Vikram Seth - A Suitable Boy

G.N. Bannerji was referring (fairly politely for him) to the juniormost judge on the full bench trying this case, Mr Justice Maheshwari, who had come up through the district judiciary, and who, as it happened, did not possess great intelligence to counter-balance his lack of constitutional experience. G.N. Bannerji did not suffer fools gladly, and he considered Mr Justice Maheshwari, who, at fifty-five, was fifteen years his junior, to be a fool.

Firoz (who had been present for the conference of zamindars’ lawyers in G.N. Bannerji’s hotel room when the great lawyer had made this remark) had passed it on to the Nawab Sahib. It had not made the Nawab Sahib more optimistic about the result of the case. He had a sense very similar to that of his friend the Minister of Revenue on the other side: less hope of victory than dread of defeat. So much hung on this case that apprehension was the dominant emotion on both sides. The only ones who seemed to be fairly unconcerned — apart from the Raja of Marh, who could not believe in the violation of his inviolate lands — were the lawyers on both sides.

‘Sixthly, my Lords,’ continued G.N. Bannerji, ‘the Zamindari Abolition Act cannot be said to have a public purpose in the strict, or should I say proper, sense of the word. This, my Lords, is a clear requirement of all acts that involve the public taking over of private property according to Article 31 Clause 2 of the Constitution. I shall return to this proposition in due course after I have stated the other grounds under which the impugned act is bad in law.’

G.N. Bannerji continued, after a pause to sip some water, to state his objections to the law, but without adducing detailed reasons at this stage. He found the Zamindari Act unacceptable because it provided derisory compensation and was therefore ‘a fraud on the Constitution’; because the compensation offered was, moreover, discriminatory between large and small landowners and thus offended against the provisions of Article 14, which provided for ‘the equal protection of the laws’; because it contravened the provisions of Article 19(1) (f) which stated that all citizens had the right ‘to acquire, hold and dispose of property’; because, by leaving to junior officers in the administration vast areas for the exercise of discretion in deciding the order of the actual taking over of estates, the legislature had illegitimately delegated its own powers to another authority; and so on and so forth. Having hovered in a hawk-like circuit over the domain of his case for more than an hour, Mr G.N. Bannerji now plunged down on the various weaknesses of the act, attacking them — repeatedly, of course — one by one.

He had barely begun to do so when the English judge spoke:

‘Is there any reason, Mr Bannerji, why you have chosen to deal with the delegation argument first?’

‘My Lord?’

‘Well, you contend that the impugned act contravenes certain specific provisions of the Constitution. Why not tackle those direct grounds first? There is nothing in the Constitution against delegation. I presume the powers of the legislatures are plenary in their own spheres. They can delegate powers to whomever they choose as long as they do not step beyond the four corners of the Constitution.’

‘My Lord, if I may argue the case in my own way—’

Judges retired at sixty, and there was therefore no one on the bench who was not at least ten years G.N. Bannerji’s junior.

‘Yes, yes, Mr Bannerji. By all means.’ The judge mopped his forehead. It was appallingly hot in the courtroom.

‘It is precisely my contention, precisely my contention, my Lord, that the authority that the legislature of Purva Pradesh has chosen to delegate to the executive is an abdication of its own powers, and contrary both to the clear intention of the Constitution and to our own statute and constitutional law as laid down in a number of cases, most recently Jatindra Nath Gupta’s case. In that case it was decided that a state legislature cannot delegate its legislative functions to any other body or authority, and that case is binding upon us, since it was decided by the Federal Court, the predecessor of the Supreme Court.’

The Chief Justice now spoke, his head still to one side: ‘Mr Bannerji, was that case not decided by three judges to two?’

‘Nevertheless, my Lord, it was decided. It is, after all, certainly possible that a judgement in the same proportions will issue from this bench too — though I am sure that neither I nor my learned friend opposite would hope for such an eventuality.’

‘Yes. Go on, Mr Bannerji,’ said the Chief Justice, frowning. It was the last thing he wanted either.

A little while later, the Chief Justice intervened again.

‘But The Queen versus Burah, Mr Bannerji? Or Hodge versus The Queen?’

‘I was coming to those cases, my Lord, in my own plodding manner.’

What might have been a smile passed across the Chief Justice’s face; he was silent.

Half an hour later G.N. Bannerji was in full flow once more:

‘But ours, unlike the British but like the American, is a written Constitution expressly declaring the will of the people. And precisely, my Lords, because the same vesting of the different powers of the state among the legislature, the executive and the judiciary exists in the two Constitutions, it is to the rules that have been laid down by the Supreme Court in the United States of America that we must turn for guidance and interpretation.’

‘Must, Mr Bannerji?’ This was the English judge.

‘Should, my Lord.’

‘You are not implying that these decisions are binding on us? This question cannot admit of two answers.’

‘That, as from your question I have no doubt your Lordship perceives, would be a foolhardy contention. But there are certainly two sides to every question. What I meant was that the American precedents and interpretations, though not binding on us in the strict sense, are our only safe guide through what are for us comparatively uncharted waters. And the rule that has been laid down in America forbidding the delegation of power by any of the separate organs of the state should also be the yardstick for us to apply.’

‘Well.’ His Lordship sounded unconvinced but susceptible to persuasion.

‘The reasons, my Lords, that powers not be delegated, have been succinctly stated by Cooley in Constitutional Limitations , Vol. I, page 224.’

The Chief Justice interrupted.

‘Just a minute, Mr Bannerji. We do not have this book with us on the bench, and we would like to follow you on the page. This is one danger of crossing the Atlantic for your arguments.’

‘Presumably your Lordship means the Pacific.’

There was laughter from both the bench and the courtroom.

‘Perhaps I mean both. As you have observed, Mr Bannerji, there are two sides to every question.’

‘My Lord, I have had carbon copies made of the relevant pages.’

But the Court Reader promptly produced the book from his table below the rostrum. It was clear that there was only one copy of the volume, however, not five, as there would have been with the Indian and English law reports and authorities.

The Chief Justice said: ‘Mr Bannerji, speaking for myself, I prefer the feel of a book in my hands. I hope we have the same edition. Page 224. Yes, it appears we do. My colleagues, however, may avail themselves of the carbon copies you have provided.’

‘As your Lordships please. Now, my Lords, Cooley addresses the question in the following words:

Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed.