Book Extract: The Supreme Court Of India has a history of conflict in its ranks

Over the years, there have been several personal (sometimes petty) rivalries, jealousies and tensions between judges of the Supreme Court of India, apart from intellectual disagreements over ideology and substance. Disagreements have often occurred between the chief justice of India and the most senior judge of the court who, historically, have been unable to get along. These disputes usually involved matters relating to succession to the post of chief justice of India or post-retirement positions. There have been disputes about the proper role and function of a judge in India: whether a judge should be a mere arbiter of disputes or an activist who sets up a parallel government. At a broader level, stories of these rivalries and disagreements are immensely valuable, not merely because they are anecdotally interesting, but also because they stand in stark contrast to the general lack of dissent in the Supreme Court’s decision-making, which we will see in the next chapter. The episodes narrated in this chapter still ring true. In January 2018, the four most senior judges of the Supreme Court of India1 held an unprecedented press conference in which they complained that the chief justice of India, Dipak Misra, was not assigning cases to benches in a transparent manner. The incidents set out in this chapter reveal that such tussles have historically not been uncommon in the Supreme Court.

Sinha–Imam

The first known, significant rivalry at the Supreme Court was between BP Sinha (1899–1986) and SJ Imam (1900–1965), who served in the court in the 1950s and 1960s. Sinha and Imam began their careers as lawyers at the Patna High Court, and they were appointed judges there in January 1943 and October 1943 respectively. They came to the Supreme Court in quick succession, in December 1954 and January 1955 respectively. Sinha probably disliked Imam because he went ahead of Sinha at the Patna Bar and became the advocate general of the state while Sinha was only an assistant government advocate. Imam clearly had the more distinguished academic background of the two – he had studied at Cambridge and was called to the bar in London.

Imam could actually have come to the Supreme Court before Sinha. Ghulam Hasan, a Muslim Supreme Court judge, died in November 1954. Thereafter, Prime Minister Jawaharlal Nehru was keen on a Muslim judge replacing Hasan, and Imam was the most senior Muslim judge in the country at that time. However, Chief Justice MC Mahajan, after consulting his colleagues, recommended the appointment of Sinha for the vacancy created by Hasan’s death, and the government accepted the nomination. Sinha believed that Mahajan appointed him over Imam because he wanted him (ie Sinha) to become the chief justice of India when SR Das retired in October 1959.

Interestingly, Chief Justice SR Das hilariously lampooned his colleagues in the speech he gave at his farewell function in September 1959. He referred to his colleague, Justice JL Kapur, and said, “When an argument is in full swing, he distinctly remembers that there is a decision, either of the House of Lords or of the Privy Council, which is pat on the point under discussion, but unfortunately that decision he cannot, for the moment, lay his hands on and all the members of the Bar appearing in the case cannot find it till the case is over.”

He referred to Justice PB Gajendragadkar, the pro-labour judge, and said, “His heart is literally bleeding for the under-dogs, and unless the bleeding can be stopped the under-dogs will very soon become top dogs.”

He referred to Justice AK Sarkar, a bachelor, and said, “My brother Sarkar has been an onlooker on the highway of life. He attends dinners but does not eat; he sees other people eat. He has joined many bridal processions but has not married. But I do not know whether he will change his mind.”

He referred to Justice K Subba Rao who, as chief justice of India many years later, would pen the majority judgment in the controversial Golak Nath case. Das said that Subba Rao “is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill-conceived judgments of his colleagues which require reconsideration”.

He also referred to the Cambridge-educated Justice M Hidayatullah and said that he “has given us three Gospels. Stroud’s Judicial Dictionary, Wilson’s Glossary and Words and Phrases by some author whose name I forget. I do not know when he will produce the fourth Gospel.’

When the time came for BP Sinha to be appointed chief justice according to the seniority convention, Sinha believed that a member of Imam’s family started spreading false rumours that Sinha was three years older than the records showed. The accusation gained some currency. Alarmed by this, Sinha went to President Rajendra Prasad, himself a lawyer from Bihar, and told him to conduct an inquiry about Sinha’s age. After an informal inquiry, Prasad announced that Sinha would become the next chief justice, about a month prior to Chief Justice Das’s retirement.

Justice Rajagopala Ayyangar, who was appointed to the Supreme Court in 1960, said that most judges got along well in his day, except Sinha and Imam.

Later, in January 1964, BP Sinha was due to retire as the sixth chief justice of India. Imam was the most senior judge on the court at the time. However, Imam was superseded and his junior colleague, Justice PB Gajendragadkar, was appointed to the post of chief justice when Sinha retired.

The following story of Imam’s supersession was narrated by Sinha to George H Gadbois, Jr during an interview in July 1983. Some of it must perhaps be taken with a pinch of salt because, as we have seen, Sinha and Imam themselves were rivals, having had some bad blood between them.

Imam had been very sick for three years, having had heart problems and strokes. Chief Justice Sinha was very kind to him during that time, giving him little work and stretching the rules about paid leave. But Imam’s poor mental health was an open secret among the judges and the bar. Justice Subba Rao, who sat with Imam on the bench, complained that Imam was not able to concentrate. He was not able to follow arguments, asked unintelligible questions to lawyers, and even fell asleep in court.

Imam’s mind, by that time, was weak. If he wanted to say that something cost Rs 300, he would say that it cost Rs 30,000. He was very ill, and couldn’t function as any kind of judge, much less as the chief justice. Actually, there had been some concern among the judges for several months about Imam’s health, because everyone knew that Imam was staying on and not resigning despite his mental incapacity, in order to get promoted to the position of chief justice.

Sinha believed that he and Imam were good friends, that the problem was not Imam, who was a “nice man”, but his wife, who wanted him to become the chief justice. Each day, his wife and nurse had to accompany him to the court. When the government came to know about Imam’s health, Nehru was worried about what Pakistan would say if a Muslim were bypassed for the position of chief justice. Nehru had a soft corner for minorities. Imam’s family had been very close to the Nehru family, and had played a prominent part in Congress politics.

A few weeks before his retirement, Sinha went to Nehru and suggested to Nehru that he invite Imam over for a cup of tea without his wife. Sinha told Nehru to ask Imam to pronounce the words “Supreme Court” during the tea. If Imam succeeded, Sinha said, Nehru should appoint him as the chief justice. Sinha also suggested to Nehru that a medical examination be conducted for Imam. Sinha and Gajendragadkar also convinced Attorney General CK Daphtary and former Attorney General Motilal C Setalvad to see Nehru about this, in order to convince him to supersede Imam.

Nehru informed them that the doctor (a medical examination was conducted by a doctor at the All India Medical Institute) said that Imam did not have, in Sinha’s words, as noted down by Gadbois, “the intelligence of a high school boy”. They gave him three simple math equations to do, which he was not able to handle. Upon receiving the medical report, Nehru agreed that Imam could not be the next chief justice, and Gajendragadkar was appointed instead.

Sinha–Gajendragadkar

PB Gajendragadkar (1901–1981) began his career as an advocate at the Bombay High Court. He served as a judge in that court and was thereafter a Supreme Court judge in the 1950s and 1960s. He was reputed to be a pro-labour judge, and served as the chief justice of India after Sinha. Some years after his retirement from the court, he was appointed the chairman of the Law Commission.

As chief justice of India, BP Sinha wanted to set up a separate high court for Delhi. Back then, there was a circuit bench of the Punjab High Court in Delhi. However, Sinha’s successor in office, Gajendragadkar, “was of the opinion that a High Court [in Delhi] was neither constitutionally feasible nor expedient”.17 After Sinha retired, when Gajendragadkar took over the reins of the chief justiceship of the Supreme Court, he wrote to Home Minister Gulzari Lal Nanda and requested him “not to take any further steps” in setting up a high court at Delhi, adding that all the judges of the Supreme Court, at a “Chamber Meeting”, were “unanimously inclined to take the view that all things considered, a separate High Court for Delhi would be inexpedient and undesirable”. The Delhi High Court was eventually set up in October 1966, under Chief Justice Subba Rao.

One of the first things that Gajendragadkar did after assuming the office of chief justice of India was to revoke the approval which had been given by Sinha for transferring four judges: Harbans Singh of Punjab and S. Murtaza Fazal Ali of Kashmir, both to Allahabad; and M Hameedullah Beg and G.C. Mathur, both of Allahabad, to Kashmir and Punjab respectively. Gajendragadkar believed that such transfers would be “ethically improper” and would “materially affect the independence of the Judiciary”.

After retiring from office, Sinha wanted to be a part of the Indian Law Institute (ILI), and became its executive chairman. However, Gajendragadkar and he differed on what ILI ought to be doing. Sinha wanted ILI to be an independent body, not under the control of the chief justice, and wanted it to focus on constitutional law research. Gajendragadkar disagreed with this approach, and Sinha eventually left ILI. Without mentioning any names in his autobiography, Sinha wrote that “petty jealousies and big egotistic personalities combined to put me out of the picture”.24

Sinha was of the view that there had to be a code of conduct for judges, but Gajendragadkar, said Sinha, “summarily rejected the idea of such a code observing that every Judge was expected to know the proper standards and that such a code was redundant”. Influenced in part by his opinion of Gajendragadkar, Sinha believed that all Maharashtrians thought that all non-Maharashtrians were no good. Gajendragadkar was known to be a pro-labour judge (ie, a judge who decided workmen’s cases against the management), so Sinha put Justice KN Wanchoo (who was known not to be a pro-labour judge) with him on the bench (though Gajendragadkar claimed that he asked Sinha to put Wanchoo and KC Das Gupta with him on the labour bench). However, Sinha said that there was no rift between himself and Gajendragadkar.

Hidayatullah–Shah

M Hidayatullah (1905–1992) and JC Shah (1906–1991) were judges of the Supreme Court between the late 1950s and early 1970s. In his well-known autobiography, My Own Boswell, Justice Hidayatullah wrote that one of his colleagues was jealous of him. In his own words: “One colleague wrote a separate opinion every time I wrote what others considered a well-written judgment. I attributed this to jealousy.” Though he did not name the judge in his autobiography, he was referring to Justice JC Shah. For instance, in Maganbhai Ishwarbhai v Union of India, Chief Justice Hidayatullah wrote the majority judgment for himself and three other judges. In that case, the Supreme Court was considering whether the Government of India could give up territory in the Rann of Kutch to Pakistan, after the 1965 war, without the approval of India’s Parliament. Shah wrote a separate concurring judgment. Hidayatullah said that Shah also disagreed with his famous judgment in the Lady Chatterley’s Lover case, though no dissent was formally recorded. In that case, the Supreme Court upheld the conviction of a bookseller in Bombay for selling DH Lawrence’s novel Lady Chatterley’s Lover, on the grounds that it was obscene.

However, Hidayatullah was proud of the fact that he “saved” Shah from being superseded. Hidayatullah was due to retire as chief justice of India in December 1970. Shah was the next most senior judge at the time, and was supposed to replace Hidayatullah as chief justice. However, the government was contemplating superseding Shah for having written the majority judgment against the government in the Bank Nationalisation case, and replacing him with the cabinet minister of steel and mines, S Mohan Kumaramangalam, or possibly with Calcutta lawyer SC Roy, who later became a Supreme Court judge.

However, the government never formally acknowledged whether this rumour was true. Hidayatullah went to Prime Minister Indira Gandhi and told her that there was going to be an international convention of lawyers from around the world in Delhi within a few days, that if Shah were superseded, all the judges of the court (but one) would resign, and the world would know what had happened. The one judge who was not willing to resign was Justice AN Ray, who told Justice Hidayatullah that he could not afford to resign.

However, there had never really been any formal vote among the judges on whether they were willing to resign. There had only been informal talks about resignation. At the time, another judge who was serving in the Supreme Court, Justice Grover, went and met Nagendra Singh, who was the secretary to the President of India, to try and convince him not to go ahead with the supersession. Grover had good relations with Singh. Singh himself wanted to be a judge of the Supreme Court, and hoped that Grover would appoint him to the court when he became the chief justice.

A motion had also been introduced by SM Joshi in Parliament to impeach Justice JC Shah. The move arose not merely on account of his decision in the Bank Nationalisation case, but also because of some critical remarks Shah made about a litigant in a case.48 That litigant happened to have some very powerful political friends, and the impeachment motion was brought about as a consequence.

Hidayatullah believed that Joshi was a disreputable character, that many of the 199 MPs who had signed the motion of impeachment had done so under a misapprehension, and that they had later withdrawn their names. Speaker of the Lok Sabha, GS Dhillon, disallowed the motion of impeachment, and the statement made by Dhillon on the occasion was drafted by Hidayatullah himself. Prime Minister Indira Gandhi claimed to have had nothing to do with the motion. Contempt proceedings were initiated against the litigant, who went underground and was later sentenced to imprisonment.

Thus, though relations may not have been good between judges in the 1960s and early 1970s, they were kept under wraps behind closed doors, and not displayed in the open.