Editorial on Dhavan's Speech
Cite as : (1970) 2 SCC (Jour) 1
Vis-a-vis the judiciary and the Indian bar
It has become of late the fashion for high-ups to decry the Indian Constitutional set-up and earn cheap popularity by pointing out to the ideals and Institutions of the Soviet Republic as delivering the 'Utopia' or the promised land of milk and honey to Bharat which is dubbed as a ravaged backward and unholy country. It has also become the policy of the Government of India to show the 'Nelson's eye' to these mental aberrations of the high-ups not because they were too small to be noticed but because it very nearly fitted in with their own socialistically ideological background in their sudden craze for 'instant socialism'!
The other day it was the Chief Minister of Kerala who had a terrible jibe at the Indian Judiciary, the details of which and the comments thereon, we refrain from adverting to, as the same is facing contempt action in the Supreme Court of India and is sub judice.
Today it is the Governor of West Bengal, His Excellency, Mr S.S. Dhavan, who made that 'grand speech' on 25th May, 1970, at the swearing in ceremony of Mr P.B. Mukherjee as Chief Justice of the Calcutta High Court. A Chief Minister is virtually the head of the State Executive while the Governor is but the Constitutional Head of the Executive, of a State. Consequently he has far less excuse for making any improper speech that offends the Constitutional Provisions and the Law. More than all it offends all constitutional proprieties which his high office compels him to observe and not to offend.
We can understand a Naxalite who is out to destroy everything, daring to face all the consequences of legal action. He has been of late most daring in the Indian soil as the Government is unwilling to take any legal action against his tribe for obvious reasons. But we cannot understand a suave Communist as comrade Dhavan, who would smile in a constitutional way and yet do all the damage. It suits him to occupy the Gaddi of a Governor because it pays him with money, power, status and opportunity which are good sinews to carry on, the same destructive process as the Naxalite but in an apparently constitutional manner. It is easy to locate a Naxalite but it is difficult to place other Communists who swear outwardly by our Constitution but yet do all the havoc in a subversive way. There are such Communists strewn all over the country in the garb of teachers, professors, lawyers, poets, publicists, political vagrants and the like who, while making all the money in the aforesaid professions, yet decry the same as harmful to Bharat's National Progress in a very suave manner, keeping themselves a little safe from the clutches of law. Such insincere men call themselves patriots too! Patriots of what? Patriots of Bharat or the U.S.S.R. or of International Communism? The Indian Nation has to be saved from such suave traitors who elude the clutches of all legal action but do more havoc by uprooting the very basic principles of our democratic way of life. The present confusion in Indian political leadership and the existence of a weak Central Government apparently is fertile soil on which the diabolical activities of Communists can flourish to the detriment of our national progress, tradition and culture.
What did this comrade His Excellency do? He had to perform his constitutional duty of swearing in the new Chief Justice of Calcutta High Court before a distinguished audience of Judges, lawyers and administrators. He did it in a nice way. Nice not to the Judges or the lawyers but nice to the memory of his Guru Lenin and Stalin of U.S.S.R. Was it not nice of him to say at the public function some call it audaviously marvellous while felicitating the new Chief Justice (it was as cynical as like Anthony's oration where he ended each charge against Brutus with a peroration 'And Brutus was an honourable man'!) His Excellency the Governor said: "The people of India were passing through a crisis to which the Judiciary and the legal Profession could not remain indifferent. Was it possible for an underdeveloped nation like India to achieve rapid transformation of its economic and social system under democracy? If so, under which particular form of democracy and what was to be the role of the Bar and the Judiciary in this achievement? These were the fundamental questions which faced the legal profession today. Arising out of them was the further question whether the Indian Bar with its present state of organisation and intellectual and philosophical equipment was bit enough to discharge its obligations to the nation. The questions posed above is the challenge of communism. . . . This was an old challenge which was first proclaimed by Karl Marx himself. . . . was the legal Profession of India including the judiciary intellectually and spiritually equipped to take up the Communist challenge."
Comrade Dhavan then dilates on the deplorable state of the Indian Bar, its being out of date as it is not fashioned on the Soviet Bar pattern of unselfish, selfless work for the progress of the State and the common man. Then comrade Dhavan in a peroration adds, "Thanks to present organisation of the Bar, the seniors are safely entrenched in their selfish monopoly of work. Our High Court I regret to say (the reference is obviously to the Calcutta High Court in particular and to all High Courts in a general way) by its rules providing for an almost unlimited right to obtain adjournments is a party to this antisocial monopoly.... The present standards of legal education are horribly low, in fact about the lowest of all civilised countries. The result is that in our legal profession jurists, judges and practising lawyers alike are intellectually ill-qualified for the responsibilities entrusted to them."
Governor Dhavan then deftly throws the blame for all these on the Government of the day. "If the soundness of judicious decisions depended on the social philosophy and the scale of values of judges, their knowledge of prevailing social conditions and their sense of responsibility and self-restraint, it was obvious that a Government which neglected to provide a high standard of education for the Judges and the lawyers (does this suggest need for 'committed Judges' to Communist ideals) was guilty of neglecting an important duty impliedly imposed on it by the Constitution of India.... Recent judicial history provides that the interference of our Superior Courts has not always been on the side of wisdom. In Golaknath case the Supreme Court propounded the astounding doctrine that Parliament had no power to amend Part III of the Constitution because the rights of the individual guaranteed under this part are meant to be so sacrosanct and eternal. A little knowledge of Indian Jurisprudence would have saved the court from this error, for the concept of a fixed eternal law is foreign to our jurisprudence."
After a long diatribe against the legal profession, comrade Dhavan tries to propound a reform in suggesting the creation of a Ministry of Justice which will be in direct charge of the courts, the Judges, the legal profession and legal education. He lamented the Home Ministry cannot have the time to reform the Judiciary or Legal Education.
Thus we have the politely-worded indictment against the Indian Judiciary from comrade Dhavan, that they are not intelligent, they are ill-equipped, not competent as they are not conversant with the prevailing social conditions, they are a party to an antisocial monopoly, they lack wisdom and knowledge of Indian Jurisprudence which would have helped them from pronouncing erroneous judgments as in Golaknath case. They are irresponsible too.
The indictment against the lawyers, in Dhavan's view consists in their poor education, little knowledge, monopolistic tendencies, lack of proper organisation, low values and irresponsibility. They should switch over from common law doctrinaire approach to one of socialistic values beneficial to the community.
All that we can say is that Shri Dhavan spoke as Comrade Dhavan and not as Governor of Bengal. Under Article 159 the Governor takes the oath to protect and defend the Constitution and the law. Under Article 156 he can hold office during the pleasure of the President. While doing the swearing in ceremony of course the Governor discharges his duty. But his diatribe on the Judiciary and the Legal Profession is not one of such duties. As his diatribe offends other Constitutional Provisions and the Law, the President can well dispense with him by denying him the continuance of "His pleasure". Will the President do this? Will the Council of Central Cabinet Ministers advise him to do it? We wish they do. Or will they in their present mood wink at the episode as the ruling party's slogan itself is 'Instant Socialism'.
We have to state that for a Governor to preach the Russian pattern of socialistic doctrines and to advocate the Russian pattern of Bar and the Judicial system, is quite fundamental opposed to the basic rights and principles enunciated in Parts III and IV of the Constitution. If comrade Dhavan's speech has to be implemented the very democratic structure of the Indian Constitution should be replaced by a totally socialistic pattern of Instrument somewhat like Soviet Russia. The question is can a Governor advocate this at a swearing in ceremony. The answer is he cannot? Can he seek umbrage under Article 361 that he cannot be answerable in law to any court and that he should be protected from all legal action. The answer is 'He cannot seek such protection'. For Article 361 extends such a protection only for the exercise and performance of the powers and duties of his office for any act done or purporting to be done by him in the exercise and performance of these powers and duties. Swearing in is his duty but not a big speech attacking the judiciary and the legal profession and advocating an unconstitutional approach to socialism. It follows comrade Dhavan can be dealt with legally in a court of law for such a speech maligning the legal profession and the Judiciary. Any body of lawyers (more particularly from Calcutta) can sue him for damages for attacking their knowledge and sense of responsibility and dubbing them as 'monopolists' and spongers on society.
It is petite to point out that where a Governor abuses his high position and his constitutional duties, he has to be deprived of the so-called Constitutional protection under Article 361 and asked to explain why he transgressed Constitutional proprieties.
It is a good augury the Calcutta Bar Association is quite alive to this problem and have demanded the Governor's recall. They can also institute a suit for damages against him. They can also obtain an injunction or a writ on a proper occasion that Shri Dhavan shall not make such speeches in future.
But we are also mainly concerned with the libellous attack on the Indian Judiciary. Are they, as Dhavan says, incompetent and irresponsible? What action can the Judges take against Dhavan? The Chief Justice may address the President of India to recall Governor Dhavan for his unconstitutional speech. Prima facie he is to be deemed unfit to hold that High Office if he is to preach socialistic doctrines from the Governor's pulpit. Can the Judges take action in contempt against Dhavan? They can. At any rate a show-cause notice to him will have a sobering effect. Our Communist lawyers may argue that under Article 361 all civil and criminal action is taboo against the Governor and that contempt action is criminal. But sound jurisprudence and law would answer these critics by saying:
(i) The Governor can claim no protection under Article 361, as the impugned speech was not made in the discharge of his duties. It was extraneous to such duties. It cannot come under the category of 'purporting to be done'.
(ii) The contempt lies in defaming the Indian Judiciary as ill-equipped, unwise, irresponsible, etc. so as to lower their prestige in the eyes of the common man. When a Governor says 'the Judiciary of India are irresponsible and incompetent what other effect could there be on the common man in Bengal where already there is deteriorating respect for law or courts of justice.
(iii) Contempt action is sui generis. It is neither civil nor criminal.
The decision in Vijay Pratap case (AIR 1966 All 305) is not applicable. There the Congress Organisation of which Ajit Prasad was a leader threatened to debar Vijay Pratap from Congress Membership if he went to court. This was held to be contempt as it was interference with administration of Justice. But since Ajit Prasad at the time of the contempt proceeding was Governor of Kerala, Article 361(2) was held to be a bar.
In the present case Comrade Dhavan committed the contempt not as Governor exercising his duties but as a citizen. The Allahabad Ruling, we submit, is not sound since what Article 361 prohibits is criminal action and not contempt action by court. If the intendment of Article 361 is to include contempt action it should have specifically mentioned it. Neither statute law nor Judicial opinion has ever stated that action in contempt is criminal action.
We would therefore urge action on the part of the Bar as well the Judiciary in the case of comrade Dhavan. Bar Associations all over the country owe a duty to themselves in focussing public attention on the Dhavan episode. If this Dhavan is not curbed initially by law, numerous Dhavan will crop up with the indulgence of some political parties inclusive of the party in power. Then it may be too late. We may then head for a revolution and the Indian Constitution may well be buried hundred fathoms deep! Is this what the common man in India wants now! We feel he desires that the Indian Constitution should be reverentially worked out to his benefit.