Soar Rather Than Sulk

  • Justice Yatindra Singh
  • 06:47 PM, 30 Jun 2021

Summary: This post is an advice to budding legal professionals - be they aspire to be a lawyer or a law teacher, or a jurist or a judge illustrated by an instance from the court of Justice Brij Narain Sapru

'When law stands in the path of justice clanking its chains, the proper course of the Judge is to pass through them undeterred.' 

- With due apologies to Lord Atkin(United Australia Ltd. Vs Barclays Bank 1941 AC 1 at 29

Law and justice are always not on the same side. Had they been so, the Court of Chancery would not have evolved in England. These courts administered equity to ameliorate the rigour and defects of the common law that ceased to be equitable; maybe for the reason that the law became rigid. (See End Note-1)

In India, the first Mayors’ Courts were established by the East India Company in the Presidency Towns by Letters Patent of 1726. They were conferred jurisdiction ‘to give judgement and sentence according to justice and right.’ Later by Regulation II of 1872, it was declared that where no specific directions were given, the judges were to act ‘according to justice equity and good conscience.’ (See End Note-2)

Under Article 142 of the Constitution of India, the constitutions framers conferred  power on the Supreme Court ‘to make such order as is necessary for doing complete justice in any cause’. They further conferred power on the High courts under Article 226 ‘to issue ... directions, orders, or writs … for any other purpose.’ They were aware that law alone may not achieve justice in every case.  

Nevertheless, there are some, who do not understand the distinction between the two. Maybe, they are in awe of laws, its prisoner and are confused. The result is that they sulk and sink with law. But there are some, who are clear in their mind. They soar and seek new horizon with law.  Justice Brij Narain Sapru was one of them. But before I go down the memory lane, here is his brief biographical sketch.

Justice Sapru was grandson of Sir Tej Bahadur Sapru. He was born on 25th August 1926. He completed his school education from Colvin Taluqdars' College, Lucknow, his post graduation in Economics and law from Lucknow University. His father, Anand Narain Sapru, an ICS officer was paralysed from the waist below, due to reaction to an injection for rabies. He was then posted at Allahabad as a member Board of Revenue. This was the reason for Justice Sapru to start his practise at Allahabad. He was elevated as a judge of the Allahabad High Court on 27.01.1976. He was one of the better read judges of the court: his favourite hobby was book reading. He retired on 24.08.1988 and died of cancer on 20th August 1995.

Justice Sapru stood tall during emergency. He was member of the bench that granted bold orders during that time, without which the families would have famished. 

In 1982, a young man came to me.  He was from Andhra Pradesh. During, emergency, he was a college student in Maharashtra. He participated in a peaceful protest march against emergency, carrying a placard, with 'Indira Gandhi Murdabad' written on it. 

He was arrested and produced before the Magistrate, where he accepted that he had carried such a placard.  He was convicted under Defence of India Rules (DIR) and sentenced to the period undergone and was released.  He was unaware of the court proceeding and thought he was let off as he was released as soon as he was produced before the Magistrate. There was no appeal and his conviction stood.  

He was a brilliant student and obtained engineering degree in flying colours. He qualified for Indian Geological Service and Oil and Natural Gas Corporation (ONGC) but joined the later one. He was kept on probation. He also filled up a usual form mentioning that he was arrested but was released. Had he   not mentioned anything, no one could have known about the incident as it had happened in Maharashtra and the character verification was sought from his home district in Andhra Pradesh. The Collector sent his report verifying his character but also mentioned that he was convicted under DIR.

This was the time when the Janata party had lost and Indira Gandhi was the Prime Minister. The young man was on probation. ONGC terminated his service on the ground that he was convicted under DIR for treason for overthrowing elected government. 

I filed a writ petition challenging his termination. It came before a bench presided over by Justice Sapru. Initially, the bench granted interim order,  staying the operation of the termination order. I read the order during lunch. In Allahabad, orders are signed after lunch in open court and at that time mentions are accepted. I mentioned after lunch that the stay order would not be respected on the pretext that the termination order had already been given effect to.  On this mention, Justice Sapru took the file and added with his handwriting, an unusual gesture,

‘In case the order has been given effect to then the Petitioner shall be taken back in service forthwith.’

ONGC did not comply with the order. It filed a stay vacation application alongwith counter affidavit and engaged a senior lawyer to argue it. The stay vacation application was vehemently argued; all sorts of arguments were raised but Justice SD Agarwala confirmed it. 

Despite confirmation of the interim order, ONGC did not reinstate the Petitioner. It took the case to the Supreme Court but were left with no option, when the Supreme court suggested to take him back in service. Had Justice Sapru not granted order to take the young man back in service, he would have languished. It saved his life.

The boy was a probationer. His services were terminated by simpliciter order; no stigma was cast. The reason for termination was his conviction for treason. In case, the court had gone into technicalities of service jurisprudence then, what to say of granting interim order, it was even difficult to entertain the writ petition. I distinctly remember, Justice Sapru specifically asking me,

‘Is this (namely carrying placard mentioning ‘Indira Gandhi Murdabad’ and conviction for the same) the only ground for terminating the service?’

On my answering in the affirmative, the writ petition was entertained and interim order was granted. Many judges might have entertained the writ petition; only a few would have granted interim order staying the operation of the termination but I have my doubts if any other judge would have granted exparte positive order to take  back in service. Only a judge, who understands that law is good but justice is better  would have granted such order. 

One should not be prisoner of law: one should rise and soar with law rather than to sink and sulk with it.

 

End Note-1: See chapter VIII ‘The Court of Chancery from its origin to the Restoration’ in Radcliffe and Cross ‘The English Legal System’.

End Note-2: See chapter I ‘Introductory’  of the ‘The Common Law in India’ Hamlyn law lecture by MC Setalvad.

 

This post is part of the series 'LegalTrek' by Justice Yatindra Singh (Retd. Chief Justice, Chhatisgarh High Court, originally published on Justice Singh's blog "Legal World & Childhood Dreams" and has been republished here with permission. There are a few posts in this series that relate to 'Biography'; some are 'Miscellaneous' i.e. not falling in any particular group. This one is part reminiscence, part caution, part advice.