Senior Lawyers: Don’t hold your cards close to your chest

To rise in the legal profession, lawyers must spend time reading the legal literature from the world. Their seniors must also share their knowledge and insights. Juniors are the bar's future and must aim their highest to excel, writes JUSTICE YATINDRA SINGH, former chief justice of the Chhattisgarh High Court.

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MY legal career began in 1973 in Banda, where my grandfather, Keshav Chandra Singh Chaudhary, practised during his lifetime. Two of my uncles, Yogendra and Gyanendra Kumar Singh Chaudhary, were still practising there. I moved to Kanpur a year later to work with barrister Narendrajit Singh. I shifted to the Allahabad High Court in 1975 to find my father arrested under the Defence of India Rules (DIR). Even though he got bail, the state detained him under the Maintenance of Internal Security Act (MISA).

Emergency was a challenging time, not only for my family but the nation. Being a sufferer, I knew the problems of the detainees and started doing their cases free of cost. I got plenty of them. An incident occurred during this period, sometime in 1976, when I was arguing one such case. But first, a brief sketch of the late SC Khare.

Khare did his schooling at Allahabad. He graduated in science, did his post-graduation in botany and studied law at the University of Allahabad. His practice began at the District Court Allahabad and shifted to the High Court in 1953. As in studies, he made his mark in the legal field too. He rose to prominence with the Dr Ram Manohar Lohia case.

Dr Lohia was arrested and prosecuted under section 3 of the UP Special Powers Act, 1932, for making two speeches favouring a farmer's agitation against a hike in the irrigation cess. A habeas corpus petition was filed questioning the validity of the section and for his release. Khare had a science background: language was not his forte. Yet, those present in the court have narrated how he opened with great deliberation.

'An archaic, rusted, and obsolete law in the armoury of the State has been applied to stifle the most fundamental of all freedoms–the freedom of speech,' he told the court in the Ram Manohar Lohia case.

His opponent was the unmatched orator, then Advocate General late Kanhaiya Lal Mishra, the best lawyer in the country. In defence of the state, he began, "If the law applied is archaic, rusted, and obsolete, then this court is archaic, the legal system is rusted and the reports are obsolete that so readily invoked by my worthy friend."

Mishra's advocacy or oratory could not save section 3. The court held it as violative of Article 19(1)(a), and the habeas corpus was allowed. The Supreme Court upheld the judgement in 1960.

The Allahabad Bar had many stalwarts when I joined, but Khare was the most brilliant one. My colleagues who assisted or opposed him in cases told me two qualities they liked in him. One, he always praised the juniors on their drafting in the presence of his clients. However, when the clients left, he would point out the shortcoming, often in unparliamentary language. Nevertheless, the clients left impressed with the juniors, and the criticism improved their drafting skills.

Two, if a client ever returned, he would not hand him over to a junior in his chamber. Instead, he always asked the client to get that junior who had brought them earlier. It ensured that the juniors never lost their clients.

Khare trained juniors well: two were Justice KN Singh and Justice VN Khare, five became high court judges. One junior of his, NC Upadhayaya, became Advocate General of Uttar Pradesh in the 1980s. 

In his tribute to Khare in a Post-Centenary Silver Jubilee Celebration commemorative volume, Justice KN Singh writes that Khare had "acquired a complete mastery over the constitutional law…and reigned supreme as a great constitutional lawyer…It was a usual sight to find [him] awake, browsing through the files and books and exploring the labyrinths of law till late in the night and often in the early hours of dawn…."

Now, let us talk about the incident. Two kinds of litigations occurred in connection with the Emergency. One would seek the release of detained persons and the other, their salary, subsistence allowance, or better treatment in jail.

Also read: Many Opponents of Mrs. Gandhi Arrested in India

In the beginning, SN Kacker was the Advocate General. He resigned later, as Chief Minister HN Bahuguna resigned. Raja Ram Agarwal, the father of Justice RK Agarwal, a former Supreme Court judge, replaced him. BD Agrawal was the chief standing counsel. He was appointed as additional judge of the Allahabad High Court after the Emergency but resigned because of a seniority dispute with Justice VK Khanna. They vehemently opposed all litigation relating to the Emergency.

The jail manual provided three categories of imprisonment, 'A' the best, 'B' in the middle and 'C' the worst. The Emergency-era detainees were highly educated, taxpayers, respected in their fields and, therefore, entitled to category A imprisonment.

It was the peak of Emergency. There were so many detainees that the government was unable to provide them with A-category imprisonment. So, the state government amended the rules giving sole discretion to the District Magistrate to determine the category of the detenu. They got placed in the worst type of prison. 

I filed a petition challenging the amended rule and seeking category-A jails for the detenues. We argued the case before Justices Yashodanandan and BN Sapru in what is at present court number 35. I pressed the point that the state government is a delegate. Therefore, it cannot further delegate its power to the District Magistrate. The legal maxim is 'delegatus non potest delegare'.

Also read: Four reasons why Indira Gandhi declared Emergency 

The joint opposition of the Advocate General, assisted by the Chief Standing Counsel, was formidable. I was making no headway. The court knew of the grave injustice to the detenu but could not find a legal basis for relief. The case got adjourned. My father was imprisoned under MISA, so I was at a loss.

Khare was also in the court, hearing the arguments. As I was leaving, he called me over and said he does not appear in such cases for personal reasons. He blamed himself for the injustice and misery of the Emergency as he had appeared for Prime Minister Indira Gandhi in the election petition. After she lost the election, Indira imposed the Emergency, which is why people were getting detained. 

He told me to meet him at 6 am at his residence office on the following day. He said he would explain the point I should pursue in this case. I found him sitting outside his office, basking in the sun with a report. He asked me to read Padfield vs Minister of Agriculture, 1968, about the exercise of discretionary power. I had not read this case, but it is essential, and I should have.

England had eleven milk-producing regions with prices varying based on the transport cost of milk to consumers. The recommendations of a committee appointed under the Agricultural Marketing Act, 1958, could change these prices.

Milk producers of the southeast wanted higher subsidies to accommodate the rising transport costs. But the concerned minister refused to use his discretion to appoint the committee. The milk producers' case was to seek directions to establish one.

• By a majority of two to one, the Court of Appeals held that the milk producers could not challenge the discretion. The House of Lords reversed the decision and held the minister's discretion to refuse an investigation subject to judicial review;
• The discretion is to promote the policy and objects of an enactment. It should not be to thwart or run counter to its policy or aims.
• The discretion has to be on relevant considerations. It can not be arbitrary, and its wrong use is subject to judicial scrutiny;
• If the relevant considerations are not specified, the court should cull them from the enactment.

Khare explained the relevant considerations in my case: the status of the detenu in the society, the income tax they pay, their education, and the reason for their arrest. They had committed no crime; they were political prisoners. He suggested I pursue this line. 

I did as he said, citing the Padfield case, and the court was impressed with my knowledge of administrative and British law, which Khare had shared. Despite strong objections by the Advocate General and Chief Standing counsel, I got the relief for the detenu.

Khare gave me my first lesson in administrative law and taught me how to develop myself. He asked me what reports was I reading. I told him that I was reading two: AIR Supreme Court and Allahabad Law Journal, as advised by my uncles when I had started practice in Banda. He approved but said it was insufficient.

He shared the secret of where lawyers and judges find innovative ideas: they read reports of Indian courts and foreign courts, other than established journals. 

We used to get All England Law reports and US Supreme Court Lawyers Edition. I started reading them on his advice–from cover to cover–until I became a judge.

We did not subscribe to the Harvard Law Review or Quarterly Law Review, but the High Court did. Some of my colleagues were wards of the High Court Judges. With their help, I got access to those too. It made to what I am.

In my fifty-year career, I realised that the innovative ideas attributed to many are not original but borrowed or copied. Great lawyers and excellent judges always spend time reading international law reports and established journals: that is where the clues to become great at this profession are.

(Justice Yatindra Singh is a former chief justice of the Chhattisgarh High Court and a senior advocate in the Supreme Court of India. The views expressed are personal.)