'Horsemen of Apocalypse'

In his book 'Laughing at the Gods: Great Judges and How They Made the Common Law', Professor Allan Hutchinson speaks of 'judicial greatness' as follows:

Great judges seek to make a critical accommodation with the legal tradition by combining heresy and heritage in a playful judicial style; they refuse to be hampered by customary habits of judicial mind. For them, law is not something to be mastered. It is a sprawling tableau of transformation in which experimentation and improvisation are valued as much as predictability and faithfulness to existing rules and ideas. They see possibilities and make moves that others overlook. Great judges flaunt conventional standards in the process of remaking them; their judgments are the exceptions that prove the rule. And, once they have done what they do, others are less able to view the world in the same way again.

It is in this sense that the outstanding dissenters of the Supreme Court of India deserve the appellation 'great'. Four judges stand out as being the great dissenters of the court. This is not only for the reason that they may have written numerous dissents —in fact, A.K. Sarkar, C.J. wrote over forty-five dissents, and J.C. Shah, C.J. wrote over thirty-five dissents, but they do not form a part of this select group. At the other end of the spectrum, S. Fazl Ali, J., who served on the court for an extremely short period — and delivered only six dissents — is nevertheless a part of this group, given the quality of these dissents, and the amazing foresight contained in some of them. The reason why I have named these four dissenters the 'Four Horsemen of the Apocalypse' is because these four horsemen, who are referred to in Book Six, 'Revelation', i.e. the final book of the New Testament in the Bible, are persons who appear at the end of time, prophesying future tribulations to be suffered until the arrival of 'Judgement Day'. Their function is also to give the world a chance to repent before they are consigned to the ashes. Each one of these four great dissenters fulfil this role, some of them prophesying doom if their dissents do not become the law, and others offering a chance of redemption, if in the future, their view is accepted in preference to that of the majority. Each of the dissents authored by these learned judges (and not those in which they join another judge's dissenting opinion) are analysed in this chapter.

However, before dealing with the dissents of these four judges, it is important, at this juncture, to pay a tribute to a fearless Indian judge — Justice Syed Mahmood — who had to pay the price for his dissenting judgments in the colonial climate of the Victorian era, in that he was forced to resign as a high court judge because of the ego of his English chief justice, who refused to tolerate any disagreement with his views by the only 'native' on the bench.

In 1882, Justice Syed Mahmood became an officiating judge of the high court at Allahabad at the age of thirty-two. The only other instance of a judge of a superior court appointed at such a young age is Justice Joseph Story, who became a judge of the US Supreme Court at the same age.

Justice Mahmood was known for his detailed written judgments — of which many were dissents — in the short period in which he served as a judge in Allahabad. Gregory Kozlowski in his book Muslim Endowments and Society in British India states that these judgments were 'written with a clarity and veracity rare in a rather dense literary genre'. Whitley Stokes, who was a Law Member of the Viceroy's Legislative Council from 1877–82, had high praise for Mahmood's judgments as stated in his work The Anglo-Indian Codes. Unfortunately, Justice Mahmood did not get on with Chief Justice John Edge, and tendered his resignation in 1893, having served for only six years as puisne judge of the high court. Chief Justice Edge complained against Justice Mahmood to the then government, stating that he was dilatory in completing reserved judgments, and persistently behaved like a rebel instead of a brother judge. Justice Mahmood, upon being invited by the government to respond, wrote a sixty-eight-page reply, in which he accused Chief Justice Edge of 'being the monarch of all he surveyed'. He went on to state: 'If John Edge had only allowed himself enough time to understand the Indian laws and the facts of Indian life, before assuming the position of "Veni, vidi, vici", he might have made even a better Chief Justice of a Court than he is now.' According to him, the real reason for Chief Justice Edge's complaint against him was the chief justice's ego, which did not permit a dissenting view. This is how Justice Mahmood put it in his famous reply:

So far as l can judge, it seems to have left an impression upon his mind that I have not adequate respect and veneration for his knowledge of law and jurisprudence; for otherwise (as he probably thinks) l would almost always agree with him as often as his other colleagues, the Puisne Judges. l have been led to this surmise principally by the fact of the number of cases in which, not being able to accept his view of the law, l have had to deliver dissentient judgments, followed, as they generally have been, by strained relations between him and me shown by his coldness of manner and words in his official intercourse with me.

He ended his letter stating that the office of puisne judge was to be held at Her Majesty's pleasure, and not dependent on the chief justice's 'frowns or smiles'. This reply prompted Chief Justice Edge to rejoin, in which, for the first time, Justice Mahmood was accused of drunkenness which affected his work. To this, Justice Mahmood responded with another letter, consisting of 105 handwritten pages, in which he denied this new charge, and returned to the issue of his dissenting judgments, which he believed was at the root of the chief justice's complaints against him. The ultimate upshot of all this was that the Government of India accepted Justice Mahmood's resignation, and also granted him a pension of 600 pounds a year. He died shortly before his fifty-third birthday, estranged from his father, separated from his wife and only son, and in utter penury.

Among the many dissents given by this great and fearless judge, three stand out not only for the thoroughness with which they were prepared but also for the fearless language in which they were delivered.

(Excerpted with permission from Rohinton F Nariman's Discordant Notes; published by Penguin Allen Lane)