Musings on the Constitutional Czars in the Hall of Fame Narasimhan Vijayaraghavan Venkatachari Lakshminarayanan 25-Vivian Bose
Musings on the Constitutional Czars
in the Hall of Fame
Narasimhan Vijayaraghavan
Venkatachari Lakshminarayanan
25-Vivian Bose
Justice Vivian Bose can claim his place among the leaders as Constitutional Czars. He was like the Cullinan Diamond. Just like the pieces of which add brightness to the crown jewels in England, Bose’s judgments illuminates the law reports and the portals of the Supreme Court, even after 72 years. Like St. Augustine said about Rome – Roma Locuta, Causa finite Est – Rome has spoken, the case is closed. So when ‘Bose wrote, the law stood written’. His felicity of expression was unmatched. It remains unsurpassed in the annals of our Judiciary. And shall probably remain so forever.
When yours truly embarked on a hunt to identify the Constitutional Czars- from the Bar and Bench, Bose was an easy pick. It was Justices like him who opened the keys to the holy book, given to us, endearingly by the framers. And when he opened it, he was not dazzled by the brilliance. He carefully and lovingly polished its words and gave life to them. The Constitution was not meant for worship. It was meant to be ‘worked’. Worshipful work, if you will. Bose brought down the Constitution to let it ‘work’ for the baker, butcher and candle maker. He showed the way to the rest. Some followed, hopefully the rest will join.
Justice Vivian Bose (also rendered V.V.N. Bose) (9 June 1891 – 29 November 1983) was born in the well known Bose family of Nagpur. His grandfather, Rai Bahadur Sir Bipin Krishna Bose was a lawyer. Bipin Krishna Bose started his practice in Jabalpur. Thereafter, he shifted his practice ot Nagpur. Education was a subject close to his heart. He was a member of the Boards of higher education and thereafter, helped in founding the Nagpur University. He was also its first Vice Chancellor. Apart from this, Sir Bipin was a member of Viceroys Executive Council. Vivian’s father, Lalit Mohan Bose did not take to law. He took to engineering. At a very young age, Vivian was sent to England for education. He read law at Pembroke College, Cambridge and was called to the bar from the Middle Temple.
Vivian Bose commenced his practice at the Judicial Commissioner’s Court at Nagpur. For a short term, he served as the Principal of College of Law, Nagpur University. In 1936, Nagpur got its own high court and Vivian Bose was one of the four judges who took oath at its first judges. He was a judge of the High Court for over 13 years and assumed office as its Chief Justice on 20th of February, 1949. On the verge of his retirement, Vivian Bose was invited to join the Supreme Court. He was sworn in on 5th March,1951. He remained on the bench till 8th June, 1956. After demitting office, Chief Justice S.R. Das requested him to join the bench as an ad hoc judge, which he did. He served in that capacity from 9th of September, 1957 for about a year. He stepped down on 30th of September, 1958. He was the first Christian to be a judge of the Supreme Court and first Eurasian also. His mother was British . Vivian married Irene Bose, a Canadian.
He along with a few others, these authors have selectively picked, as Constitutional Czars. And mind you, not in any schematic order. They were simply the earliest to tackle the Constitution and came up trumps. They built it brick by brick and put together a strong edifice of rare beauty and brilliance. They were Originals. Not Originalists. They had to be Original. They were there first. India owes it all to these Constitutional Czars for showing the way, to have a ‘working’ Constitution.
Jawaharlal Nehru for his ‘Tryst with Destiny’ speech and Dr. B R Ambedkar for his peroration- Grammar of Anarchy- on the Constitution, may well be having a tete e tete with these Constitutional Czars, thanking them to get us We The People on the path, they had envisioned for us. Bose had his own tryst with Nehru. Post his retirement, he headed the Mundra Commission of inquiry. The report did not go down well with Nehru and called Bose as “lacking in intelligence”. It is an entirely different matter that Nehru apologised and it was gracefully accepted by Vivian Bose.
It is a pity, we can’t go on in this vein, as a tome of its own, as Bose was not the only one of our Constitutional Czars. Though the brightest of them, as he outshone the rest. With his biographical sketch out of the way, let us get to him as a Judge. We would not be the only ones to be guilty of quoting him aplenty for his pronouncements from the pulpit. If he was an undoubted Constitutional Czar, he was also a ‘Rockstar’ as Sanjoy Ghose, a Delhi based lawyer, called him. No one would be beyond quoting him and let him be, as his dazzling dalliance with the language allied with the brooding spirit of illumination he brought to his efforts, kept the reader hooked and mesmerised.
“I have quoted extensively from his judicial statements – more than is probably permitted in an analysis of this kind. But for this I make no apology for, apart from his catholicity and clarity of thought, it is in the felicity of his expression that Bose remains unsurpassed by any other Supreme Court judge – past or present. M.C. Setalvad tells us that Chief Justice Patanjali Sastri had himself told him that whenever the judges wanted to put forward their views in elegant language, the task was entrusted to Justice Bose. His indelible ‘footprints’, speaking in dissent or for the majority, adorn the law reports and reflect his precision, intellectual integrity, honesty and unfailing courtesy. His constitutional judgements mark jurisprudential pathways paved with original thought, creativity, sustainable innovation and an abiding passion for justice.”
That is a quote from an essay of Mr. B N Suchindran, a fellow advocate of the Madras High Court, while contributing to Indian Journal of Constitutional Law brought out by NALSAR University of Law. We shamelessly emulate Suchindran. It would be sacrilege and blasphemy to try to outwrite Vivian Bose. If his peers of rare pedigree willingly yielded to his ‘purple prose’ as Fali S Nariman called it, we do not intend it to besmirch the beauty of it. Just a reading of his judgments, mere portions, for now, will tell us why the Constitution was meant to ‘work’ and if the ‘workers’ were in the Bose mould, or followed the leader, there would be little doubt, it would be a ‘working’ Constitution for ever, as it was a ‘living’ constitution as Bose saw it, while he infused life into the words with his own poetic pronouncements.
“I am not advocating sudden and wild departure from doctrines and precedents that have been finally settled but I do contend that we, the highest Court in the land giving final form and shape to the laws of this country, should administer them with the same breadth of vision and understanding of the needs of the times…The underlying principles of justice have not changed but the complex pattern of life that is never static requires a fresher outlook and a timely and vigorous moulding of old principles to suit new conditions and ideas and ideals. It is true that the Courts do not legislate but it is not true that they do not would (sic) and make the law in their processes of interpretation.
I make no apology for turning to older democracies and drawing inspiration from them, for though our law is an amalgam drawn from many sources, its firmest foundations are rooted in the freedoms of other lands where men are free in the democratic sense of the term. England has no fundamental rights as such and its Parliament is supreme but the liberty of the subject is guarded there as jealously as the supremacy of Parliament”. (K S Srinivasan 1958).
“With the utmost respect I deprecate, as I have done in previous cases, the use of doubtful words like “police power”, “social control”, “eminent domain” and the like. I say doubtful, not because they are devoid of meaning but because they have different shades of meaning in different countries and because they represent powers which spring from widely differing sources. In my opinion, it is wrong to assume that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the Constitution and it is for jurists and students of law, not for Judges, to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries”. (Dwarakadas Shrinivas- 1954).
Remember the sequence of civil liberties’ case that were escalated from the State of Madras in the early years of the Constitution. A K Gopalan, then V G Row and S Krishnan, in particular. Gopalan and Krishnan were under the preventive detention laws while V G Row related to the banning of an association and expropriation of its assets et al. Bose must have been licking his fingers when S Krishnan came calling. Bose went for broke as he got into the zone. It was Gundappa Vishwanath with his 97 n.o. at Chepauk in the 1974-75 series against the Windies fierce pace attack led by Andy Robers. A la Krishna Iyer Mama. Simply divine, as you would readily agree.
“Brush aside for a moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and “and” or “or”, or “may” and “must”. Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution. What sort of State are we intended to be? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? Is not the sanctity of the individual recognised and emphasised again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power? I have no doubts on this score. I hold it therefore to be our duty, when there is ambiguity or doubt about the construction of any clause in this chapter on fundamental rights, to resolve it in favour of the freedoms which have been so solemnly stressed…..Read the provisions which circumscribe the powers of Parliament and prevent it from being supreme. What does it all add up to? How can it be doubted that the stress throughout is on the freedoms conferred and that the limitations placed on them are but regrettable necessities?” (S Krishnan -1951).
“I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.
They are not just dull, lifeless words static and hide-bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?
They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in ordinances promulgated in haste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection on the judges and the courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retried in the ordinary courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land and, to my mind, Article 14 is but a reflex of this mood. (Anwar Ali Sarkar – 1952).
“In a democracy functioning under the Rule of Law it is not enough to do justice or to do the right thing; justice must be seen to be done and a satisfaction and sense of security engendered in the minds of the people at large in place of a vague uneasiness that Star Chambers are arising in this land… There is no room for complacency, for in the absence of constant vigilance we run the risk of losing it. “It can happen here.” (Bidi Supply- 1956).
Can anyone dare say that our Constitution was defective or deficient or that the early ‘workers’ did not do well to get it ‘working’.
Let us get close to Vivian Bose, the man too, for he was a character, after my own heart, soul and mind. This work is meant to be anecdotal and episodal and Vivian Bose offers us some fascinating insight on this front too.
How can one forget Vivian Bose the man and driver- as Chief Justice Hidhyathulla, a Nagpur mate called him. Bode drove twice to England- once in 1932 and another time in 1957 by car with his Irish wife and dog. A few weeks as stopped, cooked, rested, started and drove. A true blue Constitutional Czar in the Hall of Fame.
( Authors are practising advocates in the Hall of Fame)
