Court and the time on the Bench.

Stone’s departure created a problem of choosing a successor. The consensus amongst the Bar and Bench was that Justice M.C. Chagla should be appointed as the next Chief. However, Chagla was not the senior most Judge on the Bench and was junior to Justice K.C. Sen, who would have to be superseded.

It is believed that the Court at the time needed a leader, who could maintain its traditions and prestige. Justice Sen despite being a great Judge no doubt, fell short on these qualities in comparison to Chagla. Chagla’s candidature was supported by Nehru as well who recommended his name to Shri BG Kher (Chief Minister of Bombay).

According to Justice Gajendragadkar, Sen himself knew that he did not deserve the Chief Justiceship over Chagla. In fact, Sen approached Justice Gajendragadkar (who was a Judge at the Bombay High Court at the time) requesting him to speak to Kher on his behalf. Sen desired that he should be appointed for a short span of six months and then would willingly resign. Justice Gajendragadkar spoke to Kher, but the latter expressed his inability to help Sen on the matter. Sen took the appointment of Chagla gracefully and never showed his dissatisfaction on the Bench.

The appointment of Chagla over Sen was technically a supersession, but at the time the rule of seniority i.e. the senior most Judge becomes the Chief Justice was not strictly followed. In fact, the appointment of Chagla was a blessing in disguise as he turned out to be one of the finest Chief Justices of a High Court, the nation has seen.

The author does not wish to offend or disrespect any member of the legal fraternity with this post. The facts and events stated in it have been reported in the public domain.


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