Episode 4: Fazl Ali

Transcript

Host: It is May 1950. The Supreme Court of India is less than five months old and is yet to get its own building. For the time being, it is operating out of a makeshift courtroom in Parliament house. At this early stage of its life, the Supreme Court is asked to adjudicate its very first fundamental rights case. It concerns the rights to life and freedom. The case is about the government using preventive detention laws to crack down on political dissidents. The majority rules in favour of the government. Only one judge differs. His name is Justice Saiyid Fazl Ali and he gives a dissenting opinion for the ages.

<Clip from Justice Rohinton Nariman’s lecture on dissenting judgments at the Bombay Bar Association>

Rohinton Nariman: “We find that there are a number of individual solo dissents. Some were not only brilliant but had such foresight that they astonish when one reads them today. Now one such, and perhaps the greatest dissenter of them all is Justice Fazl Ali’s dissent in AK Gopalan.“

Host: Welcome to Friend of the Court, a podcast series about the legal and constitutional history of India. I am your host Supriya Nair. We just heard Rohinton Nariman, the former Supreme Court judge, talking about the very first dissenting opinion in the history of our Supreme Court delivered by Justice Saiyid Fazl Ali. 

We have seen several important dissenting judgements in our history. We looked at the most famous of these last season, when Justice HR Khanna upheld fundamental rights during the Emergency. At other times, other judges have gone against their colleagues; for example, in the Sabarimala temple entry case, triple talaq and the marriage equality petitions in recent years. Though such dissents may have no immediate effect, they show us how making and interpreting the law in a democracy is a constant work in progress. They indicate alternative paths forward for the republic. And sometimes, in the future, they go on to become the law. 

Justice Saiyid Fazl Ali played a significant role at various turning points in India’s history. He headed the States Reorganisation Commission in 1956 that reformed state boundaries along linguistic lines; and he played a pivotal role in negotiating relations between the Indian state and the Naga people/movement as governor of Assam in the late 1950s.  

But arguably, Justice Fazl Ali’s foremost contribution to our republic was his dissenting opinion in AK Gopalan vs the State of Madras. His dissent significantly shaped how we enjoy our rights, and even expanded our understanding of the word “law.” In this episode, we look at this far-sighted dissent, the circumstances in which he gave it, and its afterlife. 

<intro>

<Clip of Jawaharlal Nehru talking about communism plays>

Nehru: “Their philosophy is violent. And I don’t like that. It’s not the economic theory. I don’t like the economic theory, but I don’t mind it. Anybody can advance any economic theory. Provided it is peacefully advanced. Let it win the people and all that.“

Host: That was a clip of Jawaharlal Nehru speaking to journalists about his distaste for Communism. He claimed that it was inherently violent. From the time he became Prime Minister of India, Communists became his primary ideological and, eventually, political opponents. Soon after independence, the Communist Party of India denounced India’s independence from Britain as hollow, and accused the Congress of solely representing the interests of landlords and capitalists. They led peasant and workers’ movements in Kerala, Bengal, Bihar, Uttar Pradesh and elsewhere to try and topple the Congress governments in those regions. For much of the 1950s, the Indian state spent a great deal of energy to suppress a supposed Communist plot to destabilise India. 

<Clip from interview with A. K. Gopalan plays> 

A.K. Gopalan: “Here the question is after independence the people here want some job, the people here want to see that they increase their standard of living that is the main question here….“

Host: You just heard the voice of the most prominent of Indian communist leaders of this era: a Malayali named A.K. Gopalan. A former school teacher, Gopalan had been part of the anti-colonial struggle. Like hundreds of other freedom fighters, he had been arrested by the colonial police more than once under preventive detention laws – a tool that allowed the police to detain a person merely on the suspicion that they might commit a crime. Unlike other accused, preventive detainees did not enjoy the right to be heard in court. Since 1818, the colonial police had commonly used laws like these in one form or another to detain anyone they believed posed a risk to what they called public security.

Abhinav Sekhri: Famously he was in custody when India got independence. And his custody was continued by way of preventive detention orders by the colonial government and then by the government of independent India. 

Host: This is the lawyer Abhinav Sekhri. 

Sekhri: I am a lawyer who is practising in Delhi, largely practising criminal law and I also write about issues relating to criminal law and procedure as well as issues touching upon how the Constitution interacts with criminal law and procedure.

Host: Sekhri was just talking about how Gopalan spent the 1940s going in and out of jail for actively participating in the freedom struggle. He was released a few weeks after independence and went back to doing what he had always done: agitating for people’s rights. He was popular—crowds gathered in large numbers to see him everywhere. This did not go down well with the Congress government in Kerala. So in December 1947, just months after Independence, Gopalan was arrested again and taken to Vellore Jail. 

Sekhri: It shows you perhaps the other side of the Republic, where from the start, the Republic or the Parliament or independent India, if you were to call it, was never shy of using coercive powers in imaginative ways… People detained on one preventive detention order would then be slapped with a fresh one, just as the first one is about to expire. 

Host: Between 1947 and 1950, Gopalan was bounced from one prison to another in southern India. Often he fasted to protest for his rights behind bars. Meanwhile, in Delhi, the nearly 300 members of the Constituent Assembly worked day in day out to hammer out a political framework for India. Their aim was to lay down the foundations for a liberal democratic republic that would free all Indians from the tyranny and oppression of colonial and feudal rule. The new Constitution guaranteed fundamental rights including the freedoms of life, liberty, movement and speech to all citizens. 

But preventive detention, which was weaponized against  freedom fighters like Gopalan, also found a spot in the Constitution. The founding document allowed both the state and central governments to frame laws on it. But, the Constituent Assembly also brought in Article 22 which limited the use of preventive detention. This article outlined when and how authorities could use preventive detention. It limited detention periods and laid down a process for how detainees could be heard. 

Abhinav Sekhri: So in a sense, mention of preventive detention was not to legalise preventive detention per se, but to make sure the power is not abused by future governments. So that is how we get to Article 22 at the time of the Constitution. 

<Clip of High Commissioner, Krishna Menon speaking reading the proclamation of the Constitution>

“India that is Bharat shall be a sovereign, democratic republic.”

Host: On 26th January 1950, the Constitution came into force. This is a clip from a speech given that day by Krishna Menon, the Indian High Commissioner to the UK, in London. 

<Clip of Krishna Menon cotinues>

“Two and a half years ago the British Empire passed power into the hands of the Indian people. We became an independent country and today by the proclamation of the Constitution by our own people in the exercise of their wisdom, determination and collective responsibility we have set the seal of the inauguration of that freedom in the form of a Constitution.”

Host: With this new Constitution in force, Gopalan became hopeful of a release from prison: the colonial-era preventive detention laws would just not stand constitutional scrutiny. But the Indian government had other plans. As we just heard, some provisions of the new Constitution allowed it to make laws to curtail freedom and liberty under certain circumstances. 

Abhinav Sekhri: the Preventive Detention Act is passed in February of 1950. And by, if I’m not wrong, 26th of February, you had the Preventive Detention Act. So it was steam-rolled through to make sure that the coming of the Constitution does not inure to the benefit of these detenues, which were, let’s be honest, most of them were actually Communists at that point of time. So that sense of law and order, at least for the government, there was a huge fear in respect of the Communist Party and active Communists. 

Host: Like the British-era laws, this act allowed the government to detain a person on the presumption that they might be a threat to public order. They could be detained for a maximum of one year. Detention orders would have to be verified by advisory boards, or quasi-judicial bodies appointed by the government. But in cases where detainees were supposedly threats to national security, the advisory boards would not have a say. The Act also allowed the government to withhold the grounds of arrest from the board in the so-called “public interest”. 

The Preventive Detention Act was passed just one month after the Constitution came into force. In Parliament, home minister Sardar Vallabhbhai Patel dramatically claimed that he had lost two nights of sleep over the potential misuse of the law. But the risks of not having such a law supposedly outweighed any dangers stemming from its arbitrary provisions. Communist activity in Bihar, Bengal and other parts of the country posed a serious threat to national security and the government needed to use extraordinary measures to handle the situation. The outlook for Gopalan’s release was bleak once again. But this time, he had one possible recourse: India’s newly operational Supreme court. 

Abhinav Sekhri: Gopalan’s case comes to the Supreme Court because Gopalan invokes Article 32 of the Constitution, which was allowing any aggrieved person a direct right of petitioning the Supreme Court where they could make out to the court that one of their fundamental rights guaranteed under Part 3 of the Constitution had been interfered with in a manner contrary to the Constitution.

Host: Gopalan challenged the new Act saying that as a whole, it clashed with his rights under the new Constitution: the right to life and personal liberty under Article 21 and his right to freedom under Article 19. He also picked out some specifics of the new Act that violated Article 22, the provision which limited the use of preventive detention. The law did not define the detention period, for instance. Nor did it allow the advisory board to give its opinion. 

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Gopalan writes in his memoir of being escorted in a first-class train compartment, by 14 policemen, from Vellore to Delhi for his hearings. A dozen policemen were on standby at every station en route, in case Gopalan bolted. Once they got to Delhi, he was lodged in the district jail. MK Nambyar, a prominent criminal lawyer of the Madras High Court was to appear for Gopalan. 

The case came down to two questions. One narrow question: Did the Preventive Detention Act violate Article 22, which determined how such laws could be implemented? And one much broader question: did it violate any other fundamental right guaranteed by the Constitution, particularly the rights to life, personal liberty and freedom contained in Articles 21 and 19?

In March 1950, when the matter first came up, the brand new Supreme Court of India had a strength of eight judges, headed by Chief Justice HJ Kania. While the court itself was new, the judges who presided over it were seasoned professionals of the colonial judiciary. A six-judge bench, almost the full strength of the court, was constituted to hear Gopalan’s case.

Alok Prasanna Kumar: So, the bench was Justice HJ Kania. He was the first Chief Justice of India post the Constitution coming into force. Justice Kania originally came from the Bombay High Court. 

Host: This is Alok Prasanna Kumar.

Alok Prasanna Kumar: I’m one of the co-founders of the Vidhi Center for Legal Policy. I’m a lawyer who has practised in the Supreme Court and the High Court for five years. And since then, I’ve been kind of running Vidhi. And I am based in Bangalore, and I run Vidhi’s Bangalore office.

Host: Alok is telling us about the judges on the AK Gopalan bench. 

Alok Prasanna Kumar: We of course have Justice Patanjali Shastri who came from the Madras High Court. We have Justice S .R. Das. We have Justice M.C. Mahajan, who is a very interesting figure. Those who have studied history would know that M.C. Mahajan was the last Prime Minister, Meherchand Mahajan, if the name rings a bell, was the last Prime Minister of Jammu and Kashmir. And he was elevated to the Supreme Court when the new Supreme Court of India was created and Jammu and Kashmir formally acceded to India. He was a well-known jurist himself. And I mentioned S.R. Das and of course, Justice Saiyid Fazl Ali. 

Host: No one knew what was going to happen. In his autobiography, Gopalan recounts that he was present in court for the arguments. He doesn’t say if he expected the court to rule in his favour. Newspaper reports of the time or other accounts of the case don’t include any speculation on how the court would decide. 

Until this point, these judges had ruled in all kinds of civil and criminal cases during their tenure in the colonial courts. But this was the first time that they would have to decide on a question related to the fundamental rights of Indians. Alok explains further:

Alok Prasanna Kumar: We have judges who, for the first time in their lives, were faced with the Charter of Rights in a constitutional way… 

None of them have any experience of constitutional interpretation. Unless you want to call the Government of India Act a constitution of some sort. 

Host: The Government of India Act of 1935, enacted by British rulers in a stormy alliance with Indian nationalists elected to positions of limited power, is widely acknowledged today as a precursor to the Constitution.  

Alok Prasanna Kumar: But it didn’t contain a charter of rights. That’s the important difference between the Constitution of India and the Government of India Act. While there are similar provisions, they didn’t sort of have a charter of rights to kind of interpret in the context of the Government of India Act in the Federal Court of India or elsewhere. 

Host: The Federal court, or the precursor to the Supreme court, operated for just 12 years. On average it sat for fewer than 30 days per year. Although it dealt with several cases of preventive detention and even upheld individual liberties from time to time, the judges were still very much a part of the colonial state. 

Alok Prasanna Kumar: And they frankly were not part of the freedom movement in any way to really truly appreciate why we have a Charter of Rights. They knew at a jurisprudential and intellectual level what perhaps rights are, but I don’t think they fully understood the import or the implication of part 3 of the Constitution of India which guarantees certain fundamental rights to individuals and some to citizens.

Host: The hearings in Gopalan’s case took place in the Supreme Court’s makeshift courtroom in Parliament building. Until 1937, this hall was used as the Chamber of Princes, where rulers of Princely States voiced their concerns and demands to the British. On its walls were the emblems of the 102 Princely States. It was here, on 22 March 1950, that MK Nambyar rose to open arguments in independent India’s first fundamental rights case. 

Alok Prasanna Kumar: Basically, he argued this case with nothing more than the Constitution in his hand. It’s a nice image. It’s a nice story. But I think you will see that from the material that he proposed, he of course showed other cases, other judgments, examples from around the world. And I’m sure he had written submissions of some sort with him.

Host: Nambyar first argued that the Preventive Detention Act clashed with Article 21 or the right to life. This article said that the government could not deprive a person of the right to life and personal liberty except according to procedure established by law. Keep these four words in mind: they are the words on which a large part of the case will turn. 

<beat>

Procedure established by law did not just mean the letter of the law, Nambyar said. He said that the principles of natural justice were inherent to the phrase. Natural justice is a foundational idea of the legal system in many democracies. It implies fairness and reasonableness. One of its principles includes the right of an accused to be heard. 

<beat>

This principle was absent in the Preventive Detention Act, Nambyar argued. He urged the court to assess the validity of the law against these broader principles and not stick to a textual or literal reading of Article 22, the preventive detention provision`in the Constitution. 

Alok Prasanna Kumar: So I think he sort of, because he was essentially creating a whole new area of jurisprudence. And this was one of the more original arguments that was made, which is that you have to test it not just as to whether it meets the minimal requirements of Article 22, but it also violates Article 21. This is not a procedure established by law. 

Host: Nambyar then argued that the court had to factor in the harm done to other rights in preventive detention cases. He said one could not ignore the obvious fact that being behind bars would deprive the detainee of other freedoms. 

Alok Prasanna Kumar: and that it violates his right to freedom of movement and freedom of speech because obviously you can’t speak in some ways when you are in prohibited detention, while it’s a violation of freedom of movement to go anywhere in the country. 

Host: Nambyar concluded his arguments in early April. The case was reported closely in the Times of India, and often made it to the front page. Abhinav Sekhri:

Abhinav Sekhri: He was a popular leader. He’s not some ordinary bloke. So definitely that goes into the matrix. The second, like I said, Gopalan’s case was not the only case. So the people who were involved in these litigations were of national interest. 

Host: The government’s case was put forth by India’s first Attorney General, MC Setalvad. His first counter-argument was straightforward. Article 22 of the Constitution gave Parliament the power to pass a law to allow preventive detention. The government had legally exercised this power and done that. In other words, Setalvad argued this was “procedure established by law.” 

<beat>

He saw no reason for the court to go into whether the law passed by Parliament reflected the principles of natural justice or not. Then, Setalvad agreed with Nambyar that the preventive detention law affected other fundamental rights. But he said that this was a feature, not a bug: the Constitution allowed preventive detention despite its impact on other fundamental rights. In other words, preventive detention was a code unto itself and its validity could not be questioned because it affected other fundamental rights. The government needed such power to deal with emergencies, he said. Sekhri sums it up:

Abhinav Sekhri: That level of discretion is necessary because today the court can’t put itself on the ground to know what will be the kind of emergency that requires preventive detention. 

Host: After 10 days of arguments, the case concluded on 19 April 1950. On the last day, Nambyar reminded the court that the Constitution assured all Indians justice, equality and fraternity. He urged the bench to keep these “lofty ideals” in their minds “as the guiding star in interpreting the Constitution.” One month later, the six judges read out their judgements. By this point, Gopalan had been in prison for nearly three years. In a 5:1 judgement, the court dismissed Gopalan’s petition, much to his dismay. 

The court held that the Preventive Detention Act of 1950 was valid. But it did strike down the provision that allowed the government to withhold the reasons for detention from the court. Alok sums up the judgement:

Alok Prasanna Kumar: They said preventive detention laws are permitted in the Constitution under clauses 4 to 7 of Article 22. And as long as this preventive detention law meets the minimal requirements of Article 22 on what a preventive detention law should look like, we are not going to look at whether this particular Preventive detention law violates Article 21, which is your right to life and liberty…  

Host: In Gopalan’s case the majority rejected Nambyar’s two major arguments. First, they did not see the need to examine the impact of preventive detention on other fundamental rights. They said the court could only consider whether the preventive detention law violated the procedure outlined in Article 22 for passing such laws. 

Then they also rejected Nambyar’s reading of the phrase “procedure established by law” in Article 21. According to the court it only referred to laws passed by Parliament. It did not include the broader idea of natural justice.  Sekhri sums up:

Abhinav Sekhri: So the majority broadly affirms the idea that Article 21 was a conscious choice to not adopt due process of law. 

Host: The legal phrase “due process of law” that Sekhri mentions is the counterpoint to “procedure established by law”. Due process is almost synonymous with natural justice. In countries like the US, where due process is the norm, a court must not only judge the process by which a law was made but also review whether the law is fair and reasonable. The majority in Gopalan’s case said the Constituent Assembly made a clear choice while framing the Constitution to use the term “procedure established by law.” But a closer reading of the Constituent Assembly debates tells us that this choice of words had, in fact, been hotly debated at the time, as Alok tells us:

Alok Prasanna Kumar: Constitution framers are very certain we have to put in the words “due process of law” into the Constitution because this is a phrase which has a long history in not just American constitutionalism as we think but also in the UK constitutional history.

Host: But the phrase was replaced with “procedure established by law” by the Drafting Committee during its deliberations. The Committee was a seven-member group appointed to revise and update the draft text of the Constitution. Its decision to drop due process did not go down well with the Assembly.  

Alok Prasanna Kumar: There’s a huge furore in the Constituent Assembly… In a sense, members are deeply uncomfortable with it, especially those who have been freedom fighters, who have gone to jail, who have experienced the worst of the British criminal justice system in India, are like, we didn’t fight for independence to reproduce the same thing in our country. We literally have a lot of them saying that. But it goes into the Constitution and the court interprets it exactly that to say, we can’t look at all this American jurisprudence about due process of law. We have to only look at procedure established by law. 

Host: In the Gopalan case, one judge, Justice Saiyid Fazl Ali, differed from the majority on both the key points we just looked at.  

Earlier this year, when we set out to write about Justice Fazl Ali we were quite sure that we’d find endless information about him. After all, he was a Supreme Court judge, a high court judge, the Governor of Assam after he retired and even headed the States Reorganisation Commission. Then it took us all of three minutes to read his Wikipedia page. There is a two page overview of his life and career in George Gadbois’ book on Supreme Court judges. But that was about it. His son, Murtaza Fazal Ali, who was also a Supreme Court judge, is no more. His grandson Saiyid Faiz Murtaza Ali wasn’t a lawyer: he was a senior executive at the textile company Raymond. Then, after some internet sleuthing, we found Seher Ali, a Delhi-based lawyer and Justice Fazl Ali’s great-granddaughter. 

Seher Ali: Hi, my name is Seher Ali. I’m a lawyer. I have about 20 years of experience and Justice Fazl Ali was my great-grandfather.

As far as I remember, there were several of my grandfather’s brothers who were lawyers. Beyond that, honestly, I don’t remember. No recollection. So it’s all information which has been pieced together by the family and handed down.

Host: Seher never met her great-grandfather and her grandfather died when she was too young. She told us that all the men of that branch of her family died while only in their sixties or early seventies, and family stories were never really passed on to the next generation. She generously agreed to work with us and piece together her great-grandfather’s life, of which she herself had only ever had a hazy idea. 

Seher Ali: So he was born in Benares on 19 September 1886. His father was Nazir Ali, who was also a lawyer in Benares. He was actually a seventh generation lawyer, seven consecutive generations, and his son became the eighth consecutive generation of lawyer of the family.

Host: The Alis were a prominent land-owning Shia family practising law in the United Provinces and Bihar at the time. Other notable lawyers from their milieu included stalwarts like the former Congress President Saiyid Hasan Imam and his brother Imam Ali. Seher tells us more about her great-grandfather’s formative years. 

Seher Ali: He attended London Mission School in Benares, then went to Muir College in Allahabad, where he graduated top of his class in and then he travelled to England to prepare for the ICS exams, but ultimately chose to study law at London’s Middle Temple. He graduated in 1912, which was when he was called to the bar.

Host: Fazl Ali studied law in London at the same time as his future Supreme Court colleague Justice Vivian Bose and future Prime Minister Jawaharlal Nehru. Most of Fazl Ali’s Indian peers practised at various high courts when they returned home. But he made an unusual choice. 

Seher Ali: So he returned in 1912 after graduating and he began his practice in Chapra as a criminal lawyer, which did seem like an unusual choice for someone with his kind of training. He practised for several years and then in 1928 he was appointed as a judge to Patna High Court. 

Host: Chapra is a district town in Bihar 70 kilometres to the west of Patna. We don’t know anything about Fazl Ali’s career as a lawyer in the sessions court there. We do know that in the early 1920s he moved his practice to the Patna High Court and in 1928, he was appointed as a judge of that high court. In 1943 he became the first Indian to be appointed as the court’s Chief Justice. It was a position he held until he was appointed to the Federal Court. 

Seher Ali: So he was elevated to the federal court on 9th of June 1946 when he replaced Sir Mohd. Zafarullah Khan who had chosen to migrate to Pakistan at that time. Interestingly, soon after that, the then Chief Justice of the federal court, Sir William Patrick Spence also retired, leaving only two judges over there. One was Justice Kania and one was Justice Fazl Ali. Justice Kania, of course, later became the Chief Justice of India and Justice Fazl Ali along with five other judges constituted the remaining bench of the federal court. 

Now at that time he had brought with him about 19 years of experience at the bench, which was the most for any high court judge who had been elevated to the federal court.

Host: In 1946, Ali was also appointed to the Royal Indian Navy Inquiry Commission, which investigated the naval mutiny against the British earlier that year. In January 1950, he became a Supreme Court judge. It turns out, his career at the Supreme Court was defined by his dissenting judgements. Here’s former Supreme Court judge, Rohinton Nariman reflecting at a public lecture on Fazl Ali’s tenure:

<Clip from Justice Rohinton Nariman’s lecture on dissenting judgments at the Bombay Bar Association>

Rohinton Nariman: “His is an amazing track record. He put in only two years as a judge, eight months of those as being an ad hoc judge because he joined when he was 63. And in those two years, he delivered six dissents, three of which became law. This was really an outstanding man.”

Host: But Nariman and others consider the Gopalan dissent to be his most enduring contribution to Indian jurisprudence, even though it was a partial dissent.

Abhinav Sekhri: Justice Fazl Ali concurs with the majority on some of the specifics of the Preventive Detention Act. Justice Fazl Ali’s dissent is in fact, you know, it’s not a full dissent either. 

Host: Justice Fazl Ali did not say preventive detention itself was wrong. Instead, he raised concerns about the fairness of the preventive detention law as it existed. His questions were provoked by one particular provision of the law, which allowed the government to detain a person indefinitely without seeking the Advisory Board’s approval for vaguely defined crimes like “threat to national security.” Fazl Ali said that this denied the detainees a right to be heard, a fundamental tenet of any justice system. He also wrote that there should be a high threshold for the use of preventive detention. This included laying down clear circumstances or criminal acts for which people could be preventively detained. 

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His other major disagreement was about the interpretation of fundamental rights. While his colleagues said they should only look at the right which was directly being affected by the law, Fazl Ali vouched for a broader interpretation. Alok explains:

Abhinav Sekhri: So his main point of difference is the fact that you cannot take this cut and dry approach to say you have to look at say only Article 22 for the purpose of preventive detention. His idea is that we have to test this law against the other provisions of the Constitution as well, right?… 

He says we have to take this approach because this is the Charter of Rights that we’re talking about. This is a constitution that we’re kind of interpreting. This isn’t something that can be, where each right is pigeonholed, where each law is pigeonholed into one particular thing. Like you can’t just test criminal laws only  on Article 21 and ignore their impact on Article 19. You have to be able to look at the totality of the law, what it provides for, what it kind of requires, and therefore arrive at the conclusion accordingly.

Host: Justice Fazl Ali’s opinion that the fundamental rights had to be interpreted in relation to each other did not gain acceptance immediately. But it was embraced 20 years later in a totally different petition – the bank nationalisation case of 1970. In that case, the court concluded that the fundamental rights to property, equality and freedom were interlinked. 

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Back in 1950, Fazl Ali’s other major disagreement with his colleagues too, on the Gopalan bench was well ahead of its time. Sekhri tells us more:

Abhinav Sekhri: Justice Fazl Ali also disagreed with the very narrow conception of procedure established by law where he said that it cannot be that law is simply positive law, it has to mean law is something broader than that. 

Host: Meaning, he agreed with Nambyar that the term law in the phrase “procedure established by law” had to adhere to principles of natural justice, even if this was not explicitly stated.  

Abhinav Sekhri: And there’s a famous paragraph where he says that he put the question to the attorney general that, what if trials were to be replaced by trials by combat? So is that something that can be procedure established by law? And to which he says that there was no satisfactory answer, but surely that can’t be the case. So there has to be some… inherent meaning with the word procedure established by law, which then takes you a little further. Maybe it doesn’t take you as far as due process, but it definitely takes you beyond the very narrow conception which the government wanted to close article 21 with. 

Host: The significance of this argument was recognised in 1978. That year, the Supreme Court changed its interpretation of the words  “procedure established by law” in a landmark case. 

Abhinav Sekhri: Maneka Gandhi’s judgement, interestingly, dealing with a very narrow issue of a right to be heard in respect of passport and what is the proper procedure on passport impounding, passport forfeitures, et cetera. 

Host: The case was brought by Indira Gandhi’s daughter-in-law and politician Maneka Gandhi. Her passport was impounded by the Janata government in so-called “public interest” under provisions of the Passports Act. This Act did not include a provision for hearing an aggrieved person before impounding their passport. So strictly speaking, the Janata government had done nothing wrong. But it took the bench back to the same question as before: what is the meaning of procedure established by law? Coincidentally, the bench included Justice Fazl Ali’s son Justice Murtaza Fazl Ali. Sekhri tells us more about how the bench ruled:

Abhinav Sekhri: So in that very narrow context, not something like, let’s say, as fundamental as preventive detention, what we have is as clear a view as you can get, telling us that Mr. Fazl Ali’s interpretation of law for procedure established by law was the correct approach to take.

Host: The court said that the term law referred to a law that met two fundamental requirements. It had to be fair and had to have been passed according to the prescribed procedure. In other words, it echoed Justice Fazl Ali’s dissent in Gopalan that emphasised looking at both the letter and the spirit of the law. With that, “Due process” trumped “procedure established by law”. It also became the first case of a dissenting opinion being accepted by a later bench of the court. 

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Undeniably, Fazl Ali was far-sighted and understood better than anyone else the dangers of giving the executive unbridled powers. It is hard to explain why he differed from his colleagues. One could speculate that his time as a trial lawyer in Chapra influenced his approach to this particular case. That stint might have helped him appreciate the nuances of trial procedures. It might also have sensitised him to the plight of detainees and the impact that preventive detention had on their freedoms. Whatever his motivations were, it could not have been easy to conclude as he did at the time. After all, the government arrested Gopalan and others saying it was imperative for national unity, which was the paramount concern of the new nation. Fazl Ali was acutely aware that his views did not align with the government’s nation building project and he ended his dissent in an almost apologetic tone. Sekhri tells us more:

Abhinav Sekhri: But at the same time, you see someone who is deeply aware that this is a very close-knit setup in the sense that the Supreme Court is (in with) all of the different branches of government. This is the nascent Indian state. It is as nascent as it can get, which is where if you look at the concluding paragraph in his opinion, it’s in fact very interesting. Because it ends with a note of… it’s like an apology of sorts. He says that, don’t take me wrong when I’m pointing out that there are faults in this law. It’s only to make sure that it gets better. So for a Supreme Court at that point of time, for the court to say this, it just shows you just even though there was a dissent, there was a great synergy in some parts at least of the national effort where whatever may be the conclusions on certain aspects, it’s with that synergy of, well, what is the end goal that we’re all working towards? The end goal is that we want to try and do the best for what is this new nation that we have given ourselves. 

Host: Whatever Justice Fazl Ali’s motivations may have been, he had demonstrated a remarkably independent streak. But this did not mean that he always backed a liberal reading of fundamental rights. In fact, soon after the Gopalan judgement, Fazl Ali delivered two more dissenting opinions. Here’s Rohinton Nariman talking about them in that public lecture.

<Clip from Justice Rohinton Nariman’s lecture on dissenting judgments at the Bombay Bar Association>

Rohinton Nariman: “One in Romesh Thapar and one in Brij Bhushan. Those again were judgements which had to do with a core area of law. Fundamental rights and free speech.”

Host: In March 1950, the Madras government banned the left-wing magazine Crossroads. The government had said banning the magazine would help in preserving public order and ensuring public safety. In truth, the government feared that the magazine was fanning the flames of a Communist movement in the state of Madras. This resulted in the Romesh Thapar case which Nariman just referred to.  That judgement, which was delivered just 10 days after the AK Gopalan ruling, quashed the ban. It said that the terms public order and public safety were too broad to justify a ban. The court reasoned that the Constitution gave the power to restrict speech only if there was a threat to the security of the state. The majority took this to mean seditious activities that threatened to destabilise the country as a whole. So a localised law and order crisis was not sufficient grounds for restricting free speech.

On the same day, the court also delivered its verdict in the Brij Bhushan case. This case was about the censorship of the right-wing magazine Organiser. The Supreme Court called that censorship a violation of the freedom of speech and struck down the order. As it happens, Justice Fazl Ali dissented in both cases. 

<Clip from Justice Rohinton Nariman’s lecture on dissenting judgments at the Bombay Bar Association>

Rohinton Nariman: “Justice Fazl Ali said no. He said sedition was not advisedly… because sedition did not include public order. What was in fact used was security of state which is a wider concept that takes within it public order.”

Host: Meaning, Justice Fazl Ali said the government was well within its right to restrict speech that could lead to a law and order crisis. He wrote that seditious speech, if left unchecked, could eventually risk peace and public order, which could in turn threaten the security of a state. In both Romesh Thapar and Brij Bhushan, Fazl Ali expanded the meaning of the term “security of the state.”

<Clip from Justice Rohinton Nariman’s lecture continues>

Rohinton Nariman: “And not only had the ink run dry on those two dissents that the very Constituent Assembly now acting as the first Parliament… immediately undid the effect of the majority by passing the Constitution’s first amendment in which it added the words “public order.”“

Host: Effectively, Nariman is explaining that Fazl Ali’s dissenting judgement in this case emboldened the state to introduce stricter curbs on free speech. 

<beat>

Fazl Ali retired from the Supreme Court in May 1952. Just before his retirement, the government announced that he would be appointed as the Governor of Odisha. This raised some eyebrows amongst lawyers. Many questioned the propriety of appointing a Supreme Court judge as the executive head of a state. In his memoir, MC Setalvad, the first Attorney General for India, whom we just met opposing MKN in AKg, later wrote that Fazl Ali’s appointment violated the “old and healthy demand” of separation of the executive and judiciary at all levels. He feared that such a precedent and the hopes of such an appointment would affect the independence of the judiciary. But the government went ahead anyway. 

Justice Fazl Ali also went on to head the States Reorganisation Commission which recommended redrawing Indian state boundaries along linguistic lines in 1956. From 1957 until he died in 1959, he served as the Governor of Assam. 

There’s surprisingly little popular knowledge about this impressive and chequered career, but he lives on through his dissents. As we just heard, Fazl Ali’s reasoning in his Gopalan dissent was accepted by the court decades later. So why does India continue to have laws that allow people to be held without trial?

Alok Prasanna Kumar: But I think we are still yet to get to that stage where the rhetoric has manifested itself in the kind of judgments the court has passed. If it did, we wouldn’t have a law like UAPA on the books. 

It’s nice to say the words due process. They sound good. They have a good historical ring to it. They trigger certain emotions in us when we hear it. I don’t think the Supreme Court of India today, even in 2024, fully understands and appreciates what it means. Fully understands and appreciates what they mean in the context of just laws. Forget about whether the laws are implemented well or enforced well and so on and so forth. The fact that you have, you can have a law which basically says you will not get bail until you prove your innocence. It shouldn’t exist. If the rhetoric of Menaka Gandhi’s case was real, you wouldn’t have had a law like that still on the books. 

Host: Justice Fazl Ali began the glorious tradition of dissenting opinions in the Indian Supreme Court in the very first year of its functioning. 

Abhinav Sekhri: Gopalan’s case shows you from the start that the Supreme Court and the judges of the Supreme Court were not wary of expressing their opinions… (59:19 to 59:58) Another thing that was fascinating about Gopalan’s case was that this was the tradition that the Supreme Court continued, which is, let’s say, unlike other constitutional courts, because in some countries, let’s say, if you look at the history of the German Constitutional Court, dissents are not a part of that history for a long, long time of that court. And it’s not necessary for dissents to be a part of the history of the court. But for the first big judgement to come and have that dissent on how to interpret the terms of the Constitution, I think it does definitely mean that its legacy is secure.

Host: As Sekhri says, it was also significant that Justice Fazl Ali’s dissent came in the court’s very first fundamental rights case. It set the tone for the judiciary’s functioning and laid the foundation for critical thinking on the bench. He showed that a judge’s job was not simply to interpret the letter of the law but also to put forth alternative ways of seeing things. His dissent opened a space to imagine, to anticipate and to take the law in a new direction, even if it was seemingly out of step with the immediate context. It was also a reminder that the Constitution is a living document that is fed by new ideas and continuous debate. I am going to end with a few lines from Justice Rohinton Nariman:

<Clip from Justice Rohinton Nariman’s lecture on dissenting judgments at the Bombay Bar Association>

Rohinton Nariman: “The great dissenters of the 50s and 60s are really persons who have chiselled these rights for us and made them meaningful. Because in Charles Evans’ famous words: Because they’ve really as dissenters in the court of last resort appealed to the brooding spirit of the law and to the intelligence of a future day. So that the intelligence of the future day ultimately takes the dissent and what it is and makes it into law.“