This year marks the 121st birth anniversary of Lord Denning, arguably the greatest English Judge of the 20th century. Alfred Thompson Denning was born on 23 January 1899 and lived a life that contributed significantly to the law and most importantly inspired generations. In this post, I shall focus on his life at the Bar and Bench, although his personal life deserves a separate post in itself.
Lord Denning came from a humble family of drapers but went on to study at the prestigious Magdalen College, University of Oxford on a scholarship. He first studied mathematics and later Jurisprudence at the College. Interestingly, he later remarked that he did not like jurisprudence as a subject very much. In his words, ‘the subject was too abstract for my liking. All about ideologies, legal norms and basic norms, ‘ought’ and ‘is’, realism and behaviourism and goodness knows what else.’ On awarding the scholarship to Denning, Sir Herbert Warren (President of Magdalen) had remarked that ‘you are a marked man and perhaps you will be a Lord of Appeal someday’.
Thereafter, Denning studied for the Bar and was admitted. In his early years, he heavily indulged in devilling i.e., drafting pleadings or opinion without any fee. In his free time, he would observe the court proceedings, a practice he strongly believed in. In his autobiography he writes, ‘the reading of books in libraries or attending lectures by Professors gives you only a blurred and incomplete picture. In order to understand what the law is about; you must see it working in practice. You must see what a writ looks like, what the pleadings look like, in what way counsel gives his opinion and conducts a case.’
Lord Denning served on the Bench for over 35 years (including 20 years as the Master of the Rolls in the Court of Appeal). He delivered judgments on myriad subject matters and laws namely contract, tort, equity, family cases, tenancy, constitutional law, administrative law etc. In fact, he was one of the leading voices for relaxing the concept of locus standi i.e., who may approach the Court for a remedy, in the UK (similar to what Justice Bhagwati and Krishna Iyer did in India). He recommended moving towards the concept of ‘sufficient interest’ as the test of standing, rather than the existing ‘person aggrieved’. The former allowed individuals to even challenge government actions that indirectly affected them, which the latter did not allow. For instance, in R v. GLC, Lord Denning (dissenting) granted standing to a parent seeking enforcement of the Obscene Publications Act, 1959 to restrain exhibition of obscene films, which could have likely harmed his child.
Rather than discussing his other noteworthy judgments, I would like to focus on his time at the Bench to draw two key lessons which are pertinent for the Indian judiciary today. First, making the law accessible to the citizens. Denning was a strong believer that the citizens should know and understand the law that governs them. While delivering a lecture for the Hamlyn Trust, he had remarked, ‘I hope you have not come expecting a scholarly discourse replete with copious references. If you have, I fear you will be disappointed; for I have come as the Hamlyn Trust bids me, to speak, as if it were, to the common people of England and to further amongst them the knowledge of their laws, so that they may realise their privileges and likewise their responsibilities.’ The Indian Courts (particularly the Supreme Court) are often criticised for producing judgments that are verbose, lengthy, complex and not comprehensible for a common woman/man. The law governing the citizens should be understood by those very citizens. No effort is made by the Court to that effect and citizens have to rely on newspapers, legal websites etc. The Court can draw inspiration from the Courts of other jurisdictions, namely Germany and United Kingdom, that publish a one-page note explaining a judgment in simple terms, along with the main text..
Similarly, the Court’ judgments (especially in matters concerning the Constitution) are lengthy and difficult to read. The Court often cites sociology, jurisprudence, studies and judgments of other Courts by reproducing entire paragraphs that take up enormous space. For a Court aiming for its citizens to follow the law it’s laying down, such an approach is not desirable. I wish to recall, Denning’s style of writing a judgment. He had observed, ‘Parties come with a living judgment. I try to make my judgment live so that it can readily be understood by the parties in particular and by others who read it. In telling the story, I set out the merits, I avoid long sentences like the plague, because they lead to obscurity. It is no good if the hearer cannot follow them.’
Second, is the lesson on dealing with contempt. The Indian Courts have been criticised for the recent spree of contempt cases they have heard or agreed to hear. The indulgence to such cases raises questions of the Court’s tolerance. Lord Denning had famously remarked, ‘Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…’
This statement is backed with an incident as well. Once in Court, a party threw books at Lord Denning and Lord Diplock. Both the Judges took little notice of the incident, rather than initiating contempt. The surprised party left saying, ‘I congratulate your Lordships on their coolness under fire.’ By staying tolerant, the Court would not only gain the respect of the citizens but also reassure them freedom of speech is a right not compromised before the judiciary at least.
Justice Thakker has rightfully described Lord Denning as often innovative, occasionally controversial and undoubtedly a great Judge of the twentieth century. His life holds many lessons for the judiciary today, most important of which is to protect liberty of the citizens. He was a Judge who always spoke his mind through his judgments, even if it came at the cost of being a dissenter. He justified his dissenting opinions in the following words, ‘In the last resort, I did dissent. It was for my own peace of mind. So long as I did what I thought was just, I was content. I could sleep at night. But if I did what was unjust, I stayed awake worrying.’
To conclude on a happy note, I wish to recall a humorous exchange involving Lord Denning. Once Cyril Asquith (barrister and Judge) came to Denning and mentioned the maxim of equity i.e., ‘he who comes to equity must come with clean hands’. Asquith also mentioned that before going to Court, Sir Donald Somervell always kept washing his hands. A few days later, Somervell was late for Court since his bicycle was punctured and he had to change the wheel. Seeing his hands all dirty, Denning asked him ‘aren’t you going to wash your hands before going to Court?’. No, replied SOmervell, ‘it doesn’t matter we are in divorce court today’.
I do not wish to offend any member of the legal fraternity with this post.