THE most celebrated dissenting judgment of the 20th century in England was that delivered by Lord Atkin in the case of Liversidge vs. Anderson. The facts of the case were simple. In October 1940, at the height of the Second World War when England stood in mortal peril of being overwhelmed by Germany one Robert Liversidge (a person apparently of German origin who had changed his name) was detained by order of the secretary of state.

At a time when the nation was under dire threat it was understandable that the judicial branch of the state should take a sympathetic attitude towards the executive in relation to questions involving national security. Liversidge lost by reason of a majority judgment in the House of Lords. Lord Atkin, a judge renowned for his liberal beliefs, sharply dissented.

It is interesting to note that Lord Atkin did not proceed on the basis that the actions of the government were taken in bad faith. He decided the issue simply on the all important principle that a person should not be deprived of his personal liberty without the clear sanction of law. He was not prepared to defer to the views of the executive. He observed with acerbity in his judgment: “I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive minded than the executive... In England amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war as in peace.”

He then proceeded to cite from a book which is not normally referred to by jurists. It is the children’s classic Alice Through the Looking Glass by Lewis Carroll. He compared the attitude of the majority judges to that of Humpty Dumpty. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.” (This is the same Humpty Dumpty who subsequently had a great fall and all the king’s horses and men could not put him together again — the metaphor is therefore wholly apt.)

The question is germane, especially nowadays, in countries where the gun, and not reason, rules. The judgment created a sensation. Lord Atkin’s daughter subsequently recalled that after delivery of the judgment when they proceeded to lunch the other judges silently boycotted him. The senior member of the bench, Lord Maugham, was so outraged that he adopted the unprecedented method of writing a letter to The Times criticising the language employed by Lord Atkin.

However, a quarter of a century later Lord Diplock ruefully acknowledged that “for my part I think the time has come to acknowledge openly that the majority of this House in Liversidge vs. Anderson were expediently and, at that time, perhaps excusably wrong and the dissenting speech of Lord Atkin was right.” It was a delayed but necessary tribute to a great judge.

It takes exceptional qualities of character to dissent from the majority especially at times when the survival of the state is at risk. But it is precisely these dissenting judgments which resonate eloquently over the centuries and create respect for the judicial institution of the state. The fame of many great judges inheres primarily in relation to their dissenting judgments.

Oliver Wendell Holmes, Jr. served as a judge on the United States supreme court for 30 years. He was a legendary figure in American jurisprudence. The English statesman John Morley affirmed that he was the greatest judge of the English-speaking world. Although he delivered numerous judgments as part of the majority in the supreme court, he is best known to posterity as “the great dissenter.” Paradoxically, some of his most important dissenting judgments reflected his profound concerns regarding the rights of workers, as he believed strongly in their rights, as well as those of giant corporations sued under the anti-monopoly laws.

His most lasting contribution to the law relates to his perception of the development of the law. “The life of the law has not been logic; it has been experience.... The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” The implications of this doctrine are well worth pondering especially in relation to our own repeatedly arrested development.

Broadly speaking, it would be true to say that nascent judicial systems have to struggle to articulate paradigms which are protective of citizens’ rights. It must be remembered that, in the final analysis a constitutional document is not about legal rights but rather about the legal enforcement of the entire array of political, economic and social rights. Judge Learned Hand (generally considered one of the ablest judges produced by the United States) observed in a famous lecture delivered in 1942 that “a constitution is primarily an instrument to distribute political power.”

It, therefore, becomes of prime importance for the judicial branch of the state, which is the regulator of the functioning of the constitutional process, to focus on the essential skein of thought which is interleaved within the constitutional document. Judicial responsibility and commitment to the underlying principles of the constitution underpins the rights of citizens and abdication of this responsibility is invariably associated with a loss of respect for the judicial institution with severe consequences. Even in as well entrenched a democracy as the United States, Justice Frankfurter cautioned against the dangers of a subservient judiciary: “The court has no reason for existence if it merely reflects the pressures of the day.”

One of the most notable of Indian jurists is Justice V.R. Krishna Iyer. He is responsible for what has been termed as the most famous stay order in the history of India. It was in the case of Indira Gandhi vs. Raj Narain. He refused to allow the then prime minister Indira Gandhi to vote in parliament during the pendency of her appeal in the supreme court regarding her alleged electoral illegalities.

Mrs Gandhi, after the conflict with Pakistan, had vast powers at her disposal. But for Krishna Iyer a judge was a trustee: the people were the beneficiaries. He had a constituency: the people of India — not the government of India. There is a fascinating footnote to this case. Shortly thereafter Justice Iyer and Mrs Gandhi were seated together at a function. He complained to Mrs Gandhi about police atrocities. She feigned innocence and asked for his legal advice. He declined on the ground of constitutional impropriety and said that if he were to advise her, he should be dismissed!

The subsequent imposition of the emergency by Mrs Gandhi led to the most important dissenting judgment in Indian history. The case is known as “the habeas corpus case” and the judge was Justice Khanna. It was once again a detention case. The government stand was that with the suspension of fundamental rights, including specifically the suspension of Article 21, which pertains to the right to life and personal liberty, the petition of the detenu was not maintainable.

A five-judge bench of the Supreme Court was constituted to hear the case and four of them agreed with the government contention. Khanna, J. dissented. He advanced the profound argument that Article 21 could not be considered to be the sole repository of the right to life and personal liberty and, quite independently of it, the state had no power to deprive a person of his life or personal liberty without the authority of law. That was the essential postulate and basic assumption of the rule of law in every civilised society.

There was an ironic code to this case. The attorney-general who had argued the case on behalf of the government apparently had some qualms of conscience about the scope and ambit of the argument he was advancing. The attorney-general posed a rhetorical question before the court: “What if a trigger-happy policeman gunned down an innocent passerby in cold blood?” His argument implied that even in such an outrageous case the court would have no power to grant relief if the government contention, which he was presenting, were to succeed.

The attorney-general subsequently confided to Justice Krishna Iyer that the reason he had pressed this extreme position was in the faint expectation that perhaps the conscience of the judges would not be able to tolerate an argument which led to such a grossly outrageous scenario. He added that, to his great regret, instead of being shocked, the majority of the judges virtually said “amen” in response to the argument. The attorney-general himself felt unable to justify such an extreme view but the judges had no difficulty in swallowing it!

Some of the observations of the majority defy credulity. They simply refused to believe that atrocities were taking place although cases of torture and murder by the police were not uncommon during the emergency. One of the learned judges, Chandrachud, J., observed “Such misdeeds have not tarnished the record of Free India, and I have a diamond — bright, diamond-hard hope that such things will never come to pass.” Really?

Another learned judge, Beg, J., hastened to add that “we understand that the care and concern bestowed by the state authorities upon the welfare of detenus who are well-housed, well-fed and well-treated is almost maternal” — the learned judge thus gave the concept of ‘maternal love’ a new dimension and meaning hitherto unknown to lexicographers and psychologists alike.

It was a classic case of judges being more catholic than the Pope, more loyal than the King and more subservient than serfs. Justice Khanna paid a price for his independence of thought. He was superseded for the office of chief justice of India. But his enduring contribution to Indian jurisprudence remains. The New York Times observed that a statue should be erected in his honour in India. As an observer commented, the office of chief justice could not have added to the lustre of his reputation.

In Pakistan, the declining trajectory of the judiciary is normally traced back to the judgment of the federal court in the Moulvi Tamizuddin Khan case. (What is loosely referred to as the Tamizuddin Khan case in fact consists of a triad of three decisions. The first was the judgment in the Tamizuddin Khan case itself, the second was the judgment in the Usif Patel case and the third was the decision in the governor-general’s Reference of 1955. It is the last of these cases which introduced the doctrine of state necessity into the corpus juris of Pakistan for the first time and it is this doctrine which was subsequently to sweep across the constitutional terrain like a tsunami arising from the depths of the ocean.).

However, the saving grace in the Tamizuddin case was that out of five judges, one namely, Cornelius, J, dissented. Cornelius, J. of course went on to become the chief justice of the Supreme Court, in which capacity he presided over the court with a dignity of demeanour, a courtesy of speech and an abundance of patience which was never approached by any of his successors.

The writer is a leading lawyer and a former law minister of Pakistan. The second part of this article will appear tomorrow.

“I HAVE learnt certain things in life and I am going to introduce them to the body politics of my country.” P.N. Haksar would say this when he was prime minister Indira Gandhi’s principal secretary.

One of the things he did was to separate elections to the Lok Sabha from those to the state assemblies. The practice till then, the late ‘60s, was to go to the polls simultaneously — that is, to elect parliament and state assemblies all over the country at the same time.

Haksar’s argument for the change was that since national and local issues were different in import, they should be kept apart. The focus was lost when they mixed. The campaign for the Lok Sabha election, he would say, should discuss questions concerning the nation as a whole and the assembly the ones concerning the regional problems.

He was right. Elections held at the same time pushed to the background either local issues or national ones. The voters were confused. They had no time to apply their mind to assess what they needed at the centre and in the states. That is the reason why Pakistan and even Kashmir would figure in a state election. In the name of defence or unity, the political parties aroused emotions to create a wave which at times swept the country and paid dividends.

True, the ballot papers for the Lok Sabha and the assembly were separate. But polling for both was held on the same day, at the same time, at the same place. The voters would put the blame on the centre for all the acts of omission and commission. The rulers in the state would go scot-free. In state elections, it would be the other way round. The issues jumbled and responsibility dispersed.The clear picture and purpose were lost.

The separation, when introduced, had effect. I recall the example of Karnataka. The polling for the state assembly was one day after the Lok Sabha’s. R.K. Hegde heading a political combination in Karnataka lost in the parliamentary election but won in the assembly one. The issues posed were different. While the voters liked Congress rule at the centre, they favoured Hegde in the state.

Over the years, the voters have learnt to assess the independent performances of the centre and the states. The success or failure of a political party at New Delhi does not normally influence election in the states. Pakistan and Kashmir, the perennial issues, have seldom been raised in assembly elections.

Elections in Assam, Kerala, Tamil Nadu, West Bengal and the tiny state of Pondicherry have been fought on local issues. National leaders have visited the states but only to highlight regional issues. Communalism has been mentioned in all five states but that is because the Congress and the BJP are pitted against each other in all the states. The voters have measured how far a political party in power has tackled their problems and how competent is the opposition to handle the job. The incumbency factor doesn’t seem to matter much.

I visited one state, Assam, before the results. The migrants from Bangladesh are an important local issue. The AASU, a body of students, which is behind the movement of detecting “foreigners” and deporting them, has helped the Asom Gana Parishad (AGP) in the elections. The AGP may do well but its minus point is that the party failed to perform both the times when it was in power.

What may decide its fate or that of the ruling Congress is the Muslim vote. The Congress is seen as favourable to “foreigners,” the Muslim Bangladeshis. But they have founded their own party, the Assam United Democratic Front. It may count in government formation. Still, the emergence of a political party on the basis of religion is not a good development. It is against the country’s ethos of secularism.

Muslims are also a crucial factor in Kerala. The Congress-led front which rules the state is under attack by the communist-led front for “lack of progress.” But what may tilt the balance is the Muslim vote. For the first time, the Jamiat-i-Islami has jumped into the fray to support the communists. The Indian Muslim League, which is in government, continues to support the Congress. In the face of division, any of the two fronts can have a majority, although Kerala has voted to power one front in one election and the other in the following.

In Tamil Nadu, the climate has been changing day by day. At one time, it was certain that the DMK combination would return to power. But Vaiko’s support for Chief Minister Jayalalithaa has been crucial to her party AIADMK. The recent happenings in Sri Lanka may influence the voters because the Tamil sentiment is generally for the LTTE and its demand for a separate state. Pondicherry is too small to indicate any trend.

The communists may not dictate terms in Kerala but they will do so in West Bengal. They are faced with local problems like the shutting down of industrial units and increasing unemployment. But the countryside is still with them because of land reforms and the power transferred to the panchayats.

Mamata Banerjee of the Trinamool Congress is the only serious opposition. But she is no more a stormy petrel. She has damaged her image by having an alliance with the BJP at the centre. The Congress is a distant third. The party has also been handicapped by the fact that it could not attack the communists who sustained the Manmohan Singh government at the centre.

Whatever the outcome of elections, the Manmohan Singh government at the centre does not face any danger. They may confirm the impression that the Congress has not recovered the ground in most states where it didn’t do well in the last Lok Sabha polls. However, the change at the instance of Haksar has not been an unmixed blessing. The separation of election has led to the disturbance of the nation’s rhythm. As a result, one state or the other goes to polls every year and diverts the attention of ruling parties from economic and other vital developments.

Now that elections are over, New Delhi should seriously tackle the wave of violence in and outside the country. The Taliban, a lunatic fringe of fundamentalists, operate from Pakistani soil and they have the support of ISI. The killings at Doda, too, are by those who have links with the terrorists in Pakistan. Islamabad cannot just shrug its shoulders. It must act, not for the sake of showing but for closing its land and support to the terrorists.

The writer is a leading columnist based in New Delhi.