Abhinav Chandrachud-An Independent, Colonial Judiciary A History of The Bombay High Court During The British Raj, 1862-1947 PDF

An Independent, Colonial Judiciary
An Independent, Colonial Judiciary

A History of the Bombay High Court during the British Raj, 1862–1947
ABHINAV CHANDRACHUD
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To the memory of my mother, Aai,
Who taught us to bear
adversity with a smile
CONTENTS
List of Photographs
List of Tables and Figures
Acknowledgements
Introduction
1. Background
2. The Rise of the Indian Judge
3. Race, Class, and the Bombay High Court
4. The Judicial Culture of the Court
5. The Structural Peculiarities of a Colonial Judiciary
6. Independence of the Judiciary
Conclusion
Appendix
Notes
Bibliography
Index
About the Author
PHOTOGRAPHS
(Plates between pp. xvi and 1)

1 Portrait of Justice Mahadeo Govind Ranade
2 Portrait of Justice Narayan Ganesh Chandavarkar
3 Portrait of Chief Justice Lawrence Hugh Jenkins
4 Portrait of Justice Lallubhai Asharam Shah
5 Portrait of Chief Justice John William Fisher Beaumont
6 Portrait of Justice Harilal Jekisondas Kania
7 Portrait of advocate John Duncan Inverarity
8 Chief Justice Charles Sargent’s court. Seated (left to right): Farran, Sargent CJ, Bayley.
Standing (left to right): Candy, Ranade, Jardine, Parsons
9 Chief Justice Lawrence Jenkins’ court. Standing (left to right): Aston, Chandavarkar, Batty.
Seated (left to right): Russell, Batchelor, Jenkins, Tyabji
10 Chief Justice John Beaumont’s court. Beaumont served as Chief Justice between 1930–43.
Only 4 of the court’s 12 judges in this photograph were Britons. Seated (from left to right):
K.C. Sen, H.V. Divatia, Harilal Kania, Chief Justice Beaumont, N.J. Wadia, A.S.R.
Macklin, M.C. Chagla. Standing (left to right): N.H.C. Coyajee, E. Weston, N.S. Lokur, J.B.
Blagden, G.S. Rajadhyaksha
11 Statue of Chief Justice Lawrence Hugh Jenkins on the front lawns of the Bombay High Court
12 A young barrister M.R. Jayakar
13 Justice M.C. Chagla
14 Justice Dinsha Davar
TABLES AND FIGURES
TABLES
3.1 Professional Qualifications of Bombay High Court Judges, 1862–1947
3.2 Professional Backgrounds of Bombay High Court Judges, 1862–1947
6.1 Conviction Rate in Criminal Cases across All the Courts in the Presidency of Bombay
during the British Raj
FIGURES
1.1 The Rise of Lawyers under the Company and Crown
2.1 Graduates of Bombay University
ACKNOWLEDGEMENTS
In Spring 2012, I developed a liking for legal history thanks to a fascinating and refreshingly
interesting course I took that quarter: the History of American Law, taught by Professor
Lawrence Friedman, a course which was easily one of the best I have ever taken. It was that
course which inspired me to delve into the fascinating subject of India’s legal history. I was
admitted into the JSD program at Stanford Law School at the end of that quarter, and I thought
of two topics which I could potentially write my dissertation on: one, a history of the legal
profession of eighteenth-century Bombay, the other, a study of the judges of the Bombay High
Court during the British Raj. After consulting faculty and friends, especially my good friend
Farhad Dalvi who rightly encouraged me to pursue the subject I found more interesting, I
initially decided to write my dissertation on the Mayor’s Court of eighteenth-century Bombay.
Luckily for me, I did not have to abandon my interest in the other topic. First-year JSD students
at Stanford Law School were required to take about three courses (one in every quarter) during
the year, and the course I was interested in taking in Winter (the Legal History Colloquium under
Professors Robert Gordon and Amalia Kessler), had a paper option. By the end of the Winter
quarter in 2013, I had written an eighty-page paper on the judges of the Bombay High Court for
that course, and I discovered that I was far more passionate about the history of the Bombay
High Court than the Mayor’s Court. I owe a great deal to my good friend, Fernan Restrepo, who
advised me over lunch (one of our many memorable lunches at the Arrillaga Family Dining
Center) to switch topics for my dissertation, because he thought that my High Court study had
more important and interesting conclusions on offer.
My doctoral dissertation at Stanford, and now, this book, could not have been written without
the intellectually exhilarating academic environment in the JSD program at Stanford Law School
—a place where we were encouraged to cast off the chains of traditional doctrinal scholarship, to
think outside the box and to pursue what we were genuinely passionate about with unhindered
intellectual freedom. Not only was I permitted to switch dissertation topics in the middle of my
first year in the program, but I was also encouraged to do what I found more interesting. Thank
you, Professors Deborah Hensler and Lawrence Friedman, for creating the terrific program that
you have at Stanford Law School. The three years that I spent at Stanford were easily among the
best of my life. I will dearly miss ‘The Farm’, and my regular haunts there: Robert Crown
Library, Green Library, the Tressider Memorial Union (with Treehouse, CoHo, Axe and Palm,
Jamba Juice, Subway, and Panda Express), Coupa Café, Ike’s Place, the Arrillaga Family Dining
Center, the Arrillaga gym, the wrestling room used by the Stanford Ju Jitsu club, the comforting
presence of Hoover Tower, the ‘Claw’ fountain and bookstore, Memorial Church, and of course,
my own lovely apartment at Munger where most of this dissertation was written.
I owe an immense debt of gratitude to the faculty who have supervised my dissertation,
formally or informally, these past few years. Professor Friedman had warm, wonderfully
reassuring words and some very pragmatic advice to offer me each time I walked into his office
on the third floor of the Neukom building. Professor Kessler pushed me to do the best work that I
was capable of doing, and was always accessible, on Skype when I was overseas, or in person at
Stanford. Professor Thomas Blom-Hansen always had time for me despite his busy schedule, and
I enjoyed his Indian history insights, especially at our meeting in Mumbai in January 2014. I am
especially grateful to Professor Ramachandra Guha, one of India’s finest historians, who kindly
agreed to read my dissertation, and from whose comments this book has benefited a great deal.
I’m grateful to Professor George H. Gadbois Jr for reviewing my dissertation. I’m also very
grateful to Professor K.L. Daswani: not merely did he help me get access to old books and
journals at the Government Law College in Mumbai, but he personally scanned a priceless, old
book written by J.D. Inverarity, and sent it to me while I was at Stanford. It is because of such
acts of kindness that this book was written. I enjoyed, very much, meeting and speaking with
legal historians who have written about the Bombay High Court before me: Professor Mitra
Sharafi and Mr Rajan Jayakar—many thanks to them both for their guidance. Many thanks to
Binyamin Blum, whose work at Stanford lit the path for my own, and whose advice was very
useful. Thanks are also due to Professors Marc Galanter, Robert Gordon, Leandra Zarnow,
Aishwary Kumar, and Kate Malleson, and to Dinyar Patel, Rohit De, and Dhvani Mehta. I would
especially like to thank Professor Andrew McLaughlin who strongly supported my candidature
for the JSD program.
None of this would have been possible without the many libraries I visited, and without the
kindness of the many librarians there. Sonia Moss is a priceless asset to the students at Stanford
Law School, who went far above and beyond the call of duty in making sure that I got every
single book, every microfilm reel, every resource that I ever required. Many thanks to George
Wilson and his team at the Robert Crown Library. Thanks also to Lisa Woodcock for her help on
the administrative side of things. I’m especially grateful to Uma Narayan, the head librarian of
the Hon’ble Judges’ Library at the Bombay High Court, who was enormously kind and helpful. I
would also respectfully like to thank the Hon’ble Chief Justice of the Bombay High Court, Chief
Justice Mohit Shah, for permitting me to use some photographs from the 1962 commemorative
volume of the Bombay High Court in this book. Many thanks to the folks at the National
Archives of India (Ms Samyukta and others); the folks at the Nehru Memorial Museum and
Library (especially in the manuscripts department); the staff at the British Library; Mrs S.
Sahasrabuddhe, Mr Ramdin, and Yasmin Khan at the library of the K.R. Cama Oriental Institute;
Stephen Herandien, Lionel Smidt, and Claude Bassuday, archivists at South African College;
Tim Converse, and the librarians at the Northern Regional Library Facility; Sherna Doongaji,
editor of the magazine of the Government Law College, Mumbai; Benjamin Lee Stone at
Stanford for his forensic ability to solve the puzzles I threw at him (for example, what the
abbreviations ‘W.M.’ or ‘A.T.’ stood for at Oxford); Fiona Colbert at St. John’s College; Cliff
Davies, Keeper of the Archives at Wadham College, Oxford; Chelsea Carney, Assistant
Archives Trainee, Cambridge University Library; Anna Sander, College Archivist and Curator of
Manuscripts, Balliol College, Oxford; John Rawlings, Subject Librarian for Classics, Linguistics,
Medieval Studies, Philosophy, and South Asian Studies at Stanford; Amanda Ingram, archivist at
Pembroke College; Chris Jeens, Jesus College, Oxford; Georgina Edwards, Archives Assistant,
Brasenose College, Oxford; Grant E.L. Buttars, Deputy University Archivist, University of
Edinburgh; Andrew Mussell, Archivist at Lincoln College; Sinead Wheeler, Archives Assistant,
London School of Economics; Dr John F. Pollard, Fellow Archivist, Trinity Hall, Cambridge;
Collin Higgins, St. Catherine’s College, Cambridge University; Nicholas Rogers, Archivist,
Sidney Sussex College, Cambridge; Adam C. Green, Assistant Archivist and Manuscript
Cataloguer, Trinity College Library, Cambridge; Penelope Baker, Archivist, Exeter College,
Oxford; Erica McDonald, Assistant Librarian, Ward Library, Peterhouse, Cambridge; Dr Patricia
McGuire, Archivist, King’s College, Cambridge; Aisling Lockhart, Reading Room Services
Executive, Manuscripts & Archives Research Library, Trinity College, Dublin; Sarah Rodriguez,
Reading Room Administrator, St. Andrew’s University; Prof. Geoffrey T. Martin, Hon. Keeper
of the Archives, Christ’s College, Oxford; Michael Riordian, Archivist, St. John’s and the
Queen’s College, Oxford; Judith Curthoys, Archivist, Christ Church, Oxford; Phillipa
Grimstone, Sub-librarian, Magdalene College, Cambridge; YiWen Hon, Graduate Library
Trainee, St. John’s College, Cambridge; Andrew Mussell, Archivist at Gray’s Inn; Jo Hutchings,
Mrs Frances Bellis, and Guy Holburn at Lincoln’s Inn; Ursula Mitchel, manager of the Queen’s
University of Belfast Archive; Patrice at the Student Records Office, Queen’s University of
Belfast; Adele, of the Archives and Special Collections, SOAS Library; Peter Mennie at the
Highland Council Archives, and the Trustees of the Macleod of Cadboll papers. A special thanks
to Sherina Petit for hosting me in London in December 2012.
Many thanks to the descendants of the judges who very kindly helped me get information on
their ancestors: Mr K.N. Suntook (Justice D.D. Davar), Mr Anand Tendolkar and family (Justice
S.R. Tendolkar), Mr Parag Tripathi (Justice S.R. Tendolkar), Hon’ble Justice M.B. Lokur
(Justice N.S. Lokur), and Jayal Nazar (Justice Nanabhai Haridas).
I had the privilege of presenting my doctoral dissertation publicly on a few occasions and I’m
grateful to the organizers and participants. I would like to thank all the members of the JSD
program who listened patiently and offered comments during my several presentations at the
colloquium. I’m very grateful to Mr Muncherji N.M. Cama, Dr Nawaz Mody, and the trustees of
the K.R. Cama Oriental Institute, for hosting a lecture I delivered in Mumbai in November 2013,
and to the members of the audience. Many thanks to the members of the faculty at the National
Academy of Legal Studies and Research (NALSAR), Hyderabad, who heard me present my
dissertation there in February 2014, especially to Professors Amita Dhanda and Sidharth
Chauhan. Many thanks to Moira Gillis and to those who attended and very helpfully commented
on my presentation at Oxford University in March 2014, at the Oxford Legal History Forum.
I’m also very grateful to the team at Oxford University Press, for making the publication of
my doctoral dissertation possible.
Last, but most importantly, I would like to thank my family, which has always stood by me
like a rock. My beautiful wife Radha—I could not have done this without you. Thank you Baba
and Aai, my wife’s parents, for continuing to treat me like a son: this book owes its existence to
your blessings and love. Thank you, Shridhar Mama and Shalini Mami, Pranay and Vinayak
(and Sultan), for hosting me in Delhi in the enjoyable months of November and December 2013.
Thank you Nanak Kaka, Helga Kaki, and family, for all your support and help during my stay in
Delhi. Thank you Sharda and Gaurav for all the warmth and kindness, and the lovely memories,
while hosting me in London in March 2014. Thank you Trupti Maushi, David Uncle, and Sam,
for never letting me forget that I had a place I could call home in the Bay Area, so far away from
home. Thank you Saloni and Raj Doshi, and Sandeep and Meghana Ranade, for all the great
memories. Thank you Vidula Maushi, Vikas Kaka, and Sanil Sondhi, for all your kindness and
help in 2008–9. Many thanks Nani, Dad, Kalpana, and Chintan.
Photograph 1 Portrait of Justice Mahadeo Govind Ranade
Source: Bombay High Court Judges’ Library
Photograph 2 Portrait of Justice Narayan Ganesh Chandavarkar
Photograph 3 Portrait of Chief Justice Lawrence Hugh Jenkins
Photograph 4 Portrait of Justice Lallubhai Asharam Shah
Photograph 5 Portrait of Chief Justice John William Fisher Beaumont
Photograph 6 Portrait of Justice Harilal Jekisondas Kania
Photograph 7 Portrait of advocate John Duncan Inverarity
Photograph 8 Chief Justice Charles Sargent’s court. Seated (left to right): Farran, Sargent CJ, Bayley. Standing (left to right):
Candy, Ranade, Jardine, Parsons
Source: High Court at Bombay: 1862 to 1962 (Bombay: Government Central Press, 1962).
Reproduced with the kind permission of the Hon’ble Chief Justice of the Bombay High Court, Chief Justice Mohit Shah.
Photograph 9 Chief Justice Lawrence Jenkins’ court. Standing (left to right): Aston, Chandavarkar, Batty. Seated (left to right):
Russell, Batchelor, Jenkins, Tyabji
Source: High Court at Bombay: 1862 to 1962 (Bombay: Government Central Press, 1962).
Reproduced with the kind permission of the Hon’ble Chief Justice of the Bombay High Court, Chief Justice Mohit Shah.
Photograph 10 Chief Justice John Beaumont’s court. Beaumont served as Chief Justice between 1930–43. Only 4 of the
court’s 12 judges in this photograph were Britons. Seated (from left to right): K.C. Sen, H.V. Divatia, Harilal Kania, Chief
Justice Beaumont, N.J. Wadia, A.S.R. Macklin, M.C. Chagla. Standing (left to right): N.H.C. Coyajee, E. Weston, N.S. Lokur,
J.B. Blagden, G.S. Rajadhyaksha
Photograph 11 Statue of Chief Justice Lawrence Hugh Jenkins on the front lawns of the Bombay High Court
Source: Author
Photograph 12 A young barrister M.R. Jayakar
Source: Mr Rajan Jayakar
Photograph 13 Justice M.C. Chagla
Photograph 14 Justice Dinsha Davar
Source: Bombay Law Reporter
Introduction
Some months after India became independent in August 1947, something unprecedented
happened at the Bombay High Court. A young, forty-seven-year-old judge with less than ten
years of judicial experience, Mahomedali Currim Chagla, was sworn in as the Bombay High
Court’s first Indian Chief Justice.1 During the British Raj, twelve Chief Justices had served on
the Bombay High Court, and all of them had been Britons. Chagla’s appointment powerfully
symbolized the transfer of power that had taken place from British to Indian hands. To celebrate,
a flood of lawyers, judges, and other well-wishers wrote warm, congratulatory letters to Chagla,
letters which still survive in a bulky folder at the Nehru Memorial Museum and Library in New
Delhi. The historian who reads these letters is at once likely to be struck by something quite
strange: none of the letters, written to Chagla on the euphoric occasion of his appointment as the
first Indian Chief Justice of the Bombay High Court, against the backdrop of Indian
independence, contained any expression of bitterness or ill-will towards the administration of
justice in British India. For example, nobody wrote to Chagla that the Bombay High Court would
have to undo its British colonial past, or make amends for its colonial-era rulings. Quite the
opposite, many who wrote to Chagla told him that he would have to maintain the high traditions
of impartiality and independence in the administration of justice that the British had left behind.
For example, one of the most prominent Indian lawyers who practised at the Bar of the Bombay
High Court, Sir Jamshedji Kanga, wrote a letter to Chagla, in which he informed Chagla:
You have the honour to succeed illustrious Chief Justices who have made the name of the Bombay High Court famous in
India and even in England. Those of us who know you are fully confident that you will maintain the best traditions of
British Justice and will prove a worthy successor of Chief Justices like Sir Charles Sargent and Sir Lawrence Jenkins.2
As one of early independent India’s most respected lawyers, Kanga mentored a new generation
of influential lawyers and judges who rose to prominence in subsequent decades. For example,
the noted constitutional law scholar, H.M. Seervai, the formidable constitutional lawyer, Nani
Palkhivala, and one of the most famous Chief Justices of the Supreme Court of India, P.N.
Bhagwati, all belonged to the chambers of Sir Jamshedji Kanga. Kanga’s advice to Chagla was
therefore very puzzling. This was not merely a view that was held in private, behind closed
doors. On his first day in court as Chief Justice, Chagla made a speech in which he openly
declared that the Bombay High Court would do well to maintain its old British traditions even in
independent India. Even several decades after India became independent, as he was nearing the
end of his life, Chagla proudly remembered this promise he had made, as Chief Justice of the
Bombay High Court, to maintain the high traditions that the British had left behind:3
[W]hen I look back at the line of illustrious predecessors whom I am following, I feel very humbled indeed. I know the
great traditions they have laid down for this Court and my one prayer to the Almighty is not that I should improve upon
those traditions but that I should succeed in keeping those traditions intact and untarnished….We are scrapping many things
which we have inherited from the British, but there is one thing we should not scrap and that is the administration of
justice.4
When India became independent, none of the judges of the Bombay High Court lost their jobs,
except the outgoing British Chief Justice, Sir Leonard Stone. Oddly, at the stroke of the midnight
hour on 15 August 1947, the judges who had once served on a colonial court in British India
transitioned almost effortlessly into being judges on a decolonized court in independent India.
Many of these judges—Chagla, Gajendragadkar, Tendolkar—became widely acclaimed and
respected figures in the legal profession of independent India. All this presents a puzzle to the
student of legal history. When regimes radically change, ‘collaborators’ who are associated with
the old regime are often prosecuted and penalized.5 For example, after the collapse of the Berlin
Wall, East German judges and prosecutors were purged from the legal system.6 Why did
something similar not happen in Indian courts after India became independent in 1947? Students
of India’s legal history are familiar with the fact that the Bombay High Court was a place where
imperialistic atrocities were perpetrated against the British Empire’s opponents. After all, it was
the Bombay High Court which sentenced some of India’s most prominent nationalist leaders—
leaders like Tilak, Savarkar, and Gandhi—for engaging in anti-imperial activities. Why were the
judges of the Bombay High Court not penalized for collaborating with an illegitimate colonial
regime after India became independent?
Examining the backgrounds and lives of approximately eighty-three7 judges—Britons and
Indians—who served on the Bombay High Court during the colonial era, and exploring the
court’s colonial past, this book attempts to understand why British colonial institutions like the
Bombay High Court flourished even after India became independent, and why members of
India’s colonial-era legal profession—judges like Chagla and lawyers like Kanga—thrived in
independent India. In the process, this book will attempt to unravel complex changes which took
place in Indian society, the legal profession, the law, and legal culture during the colonial era.
Methodologies like collective biography and prosopography,8 and forms of inquiry familiar to
scholars of law and society, will be used to examine published and unpublished sources like
newspapers, autobiographies, biographical dictionaries, private papers, and case records.
Cutting across the disciplinary divide of law and history, three main themes will be presented
in this study, which will help explain why the court transitioned so seamlessly from colonialism
to independence.
First, this study will demonstrate that colonial courts like the Bombay High Court functioned
independently of the other branches of government, despite the fact that the colonial judiciary
was not strictly separated from the executive. We will see that judges of the Bombay High Court
lacked what constitutional law scholars would argue are the indispensable, structural
prerequisites of an independent judiciary. In particular, the court’s judges held their offices not
during ‘good behaviour’ like British judges, but during the ‘pleasure’ of the Crown, for most of
the colonial era. Even so, we will see that the judges of the court decided cases quite
independently of the executive, a finding which will call into question our assumptions about
what it takes to build an independent judiciary. We will see that the average criminal conviction
rate in colonial Bombay was a modest 50 per cent. Among other things, this book will argue that
it is not merely structure, but culture, which makes a judge independent.
Second, we will see that the process of decolonization in India was one which took place
gradually, not overnight. Though the formal transfer of power occurred in 1947 when India
became independent, a silent transfer of power had been taking place at the Bar and Bench of the
Bombay High Court in a process that stretched out over several decades, with its origins in the
1880s. The litigants, pleaders, solicitors, and advocates of the court drove the process of its
Indianization, such that on the eve of independence, the court was essentially an Indian court
(and had been one for decades).
Third, though colonial-era Indian lawyers and judges often faced racial discrimination in
British India, this book will make the case that colonial institutions of justice like the Bombay
High Court were not emblems of racial discrimination against Indians. Race was often irrelevant
in how the Bombay High Court functioned. It was seniority, not race, that determined which
judge on a bench got to write the judgment in a case. Despite their different racial identities, the
British and Indian judges of the court developed close personal bonds with each other, on
account of their similar class backgrounds. In high-stakes cases, the best lawyers were retained
on their own merits, irrespective of the colour of their skin. We will see that race could not
predict how judges would decide cases in the colonial era. Indian judges like Narayan
Chandavarkar and Dinsha Davar decided important political cases against Indians, while the
British Chief Justice, Lawrence Jenkins, earned a reputation for being a ‘Pro-native partisan’ and
for encouraging Indian lawyers. Though racial discrimination against Indians was doubtlessly
prevalent in the colonial era, by the time India became independent in 1947, colonial courts like
the Bombay High Court were no longer perceived to be oppressive institutions of racial
discrimination against Indian lawyers and judges.
LITERATURE REVIEW
In 2012, the Bombay High Court celebrated the 150th year of its existence.9 As one of three
High Courts first set up in colonial India in 1862, it functioned as a court of original and
appellate jurisdiction10 during the British Raj for over eighty years, occupying the topmost rung
of the judicial hierarchy in the all-important Bombay Presidency.11 With an approximate
population of around twenty million,12 and an area of nearly 200,000 square miles,13 the colonial
presidency of Bombay was larger than and nearly as populous as many of the major European
countries of the time.14 Yet, remarkably little is known of how the Bombay High Court
functioned during the colonial era, and why it transitioned so seamlessly into the post-colonial
context once India became independent in 1947. The historiography of the court is quite literally
anecdotal. The most well-known books written on the history of the court focus on humorous (at
times, possibly apocryphal) stories about ‘eminent’ judges and ‘great’ lawyers, bordering on
hagiography. Stories abound of how one or the other colonial-era Bombay lawyer or judge had a
good memory or bad temper,15 but little is known of who the court’s judges were as a group,
how they fit into the empire’s grand scheme of colonial rule, or how the court itself functioned in
the socio-political landscape of British India.
This book is an institutional study of the Bombay High Court, a court which survives to this
day in stature and importance, one which has been vastly influential in shaping the culture of
independent India’s Supreme Court. Books have periodically been written to commemorate the
Bombay High Court’s 100th, 125th, and 150th anniversaries,16 but (with the odd exception)
these tend to contain unscholarly, though doubtlessly valuable accounts of the court’s history:
such as first-hand reminiscences of judges’ and lawyers’ experiences working in the court;
interesting anecdotes on note-taking17 and sleeping judges;18 occasionally, the usual platitudes
concerning the court’s ‘eminent’ judges and ‘great’ lawyers; and generally unsubstantiated
claims about how the court itself was a bastion of independence and liberty in British colonial
India.
Very few scholars have investigated the legal history of Bombay alone,19 and no scholar has
ever prepared a collective portrait of the colonial-era judges of the Bombay High Court. An early
legal historian, P.B. Vachha, wrote a selective, anecdotal history of certain famous judges,
lawyers, and cases of the Bombay High Court.20 Vachha’s chapter on judges consisted of semi-
biographical vignettes which did not shed much scholarly light on the place of the Bombay High
Court in colonial India.21 Much of the remaining literature on the Bombay High Court focuses
on humorous stories,22 or a few judges,23 without painting a broader picture about the place of
courts in the architecture of colonialism. Biographies have been written of three early judges who
served on the Bombay High Court during the Raj.24 Written often, though not always,25 by the
judges’ descendants26 (who were, at times, consequently unable to objectively distance
themselves from their subjects), these biographies typically ventured too often towards
hagiography,27 and revealed little or nothing about the other judges who served on the court.28
The literature on other High Courts in colonial India is also deficient, though it is certainly
valuable. Two scholars—Buckee29 and Paul30—wrote about the legal profession of colonial
Allahabad and Madras respectively. These authors wrote about colonial judges only
tangentially.31 By looking at the legal profession of Bombay through the lens of the judges who
served on the Bombay High Court, this book will shed light on themes similar to the ones
touched upon in these studies, for example, the colonial Indian legal profession’s involvement
(or abstinence) from politics, and the struggle between British barristers and Indian Pleaders at
the Bar.32 This book also contributes to the literature which examines institutions like courts and
bureaucracies by studying those who served on those institutions.33 Studies have been
undertaken of other colonial institutions in British India (the Indian Civil Service,34 the police,35
the army36), and this book will contribute to the debates these studies have engaged with.
The study of the legal history of the British Raj in India is characterized by a disciplinary
divide between lawyers and historians.37 Lawyers are interested primarily in structural
constitutional changes over time, and it is not the law in action, but the law on the books that is
almost always the focus of inquiry, for example how many elected legislators were to hold office
under the Indian Councils Act, 1892, or how extensive the jurisdiction of courts was under the
Indian High Courts Act, 1861.38 On the other hand, historians have examined India’s legal
history by asking questions they are familiar with, questions which cut across themes like legal
pluralism, domination and resistance, and law and identity. Much of the existing literature on
colonial judiciaries falls within the ‘law and identity’39 categorization and focuses on questions
like how ‘native’ identities were defined and redefined in colonial courtrooms. As a
consequence, the conversation has often ceased to be about the institutional structure of the Raj,
about separation of powers or the independence of the judiciary, but has been overtaken by
debates about identity and ethnography.
For example, Mitra Sharafi, most of whose work focuses on the Parsi community, used
judicial biography to shed light on the influence of identity in personal law cases,40
demonstrating that it was mostly British and Hindu judges, not Muslim ones, who carried out a
‘chivalric imperialist’ defence of Muslim wives in Islamic law cases.41 Sharafi also studied how
non-European lawyers and judges helped shape the identities of their own communities by using
colonial courts as ‘factories for legal ethnography’.42 Likewise, Likhovski demonstrated how the
background of judges on the Supreme Court of Mandate Palestine impacted the extent of their
willingness to import principles of the British common law into the colony, how those from
marginalized backgrounds were more willing to import British law out of empathy for the
natives.43 Though illuminating, this literature on colonial judiciaries, part of a broader debate
about the ‘role of law in the definition of identity’,44 leaves out questions that are equally
interesting, especially to scholars of constitutional law and political science. Colonial courts
might have been instrumental in shaping identities, but they were also vital organs of the political
state, potential theatres of conflict where the colonial government’s policies might either have
been impudently challenged or brutally reinforced. How were these colonial courts designed,
how and why were judges appointed and removed, why were Indian judges appointed to these
courts at all, were courts independent, and what role did judges play in the power dynamics of
the Empire?
There are other gaps in the literature on colonial judiciaries. Since many important courts in
the British empire did not have ‘native’ judges serving on them, the focus of study in the colonial
judiciaries literature is usually British judges.45 By contrast, twenty-nine out of the Bombay High
Court’s approximately eighty-three judges, that is, nearly 35 per cent of the judges who served
on the court during the British Raj, were Indians, and Indian judges will form the primary focus
of my book. Further, studies involving the colonial judiciary often do not focus on the judges
themselves, or on judicial politics, but on substantive law,46 though there is much to be gained in
examining the politics of judicial appointment and removal, in order to answer the question of
whether colonial courts were independent.47 At times, the literature on colonial judiciaries
selectively focuses on instances of conflict between the executive and judiciary.48 However, the
anecdotal methodology employed by such studies makes them vulnerable to the criticism of self-
selection. Further, much can be gained by examining judges who were not disciplined or
threatened with discipline.
More generally, important political courts like the Bombay High Court are seldom the focus
of study in the ‘law and colonialism’ literature for India. The focus of investigation is usually
one case,49 a set of cases in one substantive field (for example, property law,50 or personal
law51), or non-appellate courts.52 From a law and society perspective, studies of unimportant
cases, or non-appellate courts have obvious value in the aggregate, but studies of highly visible
political courts have value too. Even the leading voice of the “subaltern53 studies movement,
Ranajit Guha, acknowledged that a historical study of elite figures is valuable in explaining
things like the structure of the colonial state and the operation of its organs.54 My book will
attempt to address this gap in the literature by examining how a very important, political court
functioned in colonial India.
SOURCES
Data for this book were collected from various sources. The list of judges who served on the
court was compiled from two sources: law reports55 and books published under the aegis of the
Bombay High Court itself, on the occasion of court’s 100th, 125th, and 150th years in
existence.56 Biographical information on the judges was then obtained from the following
resources: newspaper archives, primarily Proquest’s Times of India archives,57 the Inner Temple
admission database, the World Biographical Information System database, the Oxford Dictionary
of National Biography, the Indian Biographical Archive,58 university databases,59 law reports,60
periodicals,61 Mitra Sharafi’s ‘South Asians at the Inns’ database,62 and biographical
dictionaries63 authored by Buckland,64 Foster,65 Boase,66 and others.67 This book also relied on
autobiographies, autobiographical accounts, speeches, or articles written by colonial-era
lawyers,68 judges,69 officials,70 journalists,71 and politicians,72 or their wives,73 wherever
available. I also consulted departmental records and private papers of colonial-era lawyers and
judges, at the National Archives of India in New Delhi,74 the Nehru Memorial Museum and
Library in New Delhi,75 the British Library in London,76 the Highland Council Archives (HCA)
in Scotland,77 and the National Library in Wales.78 Of course, I read through many of these
sources sceptically, ‘against the grain’, given the methodological problems associated with
relying on sources like autobiographies—historians complain that memories of autobiography
writers get weaker, and writers often inflate the importance of their own careers.79 In addition to
the British-owned Times of India, this book also relies on nineteenth century archives of the Indu
Prakash, an Indian-owned, bilingual weekly newspaper which was published from Bombay.80
CHAPTER OUTLINE
Chapter 1 sets the stage by describing the structure of government, the legal profession, the
colonial judiciary, and legal education in British India. The chapter begins by discussing the
legal profession of colonial Bombay, particularly focusing on tensions between British and
Indian lawyers or ‘Advocates’ and ‘Pleaders’, and on the division between the Bombay High
Court’s ‘Original Side’ and ‘Appellate Side’. The chapter introduces readers to the colonial
judiciary in India, especially to matters like who was eligible to become a High Court judge, how
High Court judges were appointed and removed, and their tenure and compensation in office.
The chapter then discusses the government’s heavy regulation of legal education in Bombay, and
how law students were discouraged from engaging in anti-government discourse.
Chapter 2 uses a biographical approach to examine how Indian judges were appointed to the
Bombay High Court. It begins by laying out the political environment in which the first
permanent Indian judge of the Bombay High Court, Nanabhai Haridas, was appointed to the
court, and particularly focuses on the ‘Ilbert Bill’ controversy involving the question of whether
Indian magistrates could try British prisoners. The chapter then examines the lives of the other
Indian judges who were appointed to the court in the nineteenth century, and finds that they were
all ‘public-spirited’ lawyer-politicians prior to their elevation to the Bench. We will then see that
the Indian judges who were appointed to the court in the twentieth century were different from
their predecessors because they were professional lawyers, with almost no interest in politics.
The chapter examines why this change might have occurred between the profiles of the court’s
nineteenth and twentieth century Indian judges, attributing it to reasons like the increasing
competitiveness of the Bar, and the fall in the prestige of the Bombay High Court Bench, in the
twentieth century. The chapter then concludes by describing the Indianization of the Bombay
High Court Bench, as a result of which nearly all the court’s judges on the eve of independence
were Indians.
Chapter 3 uses a detached, prosopographical approach to examine why the Indian and British
judges of the Bombay High Court shared warm, cordial social relations off the Bench, despite
the generally antagonistic nature of race relations in British India from which the Indian
members of the legal profession were not exempt. The chapter analyses the following data,
extracted from the judges’ profiles, in order to ascertain the socio-economic background of the
court’s judges: education (high school and university), professional qualifications, work
experience, ethnicity, and father’s occupation. We will see that the Indian judges of the Bombay
High Court came from a relatively affluent section of Indian society, whereas the British judges
of the court came from a relatively middle-ranking section of British society. Thus, ironically,
though institutions like the Indian Civil Service and the colonial judiciary presented
opportunities for Britons to achieve upward social mobility, they did not afford similar
opportunities for Indians from less privileged backgrounds to move up the social ladder. The
chapter argues that the relative similarity of their backgrounds made it very easy for the British
and Indian judges of the court to relate to one another.
Chapter 4 sets out the results of a study of nearly 500 randomly selected cases decided by the
Bombay High Court during the colonial era. The chapter discusses the judicial culture of the
court during the British Raj: the types of cases the court decided, the identity of the litigants and
lawyers who came before the court, how judges shared the responsibility of deciding cases and
writing opinions, and the nature of the opinions themselves (for example, opinion length, the use
of foreign precedents, tone, style, etc.). The judicial culture of the court provides interesting
insights into the nature of the administration of justice in British India. In particular, this chapter
explores the Indianization of the Bombay Bar and the absence of large-scale racism in the day-
to-day functioning of the court.
Chapter 5 examines some of the peculiar institutional features of the Bombay High Court and
its judges. We will see that four features of the court particularly stood to undermine its
independence from the other branches of government. First, no Indian judge ever became the
Chief Justice of the Bombay High Court during the colonial period. We will see that three of the
court’s Indian judges—Tyabji, Shah, and Kania—came close to becoming Chief Justices, but
either fate or politics intervened. Second, though judges in Britain had enjoyed security of tenure
by holding their offices during ‘good behaviour’ since 1701, judges in India held their offices
during the ‘pleasure’ of the Crown for most of the colonial period. This made it theoretically
possible for them to be removed at any time, though this seldom occurred after 1899. Third,
temporary judges called ‘acting judges’ were constantly appointed to the Bombay High Court
whenever the court’s permanent judges went on leave to go back to Britain. These acting judges
were appointed by the local Bombay government and their temporary status on the court made
them vulnerable to the government’s interests. Fourth, a substantial proportion of the Bombay
High Court’s judges belonged to the Indian Civil Service—the bureaucracy which ran the
country—and so, the court was not formally separated from the executive in a very real sense.
Chapter 6 argues that the judges of the Bombay High Court were actually quite independent
of the other branches of government, despite the lack of formal independence seen in the
previous chapter. We will see that routine criminal cases were often decided in favour of the
accused and against the government. These cases are then contrasted against some of the most
important, politically sensational cases, which were decided by the Bombay High Court in
favour of the government in the colonial era. This chapter concludes by offering some
explanations for why this occurred, arguing among other things that though the Bombay High
Court’s judges were culturally independent of the other branches of government, they might have
been ideologically biased in favour of British rule in India.
CHAPTER ONE
Background
This chapter sets the stage for the findings presented in subsequent chapters. It begins by
describing the structure of government, as British India transitioned from East India Company
rule to Crown rule, and particularly, the division of executive power between the Secretary of
State, Viceroy, and Governors. Among other things, we will see that the ‘Original Side’ and
‘Appellate Side’ of the Bombay High Court grew out of separate courts which existed during the
East India Company’s reign in India: the Supreme Court and Sudder Court respectively. This
chapter will then describe the structure of the legal profession of Bombay during the British Raj,
particularly focusing on the distinction between ‘Advocates’ and ‘Pleaders’, and on the
privileged status which barristers, called to the Bar at one of the Inns of Court in Britain, were
entitled to in Bombay. The structure of the colonial judiciary will then be discussed, with a
particular emphasis on who was eligible to become a judge of the Bombay High Court, how the
court’s judges were appointed and removed, the nature of their tenures in office, and their
compensation. We will see that the judiciary was institutionally designed in a manner which
tended to exclude Indians from its composition.
We will then examine the nature of legal education in the Bombay Presidency during the
colonial era. Lawyers were a suspect class of individuals during the British Raj (though they
were not as heavily regulated as they had been under the East India Company), and the quality of
legal education was consequently quite poor. We will see that legal education was monopolized
by the colonial government for a long time, and that law students were not allowed to think
critically or to criticize the government. Further, unlike some of the other educational institutions
established by the colonial government in Bombay like Elphinstone College, we will see that the
Government Law School—for a long time, the only law college in the entire presidency of
Bombay—had a poor reputation, such that its own alumni tended to distance themselves from it.
STRUCTURE OF GOVERNMENT
British colonial rule in India is said to have begun in the mid-eighteenth century, when the East
India Company (hereinafter ‘Company’) became a territorial power in Bengal.1 However, the
Company established its first presence in India much before then, in the seventeenth century.2
Over the next two centuries, the Company would built three port cities in India—Calcutta,
Madras, and Bombay,3 each of which would become an important centre of colonial government
in British India. A term coined during Company rule in India, the provinces of Bengal, Madras,
and Bombay would be referred to as ‘Presidencies’, so named because a Company official
known as a ‘President’ was stationed there.4 Acquired from the Portuguese, the ‘Port and Island
of Bombay in the East Indies’ was transferred by the British Crown to the Company in 1668.5
Broadly speaking, there were two sets of courts in India under the East India Company: one
court run by the Crown, and a hierarchy of courts run by the Company. The Crown court, which
evolved from the Mayor’s Court (1728–98), to the Recorder’s Court (1798–1824), and finally
the Supreme Court (1824–62),6 was only run out of the town of Bombay.7 No Indian person
served as a judge of the Crown court. Lay judges, who were Company servants, served on the
Mayor’s Court,8 but the Recorder of Bombay and all subsequent Supreme Court judges were
legally trained barristers, and were knighted by the Crown before being sent out to Bombay.9
The Supreme Court only heard cases that originated in the town of Bombay, and it would
eventually become the ‘Original Side’ of the Bombay High Court. Outside the town of Bombay,
the Company ran a hierarchy of courts in the Bombay Presidency,10 whose decisions could
finally be appealed before the ‘Court of Sudder Dewannee and Sudder Foujdaree Adawlut’,
which roughly translated means the Supreme Civil and Supreme Criminal Court, located in the
town of Bombay. This was one court, not two distinct courts (one civil and one criminal), as is
often made out to be in the literature. The ‘Sudder Court’, as it was called, was manned by
members of the Indian Civil Service, and would eventually become the ‘Appellate Side’ of the
Bombay High Court.
After the mutiny of 1857, which has also been described as the first war of India’s
independence, Company rule was dissolved in India, and the Government of India was subjected
to the control of the Crown and British Parliament.11 Before the mutiny, British India had a
central government headed by a Governor-General and provincial governments headed by
Governors. Broadly speaking, the structure of India’s government remained the same after the
mutiny, though the Governor-General was now called the ‘Viceroy’.12 After the mutiny, the
Company era ‘Board of Control’ and ‘Court of Directors’13 in Britain were replaced by a
‘Secretary of State’ who was a member of the cabinet,14 and answerable to Parliament. The
Secretary of State (often referred to in official government correspondence as the ‘S. of S.’) was
aided by a council of advisors known as the ‘India Council’ and by a bureaucracy known as the
‘India Office’15 manned by members of the British Civil Service. Henceforth, constitutional
reforms in India would often be named after the Secretary of State and Viceroy. For example, the
‘Morley-Minto’ reforms of 1909 and the ‘Montagu-Chelmsford’ reforms of 1919 were so named
because Morley and Montagu were Secretaries of State while Minto and Chelmsford were
Viceroys. Secretaries of State in Britain worked in close alliance with the Viceroy of British
India and the Governors of the provinces,16 each of whom had executive and legislative
councils.17 Formally speaking, for much of the British Raj, there was no official body called the
‘Legislative Council’ in the provinces. The Governor had an Executive Council consisting of a
handful of (usually nominated) members, to which certain ‘additional members for making laws
and regulations’ were added when legislation was being formulated. Together, the Governor, his
Executive Council, and these ‘additional members for making laws and regulations’ were
considered to be the legislative council of the province. This was under the Indian Councils Acts
of 1861 and 1892. One Governor of Bombay wrote in his autobiography that it was the ‘duty of a
Governor to write a weekly letter to the Secretary of State’,18 and correspondence was frequently
exchanged between the Secretary of State and Viceroy. Modelled on government in the United
Kingdom, Viceroys and Governors in India were typically appointed for five-year terms,19 and
they consequently served shorter terms in office than High Court judges. Though the native
states were relatively autonomous territories subject only to the suzerainty of the British crown,
their affairs were often handled by the Governor of the neighboring British Indian province.
Thus, there were approximately 350 native states, large and small, which were under the control
of the Bombay Government. More than half the native states in India were under the Bombay
government.20
With the end of Company rule in India, in 1861, Britain’s Parliament enacted the Indian High
Courts Act, authorizing the Crown ‘by Letters Patent under the Great Seal of the United
Kingdom’ to set up High Courts of Judicature at Calcutta, Madras, and Bombay.21 Consequently,
in 1862,22 over a decade before a High Court would be established in Britain unifying the
common law and equity jurisdictions,23 Queen Victoria issued a charter establishing a ‘High
Court of Judicature’ in Bombay,24 formally merging the jurisdiction of the Supreme Court and
the Sudder Court of Bombay. As a consequence, the High Court had original and appellate
jurisdiction, and members of its practising Bar would forever be identified as belonging either to
the ‘Original Side’ or the ‘Appellate Side’,25 the former of which was considered to be the more
prestigious branch of the legal profession.26 The ‘Original Side’ of the Bombay High Court
replaced the Supreme Court, while the ‘Appellate Side’ replaced the Court of Sudder Dewannee
and Sudder Foujdaree Adawlut.27 In fact, for a long time, the Appellate Side of the Bombay
High Court was referred to as the ‘the Sudder’,28 a practice which probably came to an end
sometime after the Original and Appellate Sides of the court came together under one roof for
the first time, when the new High Court building was occupied in 1879. For over a decade, the
Original Side of the High Court was housed in a building known as Hornby House (which later
became the Great Western Hotel),29 near Elphinstone Circle (now Horniman Circle).30 The
Appellate Side of the court sat at Mazgaon.31 The High Court building was constructed on a
piece of land called the ‘Esplanade’ (or the ‘Maidan’32) which had become vacant after the fort
walls were pulled down in 1860.33 Possibly modelled on a castle on the river Rhine in
Germany,34 it had taken approximately seven years to build.35
An appeal lay from the High Court to the Judicial Committee of the Privy Council in
England, and, starting in 1935, a limited appeal also lay to the Federal Court of India.36 The High
Courts of India were not bound by each others’ decisions.37 Interestingly, the Bombay High
Court did not have appellate jurisdiction over courts in the native states of British India which
were in a ‘political relationship’ with the Government of Bombay. Instead, appeals from civil
and appellate courts in these states were considered by the Governor’s Executive Council (such
appeals would usually not get a hearing).38 Beneath the High Courts, provinces in British India
were divided into judicial districts, each district falling within the jurisdiction of a District and
Sessions Judge, who had combined civil and criminal jurisdiction.39 Beneath the District Courts
of each province were the subordinate courts, manned by first class and second class subordinate
judges.40 Higher level posts in the districts were usually reserved for members of the Indian Civil
Service, comprised mostly of British officers (though Indians slowly joined the service as the
decades of the Raj progressed), while lower level posts went to members of the Bombay
Provincial Service,41 comprised mostly of Indian officers. In the town of Bombay, there were
two courts subordinate to the High Court—the Presidency Magistrates’ courts (or ‘police
courts’42), and the Small Causes Court.43 The High Court exercised administrative control over
the subordinate courts in the Presidency, and High Court judges would periodically conduct
inspection tours of the districts.44
The High Court was to consist of a Chief Justice and no more than fifteen45 judges. However,
for nearly sixty years, the Bombay High Court had no more than seven judges.46 At the court’s
inception, the judges of the erstwhile Supreme Court and the Sudder Court of Bombay
automatically became judges of the High Court.47 The Chief Justice of the Supreme Court of
Bombay, Sir Mathew Richard Sausse, became the Chief Justice of the High Court.48 Though the
number of lawyers increased during the British Raj, it is interesting that the number of judges
who served on higher appellate courts during the Raj remained much the same. During the
Company era, the Supreme Court of Bombay had only two judges—one Chief Justice and one
puisne judge;49 while the Company-run Sudder Court typically had four to five judges serving on
it, with one Chief Judge and three to four puisne judges.
Criminal cases in the Bombay Presidency were tried before a jury. Juries in British India
were very controversial. Under certain conditions, judges could override the decisions of juries.50
Further, certain cases were required to be heard by ‘special juries’, where the racial composition
of the jury was fixed in order to ensure that there were a majority of Europeans on it and a
minority of Indians. Juries consisted of nine or fewer jurors.51
English was the official language in the High Courts, though interestingly, one court on the
Appellate Side of the High Court of Bombay was for some time called the ‘Vernacular Court’, in
which Indian Pleaders could address the court in Indian languages (probably Marathi or Gujarati)
and have English arguments translated for their benefit.52
THE LEGAL PROFESSION

During the Company era, the number of lawyers in Bombay was kept consciously low because
the Company was very suspicious of lawyers.53 In 1820, for example, there were only five
barristers and seven Attorneys in Bombay, while in 1859 there were eleven barristers and
twenty-one Attorneys.54 Further, there were no Indians who practiced as barristers or Attorneys
before the Supreme Court of Bombay during the Company Raj.55 As Figure 1.1 demonstrates,
things changed under the Crown, and Indians slowly started infiltrating categories formerly
reserved for Europeans during the Company era. The number of lawyers also steadily rose
during the British Raj. By 1885, there were fifty-eight Advocates and sixty-one Attorneys in
Bombay, over a third of whom were Indians.
Figure 1.1 The Rise of Lawyers under the Company and Crown
Source: Data compiled by the author through various sources like the East India Register and Directory, the East India Register
and Army List, and the India List and India Office List.
Broadly speaking, three categories of lawyers practised in Bombay during the British Raj:
Advocates, Attorneys, and Pleaders. ‘Advocates’ and ‘Attorneys’ were predominantly Britons to
begin with, though Indians increasingly filled these categories as the decades of the Raj went by.
‘Pleaders’ were predominantly Indians. ‘Advocates’ had a monopoly over the lucrative practice
on the Original Side of the Bombay High Court.56 The ‘Original Side’ of the court heard cases
that originated or arose within the territorial limits of the town of Bombay, and trials were
conducted before it as the court of first instance. The Original Side also had an appellate chamber
(in other words, not merely did the Bombay High Court hear appeals from lower courts on its
Appellate Side, but it also heard appeals from the Original Side decisions of the High Court’s
own judges: a bench of two High Court judges would usually hear an appeal from a decision of a
single High Court judge). Original Side cases were usually high stakes commercial cases, and
not surprisingly, these were initially monopolized by British lawyers, as it was very difficult to
become an Advocate if you were an Indian, especially in the early years of the Raj. Advocates
could only appear in court on the Original Side if they were instructed by ‘Attorneys’—a form of
division of labour known as the ‘dual system’.57 The Advocate–Attorney distinction in Bombay
was essentially akin to the barrister–solicitor distinction in England. This made cases on the
Original Side particularly expensive to litigants, who had to engage two sets of lawyers to
represent them in court.58 Pleaders, typically Indians, appeared only on the Appellate Side of the
Bombay High Court, and in subordinate courts—they were forbidden from practicing on the
Original Side of the High Court. The Appellate Side of the court only heard appeals from the
decisions of subordinate courts in the Presidency. Advocates, Attorneys, and Pleaders were
admitted and if necessary, removed, by the judges of the High Court.59
It was far easier for a Briton to become an Advocate than for an Indian. There were two
routes to becoming an ‘Advocate’ in Bombay. The first route was easier—any ‘barrister’60 called
to the Bar in the United Kingdom could almost automatically61 enrol as an ‘Advocate’. The
process of becoming a barrister at one of the Inns of Court in London was, by itself, not all that
difficult, but Indians who wanted to become barristers encountered considerable troubles and
expenses. In the nineteenth century, an Indian student needed a hefty sum of approximately Rs
20,000 to study in England (accounted for in the following manner: passage money to England
and back: Rs 2,200; fees, books, etc., during the three years’ stay in England: Rs 7,300; the
expenses of living in England for three years: Rs 10,500), which amounted to a third of the
annual salary of the Chief Justice of Bombay.62 Further, undertaking a voyage overseas was
prohibited by the caste rules of upper-caste Hindus. When a future Bombay High Court judge,
Narayan Chandavarkar, travelled to England in 1885 to lobby for India’s interests during the
general elections there, his community—the Saraswat Brahmins of Kanara—excommunicated
him.63 Gandhi faced many hurdles before he travelled to England to become a barrister in the
late nineteenth century—his uncle considered travel abroad to be an ‘irreligious act’; at his
mother’s request, he had to take a vow before a Jain monk that he would stay away from meat,
alcohol, and women; and he was treated as an outcaste by members of his caste.64 The prominent
Indian leader, Gopal Krishna Gokhale, was ostracized by his Chitpavan Brahmin community for
travelling overseas,65 even though his journey was undertaken in the national interest. Similarly,
an Indian solicitor of Bombay wrote in his memoirs that he did not go to England to become a
barrister, among other reasons, because ‘[e]xpulsion from caste was then a fearful
contingency’.66 Permitting one’s son to travel overseas for study was not all that easy a decision
for a Muslim to make either. In 1860, Badruddin Tyabji was sent to England at the age of fifteen
to study at a high school there, but the family was very worried that Tyabji would abandon his
cultural roots. Before leaving, Tyabji’s father had him married to a ten-year old girl who stayed
back in India, and Tyabji was also required to sign a declaration that he would not waiver in his
faith, in England.67 Eventually, it became easier for Indians to travel overseas. ‘The bonds of
caste are getting looser,’ said one judge in 1883, ‘our friends are going to England with less
difficulty, and more frequently, than before’.68 The colonial government even encouraged
Indians to travel overseas to get called to the Bar, believing that British-trained Indian barristers
would be pro-British in their attitude, a policy which backfired.69 Even so, caste barriers to
overseas travel did not entirely go away.70
Even after going through the trouble and expense of becoming a barrister in England, Indians
faced difficulties on their return to British India. To the European community, Indian barristers
were considered threatening, and were therefore caricatured. As F.W. Dillon, a British lawyer in
Allahabad, patronizingly wrote, ‘[t]he Indian barrister…almost wholly anglicized in his habits
and manners, complains…of the “infernal heat”, and feelingly deplores the loss of the “bittah
beeah” he was wont to quaff when at the ’varsity’.71 Indian barristers were probably also disliked
by Indian lawyers who were not barristers, since barristers had rights of pre-audience.72 In fact,
western educated, anglicized Indians were objects of wonder in British India. In the nineteenth
and early twentieth centuries, it was uncommon for Indians to dress like Europeans anywhere
except in big cities like Calcutta and Bombay.73 Rajendra Prasad, a lawyer who became the first
President of independent India, later wrote of how he encountered Bengali boys who wore
‘European dress and hats’ during his early years in school. ‘Not having seen such things before,’
he wrote, ‘I thought these must be Anglo-Indians or Christians but when their names were called
out, they turned out to be Hindus.’ He surmised that these boys were ‘probably the sons of men
who had been to England for education and were practising as barristers or doctors’.74
In order to get called to the Bar at one of the Inns of Court in London, one did not need to
have a law degree, and not even a university education.75 There were only two conditions a
candidate had to satisfy.76 First, he had to ‘keep terms’, that is, attend six of the twenty-four
dinners held per term, for twelve terms, a process which lasted about three years.77 Second, he
had to pass two examinations, one in Roman law, the other in the common law.78 Gandhi
thought that these processes were a waste of time. ‘I could not see then, nor have I seen since,’
he wrote, ‘how these dinners qualified the stu-dents better for the bar.’79 Also, ‘[e]veryone knew
that the examinations had practically no value’.80 Likewise, Chief Justice Norman Macleod of
the Bombay High Court wrote of the dinners at the Inner Temple, ‘[t]hey were long dreary
functions…and I don’t remember ever finding myself seated next to anyone I felt inclined to talk
to’.81 Macleod would sneak a newspaper into the dinner, and read instead of fraternizing with
fellow-students. Like Gandhi, Macleod too did not think very highly of the bar examinations,
having taken them ‘light heartedly’, and without attending any of the Inns of Court lectures.82
The second route to becoming an Advocate in Bombay was far more onerous83—those who
were not barristers called to the Bar in London could become ‘Advocates’ if they had both an
undergraduate degree and a law degree in India and if they passed an examination conducted by
the Bombay High Court. For example, when Bal Mangesh Wagle, one of the first two students to
graduate from the LL.B. program of the Government Law School in 1866, decided to get
qualified as an Advocate of the High Court, he had to comply with several tedious formalities.84
Wagle was considered eligible to apply to be an Advocate of the Bombay High Court because he
had both an undergraduate and law degree from Bombay University—for which the level of
difficulty was very high. Thereafter, for two years, Wagle had to attend the sittings of the
Bombay High Court on both the Original and Appellate Sides (spending a year on each side),
and to produce a certificate at the end of that period from both the Prothonotary and Registrar of
the High Court evidencing his attendance. Next, he needed to pass a very difficult examination in
law conducted under the supervision of the Bombay High Court called the Advocates
Examination,85 comparable in the level of difficulty with the modern-day solicitors’ examination
still conducted in Mumbai. These examinations were quite formidable—far more difficult than
the examinations at the Inns of Court.86 Even in 1929, at a time when the Advocates
Examination was said to have been easier to pass than before, only 14 per cent of the candidates
who sat for the Advocates Examination passed.87 Finally, Wagle also needed a certificate of
good character and conduct signed by an Advocate of the court. In short, in order to become an
Advocate of the Bombay High Court without traveling to London, Wagle had to go through a
process which was far more demanding than the perfunctory formalities required at one of the
Inns of Court in London.
This second route was typically pursued by Indians, who considered it unfair that they had to
acquire more rigorous academic qualifications in order to become ‘Advocates’.88 In summary, it
was harder for Indians to become ‘Advocates’ than for Europeans—Indians either had to go
through the trouble and expense of travelling overseas in order to get called to the Bar in
London, or to go through onerous academic tests at home.89
In order to appear in cases on the Original Side of the Bombay High Court, an Advocate
needed to be instructed by an ‘Attorney’. An Attorney interfaced with clients, performing ‘non-
contentious’ (that is, transactional) and ‘contentious’ work (that is, litigation), the latter, by
instructing Advocates to appear and argue in court. Those who qualified as Attorneys or
Solicitors in Britain could easily enrol as High Court Attorneys in Bombay.90 Otherwise, in order
to become an Attorney, a candidate needed to work as an apprentice (called an ‘Articled Clerk’)
for three years with a practising Attorney in Bombay, and to pass an Attorneyship Examination
held under the auspices of the Bombay High Court.91 In other words, a person did not formally
need a law degree (for quite some time, not even an undergraduate degree92) in order to become
an Attorney in Bombay,93 though those with a law degree could undergo a shorter period of
apprenticeship.94 It seems that membership in the Incorporated Law Society of Bombay—the
society of Attorneys—was optional for Attorneys.95 The three-year articled clerkship was
designed in such a manner that only the rich could afford to go through it. In an anonymous
autobiographical account written in the Bombay Law Journal in the 1930s, a senior solicitor
warned parents that becoming an Attorney required considerable financial resources:
In order to succeed in practice as a solicitor, one must needs have a fair reserve not only of a spiritual nature, but of a
temporal nature. If an articled clerk is to give undivided attention to learning his calling, parents should see that he is free
from the daily anxiety of maintaining himself during his term of clerkship….Parents should also remember that after
passing the examination, a certain amount of capital will require to be invested for setting up office and for utilisation
during the waiting period. In fairness to the profession, to the public whom it serves and last but not the least, to the articled
clerk himself, parents should have due regard to all these considerations, before deciding upon Law as their sons’ future
career.96
Thus, Indians had to belong to a fairly affluent stratum of society in order to practice as
Advocates or Attorneys on the Original Side of the Bombay High Court. This was not by
accident, but by conscious design. In 1858, R.T. Reid, a Professor of Law at the Government
Law School, delivered a speech in which he expressed his ‘repugnance of bringing paupers to
adopt liberal and honourable professions which ought to have attractions (for) young men of high
social style’.97 ‘It seems particularly desirable,’ the law professor continued, ‘that the native
Bench should be occupied by [a] class of persons corresponding as nearly as the differences
between English and Indian Society permit to the rank of gentlemen.’98 In fact, a fiction was
preserved in England and in some High Courts in British India that barristers’ fees were actually
honorariums—consequently, a barrister could not sue his client to recover his fees, and a client
could not sue his barrister to recover fees for work not done.99 In short, lawyers and judges in
India were meant to come from the upper echelons of society.
The law practice on the Original Side of the Bombay High Court in the early years of the Raj
was dominated by British lawyers. This was not only because it was expensive and cumbersome
for an Indian to become a barrister as discussed above: Indian lawyers complained that they were
initially discriminated against while practising at the Bombay Bar.100 However, all this changed
when Lawrence Jenkins became the Chief Justice of the Bombay High Court in the early
twentieth century. Though Jenkins made the occasional error as a judge,101 and though he had
disagreements with the Indian judge Badruddin Tyabji,102 it was a widely held opinion that when
Lawrence Jenkins became the Chief Justice of the Bombay High Court in 1899, Indian lawyers
finally gained a toehold on the Original Side. In their autobiographies, prominent colonial-era
Indian lawyers like Chimanlal Setalvad, M.R. Jayakar, and Jamshedji Kanga fondly recalled how
Jenkins made the Indian Bar on the Original Side.103 Many years after Jenkins had left the
Bench, an Indian solicitor wrote, ‘[e]veryone, of course, remembers Sir Lawrence Jenkins. He
was not only an able Judge but the very soul of courtesy…’104 The result of Jenkins’ Chief
Justiceship, according to another Indian lawyer, was ‘a slow but continuous process of the
Indianisation of the Original Side Bar.’105 Jenkins was also responsible for founding the Orient
Club, a club where both Europeans and Indians could mix with one another—the first of its
kind.106
The official British community in Bombay disliked Jenkins for his ‘partiality for Indians and
the Indian bar’.107 In fact, the Governor of Bombay once informed the Secretary of State that
Jenkins was looked upon by British officials with a ‘shade of suspicion…on account of his
strong sympathies with Natives’.108 One such official, Charles Kincaid, described in his
autobiography how he contested Jenkins’s attempt to supersede him:
During my leave I had to fight against an effort made by the Chief Justice, Sir Lawrence Jenkins, to appoint over my head
Mr Sethna, the Registrar of the High Court, to be a second-grade district judge. This would have permanently blocked my
promotion. Fortunately I came to hear of the nefarious design, protested against it in an official letter to Government and
won the day. The result was that I, and not Mr Sethna, was promoted to be a second-grade district judge. Mr Sethna was
made Administrator-General.109
Kincaid’s use of the adjective ‘nefarious’ for Jenkins is telling. Later, as Chief Justice of the
High Court at Calcutta, Jenkins and another High Court judge received death threats for deciding
cases in favour of Indians and against Europeans.110
While ‘Advocates’ and ‘Attorneys’ were usually Britons to begin with, ‘Pleaders’ were
almost always Indians.111 Pleaders were prohibited from practising on the Original Side of the
Bombay High Court, and they practised exclusively on the Appellate Side. In other parts of
British India, the term ‘Vakils’ was used to describe Indian lawyers who practiced in the High
Court, while the term ‘Pleaders’ was used to describe Indian lawyers who practiced only in the
subordinate courts. However, all Indian Appellate Side High Court lawyers were called
‘Pleaders’ in Bombay.112 In Bombay, judges from the Appellate Side Bar were called ‘Pleader-
Judges’. One could become a High Court Pleader either by getting an LL.B. degree, or by
passing the High Court Pleaders’ Examination.113 The High Court Pleaders’ Examination was
conducted by a committee appointed by the Chief Justice and judges of the Bombay High Court.
Among other things, candidates needed to prove that they were fluent in one of Bombay’s local
languages, and to pass six law examinations in the ‘Higher Standard’, that is, with 70 per cent
marks in the aggregate.114 This was a particularly difficult examination—in 1891, only two out
of forty-seven candidates passed.115
Barristers (typically Britons) were considered superior to Indian Pleaders and had privileges
over them. For example, if a Pleader were engaged with a barrister in a case, then no matter how
‘senior and distinguished’ the Pleader, or how ‘junior or undistinguished’ the barrister, the
barrister would always have the right to be heard by the judge before the Pleader.116 Pleaders
were often considered inconsequential in official documents. Though the names of Advocates
and Attorneys practising in Bombay were annually reported in official publications like the
‘Indian Army and Civil Service List’, the names of Pleaders were repeatedly omitted. This was
despite the fact that Pleaders had undergone a process of anglicization over several decades,
incorporating English education and even Western dress along the way.117
Two government lawyers claimed rights of pre-audience in the High Court: the Advocate
General and the Government Pleader. The terms ‘Advocate’ and ‘Pleader’ in their nomenclature
tell us what their respective functions were. The Advocate General represented the government
on the Original Side of the Bombay High Court, while the Government Pleader did so on the
Appellate Side of the Court.118 Government Pleaders were likewise treated as less important than
Advocates General. Though names of successive Advocates General were reported in the Indian
Army and Civil Service List, names of Government Pleaders were constantly omitted.119
Incidentally, like other British colonies,120 the Advocate General of Bombay was an ex-officio
member of the Governor’s Legislative Council. Not so for the Government Pleader.121
After the enactment of the Indian Bar Councils Act, 1926, the ‘Pleader’ category was folded
into the ‘Advocate’ category,122 and ‘Pleaders’ identified themselves as ‘Advocates’ too.
However, an Advocate practising on the Original Side of the High Court would thereafter refer
to himself as ‘Advocate (O.S.)’. Thus, even after 1926, the ‘dual system’ was preserved in
Bombay. Original Side lawyers still distinguished themselves from Appellate Side lawyers, and
one could not appear on the Original Side of the Bombay High Court without being instructed by
an Attorney.123
Interestingly, it was possible to become an Advocate, Attorney, or Pleader in Bombay
without actually having a law degree, though having one made things easier. Incidentally, there
was no system of conferring silk on Advocates and Pleaders in the Bombay High Court during
the British Raj.
HIGH COURT JUDGES
Eligibility
Between 1862 (when the High Court was established) and 1947 (when India became
independent), the eligibility criteria to become a judge of the Bombay High Court remained
much the same. Only the following four categories of persons were eligible to be appointed High
Court judges: barristers, Pleaders, members of the judicial side of the Indian Civil Service, and
members of the subordinate judiciary.124 The ‘barrister’ and ‘Pleader’ categories have already
been discussed above. The Indian Civil Service was the bureaucracy which ran the colonial
government in India, and Indian Civil Service judges (or ‘Civilians’, as they were called) were
those who had served in the judicial department of the service. These judges will be discussed in
greater detail in Chapter 5. The subordinate judiciary consisted of career judges who were not
members of the Indian Civil Service. Subordinate judges were usually Indians, and very few
such judges were appointed to the High Court. Attorneys could not be appointed High Court
judges—the court’s judiciary was meant only for those who either appeared and argued in court
or served as judges in the districts.
Until 1935, a professional quota system was in place for the judiciary: at least one-third of
the judges of the High Court (including the Chief Justice), had to be barristers, and at least
another one-third of them had to be Civilians.125 This quota system made it very difficult for an
Indian to become a judge of the High Court. This was because ‘barristers’ and ‘Indian Civil
Service’ judges were together to have at least two-thirds of the seats on the court, and it was
anticipated that the ‘barrister’ and ‘Indian Civil Service’ categories would consist exclusively of
British judges, while the ‘Pleader’ and ‘subordinate judge’ categories would consist of Indian
judges. We have already seen that an Indian had to go through the trouble and expense of
travelling to Britain in order to become a ‘barrister’—though it was possible after 1922 to
become an ICS officer without traveling to England, it was never possible to become a barrister
without traveling to England. Likewise, Indians hoping to join the Indian Civil Service also had
to travel to Britain, spend more than two years126 there, and take the civil service examination—
it was only in 1922 that a simultaneous examination for the service started being held in India.127
The first Indian barrister in Bombay was Badruddin Tyabji who was called to the Bar at the
Middle Temple in 1867,128 and the first Indian member of the Indian Civil Service was
Satyendranath Tagore, who joined the Bombay Civil Service in 1870.129 Accordingly, it was
clear that when the 1861 statute was enacted, the ‘barrister’ and ‘Indian Civil Service’ categories
were envisioned as British preserves, given how difficult it would have been for Indians to cross
over into those categories. In short, British judges—barristers and Civilians—were to
overwhelmingly serve on the court. The Chief Justice of the High Court had to be a barrister, and
this precluded Indians from becoming Chief Justices.
Additionally, for a long period of time, ‘barristers’ could become judges more easily than
those belonging to any other professional category. A ‘barrister’ of merely five years’ standing
was considered eligible for appointment to the High Court, while all others had to have ten
years’ experience in their respective categories in order to be considered so eligible. In this
manner, the recruitment policy for the High Court’s judiciary indirectly discriminated against
Indians—the quota system on the court was designed in such a manner that Indians would get to
occupy no more than a third of the seats on the court. Theoretically, any Indian could become a
High Court judge, but in the nineteenth century, this was very difficult to accomplish.
Eventually, the ‘barrister’ and ‘Indian Civil Service’ professional categories ceased to be
exclusively British preserves in the twentieth century, as Indians especially infiltrated the
‘barrister’ category in high numbers, and this quota system (and the preferential eligibility
requirement for ‘barristers’) was eventually abolished in 1935.130 After 1935, even the Chief
Justice of the Bombay High Court could theoretically be a non-barrister, though we will see that
this never happened during British rule in India.
Appointment
Judges were formally appointed to office by the Crown.131 They were drawn from various
backgrounds—the local Bar in Bombay, the Bar in the United Kingdom, or elsewhere.132 In
practice, the Chief Justice of the Bombay High Court and the Governor of the Presidency would
confer133 among themselves and send their recommendation directly to the Secretary of State in
England.134 For example, when a High Court seat became vacant, the Chief Justice would write
to the Governor recommending either that a candidate from the local Bar or lower judiciary be
appointed to the vacancy, or that a candidate from the London Bar be appointed to the vacancy if
no suitable local candidate were available. The Governor would then convey the Chief Justice’s
recommendation, with his own comments, to the Secretary of State. The Chief Justice’s
recommendation was usually (but not always135) accepted by the Governor and Secretary of
State,136 and the candidate would be informed of his appointment by telegram.137 While the
Chief Justice played a strong role in appointing judges from the local Bar to the High Court, he
was also influential in promoting Civilian judges from the lower courts to the High Court
Bench.138 For example, Chief Justice Lawrence Jenkins appointed a relatively junior Civilian
judge, Stanley Batchelor, to the post of High Court judge, superseding many senior Civilian
judges in the bargain.139 A Chief Justice who was going to retire soon had less weight in making
recommendations for judicial appointments.140
In considering names for judicial appointments, the Chief Justice of the Bombay High Court
was sometimes receptive to recommendations from outsiders. For example, in 1944, a Bombay
lawyer who served as a judge on the Privy Council, M.R. Jayakar, wrote a remarkable letter to
the Chief Justice of the Bombay High Court, recommending that a young Appellate Side lawyer,
P.B. Gajendragadkar, be appointed to the Bombay High Court Bench in the upcoming vacancy:
My dear Sir Leonard, I hear that a couple of appointments as additional judges at the Bombay High Court are in
contemplation to meet the demands of increasing work and that names are being considered in this connection. If so, may I
suggest for your consideration the name of an Appellate Side Advocate, Mr. P.B. Gajendragadkar, who, I imagine, has
appeared before you several times. He is one of the two young men I spotted before I left the High Court Bar, seven years
ago. He was then one of the rising juniors who had attracted notice by reason of his industry, knowledge of law, modest and
effective advocacy and integrity of professional practice. His record at the University was brilliant and he comes of a line of
scholars, his father and grandfather being well known in India for their deep culture and ripe scholarship. Since I left the
Bar, his practice, I hear, has largely increased and he is now regarded as belonging to the front rank of Appellate Side
Advocates. He is a modest man and it is likely that his name may not occur or be suggested to you. He is comparatively
young, so, if appointed, he will have a long term of office. His presence and address are attractive and I feel confident that
his will be an excellent appointment and also a popular one. I do hope you will forgive my writing this letter. May I say that
it is done out of a pure desire to be helpful in enabling you to find out the right man for this exalted office.141
The Chief Justice responded by saying that he already had Gajendragadkar in mind for the next
judicial appointment:
My dear Dr. Jayakar, Thank you very much for your letter of yesterday’s date about Mr. Gajendragadkar. I know him well
as an advocate as he not infrequently appears before me—I have a very high opinion of him, and have him very much in
mind for the next appointment. I am very glad to know that you think as highly of him—that in itself is a sufficient
recommendation.142
That following year, Gajendragadkar was appointed to the High Court Bench. After India
became independent, Gajendragadkar eventually rose to become the Chief Justice of the
Supreme Court of India.
Judgeships on courts like the High Court of Bombay were considered important tools for
exercising patronage.143 After Justice Scott retired from the Bombay High Court in 1891, a
bilingual newspaper in Bombay (with English and Marathi sections) called the Indu Prakash,144
wrote that the most deserving candidate, Charles Farran, was not being appointed in his place
because a judgeship on the Bombay High Court was a ‘gift’ in the hands of the Secretary of State
—it was a ‘piece of patronage which the Indian authorities in England are not likely to let slip
out of their hands’.145 A similar allegation was made against the Secretary of State when Arthur
Strachey, scion of the influential Strachey family, was appointed a puisne judge in Bombay over
the head of the Indian acting judge, Badruddin Tyabji.146
The Chief Justice himself was appointed by the Secretary of State after conferring with the
Viceroy.147 In a letter to his son, Justice Norman Macleod wrote how he was informed about the
exciting news of his appointment as Chief Justice of Bombay: ‘The Governor sent for me last
Sunday and told me the King had approved of my appointment but it could not be announced till
Thursday.’148
When a judge was appointed to the High Court Bench, he received a host of warm,
congratulatory letters, some bordering on naked flattery. For example, when M.C. Chagla was
appointed a judge of the Bombay High Court in 1941, among many who wrote him
congratulatory letters, one individual wrote:
Sir, With apology for impertinence on my part for not subduing the temptation of offering hereby my hearty congratulations
to you for your being raised to the Bench—the honour that you well-deserve. I am sure very many—nay all—are
entertaining but one opinion as mine, viz:- that you will adorn the Bench with the lustre and brilliancy of a real Judicial
Gem, sending forth lamination (sic) of justice with fairness equity and good-conscience to stamp you as a Judge, outvieing
(sic) the Judges of the past glories.149
Tenure
Judges in the United Kingdom had security of tenure, following the Act of Settlement of 1701
consequent to which judges held their appointments ‘during good behaviour’.150 However, all
High Court judges in India held their offices ‘during Her Majesty’s pleasure’,151 and it was only
in 1935 that the law gave them security of tenure. After 1935, High Court judges in India held
their offices until they reached the age of 60, and they could be removed only for misbehaviour
or infirmity of mind or body.152 Judicial tenure will be discussed in much greater detail in
Chapter 5.
Categories
Four categories of judges can be said to have served on the Bombay High Court during the
colonial era: Chief Justices, ‘puisne’ or permanent judges, ‘additional’ judges, and ‘acting’ or
temporary judges. The Chief Justice—never an Indian, but always a British barrister—was the
administrative head of the court, and had the highest ‘Rank and Precedence’ amongst all the
judges of the court.153 Puisne judges were the regular judges of the court whose appointments
were relatively permanent. ‘Additional’ judges were appointed, starting in 1911,154 over and
above the total sanctioned strength of the court’s permanent judges, typically on the
understanding that they would be made permanent when a permanent vacancy arose on the court.
On the other hand, when a temporary vacancy was created by the short absence of a puisne judge
from the Bombay High Court, the government would appoint a person (who had all the
necessary qualifications for becoming a High Court judge) to temporarily ‘act’ as a judge while
the vacancy lasted, that is, the expectation being that the ‘acting’ judgeship would come to an
end once the absent puisne judge returned to office. ‘Acting’ and ‘additional’ judges could also
be removed by the executive at any time, and without any reason.155 In Chapter 5, we will see
that these temporary ‘acting’ judgeships were frequently used as testing grounds for judicial
appointments, employed to determine whether a candidate was fit for judicial office.
Compensation
Dispensing justice was a serious business in British India, and British Indian judges were
consequently paid very handsomely. For much of the British Raj, the Calcutta High Court was
considered the most important court in British India.156 As such, the Chief Justice of that court
was the highest paid judge in British India. In 1893, he was paid Rs 72,000 per annum, more
than the salary of a puisne judge in England, or the salary of the chief justice of any other British
colonial court.157 Only the Viceroy of India, the Governors of Bombay and Madras, the
Commander-in-Chief of India, and members of the Viceroy’s Executive Council, earned more
money than the Chief Justice of Calcutta.158 Chief Justices of other High Courts like Bombay
and Madras earned Rs 60,000 per annum.159 Besides the officials already mentioned, in Bombay
it was only members of the Governor’s Executive Council who earned more than the Chief
Justice of the Bombay High Court.160 Unlike some other British colonies,161 puisne High Court
judges in Bombay were not paid differently according to their levels of seniority. In 1893,
ordinary High Court judges (including acting judges) earned Rs 45,000 per annum.162 This was
also reflected in the ‘warrant of precedence’ which set out official hierarchies in British India. In
1905, the Chief Justice of the Calcutta High Court was the seventh most important person in
British India, while Chief Justices at other High Courts stood at number eleven on the list.163
Retired Chief Justices of the Calcutta High Court also earned the highest pensions among all
retired judicial officers in the Raj, followed by retired Chief Justices at other High Courts, and
retired puisne judges.164 By the standards of the time, it seems that judges were paid very
handsomely, and being a judge of the Bombay High Court was quite prestigious, at least in the
nineteenth century. Salaries were generally high in British India. The well-known lawyer,
Badruddin Tyabji, earned as much as a High Court judge in the eighth year of his law practice,
which was about a third of the income he would go on to earn at the Bar at the height of his
professional career.165
However, over the years the salaries of judges generally remained the same, such that the
Chief Justice of the Calcutta High Court was still paid an annual salary of Rs 72,000 in 1922,166
though expenses had risen significantly by then.167 In the 1920s, the Registrar of the Bombay
High Court requested the government to consider increasing judges’ salaries, because the
‘salaries fixed over twenty years ago’ were now ‘entirely inadequate to secure for the present and
future the freedom from financial embarrassment and the repose so essential for the proper
execution of their office by men of the rank required for Judges’.168 As a consequence, the
prestige of holding judicial office was likely to have gone down over the years, especially during
the years of the economic depression in the 1930s when taxes were raised in British India.169 In
the twentieth century, High Court judges worried about maintaining an expensive home in
Bombay. For example, in 1914, one High Court judge temporarily moved out of his bungalow
into a smaller apartment when his wife went back to England for a holiday, in order to save some
money.170 However, despite the fact that judges’ salaries did not rise commensurately with
inflation in the 20th century, judges in British India were still considered to have been paid quite
handsomely. In 1935, the Chief Justice of the Bombay High Court drew a higher salary than the
Chief Justice of the United States Supreme Court.171 Ironically, High Court judges in
independent India were paid less than what they were paid in colonial India. The salary of a High
Court Chief Justice was reduced to Rs 48,000, and that of a High Court judge to Rs 42,000, by
the Constitution of independent India.172
Besides salaries, judges were also compensated in other ways. Among other perks, judges
earned one year of furlough at the end of their fourth, eighth, and twelfth years in service.173
Consequently, judges would periodically be seen going on leave or furlough to England,174 and
‘acting’ judges would constantly be needed in order to temporarily replace such judges. Some
judges were given bungalows on Malabar Hill to stay in, at a subsidized rate of rent.175 Initially,
the government followed a policy of only giving these bungalows out to judges who came to
India from Britain, and not to those who were appointed from the local Bar. For example, as a
member of the administrative staff in the Bombay High Court, Norman Macleod privately rented
a bungalow on Mount Pleasant Road from a landlord, and did not move out of that bungalow
until he retired as Chief Justice of the Bombay High Court and left for England in May 1926,176
which suggests that he did not get a government bungalow to stay in as the Chief Justice of
Bombay. Similarly, another High Court judge, Maurice Hayward, stayed along with Justice
Amberson Marten in his Malabar Hill bungalow, because he was unable to find accommodation
as a High Court judge in Bombay.177 Eventually, the judges of the Bombay High Court protested
against this policy, and the government decided to grant bungalows to judges appointed from the
local Bar as well, at its discretion. The British government was very thrifty while dealing with its
colonial employees. For instance, when a person was appointed a judge of the Bombay High
Court, he had to pay a sum of a little over 20 pounds to the local treasury for the fees paid by the
British government to the exchequer in relation to his appointment.178
Importantly, though judges did not enjoy security of tenure until 1935, the salaries and
benefits of High Court judges could not be altered to their disadvantage once they were
appointed.179 Further, apart from a brief period in the 1880s when ‘native’ High Court judges
were compensated less than their Briton counterparts,180 there was no racial discrimination
against Indian judges in matters of compensation, that is, the Indian and British judges of the
High Courts were entitled to the same salary and privileges.
Court Attire
Despite the heat and humidity in Bombay, English court attire was worn at the Bombay High
Court. Judges wore long black robes, except the judge who sat in the High Court Sessions, who
wore a scarlet robe.181 Most judges seemed to have worn long ‘stifling wigs’ like judges in
Britain182 and in other British colonies,183 despite the warm, humid climate in Bombay. The
gown and wig of one judge was often passed down to another judge as a mark of tradition and
respect.184 Images of the court’s judges suggest that Indian judges, however, wore an Indian
headdress185 instead of the wig, especially in the nineteenth century, and some Indian judges in
the twentieth century continued to wear an Indian headdress in court too, though the wig seems
to have been the more conventional choice for Indian judges at that time.186 When prominent
nineteenth century Indian lawyers travelled to Britain, their traditional headgear attracted a great
deal of attention.187 It was only around 1914–15 when Indian lawyers and judges discarded their
traditional headgear, at a time when Indian lawyers started dominating the Original Side Bar of
the Bombay High Court.188
Such matters may seem trivial at first, but dress was taken very seriously in the colonial-era.
In British India, the colonial government was keen to ensure that customary sartorial proprieties
were duly observed. Under one set of regulations issued by the Bombay High Court, for
example, Indians who wore ‘native shoes’ were required to take them off before stepping on to
the carpet or before being sworn as witnesses, in any court of justice in the Presidency of
Bombay,189 according to the Indian custom of taking one’s shoes off in respectable places. In
fact, one Civilian judge was highly annoyed when the nationalist leader Bal Gangadhar Tilak did
not take his shoes off before entering the Governor’s Legislative Council.190 The colonial
establishment was attuned to the sensitivities of ‘native’ dress in British India, to its symbolism,
and it is perhaps for this reason that Indian lawyers and judges were permitted to wear their
headdresses in court. Ironically, this accommodation skewed the symbolism of English court
attire. Introduced to the judge’s dress after the Restoration, the wig was a great equalizer in
England—meant to convey that no judge was different from or superior to the other, that the
process of justice itself was impersonal, brought about by a set of sartorially indistinguishable
justices.191 In British India, though the ‘native’ headdress enabled Indian judges to retain their
own hybrid Anglo-Vernacular identities, and to fend off the criticism that they were aping
Europeans, it also readily distinguished them from their British colleagues on the Bench, and
very apparently created two categories of judges on the court—British judges and Indian ones.
Customs
Many customs existed back then which might seem strange, perhaps even inappropriate, to the
legal profession in Mumbai today. Sons appeared in court before their fathers.192 Judges openly
fraternized with businessmen. For example, Joseph Arnould, an early judge of the Bombay High
Court, was good friends with Tyab Ali, a wealthy merchant in Bombay. Newly minted Indian
judges were often felicitated at well-attended entertainment parties hosted by Bombay’s
prominent citizens, which included businessmen like Sir Jamsetjee Jeejeebhoy. However, this
did not necessarily undermine their integrity. A Bombay anecdote captures this well.193 Chief
Justice John Beaumont and Justice Hormazdyar Coyajee were once hearing a case involving a
merchant who was called ‘the onion and potato king’.194 The merchant sent sacks of Italian
potatoes to Beaumont and Coyajee on the night of the hearing. Beaumont admitted to eating the
potatoes, but he still held against the merchant, and he persuaded Coyajee not to recuse himself
from hearing the case. Thus, despite eating his potatoes, the judges held against the potato king.
Judicial proprieties were also not always ignored in the colonial era. In 1919, Justice Macleod
was reprimanded by the Chief Justice for going to a private party. As he wrote to his son, ‘[t]he
C.J. told me I was setting a very bad example by going to the Port Trust Party. I suppose it would
not do if everyone went.’195
Interactions between the executive and judiciary were also strange at times. When a person
applied to the Governor for clemency, the Governor would seek the opinion of the judge who
had issued the decision. Thus, in a case referred to as William Brodie’s case, the Governor asked
Justice Badruddin Tyabji for his opinion as to whether the sentence should be commuted. When
Tyabji replied in the negative, the Governor forwarded his opinion to the applicant, and the
application was denied.196 Judges were even expected to comment on legislation proposed to be
enacted by the legislative councils of the Governor or Viceroy.197 Further, judges did not hesitate
to discuss proposed legislation with members of the executive government. For example, in a
letter written in 1940, the Chief Justice of the Bombay High Court, John Beaumont, advised the
Prime Minister198 of Bombay, B.G. Kher, against adopting a policy of prohibition:
I have seen so much, during my life, of the evils of drink that I am whole-heartedly in favour of curtailing its consumption.
But I am also a great believer in the virtues of liberty. To my mind, the proper way to tackle the drink question is to reduce
the opportunities of obtaining alcohol and to provide counter attractions. If the Toddy Booth and the Public House are to be
abolished, it is necessary to provide something more attractive for the working man in his leisure time. You can’t make
people moral by Act of Parliament and if you can, it is a morality not worth having. To induce people not to elect to drink is
surely so much better and more worth while than crudely using the power of Government to force them to refrain from
doing what they want to do. I am really telling you that non-violent methods are better than violent! Violence is none the
less violence because sanctioned by law.199
Judges considered it inappropriate to read case papers in advance—they would make up their
minds only after hearing arguments in court, and not let written pleadings affect their
opinions.200 Judges wrote articles which appeared in the press. Thus, Charles Kincaid, a lower
court judge who eventually served on the High Court, wrote articles in newspapers like the
Times of India.201 Judges probably even thought of themselves as minor celebrities—Lawrence
Jenkins and Frank Beaman each gave out autographed copies of their photographs to students
and young lawyers.202
During the colonial era (and for some time after), when a judge was appointed to the Bombay
High Court for the first time, or elevated as Chief Justice, lawyers made congratulatory speeches
in his court on the first day, and the judge responded with a few words of gratitude.203 Likewise,
when a judge retired, speeches were made in his honour in court. As Justice Macleod (later Chief
Justice) wrote to his son in 1918:
On Saturday the Bar bade a final farewell to my brother Beaman. Marten and I supported him on the Bench. The Court was
crowded and the effluvia was terrific. I was afraid at one time Beaman was going to break down in his reply but he managed
to get through.204
Some things, however, might seem quite familiar to Mumbai’s legal profession today. Lawyers
charged their fees in ‘gold mohurs’ or ‘gms’, where 1 gm = Rs 15205—even today, Bombay
lawyers charge their fees in gms, at the same rate of conversion. Even in 1885,206 the Bombay
High Court had a ‘Vacation Judge’ like it does today—a judge who served in office during the
court vacation. Further, when a judge was elevated from the Bar to the Bench, all the solicitors
who owed him money paid up their debts to him, for fear of incurring his judicial wrath.207
Several practices which continued on the Bombay High Court in independent India had their
origins in the British Raj. For instance, a judge of the Bombay High Court referred to another
judge as his ‘brother’,208 a lawyer appearing in a case referred to the lawyer appearing for the
opponent as ‘my learned friend’209 and to the judge as ‘your Lordship’ or ‘my Lord’210—
practices which originated in the colonial-era and continue to this day. Likewise, judges would
meet outside the Chief Justice’s chamber ten minutes before the start of court, and also have
lunch together in the judges’ library.211 When a sitting or retired judge of the court passed away,
a reference was held in his memory in court, where speeches were made by some lawyers and
judges. It was the Indian judges, who served on the court during the British Raj, who ensured
that such practices would continue on the court in independent India for a long time to come.
LEGAL EDUCATION
In 1853, a year after retiring as Chief Justice of the Supreme Court of Bombay, Sir Erskine
Perry212 drafted an influential minute in which he proposed a scheme for setting up a system of
formal legal education in Bombay.213 Perry cited many reasons in support of the scheme: the
‘increasing employment of Natives in the judicial department’, the ‘low character of the Native
advocate or Vakil’, the ‘total absence of any means for obtaining systematic legal education’ in
Bombay, and the introduction of English law into India which made it necessary that Indians
should ‘be afforded an opportunity of studying the principles of English law’. Perry noted in his
minute that the system of formal legal education in India could not be modelled on England,
because formal legal training in England was inadequate and young English barristers educated
themselves at their own expense and over several years. Perry envisaged the setting up of a
three-year law program in Bombay, where elite students, from ‘the wealthier and upper classes
of the country’,214 would study subjects like jurisprudence, English law, and Hindu and Muslim
law.215
Two years later, in 1855, a chaired law professorship was set up at the Elphinstone Institution
(later Elphinstone College), whose holder was called the ‘Perry Professor of Jurisprudence’,
named after the retired Chief Justice.216 Two additional permanent professorships in law were set
up by the government in 1856, and the ‘Government Law School’ (later called ‘Government
Law College’217) came into being,218 offering a three year LL.B. program for aspiring
lawyers.219 For nearly seventy years, this was the only law school which trained law students for
the LL.B. degree program.220 For long, the study of law in Bombay was a part-time endeavour.
Classes at the Government Law School were conducted in the evenings,221 by professors who
were practising lawyers. Professors were typically appointed for three-year terms. Professorships
were taken up by young lawyers who wanted to supplement their incomes in the uncertain
phases of their early careers. Chagla wrote about his professorship at the Government Law
School: ‘I used to go in the evening and lecture for an hour at the Elphinstone College, where the
Law College was then housed. I held this job for three years, and it was a tremendous help to me
in the crisis through which I was passing.’222
The presence of impecunious lawyers at the law school sometimes created the perception,
however, that professorships there were meant more for helping out struggling lawyers than for
the benefit of eager students. Students constantly grumbled that they would prefer not to attend
lectures, which were often a waste of time.223 A prominent colonial-era lawyer, Chimanlal
Setalvad, complained that ‘the appointments for the professorships of the Law School were not
always made on merits but for making provision for young barristers struggling at the Bar’.224
Since the Government Law School was a part-time institution, lawyers could work as professors
without foregoing their legal careers. ‘It is now pretty generally recognized,’ wrote the English
editor of the Indu Prakash in 1889, ‘that the Government Law School, as at present conducted, is
little better than a farce, a sham and a delusion.’225 Professors were only interested in marking
attendance, and students were not interested in attending lectures.226 However, despite the poor
quality of legal education in Bombay, the fact remains that being a professor at the Government
Law School might actually have been quite prestigious. In the nineteenth century, the first three
Indian professors at the Government Law School—Nanabhai Haridas, Kashinath Trimback
Telang, and Badruddin Tyabji—went on to become the first judges of the Bombay High
Court.227 Numerous professors of the Government Law School went on to become judges (one
even became the Chief Justice228) of the Bombay High Court.229
Since 1895, the school had a principal, but this was a part-time post too.230 In fact, the
principal only spent one evening at law school, once a week.231 Like the Viceroys and Governors
of colonial India, principals at the Government Law School were typically appointed for five-
year terms. Six of the eight principals of the Government Law School up to 1924 went on to
become puisne or acting judges of the Bombay High Court.232 The Chief Justice of the Bombay
High Court was responsible for appointing part-time professors to the law school,233 and High
Court judges might have had a hand in recommending names of impressive young lawyers for
professorships at the Government Law School234 as well—all of which probably added some
status and prestige to the school. Eventually, in June 1938, the Government Law College became
a full-time institution—many of its professors were now required to hold full-time positions, and
the principalship of the college became a full-time post too.235 With this, the Government Law
College probably declined in professional importance, as its professorships and principalship
were no longer seen as potential recruiting grounds for future High Court judges.236
Interestingly, it was only then, in 1941, that the college got its own building.237
Until 1909, the law program consisted of three years which could, at one point, be pursued
concurrently with an undergraduate program.238 After 1909, and until independence, having an
undergraduate degree was made a pre-requisite for admission to law schools, and the study of
law became a two-year program.239
The first batch of students graduated from the LL.B. program at the Government Law School
in 1866—there were only two such students, one of whom was Mahadeo Govind Ranade,240
later a judge of the Bombay High Court. In 1855–6, there were only forty-six registered law
students, but this number steadily increased with every passing decade.241 In 1870–1, for
example, there were seventy-one registered law students; in 1899, there were 399, and in 1919,
there were 714 registered law students.242 Interestingly, this suggests that there were no limits on
the number of students who could enrol and gain admission to the Government Law School.
Anybody who had passed the matriculation examination for Bombay University and who had an
Arts degree was entitled to enrol in the Government Law School. The rising number of
enrolments at the law school over the years suggests either that the school’s fees were not very
high, or that they remained stagnant over the years as incomes increased. Under these
circumstances, gaining admission to the Government Law School was probably not considered
prestigious, and it was a student’s performance at the university examinations which gave him
the opportunity to set himself apart from his peers. In fact, the Government Law School was not
considered worthy enough of even mentioning on one’s resume: whenever an alumnus of the
Government Law School was written-up in a newspaper, law report, or magazine for any reason
(for example, on his appointment to or retirement from the Bombay High Court Bench, or on his
death), the write-up would refer to his other academic accomplishments but omit any reference to
the Government Law School altogether.243 For example, though we learn from his biography
that Justice Chandavarkar got his LL.B. four years after his B.A. at Elphinstone College, his
biographer did not find it worth even mentioning that Chandavarkar studied law at the
Government Law School.244 Eventually, it was only in the 1940s that admissions to the LL.B.
program at the Government Law College were restricted, and the number of divisions reduced,
since the college did not have enough space to accommodate the growing number of students.245
In 1924–5, the first female law student was admitted into the Government Law School.246 In
1931–2, a woman became the first law professor at the Government Law College.247 Given that
it took so long for women to become law students and professors, no judge of the Bombay High
Court during the British Raj was a woman. An article published in the Government Law College
magazine in 1931 reveals interesting insights into erstwhile attitudes towards women and women
judges. In the article, published more than thirty years after an Indian woman, Cornelia Sorabji,
became the first female to appear in a British court in the Empire,248 a student wrote:
One of my old professors remarked the other day that it wouldn’t be a bit surprising if in ten years’ time there would be a
lady judge sitting in the Bombay High Court!...Let’s only hope she won’t peep into her vanity case while giving an
important judgment, for that would be really too shocking.249
For most of the period that Bombay was under the British Raj, the study of law was heavily
regulated and monitored by the colonial government, which viewed lawyers as an inherently
suspicious class of individuals.250 Since 1860, the Government Law School was tied to Bombay
University, an ‘affiliating’251 university which was statutorily incorporated in 1857.252 Bombay
University had an overarching body called the ‘Senate’ and a smaller executive body which ran
its day-to-day operations, called the ‘Syndicate’. The Governor of Bombay was always the
Chancellor of Bombay University (a tradition which continues to this day), and the Chief Justice
of the Bombay High Court was always one of its ex-officio fellows.253 Successive Vice-
Chancellors of Bombay University were appointed by the Governor-in-Council for two year
terms, and often these were judges.254 For example, one of the earliest Vice-Chancellors of
Bombay University was Sir Joseph Arnould, a judge of the Supreme Court (and later, of the
High Court) of Bombay.255 Fellows at Bombay University were nominated by the colonial
government, and the university itself looked to the government for its finances.256 One Viceroy
cut down the university’s budget by three-fourths.257 As such, there was a very heavy presence
of officialdom in the University of Bombay, and the state of higher education in British India
was consequently quite poor, designed to train Indians for low-level administrative posts, not to
make them think independently and creatively.258 It is not surprising, therefore, that the first
Indian permanent judge of the Bombay High Court, Nanabhai Haridas, began his career as a
translator and interpreter for the court. Wrote one student of St. Xavier’s College in Bombay in
the late nineteenth century, ‘[w]e were mere automatons, engaged in taking down dictated notes,
which were not always either audible or intelligible. Opportunities of meeting the professor,
exchanging ideas with him, were limited.’259 The first year class at that college had over 300
students in it.260
The law school itself was regulated even more closely by the colonial government. The
purpose of legal education in Mandate Palestine was to prevent the formation of anti-colonial
identities,261 and likewise, containing the rise of nationalism was certainly one of the aims of
legal education in India too. In 1897, when a group of prominent Indian lawyers and judges
decided to petition the government for setting up a private law college, the government
refused.262 The Vice-Chancellor of Bombay University at the time, Edward Candy, a Civilian
judge of the Bombay High Court, opposed the petition because he feared that the professors at
the new private law college would teach ‘sedition to the pupils’.263 Permission was denied
despite the fact that the Managing Board of the new college had Justice Badruddin Tyabji, a
Bombay High Court judge, as its Chairman.264 From 1898, the Government Law School was
supervised by a ‘Board of Visitors’, which included the Chief Justice of the Bombay High Court
and other High Court judges.265 Political views at the Government Law School in Bombay were
tethered and contained. Chagla (a young lawyer at the time, who went on to become the Chief
Justice of the Bombay High Court) was denied an extension as a professor at the Government
Law School because the Chief Justice of the Bombay High Court, Amberson Marten, was
displeased with Chagla’s involvement in politics, and Chagla refused to give him a written
undertaking that he would ‘abandon political activities’.266 In 1911, Justice Dinsha Davar of the
Bombay High Court advised students at the Government Law School to ‘devote yourself heart
and soul to your studies alone’, and warned them that ‘Problems of Social Reforms or Political
Progress are not for you at present to grapple with or meddle in’.267
The ‘Law College Magazine’, which was published at the Government Law School annually
(later, bi-annually) starting in 1930, oddly never contained any articles about politics or the
nationalist movement.268 In a letter written to the editor of the magazine published in its very
first issue, a second-year LL.B. student complained about this: ‘What…can be the objection,’ he
wrote, ‘to an innocent discussion of political problems in the light of modern events?’269 The
editor270 (usually a professor of the college, whose salary was paid by the government) replied,
‘[n]ow for Heaven’s sake, are there not enough open spaces in Bombay? Why shout here?’271
The magazine refused to even acknowledge contentious political debates. For example, when Sir
John Beaumont retired as Chief Justice of the Bombay High Court, the college’s magazine
contained a write-up on Beaumont and his career. The editor wrote: ‘It must be said to
[Beaumont’s] credit that he left India as the most popular Chief Justice of this province.’272
Nothing could have been further from the truth. Beaumont had a reputation for harbouring an
‘anti-India bias’.273 He became exceedingly unpopular for refusing to make the most senior
judge of the Bombay High Court—the Indian judge Harilal Kania—succeed him in the office of
Chief Justice. In fact, the Bar refused to give Beaumont the customary reference on his
retirement—an act of profound significance. None of this was even mentioned in the write-up on
Beaumont in the college magazine. The government wanted its law school to be a doctrinal
citadel, untainted by threatening politics. The college’s motto, after all, was ‘Let there be nothing
vile in the Temple’274—and nationalist politics could have been one of the vile things the
government wanted to keep out of that temple. The college crest, brought into being thanks to the
efforts of the editors of the college magazine, depicted a blindfolded lady of justice standing
against the backdrop of the bay of Bombay with a rising sun. The rising sun represented the
‘Mother Country’, that is, the United Kingdom.275
However, it is not clear that these policies worked. If Indian lawyers generally stayed away
from nationalist politics, that had more to do with their own financial self-interest, than with any
policies specifically designed by the colonial government.276 Further, though the government
managed to keep politics out of legal education, it never succeeded in formally prohibiting
Indian lawyers from participating in ‘disloyal’ political movements.277
Until 1924, the Government Law School was the only institution which imparted legal
education for the LL.B. examination in the Bombay Presidency. However, new law colleges
sprang up in Poona (1924), Karachi (1926), Ahmedabad (1927), Kolhapur (1933), Surat (1935),
and Belgaum (1939).278
CHAPTER TWO
The Rise of the Indian Judge
Using a biographical approach to examine the lives of the early Indian judges of the Bombay
High Court, this chapter will present three central findings. First, though the Indian High Courts
were set up in 1862, the Bombay High Court did not have a permanent ‘native’ judge serving on
it for over two decades, even though the court was meant mainly for Indians and the vast
majority of cases brought before it were between Indian litigants. Second, a shift took place in
the type of Indian judge appointed to the court between the nineteenth and twentieth centuries.
While Indian judges in the nineteenth century were drawn from among the ranks of prominent
‘public-spirited’ lawyer-politicians, twentieth-century judges were professional lawyers with
almost no interest in politics or public affairs. Third, as the decades of the first half of the
twentieth century wore on, an increasingly high number of Indian judges were appointed to the
Bombay High Court Bench, with the result that the British judges were reduced to a microscopic
minority on the court in the 1940s. The chapter will end by discussing the implications of these
findings.
THE FIRST INDIAN JUDGE

Around 1863, only a year after the High Court was established at Bombay, an Indian subordinate
court judge, Janardhan Wassoodew, was temporarily promoted to the High Court as an ‘acting’
judge.1 Wassoodew was a member of the Prabhu caste, Maharashtra’s resident writer community
which shared the ‘professional status and traditional literacy’ of the Brahmins.2 In 1901, the
Prabhus numbered 25,000 out of a total native Marathi-speaking population of approximately ten
million.3 Despite being the first Indian judge to ever serve on the Bombay High Court,
remarkably little is known about Wassoodew. We know that he served as an acting judge for a
few months in 1864 and again in 1865,4 but we do not know why he was never confirmed as a
puisne judge,5 or even how his name is spelled.6 It is safe to conjecture, though, that Wassoodew
did not have it easy as the court’s first Indian judge. One irascible lawyer, Thomas Anstey,
quarrelled with Wassoodew and refused to address him customarily as ‘your Lordship’ and ‘my
Lord’.7 No attempt was made to appoint another Indian judge to the court once Wassoodew’s
short term came to an end.8
Two decades later, however, Bombay saw its first permanent ‘native’ High Court judge—
Nanabhai Haridas.9 His elevation to the Bench occurred against the backdrop of a bitter struggle
between the government of British India and the British community in India, referred to in the
19th century as the ‘Anglo-Indian’10 community, during the Viceroyalty of Lord Ripon, over the
racial identity of judges. His appointment to the Bench took place in the age of organized
political awakening in British India. Political organizations like the Bombay Presidency
Association and the Indian National Congress were created in the wake of events which took
place at this time. Between 1876–80, an unpopular Viceroy, Lord Lytton, had implemented a
number of disastrous policies in British India. Appointed by the Conservative Prime Minister
Benjamin Disraeli, Lytton had been particularly unpopular for enacting the Vernacular Press Act
in 1878 which imposed heavy restrictions on Indian-language newspapers.11 His Arms Act
enacted in the same year prohibited Indians from carrying arms.12 Seen as a move intended to
exclude Indians from the Indian Civil Service, Lytton reduced the age at which a person could
qualify for the service to nineteen. This meant that Indians had to travel to England below the
age of nineteen in order to write the Indian Civil Service exam, something which Indian parents
were unlikely to permit.13 Simultaneously, Lytton created a Statutory Civil Service, meant to hire
the sons of the landed aristocracy in India.14 Lytton also removed duties on Lancashire cotton
goods imported into British India,15 which particularly annoyed Bombay’s cotton merchants.
Lytton’s Viceroyalty coincided with a serious drought and famine in the Bombay Presidency
between 1876–8.16 In 1880, as the Liberal Party defeated the Conservatives in the United
Kingdom, Lord Ripon was appointed to replace Lytton as the Viceroy of British India. A Roman
Catholic by religion, Ripon was disliked by the British community in India, but was one of
India’s most popular Viceroys. He repealed the dreaded Vernacular Press Act and enacted the
Ilbert Bill—a law which sought to give Indian magistrates the authority to try British prisoners,
discussed in greater detail below. The policies framed by Lytton and Ripon impacted the lives of
the judges who served on the Bombay High Court in the nineteenth century, and helped shape
their legal and political careers.
In the midst of Ripon’s Viceroyalty, in 1882, for the first time in the history of colonial India,
an Indian judge, Romesh Chunder Mitter, was appointed to act as Chief Justice of the Calcutta
High Court, when Chief Justice Sir Richard Garth went on leave.17 Garth, who would rather
have given up his leave than have seen a ‘native’ act as Chief Justice, had not been consulted in
the matter.18 Interestingly, though Mitter was the most senior judge of the Calcutta High Court at
this time,19 no permanent Indian judge had ever been appointed to the Bombay High Court yet.20
Though Mitter served as acting Chief Justice for only two months, his appointment caused bitter
resentment within the British community in India.21
A year later, in 1883, the ‘Ilbert Bill’ controversy wreaked havoc in British India.22 In the
early years of the British Raj, ‘European British subjects’23 (that is, those born, naturalized or
domiciled in Britain or in any of its white-settler colonies or possessions) were only amenable to
the criminal jurisdiction of courts in the presidency towns,24 but not in the interiors of British
India. In 1872, in a compromise with the British community in India, the government of India
amended the Criminal Procedure Code25 to ensure that European British subjects in India could
be prosecuted in the interiors as well, but only by judges who were European British subjects
themselves.26 This was thought necessary because by now, Indians had started getting appointed
to the Indian Civil Service in small numbers. The 1872 compromise came up for review during
Ripon’s Viceroyalty, when an Indian Civilian complained that he had fewer responsibilities than
British officers junior in rank to him.27 In 1883, the Law Member of Ripon’s Executive Council,
Sir Courtenay Ilbert, introduced a bill in the Legislative Council of British India, which came to
be called the ‘Ilbert Bill’,28 designed to amend the Criminal Procedure Code. The Bill essentially
sought to make it possible for Indians to exercise criminal jurisdiction over European British
subjects in the interiors of British India. In March, the Ilbert Bill was referred to the local
governments for their opinions—considered standard practice in the legislative process.29
The local governments asked High Court judges to comment on the Ilbert Bill, and the
consultation process evoked heated debate. As Raymond West, a Bombay High Court judge,
wrote in his memorial on the Bill, ‘[a]ngry passions and race antipathies have been stirred up in a
way that I have not witnessed since the dreadful days of the Mutiny’.30 The Calcutta High Court,
with the sole exception of the Indian judge Mitter, opposed the Bill.31 By contrast, all the judges
of the Bombay High Court who submitted opinions on the Bill, with the exception of the Acting
Chief Justice, accepted the Bill, though with modifications.32 This brings out the difference
between Bombay and Bengal at the time—Bengal had a much larger British community of
planters and traders, consequent to which it had ‘a more overtly imperious and racist tone’.33 A
Briton in Bombay who was hardly considered to be a ‘friend of the natives’ wrote, ‘[w]hat awful
asses the Calcutta public are making of themselves on the [Ilbert Bill]’.34
In Bombay, it was only the Acting Chief Justice, Lyttleton Holyoake Bayley, who spoke
against the Bill. This surprised nobody. At the time, Bayley had already served, on two separate
occasions, in 1868 and 1879 respectively, as the president of the Byculla Club, a posh all-white
social club in Bombay at which Indians were denied membership.35 When Viceroy Ripon
learned that the Bombay government had requested its High Court judges to write memorials on
the Ilbert Bill, he called on the member of his council from Bombay, James Gibbs, to make
inquiries. Gibbs was a member of the Indian Civil Service who had formerly served on the
Bombay High Court himself. Gibbs wrote back to Ripon and told him that he would try to find
out more, but he also immediately predicted that only Bayley would write a memorial opposing
the Ilbert Bill, adding that Bayley’s opinion was unimportant.36 Gibbs then wrote to his cousin,
Charles Kemball, another Civilian, who was serving as a judge of the Bombay High Court, for
information. Sure enough, Gibbs learned that Bayley was the only judge who had written a
memorial against the Ilbert Bill. He conveyed this to Ripon, repeating that he did not think
Bayley’s opinion would ‘add strength to the opponents of the Ilbert Bill’.37 In his memorial on
the Ilbert Bill, Bayley wrote of how he thought ‘native’ judges were utterly incompetent:
I deny that a native judge or magistrate in the mofussil, whether a covenanted civil servant or not, is fit to try a European
British subject. He is, in my opinion, quite incompetent, and his very presence on the bench will most probably lead to an
increase in the very common practice in this country…of bringing false charges upon suborned evidence against persons
whom it may be desirable to injure or get rid of.38
Amongst those who submitted memorials on the Ilbert Bill in Bombay were two prominent
Indian lawyers—Badruddin Tyabji and Kashinath Telang—both of whom would go on to
become judges of the Bombay High Court. ‘The question,’ wrote Tyabji in his memorial, ‘ought
never to be whether a judge is a European or a native, but simply whether he is fit for the
exercise of the powers entrusted to him.’39 To Telang, the principles underlying the Ilbert Bill
were ‘in consonance with the lessons which all the past history of the world teaches us’.40
While the Ilbert Bill was being heavily debated by the judges of the Bombay High Court,
Nanabhai Haridas was serving as an acting judge of the court. In a strongly written memorial,
Haridas disagreed with the view of the acting Chief Justice on the Illbert Bill. ‘The present state
of law on this subject,’ he wrote, ‘is utterly indefensible,’ continuing, ‘[a] judge’s fitness for his
post does not depend in the least upon the colour of his skin or upon the nationality of the
prisoner to be tried.’41 Eventually, the Bill was enacted in a modified form in 1884—in criminal
trials, European British subjects could claim a right to be tried by a jury, at least half of whose
members were to be European British subjects or Americans or some mixture of the two.42
Haridas was appointed the first Indian permanent judge of the Bombay High Court later that
year. The appointment of the Bombay High Court’s first Indian permanent judge in this charged
atmosphere is, therefore, especially significant.
However, Haridas’s appointment had not emerged out of thin air. Since 1872, the Bombay
government had been debating the appointment of an Indian judge to the High Court. The
colonial administration seemed to be quite wary of appointing an Indian to the High Court,43 and
it tested Haridas out constantly: between 1874–84, Haridas was appointed to ‘act’ as a temporary
judge of the High Court on nearly ten occasions.44 The Chief Justice of the Bombay High Court
during most of that time, Michael Westropp, considered Haridas to be a good candidate. In a
private letter to the Governor of Bombay, Westropp wrote that Haridas’s conduct as a judge
‘gave complete satisfaction to the Public and gained for him the respect of his colleagues’.45
Westropp pointed out that it had been the policy of successive Secretaries of State ‘of the Tory
and Whig order’ that at least ‘one native judge should have a seat in the High Court in each
Presidency’, and that though the Calcutta and Madras High Courts had an Indian judge, the
Bombay High Court had none. ‘I think [Haridas] cannot either in justice to himself or in
prudence be passed over,’46 he warned, though Westropp personally preferred appointing a
British barrister to the court instead.47
Chief Justice Westropp also defended Haridas when the government tried to retrospectively
reduce his salary. Between February–May 1881, Haridas was serving as an acting judge of the
Bombay High Court. Acting judges were entitled to draw the same salaries as permanent judges.
However, in May 1881, the Secretary of State instituted a short-lived48 policy of discriminating
against Indian High Court judges. Under the new policy, Indian High Court judges were only
entitled to draw two-thirds the salary of British High Court judges. After the policy came into
being, the government asked Haridas to refund one-third the salary he had already received as an
acting judge. Haridas wrote a memorial to the government claiming that the new policy could not
apply to him retrospectively.49 Chief Justice Westropp agreed, and wrote a lengthy, handwritten
letter to Viceroy Ripon, asking him to devote his personal attention to the matter.50 In his letter
to Ripon, Westropp added that the entire episode had created ‘an unpleasant feeling amongst
native gentlemen of the upper and educated classes in this Presidency’, and he commended
Haridas’s work as an acting judge on the High Court, saying, ‘Mr Nanabhai Haridas has acted as
a High Court Judge on some six or eight occasions and supposes the confidence of the Public
and the regard of the permanent Judges’. Ripon promptly accepted Westropp’s request, and
ordered that Haridas get a refund.51 Eventually, it was only in 1884, around two years after
Westropp retired, that Haridas was finally appointed a permanent judge of the Bombay High
Court.
Haridas belonged to a family which was in a state of ‘utter poverty’ at the time of his birth.
Both his father, a customs official, and uncle, a lawyer, had passed away before Haridas reached
the age of twelve.52 A native Gujarati speaker, he was a member of the Kayastha caste, unlike
the other Hindu judges who would be appointed to the Bombay High Court in the nineteenth
century, all of whom were Brahmins. Subsequent commentators would notice how, unlike the
other judges of that century, Haridas led a ‘strictly private life’, taking ‘no part in politics or in
any of the social or religious movements’ which would define the Bombay Presidency.53 Haridas
began his career as a translator and interpreter for the High Court, and subsequently practised as
a Pleader on the Appellate Side of the High Court.54 Before his elevation to the Bench, he had
held the post of Government Pleader, appearing for the colonial government in cases on the
Appellate Side.55 Had Haridas not been appointed to the Bombay High Court Bench, the
government was considering two alternative candidates in his place—Shantaram Narayen and
Vishwanath Narayen Mundlick,56 both remarkably similar to Haridas in their credentials. Like
Haridas, both Narayen and Mundlick were English-educated, high-caste Hindus, having each
studied at the Elphinstone institution at some point, and having each served as Government
Pleader—a post reserved for a leading lawyer on the Appellate Side of the court.
The fact that Mundlick was not appointed to the High Court Bench possibly tells us
something about the role Indian judges were meant to play on the court. Mundlick was an
orthodox Hindu who believed strongly in the proscriptions of the caste system. He supported
infant marriage and enforced widowhood.57 Mundlick called for ‘reform from within’ and did
not want the state to interfere in matters of Hindu law.58 Likewise, the first Indian appointed to
act as Chief Justice of a High Court (the Calcutta High Court) a few years before, Romesh
Chunder Mitter, held orthodox views on Hindu religious affairs. As a member of the Viceroy’s
Legislative Council, Mitter would subsequently oppose Andrew Scoble’s Age of Consent Bill59
—a law proposing to increase the age at which girls (especially married Hindu girls) could be
subjected to sexual intercourse. Perhaps the government no longer wanted orthodox Hindus like
Mitter and Mundlick to serve on its High Courts. The candidates who were subsequently
appointed to the Bombay High Court in the nineteenth and early twentieth centuries—Telang,
Ranade, and Chandavarkar, were all liberal Hindus who pursued an agenda of social reform.
Mundlick was a long-time member of the Bombay Governor’s Legislative Council, and when
Haridas was confirmed as a puisne judge of the High Court, Mundlick was appointed to the
Viceroy’s Legislative Council. This reveals an important and interesting insight into the
difference between legislative bodies and courts in British India. Legislative bodies were
typically meant, at least in the nineteenth century, for orthodox and conservative ‘natives’ like
Mundlick, and for ‘natural leaders’60 like native princes and landholders, who supported the
status quo. By contrast, courts in the nineteenth century were meant for a rising new middle
class, for Indian social reformers like Ranade and Chandavarkar.61
Perhaps Mundlick’s image of being a Hindu conservative made his candidature less
acceptable to other communities in Bombay, like the Muslims and Parsis.62 Haridas’s own
elevation was not seen as a Hindu accomplishment. At an evening party hosted in honour of
Haridas, a prominent leader of the Parsi community in Bombay and a descendant of the first
Indian to be knighted and conferred a baronetcy,63 Sir Jamsetjee Jejeebhoy, said that Haridas’s
confirmation on the Bombay High Court was ‘an honour to the whole native community’, and he
hoped that Haridas would be ‘the first of a long series of native High Court judges of Bombay’.64
Haridas always sat only on the Appellate Side.65 Because of his poor health, he did not last
on the court very long—in his twilight days, he had to be carried to his chambers on the second
floor of the High Court in a palanquin.66 Haridas was very quickly forgotten in Bombay. His
successors on the Bench—Telang, Ranade, Tyabji, and Chandavarkar, would repeatedly be
invoked in speeches and writings on politics and law, but Haridas very rarely came up in the
public memory again.67 This was partly because of the fact that Haridas belonged to a different
generation from his Indian successors on the Bench. Born in 1832, he was in his mid-to-late-
forties during the Viceroyalty of Lord Lytton—far too set in his ways during the age of political
awakening in British India. By contrast, his successors on the Bench were in their twenties and
early thirties at that time, and built their careers on the foundation of the political movements
which took place in that era.
Bombay was the last of the three original letters patent High Courts to get a permanent Indian
judge. The Calcutta High Court had had a series of Indian judges serving on it, one after another,
starting with Sambhoonath Pandit, who served on the court between 1863–7.68 Prior to their
appointment to the Calcutta High Court Bench, Indian judges in these early years were usually
Appellate Side lawyers who held the prominent post of Government Pleader—which was
eventually considered a stepping stone to a High Court judgeship.69 Like them, Haridas too was
an Appellate Side lawyer who had held the post of Government Pleader prior to his elevation to
the Bench. Though Bombay had had many Indians in the post of Government Pleader prior to
Haridas, it is puzzling why the administration did not appoint any of them to the High Court
Bench prior to Haridas. The Madras High Court got its first Indian judge much after Calcutta,
though a few years before Bombay—in 1878.70
‘PUBLIC-SPIRITED’ JUDGES
Kashinath Telang
When Haridas died, the government wondered whether another Indian should be appointed to the
High Court Bench in the vacant seat. One local newspaper, the Indu Prakash, reported that the
government was considering about four to five candidates for the post, but that it was also open
to leaving Haridas’s seat on the court vacant.71 Judicial appointments were now beginning to
attract increasing public attention, and the recruitment of judges to all courts,72 not merely the
Bombay High Court, was being closely watched and commented on. Whenever Indian lawyers
were denied opportunities to become judges on Bombay courts, organized Indian political
associations and the Indian press vocally protested.73 For example, in 1891, the Bombay
Presidency Association complained to the government that the post of ‘First Judge’ of the
Bombay Small Causes Court had not gone to an Indian judge.74 Likewise, at around the same
time, when a Briton was appointed to the post of ‘Third Presidency Magistrate’ in Bombay,
instead of an Indian judge, the Bombay Presidency Association protested,75 and the Indu Prakash
called the Briton’s appointment ‘an unwarrantable disappointment’.76 Such controversies at
times even reached Britain’s Parliament.77
This increasing public scrutiny of judicial appointments in Bombay made it very difficult for
the government to appoint a Briton to Haridas’s seat or to leave the seat vacant. Thus, the
Bombay government eventually decided to appoint ‘another native gentleman’ to replace
Haridas, not merely because of ‘the efficient and respectable way’ in which Indian judges could
perform their duties (as Haridas had demonstrated), but also because of ‘the very strong desire
felt by the native community that one of the judges of the High Court should belong to their own
class’.78
By the time Haridas passed away, a rising, new generation of ‘public-spirited’79 lawyers was
making its presence felt in Bombay. There were only a handful of significant public offices
which an Indian could occupy in Bombay for most of the nineteenth century, aside from the post
of Government Pleader which was meant only for lawyers: a seat on the Bombay Municipal
Corporation, the Senate or Syndicate of Bombay University, or, for those who were very
fortunate, the Governor’s Legislative Council.80 In the early years of the Raj, the Indians who
held these posts were typically businessmen or Indian princes,81 who were ordinarily
uninterested in criticizing the government or upsetting the status quo. Now, a rising new class of
young lawyers infiltrated these public offices, made critical speeches at town hall meetings, and
edited and wrote in newspapers. At public meetings held at the Framji Cowasji Institute Hall in
Bombay,82 they challenged the policies of Lytton’s administration, and helped found political
organizations like the Bombay Branch of the East India Association, the Bombay Presidency
Association, and the Indian National Congress.
One such lawyer, Kashinath Trimback Telang, had particularly impressed the colonial
Bombay government. However, there was a problem: Telang was an ‘Advocate’, and the 1861
statute only permitted ‘Pleaders’ to be appointed to the High Court Bench. This caused quite a
debate within the colonial administration. The Indu Prakash reported that telegraphic
correspondence was ‘briskly’ being carried out between the Secretary of State and the Bombay
Government over the question of who the next Indian judge was going to be,83 against the
backdrop of local rumours that somebody had already been offered the post.84 Responding to
comments in the confidential government file on Telang, the Governor of Bombay wrote down:
I have great pleasure in concurring with Govt. of Bombay that appointment of Honourable Telang most desirable as he is
indisputable (sic) pre eminently fitted, if the fact that he is an advocate, and not a barrister or Vakeel is not insuperable
objection to appointment.85
On the suggestion of the Bombay Government,86 the Secretary of State consulted both the
Attorney General and Solicitor General of England on the question of whether Telang could be
appointed to the Bombay High Court.87 Both opined that Telang could be considered a ‘Pleader’
under the High Courts Act,88 and consequently, Telang was finally appointed to the Bombay
High Court Bench in 1889.
Telang’s appointment came as a surprise in Bombay. For months, people had been
speculating about who would be appointed to replace Haridas on the Bench. Telang was not one
of the names that were being mentioned in the rumours. As the Indu Prakash wrote when
Telang’s appointment was announced, ‘[a]s far as we are concerned it is a case of the unexpected
happening. At first we did not think Mr Telang even a likely candidate.’89 At age thirty-nine, he
was the youngest judge to ever have been appointed to the Bombay High Court.90 This is
unsurprising given that Telang was quite a prodigy, having passed the Bombay University
matriculation examination at the age of fourteen, having obtained a B.A. degree at age seventeen,
and an M.A. at age nineteen,91 though he had been an ordinary student who won few laurels,
standing in the Second Division in each significant examination.92
Historian Richard Tucker wrote that the nineteenth century was a period of Brahmin
dominance in public life in Maharashtra.93 Telang was one such Brahmin, a member of the Gaud
Saraswat community (The ‘Gaud Saraswat Brahmins’ are a sub-sect of the Brahmin caste found
primarily in western India.)94 Around 1876, Telang caught the eye of Chief Justice Westropp.95
Since then, Telang became one of the Chief Justice’s favourites, and he enjoyed a formidable
practice at the Bombay High Court. Westropp was said to have once remarked, when Telang was
absent from court, ‘[t]here ought to be a standing injunction against Mr. Telang’s being away
from the Appellate Side on Wednesday’.96
Unlike Haridas before him, Telang’s political work was as important and significant as his
professional legal work.97 He was appointed a Fellow of Bombay University in 1877, and a
member of the Syndicate of the University in 1881. These posts were considered enormously
influential at the time, particularly because post-holders at universities were one of the few
groups in British India at the time, like Justices of the Peace and Chambers of Commerce
members, to have the right to vote. Fellows at Bombay University elected one of themselves to
the Governor’s Legislative Council, and also elected two members to the Bombay Municipal
Corporation. Since only a few people had the right to vote back then, and only a few posts were
filled by elections, being a Fellow at Bombay University was considered quite prestigious. Add
to this the fact that there were very few avenues by which Indians could exercise policy-making
functions in British India at the time. Being a ‘Syndic’ at Bombay University enabled Telang to
influence education in Bombay Presidency like few Indians could. At times, this meant that
members of the University could make decisions which affected the identity of the Bombay
Presidency at a very practical level. In 1883, Telang and others at Bombay University voted to
ensure that the Rajabai clock tower in the city of Bombay would remain on Bombay time, not
switching over to Madras time which had been adopted by the railways as the mean for British
India.98 Telang also helped re-engineer the B.A. program at Bombay University, after which
certain courses there were called the ‘Telang courses’.99
Telang had an impressive political career. Immediately prior to his appointment to the Bench,
Telang had served a five-year term as a member of the Governor’s Legislative Council. He had
been nominated to the council by Governor, Lord Reay, to help draft the Municipal Act.100
Concurrently with his post on the legislative council, Telang also served as a member of the
Municipal Corporation of Bombay in 1887. Together, these were the few public offices Indians
could hold in the Bombay Presidency at the time.101 Along with Pherozeshah Mehta and
Badruddin Tyabji, in January 1885, Telang founded the Bombay Presidency Association, a
political organization which preceded the Indian National Congress in the age of political
awakening following the Ilbert Bill controversy.102 One Governor of Bombay, Lord Harris,
referred to these three lawyers—Telang, Mehta, and Tyabji—as the ‘triumvirate’.103
Like Haridas before him, Telang’s appointment to the Bench was considered acceptable not
merely by Hindus, but also by Muslims and Parsis in Bombay. According to the Indu Prakash,
‘the absolute unanimity with which his appointment has been hailed by all communities fully
justifies the wisdom of the choice made by Government.’104 It was perhaps Telang’s
involvement in the secular, inter-community ‘triumvirate’ of influential politicians which earned
him the reputation of being an acceptable candidate to all communities. Before Telang, even
Haridas had been a candidate acceptable to all sections of Bombay society. This could possibly
suggest that appointing a candidate who was acceptable to all communities was an important
criterion in Bombay. Haridas and Telang were both Hindu judges, but their legitimacy among the
Muslim and Parsi communities in Bombay was an important consideration which went into their
appointments.
If Telang’s appointment on the Bench had not come through, Pherozeshah Mehta would
probably have been offered the judgeship instead.105 As the ‘uncrowned king of Bombay’,106
Mehta was one of Bombay’s best known public figures, and was part of the rising, new
generation of ‘public-spirited’ lawyers.107 The first Parsi108 barrister in India,109 Mehta had
served two terms as president of the Bombay Municipal Corporation between 1884–5, and was
nominated to serve on the Bombay Legislative Council in 1886 where he helped draft Bombay’s
Municipal Act of 1888, termed the ‘Magna Charta of municipal freedom’.110 Though a mediocre
student like Telang,111 in 1889, he was elected Dean of the Faculty of Arts at Bombay
University. In 1890, he would go on to serve as president of the fifth session of the Indian
National Congress. The Governor of Bombay thought that Mehta would be unwilling to accept
an offer to serve as a judge on the High Court,112 perhaps because he felt that Mehta would
rather have continued his dominant, nearly hegemonic, work on the municipal corporation.
Like Haridas, Telang was willing to politely criticize the government. Like him, Telang had
submitted a memorial to the government defending the Ilbert Bill. At a speech delivered on the
subject in 1883, he proudly declared, ‘[f]or every one European that can be shown competent to
conduct a criminal trial in a vernacular subject, we can show at least one hundred natives even
more competent to do so in English.’113 Telang had been a vocal critic of the colonial
government during Lytton’s administration. At a speech delivered in Bombay in 1879 to protest
Lytton’s policy of revoking import duties on Lancashire cotton goods, he pointed out how Lytton
had overruled the majority of the members on the Executive Council. ‘This is one, gentlemen, of
many signs’ he said, ‘indicating that we are coming now on bad days—on the days of personal
Government, of Government according to the whims and caprices of individual officers, and that
the days of Government by Cabinets or Councils is passing away.’114 On a related issue, Telang
criticized Lytton quite severely, calling his actions ‘unmerited, ungenerous, uncharitable,
unjust.’115 In 1888, only a year before he was appointed a judge on the Bombay High Court,
Telang took a stab at another Viceroy, Lord Dufferin, credited with having started a ‘divide and
rule’ policy in British India.116 Dufferin had accused the Indian National Congress of making
certain claims, which Telang considered untrue. ‘The various charges which His Lordship makes
against the Congress,’ said Telang at the fourth session of the Congress, ‘are charges which
remind me of a certain definition which was once given of a crab, viz., that a crab is a red fish
which walks backwards; and the criticism made upon that was that the definition was perfectly
correct, except that the crab was not a fish, that it was not red, and that it did not walk
backwards.’117 Telang concluded his speech by making mention of the ‘imaginary scheme which
somehow seems to have floated through Lord Dufferin’s brains.’118 Even as a judge of the
Bombay High Court, Telang continued to be a vocal, though polite, critic of the British
administration. For example, in a paper he read at the Deccan College in Poona in 1892, at a time
when he was a judge of the Bombay High Court, he wrote that ‘the passive influence of British
administration generally’, had slowed down ‘the general social development of the Hindus’.119
Had the Peshwas never been defeated by the British, Telang opined, social reform in India would
have been carried out much quicker. This was a view Telang had advocated even in 1886, three
years before his High Court appointment.120
However, despite his apparent willingness to fight the government, Telang never let his tone
get out of hand. He was always respectful of the government, and reminded his listeners that he
was ‘a loyal subject of the British Government’,121 who trusted in ‘the justice and sense of
fairplay of the British House of Commons’.122 Telang prefaced his criticisms of Lord Lytton by
reminding his audience that he was himself ‘but a humble individual, speaking about the most
exalted personage in the Indian Empire’.123 Similarly, before criticizing the state of women’s
social and political rights in England, he was quick to point out that he believed ‘the social
condition of England…immensely superior to that of any of the section (sic) of our Indian
community’.124 He was generous in his praise of government officials too—not withholding his
admiration for Lord Ripon, the Viceroy under whose administration the Ilbert Bill controversy
had surfaced, on the eve of Ripon’s retirement.125 For the colonial government, Telang’s
courteousness, and his moderation, were perhaps considered his redeeming qualities.
On the Bench, Telang played a much less prominent role in Indian politics.126 In fact, his
appointment was likened to a person leaving the House of Commons to serve on the House of
Lords.127 Both Haridas and Telang, then, were an interesting choice of candidates for the High
Court judgeship. Telang, especially, was a respectful, but vocal, critic of the government who,
left to himself, could have evolved into a strong opponent of the government and its policies.
Instead, he was incorporated into the fold, a potential enemy of the Empire, befriended by the
Empire.
Mahadeo Ranade
Eventually, Telang died in harness too, in 1893, at the age of only forty-three.128 With Telang’s
death, another Indian, Mahadeo Govind Ranade, was appointed a judge of the Bombay High
Court.129 Ranade was a member of the influential Chitpavan Brahmin community,130 which, in
1901, numbered 113,605 in a Marathi-speaking population of approximately ten million.131 He
was the son of a revenue clerk in the native state of Kolhapur, and many members of his
extended family went on to become dewans, or chief ministers, in native states.132 An
outstanding student, Ranade was one of the first beneficiaries of Bombay University—he was
one of four students to graduate from its inaugural B.A. class in 1862, and one of two students to
graduate from its inaugural M.A. and LL.B. classes in 1865 and 1866 respectively. Specializing
in history at the masters level, Ranade would subsequently write a contrarian history of the
Marathas,133 in English, lending a much needed Indian voice to the historiography. In it, he
argued that it was a Maratha king, Shivaji, and not the British, who had first set up institutions of
liberal constitutionalism in India.134 Ranade also wrote a series of essays on Indian
economics.135 He was one of the first of the prestigious Dakshina Fellows at Bombay University,
and was the university’s first instructor in political economy.136 In fact, his widespread reading
might have been the cause of his poor eyesight—as a student, Ranade nearly lost use of his eyes,
and he had to wear bandages covering his eyes for six months.137 Like Telang before him and
Chandavarkar after him, Ranade wrote articles in newspapers in order to reach a broad
audience.138 Of all the judges who served on the Bombay High Court during the British Raj,
Ranade is perhaps the one judge whose memory survives to this day. The subject of numerous
biographies, Ranade and his wife, Ramabai, were recently the subjects of a popular Marathi
television series.139
Unlike Haridas and Telang, Ranade was a member of the subordinate judiciary. He would be
one of only a handful of such non-Indian Civil Service subordinate judges to be appointed to the
Bombay High Court during the British Raj.140 Three years before the Ilbert Bill controversy
surfaced, Ranade controversially sentenced an Englishman to eight months’ imprisonment for
stealing from his Indian servant,141 causing an uproar in the British-run press in India—in
newspapers like the Bombay Gazette and Deccan Herald. Unlike the other Indian judges who
served on the court in the nineteenth century, Ranade spent a large portion of his professional
career in Poona and was fondly referred to as Poona’s ‘rishi or respected sage’.142 At a time
when Bombay heavily overshadowed Poona and the rural districts of the Presidency in political
representation,143 Ranade’s elevation would be hailed as conferring a much-needed honour on
Poona’s best known resident.
As a government servant, Ranade was formally prohibited from criticizing the government or
engaging in contentious political agitations.144 Yet, Ranade played a decisive behind-the-scenes
role in India’s political movements. He was a member of the managing committee of the
Bombay Association, a founding member of the managing committee of the Bombay Branch of
the East India Association, and a founding member of the important Poona Sarvajanik Sabha and
Deccan Sabha—political organizations which predated the Indian National Congress.145 He
attended the first two sessions of the Indian National Congress, and played an important though
discreet role at its third session in Madras.146
In fact, Ranade often dangerously straddled the divide between what was considered
appropriate and inappropriate behaviour for a government servant at the time. In an essay on
criminal justice, Ranade launched a veiled critique of his British judicial superiors in the
mofussils, calling them ‘ill-informed’, ‘junior in years’, and ‘unversed in native languages and
manners’.147 Ranade criticized Lytton’s policy of reducing the qualifying age for the Indian Civil
Service to nineteen.148 During the famine in Bombay Presidency in 1876–8, Ranade attacked
Governor Richard Temple’s famine policy.149 As a consequence, he was punitively transferred
from Poona to the smaller town of Nasik in 1878.150 He was subsequently transferred to an even
less coveted posting in Dhulia in 1879, by Governor Richard Temple, for his suspected
involvement in a Brahmin-led uprising in Poona.151 On that occasion, Temple bypassed the High
Court in issuing Ranade’s transfer orders.152 Though Ranade’s name was eventually cleared
from the controversy, many British officials would continue to suspect Ranade’s motives in the
years to come. Despondent, Ranade wrote a letter to the Chief Justice of the Bombay High
Court, Michael Westropp, complaining about his transfer to Dhulia, and requesting that he be
transferred to a more coveted post at Thana or Nasik.153 When Sir James Fergusson replaced
Temple as the Governor of Bombay after the Conservative defeat in England, Fergusson wrote a
letter to Ranade in which he promised to promote him, but reminded him not to criticize the
government, as Ranade was a public servant:
With regard to the estimation in which you are held by Government, the Governor thinks you would do well to consider that
the liberty of expression which is permitted by the British Government to its subjects may not always be suitable for one in
a judicial office, in which a prudent reticence and abstinence from political controversy is specially becoming. From your
connection with the Government you have opportunities of bringing to the notice of the authorities, through the usual
channels, the wants and troubles of the people: of such opportunities you would do well to avail yourself, rather than to
employ your talents and influence in such a way as to encourage agitation or discontent.154
Ranade was subsequently transferred back to Poona, and he played a less aggressive role in
politics. Yet, he did not shy away from an opportunity to criticize the former Governor, Richard
Temple, for his ‘theatrical exaggeration of speech and action, his ultra-Englishism, the absence
of all sincere love of the people, his positive dislike of all free institutions, the total absence of
any large lines of statesman-like actions, the strongly retrograde character of his land and famine
policies, his impatience of all opposition, and his often successful efforts to make words play
duty for deeds’.155 Even so, at this time, Ranade’s brand of criticism was far milder than the
political criticisms of the rising younger generation. In newspapers like the Kesari and Mahratta,
younger leaders like Bal Gangadhar Tilak were beginning to take aggressive positions against
the British government. Ranade’s critical voice, on the other hand, was like that of a loyal
opposition, mild and constructive. It was perhaps for this reason that while serving as a judge
under the Deccan Agriculturists Relief Act, Ranade was nominated by Governor Fergusson to
serve on the Bombay Legislative Council in 1885.156 Over the years, Ranade continued to play
an important behind-the-scenes role in national politics. His mentorship of Gopal Krishna
Gokhale ensured that the influence of his moderate ideas would stretch far beyond his lifetime
into the twentieth century.
Inspired by Christian evangelicals, Ranade advocated social reform in Hinduism, and was
initially catapulted to fame as a consequence of the widow-remarriage reform movement in
Bombay in the late 1860s.157 In the 1880s, child marriage reform suddenly occupied centre-stage
in Bombay when the Parsi newspaper editor, Behramji Malabari, published his ‘Notes on Infant
Marriage in India’,158 sparking, according to Richard Tucker, the first national social debate in
India, a debate which catapulted Bal Gangadhar Tilak to fame.159 Ranade advocated his support
for government-sponsored legislative reform of child marriage law, though he subsequently
wavered in his support. The controversy, which eventually materialized into Andrew Scoble’s
Age of Consent Bill in the Viceroy’s Legislative Council, helped shape the careers of nearly
every judge who served on the Bombay High Court in the nineteenth century. Interestingly,
many of the most contentious cases of the nineteenth century did not involve the state at all,
though the colonial government was heavily invested in their outcomes. One such example was
the case of Dadaji v. Rukhmabai160 in which a Hindu woman objected to her being forced to live
with her husband. The case had a bearing on the Age of Consent controversy. Ruffling orthodox
feathers, Ranade publicly took the woman’s side, and argued that a Hindu marriage was not valid
without the woman’s consent.161 Ranade played a leading role in the National Social
Conference, organized, among others, by Malabari, and closely affiliated with the Indian
National Congress.162 According to Richard Tucker, Ranade displayed a ‘Victorian moral
fastidiousness’.163 At a function held at the Deccan College in Poona, he angrily stormed off in
disgust when a dancing girl appeared on the scene, forcing others to leave with him.164 Yet, like
Telang, Ranade was criticized for being a hypocritical social reformer. When his first wife died
of tuberculosis in 1873, he did not remarry a widow as his followers had hoped, choosing to
marry an infant girl picked by his father instead.165 Ranade was also criticized for his
compromise in the ‘Panch Howd Mission’ controversy, when he agreed, with others, to perform
a penance for attending an event at an Anglican mission, an event at which tea and biscuits had
been prepared by low caste workers.166
Badruddin Tyabji
Wassoodew, Haridas, Telang, and Ranade were all upper-caste Hindus. A few years after
Ranade’s appointment to the Bench, though, the court saw its first Muslim judge—Badruddin
Tyabji, who was the first ‘native’ barrister at Bombay, and consequently the first Indian to be
appointed to the Bombay High Court under the ‘barrister’ category.167
Tyabji was one of Bombay’s best-known Indian lawyers on the Original Side of the High
Court. His fee books as a lawyer show that he was extensively briefed both by British and Indian
solicitors at the Bar.168 Tyabji started his career in 1868, a year in which he earned the total sum
of Rs 7,170.169 However, his earnings grew steadily and quite rapidly over the years, such that
by 1890, he earned the total sum Rs 1,23,260 from his legal practice, which was more than twice
the annual salary of the Chief Justice of the Bombay High Court.170 However, in the 1890s,
Tyabji’s health had started to deteriorate, and his earnings began to suffer. Thus, in 1893, Tyabji
earned only Rs 7,120—less than the money he had earned in his first year as a lawyer, several
decades ago. In his fee book, Tyabji wrote a handwritten note explaining why he had earned so
poorly in 1893: ‘I was ill—suffering from weak eyes & general bad health from the middle of
June 1892 to middle of December 1893. Therefore took only a little work….I was almost in
Europe from 25th March /93 to 19th Oct /93. This accounts for absence of fees...’171 In 1894,
one year before he was elevated to the Bombay High Court Bench, Tyabji earned only Rs 28,405
—which was still one of his worst years in a long time. This helps explain why Tyabji might
have decided to become a Bombay High Court judge: his health had substantially affected his
practice as a lawyer, and he probably felt that his career as a lawyer was nearing an end.
Tyabji could have been appointed to the court much earlier. After Haridas, every time a
native vacancy arose on the Bombay High Court Bench, Tyabji was always one of the lawyers
rumoured to have been under consideration for the post. When Telang died, Tyabji was offered
his seat in 1893, but Tyabji asked for special working conditions on account of his poor health,
which could not be accommodated. Finally, when Lyttleton Bayley, the only Bombay High
Court judge who wrote a memorial against the Ilbert Bill, retired from the court in 1895, Tyabji
was appointed to act in his place temporarily. However, a rumour started circulating that the
government was not going to confirm Tyabji to the post because he was an Indian, and as
Ranade was already on the court at that time, there was no native vacancy on the Bench. The
Indu Prakash grew wary of this rumour. ‘The Queen’s proclamation’, its English editor wrote,
‘declares that no man will be considered ineligible for an office merely by reason of his race or
creed. How can then such a paltry objection be raised in the case of Mr. Badruddin?’172 Then, a
minor scandal broke out when Arthur Strachey, the scion of an influential British family, was
brought from Allahabad and made a confirmed puisne judge of the Bombay High Court. It was
thought that Strachey was taking Bayley’s vacated seat on the court, and that Tyabji had been
overlooked for the appointment. In a scathing critique of this move, the Indu Prakash wrote that
the Secretary of State was guilty of committing a ‘shameless act of nepotism’ and ‘shameless
jobbery in the most absurd fashion’.173 Strachey’s appointment on the court, according to its
editor, undermined the independence of the judiciary:
The High Court judges are supposed to be independent of Government; the best men available are generally appointed to
the posts….But if these judgeships were made to follow the fortunes of British Political parties and depend on the patronage
of the successive Secretaries of State, then good bye forever to an independent, painstaking and efficient High Court!174
Going a step further, the newspaper criticized the Secretary of State, Lord George Hamilton, for
using his office to make his friends happy. Referring to the Secretary of State, the English editor
of the Indu Prakash wrote:
His India is confined to the India Office, to his friends and admirers in England. If he can get nice posts for them or for their
sons and relatives he thinks that he has done his duty by his Queen and country—and especially by the great dependency
which he no doubt honestly considers as a vast field for exercising his patronage.175
It turned out that Strachey had not been appointed to the vacancy created by Bayley’s retirement,
but in another vacancy.176 The Indu Prakash then scaled back some of its criticism.177 However,
this incident points out, once again, that judicial appointments in Bombay were being closely
monitored and commented on by the local press. It was too politically sensitive an issue for the
government to pull back from appointing Indian judges to the Bench.
In October 1895, Tyabji received a letter from the private secretary to the Governor of
Bombay, which said:
Dear Mr. Tyabji, His Excellency the governor has received a secret communication from the Secretary of State enquiring
whether you would be willing to accept a puisne judgeship of the Bombay High Court of Judicature. I am to ask you to be
so good as to favour his Excellency with an answer to the question put by the Sec: of State.178
Tyabji responded in the affirmative and a few days later, he received a congratulatory letter from
the Governor of Bombay:
Dear Mr. Budroddin Tyabji, I have the pleasure to announce to you that the Queen-Empress has been pleased to approve
your appointment to the vacant puisne judgeship, and I offer you my sincere congratulations in the position you have
attained. I understand that your appointment will appear in today’s Times in London.179
Now, Tyabji sat with Ranade on the court, the first time in the court’s history that two permanent
Indian judges were serving on it simultaneously. According to the Indu Prakash, Tyabji’s
appointment was a fitting one because a large proportion of the court’s cases involved
inheritance disputes among Muslims, and it was important for the court to have a judge who
specialized in Muslim law.180 Importantly, when Tyabji was appointed to the Bench, the Indu
Prakash reported that his appointment was ‘doubly welcome to the public’ because Tyabji was
‘held in high esteem both by the Hindus and Mahomedans’.181
Though he had had eighteen children,182 Tyabji was not the typical Muslim of the time. At
the turn of the century, Muslims constituted approximately 20 per cent of the population of
British India and Bombay city,183 but less than 5 per cent of the Muslims of British India at that
time were educated, lower than the national average for Hindus.184 Tyabji was one of the
privileged, educated Muslims of British India.185 A member of the Sulaimani Bohra community,
a Shia Ismaili sub-sect of Islam,186 Tyabji’s father was a wealthy Bombay merchant, with
impressive political connections. A Bombay High Court judge, Joseph Arnould, was a ‘great
friend and admirer’ of Tyabji’s father, and the Governor of Bombay, Bartle Frere, was one of his
acquaintances.187 Of all the Indian judges to serve on the Bombay High Court until then, Tyabji
was possibly the most wealthy and well-connected. He was the only one of them to have studied
at a high school overseas—at the Highbury New Park College in London. When he returned to
London to get admitted to the Bar, Tyabji spent money lavishly. His brother complained,
‘Badruddin does not understand how moneys are made.’188 At a time when a university degree
was a passport for professional success, and signalled membership in Bombay’s Western-
educated elite ‘native’ community,189 it says much that Tyabji got where he did without having a
university degree. Upon his return to the Bar in Bombay, Tyabji cultivated friendships with High
Court judges.190 When he died, Tyabji left a fortune behind, including ten properties in
Bombay.191
Like Telang and Ranade, Tyabji had played a prominent role in politics. It is remarkable how
similar their resumes were. Starting in 1873, Tyabji served on the Bombay Municipal
Corporation for over a decade, until a decision of the Bombay High Court precluded Original
Side lawyers from getting adjournments for attending to public duties.192 In 1879, when Viceroy
Lytton revoked import duties on Lancashire cotton goods, Tyabji spoke at the public meeting in
Bombay organized in protest, a meeting at which Telang spoke too.193 For many years, Tyabji
served as a member of the Senate and Syndicate at the University of Bombay.194 Between 1882–
6, Tyabji served as a member of the Bombay Legislative Council,195 where he played the part of
a member of the loyal opposition. In 1883, Tyabji spoke with Telang at two public meetings held
in support of the Ilbert Bill.196 His speech at the meeting was laced with fiery rhetoric:
Gentlemen, I venture to think that the present state of the Law is not only unjust, but it is insulting to us (cheers). It is
insulting to us, first because it brands the ablest, the highest and the most distinguished of our judicial officers with a galling
and perpetual mark of inferiority (renewed cheers). It is insulting to us, because it draws an invidious distinction between
the European and the native members of the same covenanted civil service. It is insulting to us, because it exalts the
European British subjects into such superior beings as to declare that even the highest of our judicial officers shall be
incapable of imprisoning him a single day or fining him a single rupee and it is insulting to us, because it degrades our own
countryman to such a depth as to declare, in the very next breath, that the same incompetent and unfit magistrates and
judges who are incapable of trying even the most trivial case of assault against an Englishman, are yet fit and competent to
try millions of our own countrymen for the gravest of charges and even to condemn them to death.197
As a member of the Bombay Legislative Council, Tyabji met with Viceroy Ripon and helped
broker a compromise between the Indian and British-Indian communities on the Ilbert Bill
controversy.198 In 1884, at a public meeting held to protest the qualifying age for the Indian Civil
Service, Tyabji lashed out at the government’s policies once more: ‘Gentlemen’, he said, ‘is it
not a mockery for the government in one breath to declare that all appointments are open to the
natives of India, and in the very next breath to formulate rules which render it impossible for
ninety-nine out of a hundred eligible candidates from even attempting to compete with their
English rivals?’199 The resolution was moved by Tyabji, and supported by Telang. In 1885,
along with Telang, Tyabji was one of the founding members of the Bombay Presidency
Association.200 It was around this time Tyabji started being associated with the heterogeneous
‘triumvirate’ of Bombay—from one public meeting to the next in Bombay, Tyabji (a Muslim)
would move a resolution, Pherozeshah Mehta (a Parsi) would second the resolution, and Telang
(a Hindu) would support it.201 In 1887, Tyabji presided over the third session of the Indian
National Congress, in Madras. In his presidential speech, Tyabji declared his loyalty to the
British government, and urged educated Indian political leaders to be moderate and respectful in
their criticisms of government. ‘I must say that I have myself observed in some of the Indian
newspapers, and in the speeches of public speakers,’ he said, ‘sentiments and expressions which
are calculated to lead one to the conclusion that they have not fully realised the distinction
between licence and liberty; that they have not wholly grasped the lesson that freedom has its
responsibilities no less than its privileges.’202 He continued: ‘Be moderate in your demands, be
logical in your conclusions, and you may rest assured that any propositions you may make to our
rulers will be received with that benign consideration which is the characteristic of a strong and
enlightened Government.’203 During the plague outbreak in Bombay at the end of the century,
Tyabji helped secure the cooperation of the Muslim community towards the government’s
sanitary measures, and supported the government’s inoculation policy.204
Like Telang, though perhaps to a lesser extent, Tyabji focused on social reform amongst
Muslims in British India, especially in the field of education.205 He cautiously supported Andrew
Scoble’s Age of Consent Bill.206 Tyabji provided leadership to the Muslim community, though
his liberal policies did not go unchallenged.
Tyabji had a stellar reputation at the Bar, and along with Pherozeshah Mehta, he was
considered one of the best Indian lawyers in Bombay. His elder brother, Camruddin Tyabji, was
only the second Indian to become a solicitor in Bombay,207 and he passed work along to
Badruddin during his early days to help kick-start his career.208 When a young Mohandas
Gandhi consulted statesman Dadabhai Naoroji in England in the late nineteenth century for
career advice, Naoroji said to Gandhi, ‘[d]o you think that everyone must be a Pherozeshah
Mehta? Pherozeshahs and Badruddins are rare.’209
Yet, consistent with the colonial administration’s policy of testing out their judicial
appointments by appointing candidates as temporary ‘acting’ judges first, Tyabji too was first an
‘acting’ judge.210 To one Indian solicitor, Ranade ‘had rather uncouth ways about him’ and
Tyabji ‘was rather touchy and flared up on slight provocation’.211 Whether true or false, this
comment could tell us that Indian lawyers were not always uniformly delighted when Indian
judges were appointed to the Bench.
Narayan Chandavarkar
When Ranade died in harness in 1901, another Hindu Pleader—Narayan Ganesh Chandavarkar,
who was known to be a staunch British loyalist212—was appointed to the post. The son of a
Pleader at Sirsi (a small town located some 400 miles south of Bombay), his uncle was a
relatively prominent Pleader who practised on the Appellate Side of the Bombay High Court,
and acted as Chandavarkar’s guardian in Bombay.213 Like Telang, Chandavarkar was a member
of the Gaud Saraswat Brahmin community. It is interesting that no judge appointed to the court
belonged to the more numerous Maratha castes or the ‘untouchable’ ‘depressed classes’.
However, Chandavarkar himself was an outspoken critic of the caste system.214 After getting his
B.A. and LL.B. degrees with first class honours at Bombay University, a rare feat for any future
colonial Bombay High Court judge to accomplish, Chandavarkar became the editor of the
English section of the Indu Prakash, thanks to a recommendation from Telang.215 Ranade had
also briefly served as the editor of the English section of the Indu Prakash for a few months.216
This Indu Prakash connection was no coincidence. The early judges of the Bombay High Court
typically all had this in common, that they were all public intellectuals—writers, reformers,
politicians, and speakers, who happened to be lawyers. We will soon see that this changed in the
twentieth century—judges were no longer public intellectuals, or politicians, but professional
lawyers.
Chandavarkar’s political career could possibly be said to have begun in 1885, when he was
one of three Indian delegates sent by local Indian political organizations to England, to help raise
awareness about Indian issues at the general elections there. The visit was a failure, as most of
the India-friendly candidates, typically Labour candidates, lost their electoral contests.217
Chandavarkar was soon appointed a Fellow of Bombay University, and in 1888, he was elected a
member of the Bombay Municipal Corporation. In 1897, he was elected by the University of
Bombay to be a member of the Bombay Legislative Council. A year before Chandavarkar was
appointed to the High Court Bench, he was elected the President of the Lahore session of the
Indian National Congress in 1900. Interestingly, Chandavarkar was informed that he was being
considered for a High Court judgeship after he became the president of the Indian National
Congress, but before the session where he was to preside took place. The Governor of Bombay,
Lord Northcote, invited Chandavarkar over for dinner, and wished him good luck prior to the
session.218
Chandavarkar was called ‘Wonderworker’ by some of his British colleagues on the Bench.219
According to one of his British colleagues on the Bench, Chandavarkar ‘was a charming
character and though a Brahmin he had strong Christian sympathies’.220 Interestingly, in his
speeches and writings, Chandavarkar usually referred to Indians not as Indians, but as the
‘natives’.221 The numerous speeches he delivered and articles he wrote before being appointed to
the Bench suggest that Chandavarkar saw British rule in India as a blessing, unlike Telang and
Ranade who were less forthcoming in their praise of the government. Where Telang believed that
indigenous rulers like the Peshwas would have been able to carry out social reform more swiftly,
and where Ranade believed that the Maratha king, Shivaji, had laid the foundations of liberal
constitutionalism in India, Chandavarkar believed that ‘[p]rovidence [had] consigned [India] to
England’s more methodical and more civilised rule’.222 An ardent social reformer who
repeatedly wrote on issues like female education, widow remarriage, and infant marriage,
Chandavarkar believed that British rule had been set up in India ‘for the intellectual and moral
advancement of its people’.223 In the pages of the Indu Prakash, Chandavarkar supported
Scoble’s Age of Consent Bill.224 In an article published in the Times of India in 1886,225 he
wrote of how ‘the English judge in India is slowly helping the social progress of the Hindoos’.226
Citing decisions of numerous British judges of the Bombay High Court, Chandavarkar
continued, ‘[Hindu law] is in itself somewhat elastic, and under British courts it has received,
and is receiving, liberal interpretations, showing on the whole, a tendency towards gradually
raising the status occupied by women in India’.227 Written over a decade before his appointment
to the Bench, this article offers an insight into the kind of judge Chandavarkar was likely to
become—one who would use his position on the Bench to reform Hindu law. His speech at the
Calcutta session of the Indian National Congress in 1886 was similarly deferential towards
British rule. ‘Whatever some of our captious critics may say,’ he argued, ‘I am firm in the faith
that as long as we are under British rule, so long the development of the representative principle
is secured.’228 On the Bench, Chandavarkar’s loyalty to the British government never seemed to
waver. In a convocation address delivered at Bombay University in 1910, he spoke of the effect
British education had had on India: ‘There has been an intellectual and moral awakening which,
but for British rule and its Colleges and Universities, would have been almost an impossibility,
having regard to the effete condition of Indian society just before the British power was
established among us.’229 The British government perhaps thought it beneficial to appoint a
particularly loyal Indian judge to the High Court in the wake of the plague of 1896, the
consequent riots in Poona, the famine of 1896–7, and the rise of revolutionary and extreme
Indian nationalism in the Bombay Presidency at this time. On the Bench, Chandavarkar was
rewarded like no Pleader-judge had been before him—contrary to established custom, he was
permitted both to preside over the Criminal Sessions of the High Court Bench and to sit on the
Original Side of the court.230 Chandavarkar was not particularly popular at the Bar.231
Though Chandavarkar showered praise on British officials (for example, Governor Sandhurst
or Viceroy Curzon), he was quick to point out defects in Indian statesmen. Particularly striking
was how Chandavarkar eulogized Telang and Ranade—two judges whom he usually spoke of
very highly. Chandavarkar wrote of Telang, ‘he had not distinguished himself as a particularly
brilliant boy. Some of his contemporaries both in school and college had won more prizes,
gained more scholarships than he, and surpassed him in point of rank both at the College and
University Examinations’.232 Perhaps Chandavarkar pointed out Telang’s academic mediocrity
because Chandavarkar himself had been a brilliant student at university—being one of the few
students to get a First Class in both the B.A. and LL.B. examinations. Chandavarkar was also
quick to point out that Telang had married off his eight-year-old daughter while serving as a
Bombay High Court judge, and that he was consequently criticized for paying mere lip-service to
social reform.233 Chandavarkar claimed that Telang had said to him at the time, ‘I know what I
have done will pain my friends Nulkar, Bhandarkar, and Ranade.... I plead guilty to the charge—
I have no defence; and I must bear calmly what is being said in the papers’.234 Eulogizing
Ranade a year after his death, Chandavarkar pointed out that throughout his career, Ranade was
unable to understand anything written down unless he read it aloud to himself, continuing,
unflatteringly, ‘[t]hat [Ranade] was not able to follow the cases cited under those circumstances
became clear to those who practiced before him’.235 Chandavarkar also felt that Ranade was too
quick to compromise on matters of principle,236 referring to Ranade’s indecisiveness on the Age
of Consent controversy.237
A strong debate existed at the time as to whether educated Indians should focus their energies
on trying to bring about political change or social change in British India. Founded in Bombay in
1885, the Indian National Congress agreed that it would not deal with matters of social reform, a
role which was to be taken up by another organization, the Indian National Social Conference,
instead.238 Chandavarkar valued social reform over political reform in British India, contrary to
the views of others like Telang. He served as General Secretary of the Indian National Social
Conference, a post he seemed to have held even after he became a judge.
As president of the Indian National Congress in 1900, Chandavarkar delivered a speech there
in which he was uncharacteristically critical of the government. ‘The excise duty levied on the
Bombay mill industry clearly shows,’ he said, ‘that under the present policy no Indian industry
will be allowed to outgrow European competition.’239 ‘Governments any more than individuals,’
he continued, ‘cannot both eat the cake and have it. The larger the proportion of revenue spent on
the administration, the less of it there is to provide for the administered.’240 Though he praised
the Viceroy of British India, Lord Curzon, in his speech, he also criticized Curzon’s famine
policy: ‘[M]y point is this, that the Government has not approached its solution in a broad,
comprehensive, masterly spirit, worthy of British statesmanship and worthy of so great an
empire as that of her majesty’s in India.’241
Chandavarkar’s appointment to the High Court Bench only a year later tells us a great deal
about how High Court judgeships were used by the colonial government in the nineteenth and
early twentieth centuries. Here was a loyalist, reformist, brilliant ‘native’ lawyer, who was
beginning to show signs of mild hostility towards British rule in India. To make him a judge of
the Bombay High Court would be to befriend him, and to neutralize the threat which his
continued leadership in the Indian National Congress might have posed to the government, in
short—to prevent a loyalist from becoming a nationalist. It was absolutely clear that judges of
the Bombay High Court could participate in no political activities.242 The Viceroy, Lord Curzon,
made this clear in his confidential communication with the Secretary of State for India. Curzon
was not particularly impressed with Chandavarkar. After hearing Chandavarkar’s speech as
president of the Lahore session of the Congress, Curzon wrote: ‘At the Lahore Congress, he (Mr.
Chandavarkar) made, on the whole, a moderate, wishy-washy speech, and the speakers
throughout the meeting seem to have spent the greater part of their time in complimenting me
and expressing pious aspirations which, I am afraid, it will be my duty to shatter.’243 Yet, when
the Secretary of State objected to Chandavarkar’s appointment to the Bench, Curzon wrote back
in reply:
I think that it would be a great mistake not to appoint this man [Chandavarkar], and that it might be a great advantage to
appoint him. Now, if his abilities warrant his being placed upon the Bench, which I believe they do…you might more or
less disarm him in the future and get him on your side. If you fail to appoint him, you infuriate the man himself, and you
throw back the moderate party in the Congress into an attitude of hostility and revenge.244
History condemned Chandavarkar for his apparent loyalty to the British colonial government.
Chandavarkar’s nephew, who was also his admiring biographer, called him a ‘much-
misunderstood man’.245 P.B. Gajendragadkar, a judge who served on the Bombay High Court in
colonial India, and who eventually went on to become the Chief Justice of the Supreme Court of
independent India, cautioned historians not to be anachronistic while assessing Chandavarkar’s
career. ‘I venture to think,’ wrote Gajendragadkar, in the foreword to Chandavarkar’s biography,
‘that it would not be fair or reasonable to apply to-day’s notions and ideas strictly in judging the
thoughts and activities of the generation that lived in the last quarter of the nineteenth and the
first quarter of the twentieth century’.246
PROFESSIONALIZATION
By the early twentieth century,247 it was well-known that two of the seven seats on the Bombay
High Court would be occupied by Indian judges—one by a Hindu, the other by a non-Hindu.
This policy of communal quotas was criticized by some Indian lawyers, such as Chimanlal
Setalvad, who believed that merit ought to have been the sole criterion for making judicial
appointments to the High Court Bench.248 Two seats were reserved on the High Court Bench for
Indians, in order to encourage the ‘energies and aspirations of those who wish to associate
themselves with Europeans in carrying on the government of the country’.249 The Hindu judges
of the court were usually Pleaders, while non-Hindus were usually barristers, which was
probably a reflection of the fact that it was harder for Hindus to travel overseas to get called to
the Bar on account of caste prohibitions.
The non-Hindu seat on the court alternated between the Muslim and Parsi communities.
When Tyabji died in 1906,250 he was replaced not by a Muslim, but by Bombay’s first Parsi251
judge—Dinsha Davar—who later sentenced Tilak to imprisonment for sedition. Parsis
constituted less than 1 per cent of the population of British India.252 Only approximately 2 per
cent of the Indian candidates in the Indian Civil Service were Parsis.253 Yet, Parsis prospered
during British colonial rule.254 A very high proportion of the law graduates of Bombay
University in the nineteenth century were Parsis—for example, nearly 30 per cent of the law
graduates of Bombay University in 1865 were Parsis. Though the proportion of Hindu law
graduates eclipsed that of Parsi law graduates over the years, the number of Parsi law graduates
at Bombay University was always higher than that of Muslim law graduates throughout the
British Raj.255 Nearly 15 per cent of the lawyers in Bombay in 1947 were Parsis.256 At the turn
of the century, more than half of the entire Parsi Indian community was located in Bombay city
alone. An industrious community, at a time when less than 8 per cent of the population of British
India was considered literate, a staggering 76 per cent of the Parsis of British India were literate.
Like Pherozeshah Mehta, Davar was one such Parsi. Unlike Mehta, however, Davar was nothing
more than a lawyer: prior to being appointed to the Bench he was neither a member of the
Bombay Municipal Corporation, nor the Bombay Legislative Council. He made no prominent
speeches protesting against the government’s policies, nor did he participate in the public life of
Bombay or British India to the same extent as his nineteenth-century predecessors.257 When
Davar died in harness in 1916,258 he was replaced, in turn, not by a Parsi, but by a Muslim
barrister—Abdealli Mahomedali Kajiji.259 Again, unlike Tyabji, Kajiji had played virtually no
role in the public life of the city. Kajiji rose to prominence only in the legal profession, by
making a name for himself in the High Court’s registry—he was the first Muslim to be appointed
Prothonotary of the court.260
During this time, the Hindu seat on the court remained constant. For example, when
Chandavarkar resigned in 1913, he was replaced by another Hindu Pleader—Lallubhai Asharam
Shah.261 Unsurprisingly, Shah did not belong to a lower or ‘untouchable’ caste, but was the first
member of the Bania community, a caste community of traders and merchants, to become a High
Court judge. Unlike Chandavarkar, Shah was a professional lawyer with little interest in politics:
he rose to serve as acting Government Pleader at the court before his elevation.
By contrast, the British judges of the Bombay High Court in both the nineteenth and
twentieth centuries typically led apolitical lives as civil servants or professional lawyers prior to
their elevation to the Bench. Most of the British judges of the court were Indian Civil Service
officials who were elevated to the Bench after serving in an important office like Judicial
Commissioner of Sind;262 Judge of Poona, and Agent to the Sardars in the Deccan; or Judicial
Commissioner of the Western Indian states. Very few of them served as members of the
Legislative Council of Bombay, but rarely did any of them play a prominent role in politics or in
the public life of the Presidency. In fact, politics was strongly discouraged. One such Civilian
judge, William Wedderburn, helped found the Indian National Congress in 1885, the year in
which he was temporarily appointed to the Bombay High Court. Despite having stellar judicial
credentials, however, including having served as Judicial Commissioner of Sind, Wedderburn
was censured, superseded, and never made a permanent Bombay High Court judge.263 Viceroy
Dufferin forbade all governments servants from participating in any activities involving the
Congress party.264 Among the few British barristers to have served as judges of the Bombay
High Court, some had been Advocates General of Bombay prior to their elevation,265 a post
which entitled the holder to an ex-officio seat on the Bombay Legislative Council. However,
these barristers too played no substantial role in the public life of the Presidency.
When Davar replaced Tyabji and Shah replaced Chandavarkar on the Bench, a sudden
change had taken place in the Bombay High Court. After Nanabhai Haridas, Indian judges
appointed to the court in the nineteenth century had led vibrantly active political lives prior to
their elevation. Telang, Ranade, Tyabji, and Chandavarkar had all held public office before their
judgeships, they had all vitally participated in organizing political agitations against some of the
government’s policies, and in advocating the cause of social reform. By contrast, the judges who
followed them in the twentieth century were usually a professional breed of lawyers prior to their
elevation to the Bench.266 Except for Davar, most of the new twentieth century Indian judges had
been born after the Mutiny of 1857, and were far too young to have been defined by the
Viceregal administrations of Lytton and Ripon in the age of India’s political awakening. In a
sense, the judges who started serving on the court in the twentieth century had more in common
with Nanabhai Haridas, the first Indian judge of the Bombay High Court, than with their
immediate predecessors: Telang, Ranade, Tyabji, and Chandavarkar. Like Haridas, they were
apolitical, professional lawyers. A post on the Bar Council or University Senate was the highest
political post these judges held.
There are several reasons why this intergenerational shift in judgeships on the Bombay High
Court might have taken place:
First of all, the nature of the legal profession had now vastly changed, and lawyers were
beginning to find it difficult to both practise law and hold public office simultaneously. There
were hints of this even earlier on. As far back as in 1882, Badruddin Tyabji applied to the
Bombay High Court to have one of his cases on the Original Side of the court adjourned (that is,
postponed) so that he could attend a meeting of the Legislative Council which was going to be
held in Poona.267 The court refused Tyabji’s application, telling him that he could not get special
treatment in cases merely because he had public duties. As a consequence, Tyabji chose to resign
his seat on the Bombay Municipal Corporation, in order to focus only his legal practice and on
his work on the Governor’s Legislative Council.268 At the time, the High Court’s ruling only
affected lawyers who practised on the Original Side of the High Court, and lawyers like
Pherozeshah Mehta, who practised on the Appellate Side, continued to freely engage in public
life in the nineteenth century with the cooperation of the court. During that era, there were so few
university graduates and lawyers that it was possible for lawyers like Tyabji and Mehta to carry
on flourishing legal practices while also thoroughly engaging with the public life of Bombay and
British India.
Now, things began to change. As Figure 2.1 indicates, the number of university graduates
increased exponentially, at a rate much higher than the rate at which the population of the
Bombay Presidency rose. From twenty-nine B.A.s in 1875, there were 170 B.A.s at Bombay
University in 1895, and 800 in 1929. The number of law graduates also rose significantly.269 As
a leading Scottish lawyer in Bombay, J.D. Inverarity, said in a speech in 1912, ‘[w]hen I came
out [to Bombay in 1870] there were 23 members of the Bar. What a difference there is now. I
think there are over 250 Advocates on the list…’270 Various explanations have been offered in
the literature as to why the number of lawyers skyrocketed in colonial India. One explanation is
that since most members of the middle classes in India belonged to the high castes, and since
high caste communities preferred literary occupations to commercial ones, the legal profession
was one of the most popular occupations of the rising middle class.271 Another explanation is
that Indian university graduates took to the legal profession because there were no other
employment opportunities for them elsewhere.272 Lawyers, on the other hand, could also land
safe jobs in native states. It seems clear, however, that most joined the legal profession because
of the wealth, influence, and political power that top-ranking Indians lawyers acquired.273 The
fact remains, though, that from only two students to have graduated from the LL.B. program at
Bombay University in 1875, there were sixty-one law graduates in 1895, and 371 in 1929. As the
rising figure of law graduates would suggest, the number of practising lawyers was also on the
rise, and it was no longer possible for a lawyer to practise law and hold public office
simultaneously. In this increasingly competitive environment, lawyers who neglected their law
practices in favour of public office faced the risk that their clients and solicitors would replace
them with other, equally qualified lawyers.
Oddly, though the size of the legal profession was expanding in the colonial era, the size of
the Bombay High Court’s docket did not correspondingly increase during that time.274 While the
number of cases filed on the Original Side of the Bombay High Court steadily increased over the
years,275 leading to demands for increases in the number of High Court judges on the Original
Side, the number of cases filed on the Appellate Side diminished over the years.276 In total,
approximately 8,481 cases were filed on both sides of the Bombay High Court in 1869; 6,361
cases in 1879; 3,439 cases in 1909; and 6,312 cases in 1919. In the period immediately following
the ‘Great War’ (that is, World War I), the number of cases filed on the Original Side of the
Bombay High Court rose substantially. For example, though there were only 2,279 cases filed on
the Original Side in 1916, the figure had risen to 7,331 cases in 1922. However, the total number
of cases filed on both sides of the Bombay High Court remained similar in the nineteenth and
twentieth centuries.277 Accordingly, not only were there more lawyers in Bombay in the
twentieth century than there had been in the nineteenth century, but the total number of cases had
not proportionately increased in the twentieth century, which meant that more lawyers had to
compete for the same amount of work.
Figure 2.1 Graduates of Bombay University
Source: Data compiled from the Bombay University Calendar, and the Census of India
Note: Data were not available for the year 1925, so the closest available year, 1929, was used instead. Population figures are as
per the census of 1871, 1881, 1891, 1901, 1911, and 1931 respectively.
Second, the nature of politics in British India had also changed. In their political lives, lawyers
like Telang, Tyabji, and Mehta had been moderate in their outlook—though they politely
criticized the colonial government, they genuinely believed in the benefits of British rule in
India. In Richard Tucker’s words, they were loyal critics of the Raj, and the government’s
political apologists to the masses.278 Further, public office holders in the nineteenth century were
more often nominated to office rather than being elected, and, as such, they were dependent on
the good graces of government officials for their offices. Telang, Ranade, and Tyabji were each
nominated by the Governor to serve on the Legislative Council. By contrast, elections became
more widespread in the twentieth century, as a consequence of which views which were
unacceptable to the colonial government began to find a place in public life. The twentieth
century witnessed the rise of ‘extremist’ politics. After the split in the Congress in 1907,
‘moderate’ leaders were increasingly marginalized by ‘extremists’ who advocated that the British
should leave India—something which judges like Telang, Ranade, and Tyabji would never have
dreamed of asking for. It was no longer possible for a colonial government to appoint these
politicians to the High Court Bench, because their ‘extremist’ views were existentially
incompatible with the idea of British India.279 An ideal judicial candidate was one who steered
away from politics, and abstinence from public life was seen as a virtue. Along similar lines,
Indian recruits to the Indian Civil Service at this time were subjected to a security clearance, the
objective of which was to root out those candidates who were politically inclined.280
Even ‘moderate’ leaders were increasingly looked upon with suspicion. After Chandavarkar,
many expected one young lawyer-politician, Chimanlal Setalvad, to be appointed to the High
Court Bench. Besides being a top-ranking lawyer, Setalvad was the natural successor to the
legacies of Telang, Tyabji, and Chandavarkar. He was a Fellow and Syndic at Bombay
University, a two-time elected member of the Bombay Legislative Council, and a member of the
Bombay Municipal Corporation. However, the Chief Justice and Governor of Bombay
maintained that ‘any person taking an acting part in politics [was to] be avoided’,281 and
Lallubhai Shah was appointed instead of Setalvad. This is especially interesting given that
Setalvad was considered a ‘moderate’ politician282—in the new nationalist politics of British
India, even ‘moderates’ were not considered particularly good candidates for High Court
judgeships. Perhaps the spectrum of ‘moderation’ had shifted—now, politicians like Setalvad,
though ‘moderate’, were far more ‘extremist’ in their outlook than the polite ‘moderates’ of the
nineteenth century.
The official position was that lawyers should not get involved in politics. Chief Justice John
Beaumont fought with the government in order to appoint M.C. Chagla to the Bench. The
government believed that Chagla’s political career was ‘pretty lurid’ and that he had many ‘black
marks’ against him.283 Eventually, it was only when Beaumont convinced the government that
Chagla ‘could be trusted not to bring politics to the Bench’284 that he was appointed. Later,
Beaumont was furious when one of his favourite lawyers, Motilal Setalvad, resigned as
Advocate General of Bombay, in solidarity with Congress politicians who quit the government
when India was signed on to World War II without their consent. Beaumont would have
preferred that Setalvad remain politically aloof. Similarly, Beaumont could not get himself to
appoint Purushottam Tricumdas, the Government Pleader of Bombay, to the High Court Bench.
Like Setalvad, Tricumdas too had resigned his post during the Quit India movement. Chagla later
wrote that Beaumont would have appointed Tricumdas to the Bench had it not been for his
‘political activities’.285
Third, lawyer-politicians in the twentieth century probably thought it traitorous to accept
posts like judgeships on the High Court Bench. In the new Indian nationalist movement of the
time, accepting a government post like a High Court judgeship was sometimes equated with
moral failure. Jamnadas Dwarkadas, an Indian nationalist leader, wrote that much of the
leadership of the Congress party in the early twentieth century used politics only as a platform
‘to show off their own learning and ability with a view eventually to drawing the attention of the
Government to themselves’.286 ‘Instances are not wanting’, he continued, ‘when Congress
Presidents, one after another, were made High Court Judges or raised to the position of high
dignitaries under the foreign Government’.287 He pointed out that both Tilak and Telang, who
were contemporaries, ‘had pledged to give themselves up to the service of the country in
manifold directions without being lured by any reward in terms of money or favours from the
Government’, and that ‘circumstances had prevailed upon Telang to accept the coveted position
of a Judge of the High Court of Bombay’.288 Dwarkadas was not the only one to point out that
Telang had betrayed his duty to the nationalist cause. When Telang was appointed to the Bench
in 1889, the Indu Prakash, wrote that Telang could have ‘done a greater service to himself and to
his country by declining the present honour…and electing to remain a free man. The shackles of
Government service must needs impair his public usefulness.’289 Dwarkadas was particularly
peeved with Chandavarkar who, concurrently with his office as a Bombay High Court judge,
served as Vice-Chancellor of Bombay University, and helped amend the curriculum of the
university, in collaboration with the British Governor of Bombay, to ensure that Indian students
would not learn liberal British constitutional principles.290
Dwarkadas was not alone in grudging Indian High Court judges for abandoning the cause of
nationalism and siding with the colonial government. Jawaharlal Nehru, subsequently the first
Prime Minister of India, did not think highly of Indian judges either, perhaps justifiably so—
while he and his nationalist compatriots repeatedly served time in prison during the struggle for
freedom, Indian judges sat in the breezy corridors of power, in the limelight, making an
illegitimate foreign government look like a benevolent one. In his autobiography, Nehru recalled
how, at Cambridge University, his Indian friends in the society of Indian students called the
‘Majlis’, privately used ‘the most extreme language’ while discussing Indian politics, even
speaking admiringly of acts of violence used by Indian revolutionaries.291 Nehru wrote
disapprovingly of these ‘parlour firebrands’, who later abandoned their nationalistic leanings and
went on to become High Court judges and members of the Indian Civil Service, playing no role
in Indian political movements as such.292 Nehru too thought that joining the government was a
form of betrayal in the contest between Indian nationalism and British imperialism. When he was
offered the post of Education Minister in the government by the Chief Justice of the High Court
at Allahabad, he declined, writing later that joining the government ‘was unthinkable for me;
indeed, it was hateful to me’.293 Likewise, Pherozeshah Mehta’s biographer, Homi Mody, a
prominent twentieth-century Parsi politician himself,294 commented on how politicians in the
nineteenth century gave up their public duties in order to accept a judgeship. Commenting on
Telang’s appointment to the Bench, he wrote: ‘Not for the first time…were the thin ranks of our
public men reduced by desertion, nor for the last. One after another, Tyabji, Ranade and
Chandavarkar mounted the Bench, and disappeared from active public life.’295 Mody was
writing his biography of Mehta in the twentieth century, applying a presentist lens and evaluating
the past according to the political standards of the erstwhile present. Since judges were not
permitted to overtly engage in political movements, accepting a High Court judgeship was
equivalent to self-censorship—unthinkable for a twentieth-century nationalist leader.
The perspectives of Nehru and Dwarkadas offer revealing insights into what judgeships were
meant to achieve for the colonial government in the nineteenth century. At some level, like other
high-level government posts, High Court judgeships were offered to talented, young, politically
active Indians, who could potentially evolve into threatening nationalistic rivals of British
imperialism, left to themselves. Posts like High Court judgeships were conceived as constructive
outlets where potential enemies of the Empire could gainfully be occupied, befriended, and
neutralized.
Fourth, at this time, a seat on the High Court Bench ceased to be as prestigious and coveted
as it once was. In the nineteenth century, a prominent lawyer interested in pursuing public office
had fewer options for building a distinguished career: he could either serve on the Municipal
Corporation, the University, the Governor’s Legislative Council, or the High Court, if he wanted
to play a prominent part in the public life of the Presidency. At the time, a High Court judgeship
was the most prestigious of these posts—a High Court judge ranked higher in the ‘warrant of
precedence’ than a member of the Governor’s Legislative Council.296 However, in the twentieth
century, with the so-called ‘Morley-Minto’ and ‘Montagu-Chelmsford’ political reforms in 1909
and 1918, Indian lawyer-politicians could now aspire to serve on numerous prestigious posts. In
1909, an Indian lawyer was appointed to serve as Law Member of the Viceroy’s Executive
Council, the first Indian to serve on the council.297 That same year, two Indians were appointed
for the first time to the Council of the Secretary of State,298 and the first Indian was appointed to
serve as a judge of the Privy Council in England.299 In 1910, an Indian lawyer, Mahadev
Chaubal, who had incidentally also served as an acting judge on the Bombay High Court, was
appointed to the Bombay Governor’s Executive Council for the first time in its history. The
opening up of important public offices to Indians at this time diluted the importance of a High
Court judgeship. As Badruddin Tyabji’s son wrote in his biography, an appointment to the High
Court Bench ‘in the Victorian days had a significance and importance far different from that of
later days’.300 Further, High Court judges in the twentieth century were not compensated as well
as their counterparts in the nineteenth century. For much of the British Raj, the salary of High
Court judges remained frozen, with the result that puisne judges earned almost the same in 1945
as they did in 1895.301 Thus, High Court judgeships were also more financially prestigious in the
nineteenth century than they were in the twentieth century.
The prestige factor was perhaps especially true for Chimanlal Setalvad. We have already seen
that Setalvad missed out on being appointed to the court after Chandavarkar because of his
political activities. Setalvad was eventually appointed as an ‘additional’ judge of the Bombay
High Court in 1920, and it was specified to him that he would be confirmed when a vacancy
arose.302 However, Setalvad ‘had no intention of accepting a permanent High Court
Judgeship’.303 His additional judgeship on the Bombay High Court was a brief pit-stop—
Setalvad was more interested in the possibility of his becoming the Law Member of the
Viceroy’s Executive Council.304 Eventually, he resigned his judgeship a few months after taking
it up, in order to pursue a distinguished political career, going on to become, among other things,
a member of the Governor’s Executive Council, and acting president of the Central Legislative
Assembly. Simultaneously, the size of the legislative councils in India kept increasing, they
became busier, and with increasing avenues for political engagement, even the job of a politician
became a full-time one.305 When Setalvad was offered a post on the Governor’s Executive
Council, it was understood that he would have to give up his law practice.306 Chagla probably
never took part in electoral politics because he found it too strenuous to run a political campaign
while simultaneously practising law.307
Prestige probably also counted for M.R. Jayakar, a lawyer-politician who rose to prominence
in the twentieth century. Among other things, Jayakar was elected to the Bombay Legislative
Council in 1923, he served as leader of the opposition in the Central Legislative Assembly
between 1926–30, and as a delegate in the Round Table Conference in London. He was
eventually appointed a judge of the Federal Court of India in 1937, and the Privy Council in
1939.308 Like Setalvad, Jayakar seemed naturally suited to succeed the legacies of Telang,
Ranade, Tyabji, and Chandavarkar on the Bombay High Court Bench. Yet, despite being offered
a judgeship of the Bombay High Court on two separate occasions, Jayakar declined. In a letter he
later wrote to the Chief Justice of the Federal Court of India, Jayakar explained why:
[I]n those days of crowded professional life with the delight of politics thrown in occasionally, office, however high, held
no attractions for me and I declined both the Puisne Judgeship of the Bombay High Court and also the reversion to the Chief
Justiceship…. All these details are intended to make clear that if I have not hitherto held any high judicial office, it was not
because it was not within my reach, but because I preferred to remain a non-official for carrying on my political work.309
Unlike the nineteenth-century lawyers Telang, Tyabji, and Chandavarkar, lawyers who had any
substantial chance of success in politics in the twentieth century preferred not to accept a High
Court judgeship. Chagla’s career choices particularly illustrate this. Between 1922–41, Chagla
was both a lawyer and politician. Like his nineteenth century counterparts on the Bench, he
wrote articles in newspapers.310 He was the secretary of the Muslim League, and a close
associate of Jinnah.311 He later resigned from the Muslim League and founded the secular
Muslim Nationalist Party in Bombay.312 He was also one of the secretaries of the Indian National
Party.313 However, as the years drew on, Chagla’s influence in politics starting waning. As he
later wrote in his autobiography, when he was finally offered a High Court judgeship in the
1940s, he was ‘suffering from a sense of frustration in [his] political life’.314 ‘All my speeches,
all my writings, all the propaganda I did in the cause of Hindu-Muslim unity,’ he wrote, ‘had
borne not the slightest result.’315 The new political parties he helped found ‘were in the
wilderness’ and ‘nobody seemed to take any notice of…them’.316 Unlike Setalvad and Jayakar
who were bright stars in the firmament of Indian politics, Chagla was particularly willing to
accept a judgeship on the Bombay High Court because his career in politics was over: ‘All in
all,’ he wrote, ‘I came to the conclusion that there was not much that I could do by way of public
service in the political field and I did not seem to have much of a political future.’317 By contrast,
lawyer-politicians like Telang, Tyabji, and Chandavarkar accepted judgeships on the Bombay
High Court even though their prospects in politics were bright—in fact, a High Court judgeship
was one of the highest posts that lawyer-politicians of their stature could aspire to in their era.
Not so in Chagla’s time.
Likewise, even lawyers purely interested in pursuing professional legal careers had more
opportunities in the twentieth century. Thus, in 1922, Sir Jamshedji Kanga resigned as an
additional judge of the Bombay High Court in order to become the first Indian to permanently
hold the position of Advocate General of Bombay, a post which he held for the next thirteen
years.318 It was well-known that Indians were not considered eligible to be appointed Chief
Justices in courts like the Bombay High Court, so Kanga probably thought that being the sole
Advocate General of the Presidency was more exclusive and prestigious than serving as one of
many puisne judges in the Bombay High Court.319 The fact that Kanga resigned his High Court
judgeship in order to become the Advocate General of Bombay is especially interesting given
that puisne judges were officially considered more important than Advocates General according
to the formal ‘warrant of precedence’.320 Advocates General also earned less money than puisne
High Court judges,321 though an Advocate General’s income was supplemented by his ability to
engage in private work not involving the government. Further, after retiring as Advocate
General,322 a lawyer was usually considered one of the leaders of the Bar. It will be seen later on
that after retiring as Advocate General, Kanga, for example, was extensively briefed by private
parties, usually in tax cases, against the government. Thus, though the colonial government tried
to control the composition of its judiciary, it was limited by perceptions on the ground. Despite
the official hierarchy, Kanga still probably thought the post of Advocate General more
prestigious and more remunerative than a puisne judgeship in the Bombay High Court.323
INDIANIZATION
In a speech delivered at the Government Law School in 1911, the first Parsi judge of the Bombay
High Court, Dinsha Davar, advised students to work hard because Indians were recognized as
excellent lawyers by the British administration, and that the ‘highest position in the judicial
administration of this country’, namely, a seat on the Bombay High Court, ‘is always open to an
Indian’.324 As the decades of the Raj wore on, appointing Indian judges to courts increasingly
became a priority for the colonial government. During the tenure of Secretary of State John
Morley between 1905–10,325 a policy of including Indians in high-level government posts was
instituted by the government. As part of his constitutional reforms, Morley appointed two
Indians to his council in London, and one Indian to the Executive Council of the Viceroy—the
first time in the history of British India that this had happened.326 Morley wanted more Indian
judges on the High Courts too. He believed that the Calcutta High Court should have ‘not less
than three permanent Native Judges’, and he wrote to the Governor of Bombay instructing him
that seniority was not to be the sole criterion for judicial appointments.327 A few years later, in
1913, the Governor of Bombay wrote in a newspaper that though ‘the European element is in a
majority’ at the High Court, ‘the administration of law in the lower stages is predominantly
Indian’.328 This hints at the fact that the inclusion of Indians in the judiciary was increasingly
becoming a priority. The number of Indian lawyers far exceeded the number of British barristers
at the Bombay bar in the early twentieth century—in 1911, out of 250 Advocates, only sixteen
were British barristers, while the rest were Indian lawyers.329
Thereafter, on 20 August 1917, the Secretary of State for India, Edwin Montagu, famously
declared in the House of Commons that British policy in India would be directed towards
ensuring ‘the increasing association of Indians in every branch of the administration and the
gradual development of self-governing institutions with a view to the progressive realization of
responsible government in India as an integral part of the British Empire’.330 By ‘increasing the
association of Indians in every branch of the administration’, Montagu’s eventual aim was to
provide Indians with the training necessary for them to be able to run their own institutions
someday in an Indian dominion loyal to Britain.
With the end of World War I, there was a sudden rise in suits filed on the Original Side of the
Bombay High Court, which arose out of speculation in piece goods during the war.331 Until then,
the Bombay High Court had almost always had only seven judges serving on it at any given
point in time,332 though it was permitted to have as many as fifteen judges in addition to the
Chief Justice. Of the seven judges, four sat on the Appellate Side, and three on the Original
Side.333 Two of these seven judges were Indians. As a consequence of the court’s rising Original
Side docket,334 an additional seat was added to the court in 1925 when the first Indian member of
the Indian Civil Service to become a High Court judge, Govind Madgaonkar,335 was elevated to
the Bombay High Court, despite the fact that a Hindu Pleader-judge336 was still serving on the
court. Now, around a third of the court’s judges were Indians. Thus, at the end of Chief Justice
Basil Scott’s term in 1926, two Hindu judges and one Muslim judge were serving on the court
simultaneously.337
In 1929, the court’s strength was increased again, from eight to ten seats.338 The number of
Indian judges rose further during Chief Justice Beaumont’s term in the 1930s, and by the end of
it, in 1943, two-thirds of the court’s judges were Indians.339 The Bombay High Court was not the
only court in British India at this time which had a majority of Indian judges. For example, the
High Court at Patna during the Chief Justiceship of Courtney Terrell had a majority of Indian
judges as well.340 In fact, it was not merely courts which witnessed an Indianization phenomenon
at this time. Institutions like the Indian Civil Service and Indian Police Service also started
seeing an increasingly high number of Indian officers, partly because British recruitment started
declining due to uncertainties relating to the world wars and the economic depression in the
inter-war period.341 ‘Mass Indianization’ took place in the Indian Army in the 1940s.342 The
strength of the Bombay High Court was increased in the 1940s, during Chief Justice Leonard
Stone’s term, and on the eve of Indian independence in 1947, the court had thirteen judges on it
(including the Chief Justice), of whom eleven were Indians. In other words, except for the Chief
Justice and one puisne judge,343 the entire court consisted of Indian judges.
Why were Indian judges appointed to the Bombay High Court in such high numbers—could
it be that Indian judges were cheaper than British ones? The historical evidence suggests that this
was not so. We have already seen that for most of the British Raj, High Court judges in India
were paid the same compensation, regardless of whether they were Indians or Britons. True,
British lawyers who came to India as High Court judges got an allowance of 500 pounds to
relocate to India,344 and were entitled to government-allotted bungalows in preference to local
High Court judges. However, judges who were appointed to the Bombay High Court Bench from
the local Bar were not entitled to these privileges, even if they were Britons who were practising
at the local Bar. In other words, British barristers practising at the Bombay High Court Bar cost
as much money as Indian lawyers, for appointment to the High Court Bench. It could be that the
low judicial salaries on Indian High Courts in the twentieth century345 discouraged British
lawyers from relocating to India as judges, but once again that does not explain why British
barristers who had already relocated to India to practise at the local Bar were not elevated to the
Bench in high numbers at this time.
Or could it be that Indian judges were being appointed to the High Court in such high
numbers in the 1930s and 1940s because Indian politicians were being given greater political
responsibilities at this time? Once again, the historical evidence suggests otherwise. Two major
constitutional reforms were undertaken in British India in the 20th century: one in 1919, the
other in 1935. In 1919, certain departments of the government were ‘transferred’ to elected
Indian ministers. However, under this system, elected Indian leaders responsible to provincial
legislatures had only a limited share in the government, and important departments of
government like law, order, and justice were still ‘reserved’ for the autocratic, unelected
Governor. Under the 1935 constitutional reforms, most government departments in the provinces
were transferred to Indian hands. In 1937, the Congress party won elections in seven out of the
nine provinces of British India (it formed governments in the other two provinces---Assam and
the North-West Frontier Province as well---with the help of independent members). A Congress
government was voted to power in Bombay, and, for the first time, an Indian leader, K.M.
Munshi, became the Home Member of the provincial Bombay government, responsible for
dealing with the judiciary. In his autobiographical account of the Bombay High Court, Munshi
did not speak of being able to appoint judges to the court, though he discussed, quite extensively,
his interactions with the judiciary in his capacity as Home Member of the provincial
government.346 Therefore, it is likely that the policy of appointing Indian judges to the Bombay
High Court at this time was a British initiative.347 The historical evidence suggests that it was
still the British Governor and British Chief Justice who exercised a key role in High Court
appointments even in the 1940s.
Instead, as we will see in Chapter 4, the Indianization of the Bench probably had more to do
with the Indianization of the Bar which was taking place in the twentieth century. It was around
the 1910s and 1920s that prominent Indian lawyers broke the monopoly which British barristers
had historically enjoyed on the Original Side of the Bombay High Court, as a result of which it
was no longer considered very lucrative for British barristers to relocate to practise at the
Bombay Bar. The Indianization of the Bench reflected the Indianization of the Bar. Additionally,
as we have seen, there was also an official desire to appoint more Indian judges to the bench,
pressure to appoint Indian judges from the Indian press, and the rising aspirations of the Indian
Bar, which was expanding substantially.
In quantitative statistical terms, in the nineteenth and early twentieth centuries, only 12.8 per
cent of the regular348 judges appointed to the Bombay High Court were Indians. By contrast,
between 1906–47, 54.5 per cent of the judges appointed to the court were Indians. From
occupying a marginal position on the periphery of the court in the nineteenth century, Indian
judges began to infiltrate the High Court Bench in increasingly strong numbers as the decades
went by in the twentieth century. However, though some Indians acted as Chief Justices of the
court,349 no Indian was appointed Chief Justice of the Bombay High Court permanently. The
most important seat in the Bombay Court was accordingly always reserved for a British barrister.
***
At a broader level, what are the implications of the themes presented in this chapter? First of all,
the fact that Indian litigants used the Bombay High Court in strong numbers (as we will see in
Chapter 4), even though no Indian judge was appointed to the court until the 1880s, is intriguing.
This suggests that the presence of Indian judges on the court might not have been necessary in
order to make it legitimate in the eyes of the Indian litigant. We will see in Chapter 4 that the
overwhelming majority of the litigants who came before the Bombay High Court were Indians.
Indian litigants were quite sophisticated—as part of their strategy to succeed before the British
judges of the Bombay High Court, they hired British solicitors and British barristers to represent
them in their cases, a source of constant complaint for Indian lawyers. In fact, Indian litigants
had been enthusiastically using British courts in Bombay since the eighteenth century, in large
numbers.350 Therefore, the move to appoint an Indian judge to the Bombay High Court probably
had little to do with Indian litigants. This is particularly interesting given that there exists a large
volume of literature today on the importance of judicial diversity on courts, and how the
appointment of judges on courts should fairly reflect the demographic characteristics of the
society which it is part of.351 In early British India, courts were highly non-reflective, yet they
were, counterintuitively, used quite extensively by Indian litigants, as we will see in Chapter 4.
This suggests that diversity (defined contextually352) might be a sufficient, but not necessary,
condition for the social legitimacy of a court.
In fact, the British might even have worried that appointing an Indian from one community to
the Bench would impugn the court’s impartiality in the eyes of Indians from other communities.
Unlike Bengal, which got an Indian High Court judge in the 1860s, Bombay was heterogeneous
in its social composition. Though Bengal was largely Bengali, and Madras largely Tamil, both
the Marathi and Gujarati linguistic communities were influential in Bombay, and unlike Bengal
and Madras, Hindus shared influence with Muslims and Parsis in public life in Bombay.353
Perhaps the colonial administration took long in appointing an Indian judge to the Bench because
it feared negative consequences if a judge from one community were appointed over another,
however unjustified those fears might have been. Perhaps it was this hesitation which led to a
long delay in the appointment of an Indian to the Bench in Bombay. Seen in this light, it is
significant that all the early Indian judges of the High Court were highly secular candidates.
If Indian litigants did not care whether Indian judges were appointed to courts in British
India, why were Indian judges initially appointed to the court at all? Other British colonies did
not have ‘native’ judges serving on important courts like the Bombay High Court. In British
colonial Kenya and Tanganyika, for example, only one out of seventy-seven judges was non-
European.354 Likewise, Mandate Palestine did not seem to have any ‘native’ judges serving on
important courts.355 Though there are no definite answers for why ‘native’ judges were
appointed in India at all, it is possible to guess that this might have been done as a measure to
secure the court’s legitimacy in the eyes of the legal profession—a profession which was
particularly strong in India. The legal profession was the most prestigious career option for the
rising young, western-educated middle-class in British India.356 The appointment of Indians to
the High Court Bench signalled that Indian lawyers could aspire to hold important positions
under the British Raj. The appointment of Indian lawyers to the Bench might therefore have been
designed in order to pacify and befriend the rising new class of western-educated lawyers who,
belonging to one of the most politically empowered professions in society, a potentially
subversive profession if left excluded, might otherwise have taken to nationalism or anti-
colonialism.357
This explains the difference between the Calcutta and Bombay High Courts. The Calcutta
High Court had an Indian judge serving on it since almost the very beginning in the 1860s, while
the Bombay High Court got an Indian judge on it only in the 1880s. However, between 1864–73,
Bengal had 703 law graduates, where Bombay had only thirty-three.358 The difference in the
number of law graduates in Calcutta and Bombay might explain why an Indian judge was
appointed to the court in Calcutta so early on. This was done in order to placate the rising
aspirations of the legal profession in Calcutta, a profession that had not yet developed in
Bombay. In short, it was for the benefit of Calcutta’s Indian lawyers, not its Indian litigants, that
Indian judges were appointed to the High Court Bench. The question of how courts derive their
social legitimacy is said to be particularly elusive to answer,359 and it is interesting that courts in
colonial India relied, for their legitimacy, not merely on the users of the courts’ services (that is,
Indian litigants), but, more importantly, on those who earned a living off the court itself (that is,
Indian lawyers).
In her dissertation on the legal profession of Allahabad, Buckee360 argued that though the
colonial government pursued policies to try and keep Indian lawyers away from politics, it was
the financial self-interest of the Indian lawyers themselves, not only the government’s policies,
which made them eschew nationalist politics.361 This chapter similarly demonstrates that the
shift which occurred between the nineteenth and twentieth centuries in the nature of the Indian
judge who served on the court, from lawyer-politicians to professional lawyers, had less to do
with government policies than with the self-interest of the lawyers themselves. In an increasingly
competitive environment, it was very difficult for lawyers to become top-ranking politicians
while holding on to their law practices, as Telang and Tyabji managed to do in bygone years.
Further, top-ranking lawyer-politicians in the twentieth century like Setalvad and Jayakar now
had other opportunities which they valued above a High Court judgeship. Therefore, it was not
merely a shift in the attitude of the government towards Indian politics which explains the shift
in the nature of the judge who served on the Bombay High Court between the nineteenth and
twentieth centuries. Institutions like colonial courts, then, were shaped as much by the bottom-up
self-interest of the colonized ‘native’ Bar, as by the colonizing self-interest of the metropolitan
government.362
There is vast literature which examines the question of why judicial institutions remained
intact after countries democratized, for example, in West Germany and Italy after World War II,
Spain and Portugal in the 1970s, Russia in the 1990s, and Peru in 2001.363 The conventional
explanation is that these were civil law countries, where judges play a more impersonal role in
administering the law, or that a sharp event of ‘symbolic reinauguration’ took place which
bolstered the legitimacy of pre-existing courts in newly democratic environments. Neither of
these satisfactorily explains why the colonial courts of British India continued unhindered after
independence.364 Related to this literature, there is also literature which seeks answers to the
question of why British colonial institutions like courts and the civil service remained intact after
independence.365 The Indianization of the court in the twentieth century offers new insights into
why this might have happened. In the final decades of British colonial rule in India leading up to
independence, the Bombay High Court was no longer a British court. In 1941, seven of the
court’s eleven judges were Indians,366 and by the eve of independence, as many as eleven of the
court’s thirteen judges were Indians. Even before independence, then, the court had virtually
ceased to be a colonial institution, and had become an Indian court. Independence, in 1947, did
not bring about a sharp break from the past: only one judge, Chief Justice Leonard Stone, quietly
resigned his office. There were no mass resignations of British judges, and the court continued to
function as it had previously. This might help explain why British institutions in India
transitioned so seamlessly into the post-colonial context. The court was not seen as an
illegitimate, alien instrument of colonial oppression—on the eve of independence, it had already
metamorphosed into an Indian court.
CHAPTER THREE
Race, Class, and the Bombay High Court
Influenced by the restrictive values of nineteenth century Victorian England, British India was a
place of bitter racism and discrimination against Indians.1 Even Indian lawyers and judges were
racially discriminated against in colonial Bombay. However, we will see in this chapter that
despite the general spirit of racial discrimination prevalent in colonial India, the British and
Indian judges of the Bombay High Court shared very warm social relations off the Bench. By
examining the social and economic backgrounds of the judges who served on the Bombay High
Court in the colonial era, this chapter suggests that the relationship between the British and
Indian judges of the Bombay High Court should not always be seen only in terms of their race,
but also in terms of their class. We will see that the Indian judges of the court came from a
relatively affluent stratum of Indian society, while the British judges of the court came from a
relatively middle-ranking socio-economic stratum of British society. The elite, westernized
background and upbringing of the Indian judges of the court made it very easy for British judges
to relate to affluent, well-mannered, gentlemen-judges like Tyabji and Chagla.
There were approximately fifty-four permanent British judges (including twelve Chief
Justices) and twenty-nine permanent Indian judges who served on the Bombay High Court
during the British Raj.2 While the previous chapter borrowed from the methodological toolkit of
the biographer to focus on the individual lives of the Indian judges of the court, this chapter will
use a more detached, quantitative, prosopographical approach to statistically examine the
background characteristics of all of the court’s judges.
RACISM AND THE LEGAL PROFESSION OF BOMBAY

Indian members of the legal profession of Bombay often complained about being racially
victimized by the British community in India.3 Racism usually occurred in the mass transit
system, or at Bombay’s many clubs. The first Indian judge of the Bombay High Court, Nanabhai
Haridas, was denied entry into the first class carriage of a train because a British official and his
wife did not want the ‘natives’ to enter their carriage.4 Another Indian judge of the court,
Mahadeo Ranade, was once travelling on a train in a first class compartment, back from a trip to
Madras in 1893. A European Indian Civil Service officer saw him on the train, and without
knowing who he was, threw Ranade’s bedding down on the floor and occupied his berth. Ranade
got by and squeezed into his friend’s seat.5 The next morning, when the European Indian Civil
Service officer realized who Ranade was, he went up to him in order to apologize, but Ranade
merely walked away.6
Ranade was not alone in experiencing something like this.7 On a voyage to England, another
early judge of the court, Badruddin Tyabji, was seated at a table on a ship where a European
exclaimed how he did not like the fact that an Indian was seated at the table. Tyabji was said to
have retorted, ‘Sir,—however distasteful my presence may be to you, your presence is still more
distasteful to me’.8 This was not Tyabji’s only encounter with racism. Travelling to the
mofussils9 as a lawyer, Badruddin Tyabji was once refused accommodation at a ‘Traveller’s
Bungalow’ which had been reserved for Europeans by order of the Political Agent.10 Similarly,
another Indian judge of the court, Narayan Chandavarkar, had to dine by himself on a ship
travelling from Bombay to England.11 This problem did not go away in the twentieth century
either. Justice Dinsha Davar’s son, Jehangir Davar, later an acting judge of the Bombay High
Court, once had to force himself into a first-class railway compartment against the wishes of an
Englishman seated there.12
Railway compartments and benches at public parks were reserved for Europeans.13
According to one account, ‘observers believed that the cause of the next mutiny would be an
incident on a railway train’.14 What is interesting about these episodes of racial discrimination on
ships and trains is that it was usually only elite, affluent Indians who were discriminated against.
Wealthy Indian lawyers and judges at that time could, unlike most of their countrymen, afford to
travel in luxury in a first class railway compartment. However, the Britons who travelled in those
compartments were not used to seeing ‘natives’ there, even though the ‘natives’ who could
afford to travel by first class were not the typical ‘natives’ of India.
Indians were prohibited entry at numerous British clubs in Bombay.15 Foremost among these
were the Byculla Club16 and Yacht Club. Interestingly, though low class Indians who worked as
staff members at these clubs were permitted entry, high class Indians were not—in other words,
these clubs preserved an image of India in which Europeans were superiors, Indians inferiors,
and the two could not sit as equals at a dining hall or bridge table. The Yacht Club was
‘something of a social Mecca’, and membership of this club for a European meant that he had
socially arrived.17 The Byculla Club was for men only, and was useful when ‘a man wanted to
get away from his wife’.18 When one of the first and best known judges of the Bombay High
Court, Joseph Arnould, retired from the Bench, he was given a party by the Bar at the Byculla
Club, which meant that Indian lawyers could not attend.19 One senior British lawyer, Inverarity,
used to stay at the Byculla Club where he would hold conferences, and Indian lawyers had to use
the back gate of the club to get to him.20
When Secretary of State Edwin Montagu visited Bombay in 1917–18, he noticed that the
chairman of the Byculla Club was Sir John Heaton,21 a very senior British Civilian judge of the
Bombay High Court. The fact that a High Court judge found it possible to reconcile his duty
towards the rule of law on a court of justice with his chairmanship of a club which racially
discriminated against Indians, reveals much about that time period. Montagu felt that this was
worrisome. As he wrote in his diary, ‘the fact that the civil servants are willing to work with the
Indians but not to play with them…has really brought the present political situation upon us’.22
To remedy the problem of racial segregation at Bombay’s clubs, two rival clubs were set up
where Indians and Europeans could intermingle.23 Founded at the turn of the twentieth century,
by Chief Justice Lawrence Jenkins, among others, the Orient Club was the oldest of such clubs in
India.24 Likewise, the Willingdon Sports Club, set up towards the end of the First World War by
the Governor of Bombay, Lord Willingdon, was ‘intended to punish the Yacht Club and the
Byculla Club for their refusal to admit Indians’.25 Willingdon did this because he had a direct
mandate from the Secretary of State to do away with what he called the ‘damning racial
exclusiveness’ of European clubs in Bombay.26 Eventually, the Byculla Club was wound up only
after the Second World War II.27
Barbers’ shops near the Bombay High Court would turn away Indian clients, even ‘eminent
Parsee barristers’.28 Several hotels and restaurants preferred not to serve Indians.29 When a
‘Victoria’, that is, a horse carriage, was hailed by both a European and Indian, the European
would get precedence.30 Europeans got better treatment than Indians even in prisons—no matter
what their status or crime, they were given better food, lighter work, and more interview time,
and they could write more letters than Indian prisoners.31 Those with biracial identities might not
have fared much better either. Eardley Norton, a Madras barrister, was described by one British
official in the following terms: ‘He was of mixed blood and had all the faults of a half-caste. He
gave himself tremendous airs, was a member of the National Congress and used to make
seditious speeches to increase his practice.’32
Early Indian lawyers sometimes complained of racism at the Bar. In the middle of the
nineteenth century, most of the solicitors’ firms in India were British, and preferred to brief
British barristers.33 Many Indian lawyers tried and failed to gain a foothold at the Original Side
Bar in the nineteenth century.34 Pherozeshah Mehta, who we have seen was one of the
‘triumvirate’ of political leaders in Bombay, failed to succeed on the Original Side of the
Bombay High Court, and cultivated a mofussil practice instead.35 Likewise, though he had
enrolled as an Advocate on the Original Side of the Bombay High Court, Bal Mangesh Wagle
abandoned the idea of practising law in Bombay, and went to the native state of Baroda instead,
where he became the Chief Judge.36 One commentator called it ‘a mysterious code of etiquette
prevailing at the Bar’ that Indian barristers would not be briefed by the Government Solicitor or
clerk of the Crown in court, and that work would instead be given to British barristers, no matter
how junior or untrained they were.37 According to another lawyer, even Indian litigants preferred
European barristers over Indian lawyers, because ‘they somehow believed that a European
Barrister would carry more weight than an Indian before European Judges’.38 Managing clerks at
law firms preferred European barristers too.39
In court, English judges sometimes gave more weight to the testimony of European witnesses
over Indian ones.40 John Philip Green, a judge who served on the Bombay High Court during the
1870s, was particularly said to have had a racial bias against Indians. In cases where litigants
from ‘the white and dark races’ were pitted against one another, it was said that he often
favoured the white litigant.41 Green was not the only judge to harbour such views. In a case on
the Original Side of the court, another British judge once said to Chimanlal Setalvad, ‘you do not
seem to understand English’.42 Though Setalvad apparently had a handy retort ready for the
judge, such remarks were perceived to be racist in tone and character. During a conference with
Setalvad, an Indian solicitor once said to him, ‘[i]f your skin were as fair as your arguments, I
would have been sure of success’.43 It is unlikely that racial prejudice died out in twentieth-
century British India. Chagla, later Chief Justice of the High Court, wrote that he ‘never liked’
the English Advocate General of Bombay, Thomas Strangman, because Chagla ‘found him
ostentatious and lacking in culture, with a strong notion of his own superiority both as a lawyer
and as an Englishman’.44
Even after the Ilbert Bill controversy seen in the previous chapter, Indian lawyers and judges
were sometimes viewed with suspicion by the colonial administration. Writing in 1905, a retired
British judge of the Bombay High Court, Edward Candy, said that though there had been a
marked ‘improvement in the integrity and ability of Indian judges’, Indian judges in the lower
judiciary were still suspected of being corrupt.45 ‘[T]he native judicial mind,’ he said, ‘is more
suited to deal with the subtleties of civil law than with the broader lines of criminal
administration46’. An early twentieth-century Governor of Bombay, George Sydenham Clarke,
wrote in his autobiography how Indian lawyers could not be trusted either:
The masses of India are abnormally litigious, and the result of our system has been the creation of an army of lawyers,
expert in discovering legal quibbles, who live a parasitic life upon the peoples. This vakil class, the product of our
Universities, has been foremost in open and secret movements to evict its creators, and the more pseudo-democracy is
inflicted upon India, the greater will be its powers.47
Indian perceptions of their own racial identities were also complex in the colonial era. While
filling out his application form for admission into the London School of Economics, one of the
future Parsi judges of the Bombay High Court, Nariosang Coyajee, wrote ‘Parsi’ under
‘Nationality’.48 This was not uncommon for Parsis to do, and it was grounded in the Parsi
attempt during the British Raj to set themselves apart from Hindus and Muslims, as ‘almost
English’ subjects.49 Indians often racially identified themselves as the British saw them. While
writing in newspapers and speaking in public, Indians would often call themselves the ‘natives’,
not ‘Indians’, defining their own identities through British eyes and not their own.
However, despite the generally antagonistic nature of race relations in the legal profession of
British India, the historical evidence suggests that relations between the British and Indians
judges of the court were actually very cordial from day-to-day. Indian judges often met British
judges socially, outside the courtroom. A good example of this was Justice Badruddin Tyabji,
who shared a particularly warm relationship with the British judges of the Bombay High Court,
and their spouses. In 1886, Emily Beaman, probably the wife of Justice Frank Beaman, wrote a
note to Tyabji: ‘It would give us much pleasure if you will dine with us tomorrow evening at
7.30.’50 Likewise, Tyabji was invited over for dinner by Minnie Jardine (probably the wife of
Justice John Jardine) and Ellen Strachey (probably the wife of Justice Arthur Strachey).51 The
dinner invitations continued throughout Tyabji’s career. Even in 1905, Chief Justice Lawrence
Jenkins wrote a short note to Badruddin Tyabji: ‘Dear Tyabji, Will you dine with me next
Wednesday at 8.15?’52 Tyabji invited British judges and their spouses over for dinner as well. In
1899, Jenkins explained to Tyabji why he could not make it over for dinner: ‘My dear Judge, I
am so very sorry I cannot accept yr. kind invitation to dinner on next Friday. Unfortunately I am
already engaged to dine at Colaba that evening and I can see no loophole of escape. This alone
prevents me.’53 In another letter, Justice Herbert Birdwood accepted Tyabji’s dinner invitation.54
Tyabji shared a particularly close bond with a British Chief Justice of the Bombay High
Court, Charles Farran. When Tyabji was appointed to the court in 1895, Farran wrote him a
warm letter, soliciting his advice on various administrative matters affecting the court, and
adding, ‘I am pleased that you will be my colleague for the rest of my stay in India’.55 When
Farran suddenly passed away in 1898, Tyabji delivered an emotional eulogy in open court,
saying: ‘To me [Farran] was more than a colleague, he was a brother, and his death comes upon
me with a shock which I would feel in the case of the death of a near relative of my own.’56 ‘I
felt much touched by…the kind words you said in Court’, Farran’s wife later wrote to Tyabji,
adding, ‘[t]he news of my darling husband’s death came upon me as a most crushing blow….I
know Mr. Budroddin how much he thought of & respected you & that you must feel his loss’.57
Tyabji was not the only Indian judge who shared a warm social relationship with the British
judges of the Bombay High Court. There were many others. In 1918, Chief Justice Basil Scott
referred to the Parsi judge, Dinsha Davar, as being part of the ‘old gang’—a group of Bombay
High Court judges which included British judges Stanley Batchelor, Frank Beaman, Joseph
Heaton, Norman Macleod, and even Scott himself.58 Another Indian judge, M.C. Chagla,
exchanged many warm letters with Justice Robert Broomfield—the judge who had once
sentenced Gandhi for sedition—after Broomfield retired from the court and returned to England.
In one such letter, written soon after the end of World War II, in 1945, Broomfield updated
Chagla on how he and his wife had spent the summer. Broomfield opened his letter with a warm
salutation: ‘My Dear Chagla, You may like to have the latest news of one of your old “learned
brothers”; at least I hope so.’59 After becoming the first Indian Chief Justice of the Bombay High
Court, Chagla received a congratulatory letter from a past Chief Justice of the court, John
Beaumont, who wrote: ‘Write and tell me how you are getting on, and how you like our old
bungalow. Our profound sallaams to the wife of the Chief Justice and very best of luck to
yourself.’60 Likewise, a prominent Indian lawyer who later became a judge of the Privy Council,
M.R. Jayakar, exchanged very friendly letters with the Chief Justice of the Bombay High Court,
Norman Macleod, in the 1920s.61 It is difficult to reconcile the social closeness of the British and
Indian judges of the Bombay High Court with the generally harsh nature of race relations in
British India.
FAMILY
Indian Judges
The Indian judges of the Bombay High Court belonged both to business families and service
class families.62 Approximately 27 per cent of the Indian judges of the court, mostly Muslims
and Parsis, had fathers who were merchants. Only 19 per cent of the Indian judges had fathers
who were in the legal profession,63 while an equal proportion (19 per cent) had fathers who
worked in some capacity for the colonial government (as doctors, engineers, collectors, or
superintendents). Others had fathers who were teachers (15 per cent),64 or salaried employees of
a native state (12 per cent).65 Thus, Hindu judges were usually from service class families, while
Muslim and Parsi judges came from more affluent merchant families. Interestingly, unlike the
British judges, no Indian judge of the Bombay High Court had a father in the army—probably
because none of them belonged to the so-called ‘martial’ races of India, whose members were
the only ones recruited into the colonial army.66
Though only 19 per cent of the Indian judges’ fathers were formally a part of the legal
profession, many judges might have had other family connections in the legal profession. For
example, Justice Keshavrao Wassoodew’s father was not a practising lawyer, and was employed
by the colonial government as a Superintendent of Stamps and Stationery. Yet, Wassoodew’s
grand-uncle was the first Indian (acting) judge of the Bombay High Court, Janardhan
Wassoodew. In fact, Keshavrao’s name, as a young student, was ‘Keshowrao Balcrushna
Navalkar’67—one might speculate that he changed his name to ‘Wassoodew’ in order to
capitalize on his uncle’s fame in the legal profession. Even so, family connections in the legal
profession did not imply an absence of merit. Keshavrao, for example, was a brilliant student
who stood first in Bombay University in the LL.B. final examination, bagging the prestigious
Judge Spencer Prize. In fact, many members of the same family served as judges of the Bombay
High Court.68
British Judges
The British judges who served on the Bombay High Court, on the other hand, largely belonged
to service class families.69 ‘My father…left enough to provide me with bread,’ wrote one Chief
Justice of the Bombay High Court, but ‘the butter and jam I had to find for myself70’. Many
British judges had fathers who were lawyers in Britain (26 per cent), or who had worked in India
in some capacity (26 per cent), usually in a branch of the Indian army (but also as doctors,
lawyers, or civil servants). It was less common for the British judges to have had fathers who
were members of the armed forces in Britain (12 per cent), who were merchants in Britain (12
per cent), or members of the gentry (8 per cent). The rest had fathers who were teachers, who
were in the clergy, or who had occupations like Haberdasher or Wharfinger.71 Compared to
judges in England, a higher proportion of the British judges of the Bombay High Court came
from professional families, and a lower proportion from merchant or landed families.72 In fact,
the British judges of the Bombay High Court were almost as likely to be the first-born sons of
their parents as younger sons,73 which suggests that many British judges came from families
where the eldest son was not guaranteed a successful occupation by the father, for example, as
would have been so among the landed gentry.74
Though joining the Indian Civil Service75 was often a ‘hereditary calling’ for many British
families,76 the vast majority of the court’s British judges had fathers with no professional link to
India. Only one of the Chief Justices of the Bombay High Court had a father who had worked in
India.77 Approximately one-fifth of the British barrister puisnes, and one-third of the British
‘Civilians’(that is, members of the Indian Civil Service) had fathers who had worked in India,
typically in some branch of the colonial government. Some British judges, though, might have
had other family connections to India, the India Office, or to the legal profession in Bombay.78
For example, Chief Justice Norman Macleod’s father was a member of the British navy with no
professional ties to India. Yet, as Macleod wrote in his autobiography later on, he went to
Bombay because ‘[m]y cousin was then one of the leaders of the Bar in Bombay, and had
advised my parents that there was a fair prospect of my getting work, and if I did not succeed in
acquiring an adequate practice, there was always the opportunity of obtaining some Government
appointment’.79 Though his father had no formal ties to India, Macleod’s grandfather, Sir John
Willoughby, had been a member of the Governor’s Council in Bombay.80 Likewise, Justice
James Gibbs’s father was a merchant in London with no formal ties to India, but Gibbs was
appointed to the Indian Civil Service in the 1840s thanks to his mother, who had connections in
the service. Like Macleod and Gibbs, it is possible that some British judges might have had other
family connections to India or the India Office which they used to their benefit to get an initial
break. However, connections were not always necessary for British judges.81
HIGH SCHOOL
Indian Judges
Before getting to university, the Indian judges of the Bombay High Court were usually bilingual
(or multilingual),82 defined by their English education. They usually began their early academic
careers in an Indian-language school,83 before transitioning into an English-medium high
school.84 At a time when less than 1 per cent of the Hindus in India spoke English, the judges’
English education privileged them and set them apart.85 Except for one judge, no Indian judge of
the Bombay High Court studied abroad in high school or earlier.86 High school education usually
came to an end once a student passed the ‘Matriculation Examination’—the entrance
examination for university.87
Approximately 55 per cent of the Indian judges of the Bombay High Court grew up in
Bombay, of whom more than half studied at the government-run Elphinstone High School.88 Set
up in 1824, and subsequently renamed to commemorate a Governor of Bombay,89 Elphinstone
High School was one of the oldest English language schools in the Bombay Presidency, and its
founding had marked the first systematic attempt at educating the ‘natives’ in English.90 In the
words of one Bombay lawyer, it was ‘the best public school in Bombay for middle class boys’.91
Government schools in British India were prohibited from teaching Christianity—a policy which
emerged out of the Mutiny of 1857.92 This might have made the Elphinstone School particularly
popular among Indian parents, even though it was more expensive than private high schools.93
Interestingly, though there was no separation of church and state in the United Kingdom, there
was separation of church and state in British India because the colonial government did not want
to be seen supporting a ‘heathen’ religion.94 Even so, however, religious holidays were observed
in India. In 1917, Justice Norman Macleod (later Chief Justice) wrote to his son: ‘Today is
luckily a great Hindu holiday as I have had 5 hard days (sic) work in the Criminal Sessions and
am likely to have a good many more.’95 Again, in 1920, Chief Justice Macleod wrote to his son:
‘Today is the Ganpati holiday and I have to go out to the Scottish Orphanage where the boys
have a cricket match.’96 In Bombay, other Indian judges went to private schools like St. Xavier’s
High School (run by the Society of Jesus), the John Connon High School (run by a Scottish
education society), or Wilson High School (run by a Scottish missionary society).
Nearly a quarter97 of the judges who went to high school in Bombay had to migrate to
Bombay from the inner rural districts of the Bombay Presidency.98 Those who did not study at a
high school in Bombay (45 per cent of the Indian judges of the Bombay High Court) grew up
outside Bombay city, in towns scattered across the Presidency or neighbouring native states like
Ahmedabad, Bhavnagar, Kolhapur, Poona, Satara, Dhulia, Vengurla, Athani, Shikarpur, or
Baroda. Only one Indian judge of the court was an outsider to the Bombay Presidency.99
Most of the English schools in Bombay were quite expensive to study at, and out of the reach
of poor students. The colonial government also penalized schools that charged low fees or had a
high proportion of free students.100 Counterintuitively, government schools like Elphinstone
High School charged higher fees than private schools, because the government believed that
education belonged to the domain of private enterprise.101 The fact that the Elphinstone High
School and College were so popular among Indian judges speaks to the relatively privileged
socio-economic backgrounds that they came from. Further, until the 1880s, the matriculation
examination for Bombay University was conducted only in Bombay city, and students from the
rural districts had to travel to Bombay to write the examination, something which substantially
added to the expense of English education.102
British Judges
Available data suggest,103 by contrast, that though many British judges of the Bombay High
Court were born in India, none of them grew up and went to high school in India. They were
always sent back home for their education. Like the Dutch Indies,104 British India might have
been seen as having corrupting influences unsuitable for raising European children. For example,
Justice Robert Pinhey was born in Bombay and baptized at the St. Thomas’s Cathedral there in
1831. At the time, Pinhey’s father was a surgeon in the Bombay medical service. Likewise,
Justice Augustus Warden, whose father was in the Indian army, was born in India and baptized
in 1823 at Benares. Yet, both Pinhey and Warden were sent back to their native land for their
schooling. Approximately 31 per cent105 of the British judges of the Bombay High Court
attended one of the elite ‘public schools’ in England.106 By contrast, as many as 80 per cent of
the judges in England in 1941 had attended elite public schools.107 Barrister judges were more
likely to have attended a public school than a judge from the Indian Civil Service. This reveals
something about the socio-economic backgrounds from which the British judges came to India.
Most of the time, they came from a less elite background. The Indian Civil Service was more of
a refuge for middle-ranking families than the legal profession in the colonies.
UNIVERSITY
Indian Judges
After finishing high school, 72 per cent of the Indian judges of the Bombay High Court got a
Bachelor of Arts degree at Bombay University.108 Incorporated in 1857,109 Bombay University
was meant primarily for the education of Indian students, and very few British parents decided to
send their children there. Its students in the nineteenth century rarely came from the Indian
landholding aristocracy.110 Those who studied there were typically the sons of government
clerks and educated Brahmins.111 Judges of the Bombay High Court during the Raj were usually
members of this rising Western-educated English-speaking middle class, a group which saw the
landed aristocracy as sycophantic Anglophiles.112 The legal profession was made up of this
middle class.
At this stage, many Indian judges migrated away from the town in which they grew up and
went to high school, in order to attend a college affiliated with Bombay University. Thus, for
example, Justice Rangnekar moved from Vengurla to Bombay, and Justice Gajendragadkar from
Satara to Poona. The most popular college in Bombay was Elphinstone College, where 43 per
cent of the Indian judges who studied at Bombay University went.113 Like the school,
Elphinstone College was also one of the most expensive colleges to study at in Bombay,114 and
its popularity among the court’s future judges reflected their elite status. Other options in
Bombay included St. Xavier’s College115 and Wilson College.116 The closest in popularity to
Elphinstone in Bombay was the government-run Deccan College in Poona,117 where 19 per cent
of those who studied at Bombay University went. There were other colleges scattered across the
Presidency as well,118 but Bombay and Poona presented the best opportunities. Thus, Justice
Tendolkar moved from Kolhapur to Bombay, even though the native state of Kolhapur had a
college affiliated to Bombay University,119 so that he could study at Elphinstone College in
Bombay. Living in Bombay was quite expensive—an average middle class student could have
been expected to spend approximately Rs 30 per month in the late nineteenth century, which was
more than the fee a student had to pay in order to take the LLB final examination.120
Though Bombay University offered programs in both the Arts and Sciences, no judge, it
appears, opted for a formal degree in the Sciences,121 though the B.A. program did not preclude
students from studying Science subjects.122 As a stream of study, the Science program at
Bombay University was generally quite unpopular.123 The B.A. program at Bombay University
typically lasted four years,124 and students were required to pass three examinations: the
‘Previous’ examination,125 the ‘Intermediate’ examination in Arts,126 and the final examination
for the B.A. degree.127
For a long time, it was mandatory for candidates to study English and a classical language
throughout their years of study in the program. In fact, Bombay University was the only one of
the Indian Universities to insist, for a long time, that its students mandatorily pick a classical
language in the B.A. program.128 Surprisingly, as students, the future Indian judges of the
Bombay High Court picked Latin almost as frequently as they picked Sanskrit or Persian as their
classical language at university.129 It seems counterintuitive that judges with names as ethnically
rich as Govind Dinanath Madgaonkar or Keshavrao Balkrishna Wassoodew would pick Latin,
not Sanskrit, as their language of study. Perhaps their choice of Latin over Sanskrit tells us
something about the times they lived in—a westernizing British India, where adopting western
manners was a surer ladder to success, where Ovid had his advantages over Kalidasa. In a speech
delivered at a prize distribution ceremony at St. Xavier’s College in 1892, the Governor of
Bombay said that ‘better English is written by those grounded in Latin’, and that he was glad to
see ‘that the study of Latin [had] been taken up in earnest’ by Indian students in Bombay.130
Even the Sanskrit examination papers at Bombay University were written in English. Western
languages, ideas, and cultures now began to mediate the way in which Indians looked at
themselves. In his paper on Maratha history, Justice Telang, a graduate of Bombay University,
quoted an English historian of Greek history.131 Western-educated, English-speaking Indians
were often accused of knowing English history better than they knew the history of their own
country.132
After getting their B.A. degrees, 38 per cent of the judges who studied at Bombay University
got an M.A. there. In many ways, Bombay University was modelled on the universities of
London, Oxford, and Cambridge.133 Like London University before 1858, Bombay University
was not a teaching institution—it did not offer any classes, but only granted affiliation status to
colleges, conducted examinations, and granted degrees.134 Graduating Arts students at Bombay
had to wear the same academic costumes as those at Oxford.135 However, that is where the
similarity with Oxbridge ended. At Oxford and Cambridge universities, getting an M.A. degree
was not (and continues not to be) an academic accomplishment—it was a badge of seniority, and
anyone who had a B.A. from these universities could apply to get an M.A. after waiting for a
certain number of years. Not so at Bombay University. In the M.A. program there, a student had
to specialize in one subject, which could have been anything from History to Experimental
Physics. Typically, however, judges picked English and a classical language (Sanskrit, Latin, or
Persian) for their M.A.
Over half the Indian judges of the Bombay High Court went to the United Kingdom for
getting additional educational or professional qualifications under their belt. This says something
about the socio-economic stratum to which they belonged. Though some got scholarships, most
came from affluent backgrounds. The purpose of going to the United Kingdom was usually to
get called to the Bar at one of the Inns of Court—75 per cent of the Indian judges who went to
the United Kingdom became barristers at one of the Inns of Court. The rest went there in order to
become members of the Indian Civil Service.136 No judge went to the United Kingdom solely
with the objective of studying at a university.137 However, most of those who went to the United
Kingdom (69 per cent) also studied at a university there, usually Cambridge.138 Thus, travelling
to England had a very distinct functional purpose. It was meant to get a useful professional
qualification under one’s belt: either a call to the Bar or membership of the Indian Civil Service.
The fact that many Indian judges of the court went to the United Kingdom for education but
did not end up getting a university degree there might have had something to do with the fact
that, unlike today, candidates were usually not admitted into a university before travelling to the
United Kingdom. One of the Indian judges of the court, for example, M.C. Chagla, applied
through the Registrar of Bombay University to the University of Oxford (probably a
consequence of the fact that Bombay University was granted affiliation to Oxford in 1890).139
Once he arrived at Oxford, however, Chagla had to pass the Oxford entrance examination known
as the ‘Responsions’, and he attended tuition classes in London to prepare for them.140 Perhaps
some of the Indian judges who did not get a university degree in the United Kingdom had
applied to universities there, in person, but had failed to get admission. This was what happened
to one prominent Bombay lawyer, M.R. Jayakar, the grandson of a leading Indian lawyer and
acting High Court judge,141 who set sail for England in 1903. Jayakar hoped to pursue graduate-
level legal studies at Oxford, aspiring to be awarded the Bachelor of Civil Laws or B.C.L. degree
there. Armed with numerous recommendation letters, possibly including one from the Chief
Justice of the Bombay High Court, Sir Lawrence Jenkins, when Jayakar arrived in England, the
Master of Balliol College, Oxford,142 told him that the quota of Indian students there was full
and that he could not be admitted.143 It would have been too much of a waste of money for
Jayakar to have gone back to India without making the most of his trip overseas, so he got a job
working for a barrister in London,144 and got called to the Bar at Lincoln’s Inn in 1905. Given
that students like Jayakar were not guaranteed admission at universities like Oxford despite
having had to pay a lot of money to travel to the United Kingdom,145 it was not worth making a
trip to the United Kingdom unless the objective was also to get a professional qualification like a
call to the Bar, which was easier to acquire and less exclusive.
As time went on, religious prohibitions, once strong, ceased to get in the way of travel
overseas for upper-caste Hindus who aspired to study in the United Kingdom. Approximately
one-third of the Hindu puisne judges of the court studied in the United Kingdom. In the twentieth
century, the barriers that had previously prevented upper-caste Hindus from travelling overseas
began to systematically break down, and an increasing proportion of middle-class, upper-caste
Hindus went abroad to study.146 Revealingly, every single Muslim and Parsi puisne judge of the
Bombay High Court went to the United Kingdom. The Muslims and Parsis usually went abroad
to become barristers, the riskier route, while the Hindus went abroad to join the safer (though
more rigorously competitive) Indian Civil Service.147 Both routes required substantial financial
resources, which suggests that many Indian judges came from comfortable family backgrounds.
Though Indian students at this time travelled to the United States and other countries as well,
the United Kingdom was overwhelmingly the preferred destination of study for various reasons,
foremost among which was the fact that the colonial government preferred graduates from
universities in the United Kingdom for employment.148 It is therefore not at all surprising that all
the Indian judges of the Bombay High Court who studied abroad did so at universities in the
United Kingdom. Before the World War II, there were approximately 1,500 Indian students
enrolled at academic institutions in the United Kingdom.149 Indians who travelled to Britain for
study were struck by the fact that they were treated as equals by the British community in
Britain, but as inferiors by Britons in India. Armed with a new sense of self-esteem, Indian
students came back home with the attitude that they did not have to ‘bow down to anyone’, not
even to Europeans.150 The Indian judges of the court who had been abroad were therefore
especially poised to see their British counterparts on the Bench as equals, not superiors.
The Indian judges who went abroad as students did not get a law degree at all—it was not
necessary to have a law degree in order to get a call to the Bar or to become a member of the
Indian Civil Service.151 On the other hand, the Indian judges who did not go abroad as students,
typically got a law degree from the Government Law School in Bombay. This reveals that there
were only two options for those who wanted to be successful in the legal profession in India: get
a law degree in India or go to England. Thus, if you had become a lawyer only by passing the
High Court Pleaders’ Examination conducted by the Bombay High Court, for example, you were
not likely to have gone very far in life. The historian Gumperz had found that only half the
lawyers employed by the government in the subordinate judiciary had LL.B. degrees.152 She
used these data to conclude that an LL.B. degree was not a prerequisite for success in the legal
profession. However, the data on the educational background of High Court judges now tell us
that the absence of an LL.B. degree imposed a ceiling on the career prospects of members of the
legal profession. A person needed either an Indian LL.B. degree or an English professional
qualification in order to reach the top of the legal profession in Bombay. This inherently made it
difficult for those from lower income groups to become successful lawyers. Those who could not
afford to go to England had to undertake a six to seven year education at Bombay University,
pursuing an undergraduate and law program, in order to become lawyers—a difficult
requirement for those who needed to earn a livelihood. The Bombay University examination fee
for the LL.B. final examination was twice the fee for the matriculation, B.A. final, or first year
LL.B. examination.153
There were other hurdles for low-income group candidates too. Those who grew up outside
Bombay city had to migrate to Bombay in order to get a law degree. Thus, because he came from
a relatively comfortable family background, Justice Lallubhai Shah, who grew up in Ahmedabad
and went to Ahmedabad High School and Gujarat College, decided to move to Bombay in the
1890s to get his law degree. We have seen that the Bombay Presidency did not have a law
college aside from the Government Law School for a long time, and this explains why everybody
studied there. The only other option for those not inclined to go to England was to go to another
Presidency and get a law degree there.154 This changed once other law colleges started getting
recognized later on. Thus, in the 1920s, Justice Gajendragadkar studied law at the Poona Law
College, and still made it to the Bench of the Bombay High Court.
Those who got LL.B. degrees in India were very unlikely to have gone abroad for further
studies. Usually, judges either went to the Government Law School or England, not both. Given
that a call to the Bar brought better opportunities than an LL.B. in Bombay, staying on at the
Government Law School instead of going to England might have been a sign of a comparative
lack of financial resources. This also tells us why the alumni of Government Law School might
have distanced themselves from it (as we saw in Chapter 1) - the fact that you went to
Government Law School during the colonial period meant that you had not gone the more
prestigious route of becoming a barrister in London.
The Indian judges of the High Court Bench were often, though not always, high academic
achievers.155 Students typically graduated from Bombay University in one of three classes, set
out here in descending order of importance—first division or first class, second division or
second class, and pass. Students who scored the highest marks in certain subjects, or in the
aggregate, won prizes, like the prestigious Judge Spencer Prize for the highest aggregate marks
in the LL.B. final examination. Approximately 55 per cent156 of the Indian judges who served on
the Bombay High Court stood in the first class in an important university examination (either the
B.A., M.A., or LL.B. final examination), or won an important award in an individual subject,
like the Kinloch Forbes Prize (named after the Civilian, Alexander Kinloch Forbes, a judge of
the Bombay High Court) in General Jurisprudence and Roman Law, or the Bhugwandass
Purshotumdass Prize in Sanskrit.157 One of the judges, Ranade, stood in the first class in all three
important examinations—the B.A., M.A., and LL.B. final examinations at Bombay University.
Some of the judges got the prestigious Government of India Scholarship, tenable for study at
Oxford or Cambridge.158
Academic success was not considered essential in order to succeed in the legal profession.
For example, Justice Davar assured students at the Government Law School in 1911 that ‘no one
will regard your failure in an examination as any indication of your incompetence’, since three of
the best students Davar had as a former law professor had failed their examinations.159 Justice
Chagla (who stood in the second class in his modern history B.A. program at Oxford) wrote in
his autobiography, ‘nobody seriously thinks about examinations; nor is an Oxford man judged by
the examination he passes or the class he obtains’.160 Likewise, Chief Justice Norman Macleod
wrote that his ambition at Oxford was to get a first class ‘with the idea that such a distinction
might be of some service to me in the future’.161 However, when Macleod stood in the second
class, he realized that his grades did not matter: ‘I may say at once that thereafter it did not seem
to make a scrap of a difference, one way or the other, whether I had got a First, or for the matter
of that a Fourth.’162 Even so, grades were not entirely unimportant.163 Telang’s unexceptional
performance in his university examinations did not go unnoticed —Chandavarkar pointed out
how there was ‘nothing very striking’ in Telang’s ‘College and University career’.164 Good
grades might have helped those without connections in the legal profession to get their first job.
On the other hand, legal scholarship was not important in British India (and continues not to be
so in India today), for professional success. Only one judge had a masters degree in law.165
It is important not to be anachronistic while assessing the academic careers of the judges.
Literacy rates in British India at the time were very poor. In 1931, while approximately 9 per
cent of British India was literate, even a cosmopolitan city like Bombay was only about 26 per
cent literate.166 Under such circumstances, merely getting a B.A., M.A. or LL.B. degree, by
itself, was already more than what most people in Bombay city, or for that matter, in British
India, had. Owing to bad pedagogy,167 the failure rate at Bombay University was also very high,
and a significant proportion of those who took examinations did not even pass. In the nineteenth
century, for every four students who gave the B.A. examination, only one passed,168 which
means that the B.A. examination in colonial Bombay was more difficult than the modern-day
New York State Bar Examination.169 Likewise, nearly 75 per cent of the students who took the
matriculation examination at Bombay University between 1860–96, failed.170 For this reason,
doing exceptionally well in these programs was not really necessary in order to succeed in the
legal profession.
British Judges
None of the British judges of the Bombay High Court got a university education in India.
Around 52 per cent of them studied at Oxbridge, demonstrating, unlike the Indians, no particular
preference for Cambridge or Oxford.171 British barristers were more likely to have studied at
Oxbridge than British Civilians—once again, this tends to suggest that British barristers came
from more elite backgrounds than British Civilian judges. The proportion of British judges who
studied at Oxbridge was much smaller than that of judges on English courts, or on other British
colonial courts—for example, approximately 90 per cent of the judges in Britain,172 and between
68–72 per cent of the judges in Kenya and Tanganyika, were Oxbridge graduates.173 This
deficiency was probably a result of the fact that the majority of the British judges of the Bombay
High Court came from the Indian Civil Service, and consequently from a comparatively middle-
ranking socio-economic stratum of society. Another popular university for British judges was
Haileybury College in the United Kingdom, near London, which trained Indian Civil Service
nominees.174 Approximately 37 per cent of the British Civilian judges studied there (none of the
barristers did), until it was closed down in 1857.175
While the barristers usually went to university to get a B.A. degree, the Civilians spent two
years as probationers at a university preparing for service in India, without getting a degree.176
After writing the entrance examination for the Indian Civil Service, if a candidate was selected
for the service, he was given an allowance to spend a certain amount of time at a university in
Britain, after which he would be packed off to India.177 Thus, for example, after getting into the
Indian Civil Service, future Bombay High Court Justice Louis Charles Crump spent two years as
a probationer at Balliol College, Oxford, between 1888–90, under tutor (and former Calcutta
High Court judge) William Markby,178 where he prepared for his eventual move to India in
1890. Like Crump, most of the members of the Indian Civil Service never got a degree at a
university. However, probationers had to take a certain number of examinations during this time.
For example, some probationers had to take an examination in horse riding.179 Interestingly,
probationers also had to study the local language of their assigned presidency before coming to
India—that often meant that Civilians who were assigned to Bombay studied Marathi at Oxford
or Cambridge.180
Like their Indian counterparts on the Bench, and like the British members of the Indian Civil
Service generally,181 not all British judges were high academic achievers. Data were not
available for all judges,182 but 55 per cent, for whom data were reliably available, got a first class
in their respective disciplines, or a prize in a subject. Among these were Chief Justices Lawrence
Jenkins, Alfred Marten, and John Beaumont, who stood in the first class in their respective
programs, while another judge, John Blagden, held the prestigious All Soul’s Fellowship at
Oxford University. Included in this figure are those who got studentships at the Inns of Court.183
Unlike the Indians, very few British judges pursued a graduate-level education.
PROFESSIONAL QUALIFICATIONS
After attending university, or very often while attending it, a future judge of the Bombay High
Court acquired any one of three professional qualifications. Some became barristers, some
became members of the Indian Civil Service (some of these ‘Civilians’, as members of the
service were called, also became barristers), and the rest—the Indians who did not go to the
United Kingdom—became Pleaders or Advocates in Bombay. The distinction between these
categories has already been discussed in Chapter 1. Table 3.1 reveals that British judges never
acquired professional qualifications in India—they were either barristers, members of the Indian
Civil Service, or both. Likewise, the majority of the Indian judges of the court (55 per cent)
acquired professional qualifications in the United Kingdom—becoming barristers or members of
the Indian Civil Service, or both. A substantial proportion of the Indian judges (45 per cent),
however, never travelled to the United Kingdom, and the only professional qualification they had
was that they were ‘Advocates’ or ‘Pleaders’ at the Bombay Bar.
Table 3.1 Professional Qualifications of Bombay High Court Judges, 1862–1947
British Judges Indian Judges

Barrister 21 10
Pleader/Advocate/Other 0 13
Indian Civil Service + Barrister 14 2
Indian Civil Service 19 4
Table 3.1 reveals that among the approximately eighty-three judges appointed to the Bombay
High Court during the British Raj, thirty-nine were Civilians (that is, 47 per cent), thirty-one
were barristers (that is, 37 per cent), and thirteen were Pleaders or subordinate judges (that is, 16
per cent).
PRACTICAL EXPERIENCE
What professional experience did the judges of the Bombay High Court have prior to their
elevation to the Bench? Table 3.2 reveals that there was a difference between recruiting patterns
for the British and Indian judges of the court. While the majority of the British judges of the
court belonged to the Indian Civil Service, the majority of the Indian judges of the court were
recruited from the practising Bar in Bombay. Therefore, interestingly, while Indian judges were
typically recruited to the court from the same professional background as judges on courts in the
United Kingdom were, British judges were recruited to the court from a career judiciary (as we
shall see in more detail in Chapter 5), which did not exist in the United Kingdom. According to
one of the Bombay High Court’s colonial-era judges, the court ‘combined the English system of
recruiting judges from the Bar and the Continental system of a special service of Judges’.184
British judges were also drawn from more diverse backgrounds than their Indian counterparts.
While Indians could either be drawn from the Indian Civil Service, the practising Bar in
Bombay, or from a subordinate judicial or administrative post in the Bombay Presidency, British
judges could additionally have been drawn from the judiciaries of other High Courts in India, the
judiciaries of other British colonies, or from the practising Bar (or lower judiciary) in the United
Kingdom.
Table 3.2 Professional Backgrounds of Bombay High Court Judges, 1862–1947
Another difference between British and Indian judges was that British judges were appointed to
the court two to three years younger than Indians.185 While British judges were typically
appointed to the court in their mid-forties, Indians were appointed to the court in their late
forties, on average. This was not only true on Indian High Courts—even British police officers in
India were appointed two to three years younger than Indian police officers.186 This suggests that
it was harder for an Indian to be considered suitable for a High Court judgeship than his British
counterpart. The difference in the age at which British and Indian judges were appointed to the
Bombay High Court makes it possible to guess that the average Indian was perhaps subject to a
more rigorous and exacting set of expectations from the administration before he could be
considered worthy of elevation to the Bench, as compared to his British counterpart. Given
mandatory retirement, this meant that Indians got to serve shorter tenures on the High Court than
British judges. In a system in which seniority determined influence,187 that meant that Indian
judges had fewer opportunities to become senior, and therefore influential, judges.
What professional experience did a person gather in order to get appointed to the Bombay
High Court Bench?
Irrespective of whether he was British or Indian, a member of the Indian Civil Service who
became a Bombay High Court judge served on the judicial side of the service in different parts of
the Bombay Presidency, beginning his career as an ‘Assistant Collector and Magistrate’—a
combined judicial and executive post. A Civilian then had to pick the judicial side of the service,
and rise up the bureaucratic ladder, serving, along the way, on important administrative posts
like Registrar of the Bombay High Court, or Under-Secretary to the Government in the judicial
department, and subsequently, on important judicial posts like the Judicial Commissionership of
Sind or the District Judgeship of Poona.
Before being appointed judges, practising British barristers in Bombay usually enjoyed
distinguished careers, culminating in important legal offices like Advocate General of Bombay
or Remembrancer of Legal Affairs.188 An Indian Pleader or Advocate had to have a reasonably
successful practice at the Bombay High Court in order to be elevated to the Bench.189 What this
meant was that a lawyer whose practice was confined to courts subordinate to the Bombay High
Court could not be considered for a High Court judgeship.190 Those who were British lawyers
practising in the United Kingdom before being appointed to the Bombay High Court were
usually quite undistinguished. Out of seven such judges, only two191 had been designated
Queen’s or King’s Counsel. This suggests that a judgeship on the Bombay High Court was also a
lucrative career choice for a British barrister or judge who was not as successful as he had hoped
at home. For example, before being appointed a puisne judge of the Bombay High Court,
Richard Couch held the Recordership of Bedford, which suggested that his legal career in
England was very ordinary.192 Why would British barristers practising law in the United
Kingdom want to become judges in India? For one, the salary was very good, much better than
what many less successful barristers would have hoped to earn at home. A life in India was also
presumably more comfortable for most middle class British families—with numerous servants to
do all the work and large houses to live in. Further, becoming a judge in a colony gave a person
the ability to retire with respectability in Britain, with honour and, quite possibly, a knighthood.
In other words, a judgeship on an important colonial court was a more accessible route to social
respectability in Britain than was otherwise possible for unsuccessful barristers in London. Chief
Justice Courtney Terrell knew a judge at the Patna High Court who wanted, ‘above everything
else in the world’, ‘to become chairman of the local golf club’ at Clacton-upon-Sea.193 Two
retired judges of the Bombay High Court separately wrote to the Secretary of State requesting
that they be permitted to use the title ‘Honourable’ after retirement, like retired Canadian
judges.194 Another retired Bombay High Court judge requested the government to ante-date his
knighthood, so that he would not lose ‘precedence’ to those who had been dubbed knights before
him.195
Like Indian Civil Service judges, judges in the subordinate judiciary usually served on
important posts in the rural districts of British India before they could be elevated to the High
Court. This was exceedingly rare, and only a handful of judges made it to the Bombay High
Court under this category.196
Two British judges came to the Bombay High Court to serve as Chief Justices after having
served on other High Courts in India. One of these was Lawrence Jenkins, who had served as a
puisne judge on the Calcutta High Court—a court considered superior in status to the Bombay
High Court. The second was Louis Kershaw who had already served as Chief Justice of the
Allahabad High Court. By contrast, those who came to Bombay after having served on
judiciaries in other British colonies usually served as puisne judges in Bombay to begin with—
signalling Bombay’s superior status in the Empire to other colonies.197
ETHNICITY AND CLASS
Indian Judges
Among the twenty-nine Indian puisne judges who served on the court in the colonial period,
twenty were Hindus, five were Muslims, and four were Parsis. We have already seen that though
Parsis constituted less than 1 per cent of the population of British India, they were
overrepresented in the legal profession (approximately 15 per cent of the legal profession was
Parsi), as a consequence of which there were almost as many Parsi judges on the court as Muslim
judges.198
Available data suggest that no Hindu judge of the Bombay High Court during the Raj
belonged to the so-called ‘depressed’ castes of India.199 Approximately two-thirds of the Hindu
judges of the court were Brahmins (usually Gaud Saraswat Brahmins, a sub-sect of the Brahmin
caste found predominantly in western India),200 while the rest belonged to other upper Hindu
castes. This is not surprising, given that western-educated Indians in the Bombay Presidency
were usually Brahmins, and the government there hesitated to make education very accessible to
lower castes, fearing that it would upset the higher castes, who helped bolster the status quo.201
Further, the Indian middle classes usually belonged to high castes.202 The fact that Bombay High
Court judges were usually Brahmins does not necessarily tell us that they came from affluent
backgrounds—in fact, according to the historian Gumperz, in the nineteenth century, Brahmins
were a poor, economically marginal group in the Bombay Presidency.203 However, we know that
the Indian judges on the court were relatively privileged from other data presented in this
chapter: for example, their fathers’ occupations, and their choice of expensive educational
institutions. The Muslim judges of the court mostly came from the Shia community.204
British Judges
Interestingly, by contrast, many British judges of the Bombay High Court came from what might
have been considered marginal origins in Britain—a large proportion of them belonged to the so-
called ‘Celtic fringe’.205 Of the twelve Chief Justices of the Bombay High Court, for example, at
least three were Irish, at least two were Scottish, and at least one was Welsh.206 Though Roman
Catholics could not serve as Chief Justices on important courts in Britain, many Chief Justices of
the Bombay High Court (including the very first one) were Roman Catholic.207 Thus, ironically,
though the colonial judiciary presented an opportunity for upward social mobility for relatively
marginal British communities, it did not present the same set of opportunities for marginalized
Indian ones.
There is literature which suggests that British lawyers who went to practise law in the
colonies were mediocre and possibly incompetent.208 Duman suggested that the colonial bars
were a refuge for ‘less ambitious and competitive English, Scots and Irish lawyers’.209 In his
study on Australian judges, McLaren pointed out that the judiciaries in other British colonies
attracted the ‘also rans’ among English, Irish, and Scottish barristers and Advocates.210
Swanepoel suggested that there was a constant fear that the British colonies of Kenya and
Tanganyika would be infiltrated by an inferior grade of British lawyers.211 In British India too,
there were feelings that it was only the less successful British lawyers who wanted to relocate to
India. When Courtney Terrell wrote to Sir Edward Chamier, chief legal adviser at the India
Office, requesting to be appointed a judge in India, Chamier responded, ‘[a] man with his
practice who contemplates a puisne judgeship in India, is rather a curiosity’.212
However, rather than being mediocre or incompetent lawyers, it is possible that these British
lawyers at the colonial Bars lacked opportunities in the United Kingdom, on account of their
relatively marginal (often Celtic) identities, as a result of which they were unable to become
highly successful lawyers in the United Kingdom. In fact, allegations of mediocrity were most
often levelled against Irish or Scottish lawyers in Bombay. Thus, an English newspaper in
Bombay noticed that Westropp, an Irishman, was a ‘briefless and unknown barrister’ at home.
Westropp rose to the ‘front rank of the Bombay Bar’,213 becoming acting Advocate General and
Remembrancer of Legal Affairs, a puisne judge on the court, and later, Chief Justice. A
longstanding leader of the Bombay Bar, Scottish lawyer J.D. Inverarity, was, according to one
English observer, ‘anything but studious either at school or at the Varsity’.214 According to the
same commentator, the Welsh Chief Justice of Bombay, Lawrence Jenkins ‘had little practice’ at
the Chancery Bar in England when he first came to India as a judge of the Calcutta High
Court.215 In the 1860s, an English judge of the Bombay High Court complained about how
Bombay society was ‘not pleasant’, that ‘3 fourths of it is Scotch, it is dinner giving, stiff, stuck-
up, narrow minded and scandal monging’.216
Like Inverarity, many of the leading British barristers at the Bombay Bar were of Scottish or
Irish origin, and they were sometimes targeted for behaviour unbecoming of a polished English
barrister. The most prominent example of this was Irish lawyer Thomas Chisholm Anstey, who
was the leader of the Bombay Bar in 1862. Anstey was known for his irascible behaviour. As an
acting judge of the Bombay High Court, he was said to have treated people with ‘unbecoming
and undue severity’,217 once taunting a Parsi litigant by calling him ‘bottle-wala’ (a Parsi name
which described a low-status occupation) and referring to his community as ‘the unlettered semi-
barbarous populations of the Western presidency’.218 On another occasion, when he received an
anonymous abusive letter, Anstey jailed the boy who delivered the letter to him for committing
contempt of court.219 As a lawyer, he quarrelled with judges, and he refused to address the first
Indian acting judge of the Bombay High Court customarily as ‘Your Lordship’ and ‘My
Lord’.220 On another occasion, Anstey rushed at his client, ‘seized him by the throat and kicked
him out of the room’.221 Solicitors in Bombay even tried boycotting him for a while.222 Even so,
Anstey was a very good lawyer. Before moving to Bombay, he had been Attorney General in
Hong Kong. In Bombay, even though solicitors boycotted him, he was very popular among
Indian litigants, and he found a way to get cases despite the boycott.223 Though he spoke ill of a
Parsi litigant as a judge in court, he defended nearly fifty Parsis in a case referred to as the
‘Tower of Silence case’,224 which earned him a grateful place in a song sung by Parsis at
weddings.225 Even so, when Anstey tried to move back to England in 1866, he failed to get much
work as a barrister there.
It might be that it was Anstey’s Irishness, his inability to conform to the etiquette expected of
polished English barristers, and his lack of family connections in England, which got in his way
at the Bar in the United Kingdom. At the colonial Bar in Bombay, Anstey’s white, British
identity eclipsed his Irish identity. A Briton’s relatively marginal Celtic identity was almost
irrelevant at the colonial Bar in India, where he was considered a part of the ruling race. It has
been seen in Chapter 1 that British barristers enjoyed a competitive advantage over Indian
lawyers on the Original Side of the High Court, especially in the nineteenth century. It mattered
little at the colonial Bar in Bombay whether these British lawyers were English, Scottish, Irish,
or Welsh—belonging to any of these categories afforded them a sufficient competitive
advantage. Likewise, though Catholics could not be Chief Justices on British courts, they could
be Chief Justices of the Bombay High Court. Scholars have suggested that imperialism
benefitted disadvantaged metropolitan groups,226 and this section demonstrates that the colonial
Bars also presented opportunities for relatively marginal communities in the metropole—those
without family connections, those of Irish or Scottish descent—to succeed. In short, though the
colonial Bars were considered, in the literature, to have incompetent British lawyers, this might
have had something to do with the fact that many British colonial lawyers came from non-
traditional, marginal backgrounds, and lacked the family connections to succeed at home.227
***
The Bombay High Court had two racially distinguishable categories of judges who served on it:
British judges and Indian judges. However, it was not only their race which set them apart, but
their class and comparative status in their respective societies.228 For British judges, accepting a
judgeship on the Bombay High Court was a compromise, an acknowledgment that they were
unlikely to succeed back home. They belonged to a relatively middle-ranking stratum of British
society. True, the British judges of the court were not members of the lumpenproletariat in
Britain: their fathers were hardly tenant farmers, ditch-diggers, plumbers, or household servants.
Yet, the British judges of the court belonged to a relatively humbler socio-economic background
when compared to their counterparts on British courts. Their fathers came from a less affluent
section of British society, than the fathers of judges on British courts. A lower proportion of
them studied at elite public schools and high-status universities than would have been expected
of judges in the metropole. Most of them belonged to the Indian Civil Service, the members of
which came from a less affluent class of British society than barristers. A significant proportion
of them were of Scottish or Irish descent. Many British judges agreed to serve on the Bombay
High Court because they were not able to become successful at home, perhaps on account of
their non-traditional backgrounds and lack of family connections.
By contrast, for the Indian judges, a judgeship on the Bombay High Court was an
accomplishment. The Indians came from a high, elite stratum of Indian society. True, their
fathers were not native princes or landlords, but in an impoverished India, their fathers were
wealthy merchants, lawyers, and officials working for the British government or for a native
state. Most of them grew up in Bombay, one of the most expensive places in the Presidency. In
an India where only 9 per cent of the people were educated, they went to elite English high
schools, and westernized Indian universities, where they studied Latin and British history. They
spoke English, an attribute which literally placed them in the 1 per cent. More than half of them
went to England to get called to the Bar, and sometimes also to study at universities like
Cambridge. Those who did not go to England had the financial wherewithal to move to or
remain in Bombay instead, and to spend time there acquiring a law degree.
The difference between these two categories of judges, then, British and Indian judges, was
not merely a racial difference, but a comparative class difference. This class difference signalled
India’s inferior status relative to Britain. While high class Indian elites aspired to serve on the
Bombay High Court, a post on the Bombay High Court was beneath the status of high class
British elites.
We began this chapter by wondering why the British and Indian judges of the Bombay High
Court shared warm, cordial social relations off the Bench, despite the generally antagonistic
nature of race relations in British India. The findings presented in this chapter suggest one
possible answer: the British judges of the court found it very easy to culturally relate to, and to
therefore get along with, the court’s Indian judges. The Indian judges of the Bombay High Court
came from privileged backgrounds. They were considered more elite in India than their British
counterparts were in Britain. They came from relatively wealthy family backgrounds, studied
English and Latin at posh schools and colleges in Bombay, and even studied at universities like
Cambridge in Britain in surprisingly high numbers. On account of their background and
upbringing, the Indian judges of the Bombay High Court were perhaps as ‘British’ as the British
judges were themselves.
This chapter also helps provide an answer to the core question presented in this book. Why
did British, colonial institutions like the Bombay High Court survive so seamlessly in
independent India? The answer might possibly be that the Bombay High Court was not always
perceived to be a perpetual site of fierce racial discrimination during the colonial period. With
some exceptions, the court’s Indian judges, even its Indian lawyers, were treated with respect,
even warmth, by the court’s British judges. This helped ensure that when independence came,
the Bombay High Court did not have the image of being an illegitimate court of ceaseless racial
discrimination against Indians.
CHAPTER FOUR
The Judicial Culture of the Court
By relying on a systematic, empirical study of 489 randomly selected reported cases decided by
the Bombay High Court during the British Raj, this chapter closely examines the legal and
judicial culture of the court in the colonial era.1 In the coming pages, we will see the typical
kinds of cases which came up before the Bombay High Court, the litigants who brought those
cases, the lawyers who appeared for them, and how the judges of the court wrote judgments,
cited precedent, etc. Two central findings are presented in this chapter. First, the decolonization
of the Bombay High Court Bar predated the decolonization of the Bench. In particular, we will
see that the Original Side Bar of the Bombay High Court was almost entirely decolonized by the
1920s, decades before India became independent, as Indian Advocates broke the monopoly of
British barristers. Second, we will see that Indian judges and lawyers were often not racially
discriminated against in the Bombay High Court—judges were assigned opinion-writing
functions based on seniority, and lawyers were hired to argue cases based on merit.
METHODOLOGY
Scholars who study Indian colonial courts tend to focus only on interesting and important cases,2
or only on cases in any single substantive field of law.3 By contrast, the purpose of this chapter is
to get a sense of what actually happened in the Bombay High Court from day-to-day, in
everyday court cases, and not merely in exceptional, sensational, or leading cases.4 In order to
gain an insight into the court’s judicial culture, I examined all the cases contained in the Bombay
High Court’s law reports5 for the years 1865, 1885, 1905, 1925, and 1945, that is, law reports at
twenty-year intervals.6 Each of these law reports usually contained cases for three years—the
year before, the year of, and the year after the year of the law report. However, each law report
contained a substantial majority of cases decided in one particular year.7 In every law report, I
only analysed the cases for the year that was most extensively covered in that law report. Thus,
this chapter relies on a sample of cases decided in the years: 1866, 1885, 1905, 1924, and 1944.
As such, in this chapter, though a case will often be referred to as having been decided in either
1865, 1925, or 1945, it should be understood that the case appeared in the law report for that
year, but that it was actually decided in 1866, 1924, or 1944 respectively.
A few terminological and methodological notes might be necessary here. In this chapter, any
reference to the ‘Original Side’ or ‘Appellate Side’ should be taken to mean a reference to the
original civil or appellate civil side of the court or Bar respectively. Today, the Bombay High
Court does not have original criminal jurisdiction as it did during the colonial era. As such,
today’s High Court criminal lawyers would probably identify themselves as Appellate Side
lawyers. However, since trials were often conducted at the High Court Sessions in the colonial
era, the High Court’s criminal lawyers back then could identify themselves as Original Side or
Appellate Side lawyers. However, the vast majority of the criminal cases in the law reports were
appellate cases, from the mofussils. As such, any mention of criminal cases in this chapter should
be understood as referring to Appellate Side criminal cases.
CASES
Most of the cases which came up before the Bombay High Court during the British Raj were
routine, ordinary cases, with no serious political consequences or sensational outcomes.8 The
ordinariness of the court’s docket was not lost on the judges themselves. In one criminal case,9
Justice Marten began his judgment by highlighting the insignificant nature of the case, though it
involved a complex point of law: ‘We have been engaged for over an hour and a quarter,’ he
wrote, ‘in considering the question whether an alleged prostitute has been rightly fined Rs 5.’
However, not all cases were unimportant. Rukhmabai’s case, which we will encounter in the
following chapter, decided in 1885 on the Appellate Side, for example, raised eyebrows in the
establishment and worried the government for the controversies it stirred.
The basic nature of the cases which came up before the Bombay High Court did not change
much in the colonial era. True, the court’s docket reflected the times that the judges lived in. For
example, the ‘share mania crisis’ in Bombay in the 1860s—characterized by a string of corporate
bankruptcies brought about by the fall in cotton prices after the end of the American Civil War10
—brought a host of cases relating to corporate bankruptcy to the docket of the Bombay High
Court in 1865. Criminal cases relating to wartime statutes were naturally seen in the court’s
docket during World Wars I and II. Yet, the general nature of the docket of the court did not
change over the years. Civil cases were usually of five kinds: cases between unrelated parties,
involving land (for example, suits between mortgagor and mortgagee, or landlord and tenant) (29
per cent);11 cases involving complications arising out of the enforcement of decrees between
losing and winning parties in disputes (18 per cent); cases between members of a family over
inheritance or property (11 per cent);12 suits filed by private parties against the government (11
per cent), which especially came up in the final decades of the colonial era; and cases involving
debts (8 per cent). Criminal cases usually involved non-political offences like theft (16 per
cent),13 murder (8 per cent), offences involving banned substances like alcohol or opium (6.5 per
cent), gambling (6.5 per cent), criminal breach of trust (5.4 per cent), perjury (5.4 per cent),
violation of a municipal code (4.3 per cent), disobeying a public servant (4.3 per cent), and
assault or causing hurt (4.3 per cent). A small fraction of criminal cases which came up before
the court could be said to have been political in nature, for example, involving the exercise of
free speech or criticism of government (8 per cent).
Interestingly, the data suggest that the size of the court’s docket did not increase over the
years. Where seventy-one cases for a single year were reported in the law report for 1865, 123
cases were reported in 1885, only sixty-nine cases in 1905, 117 cases in 1925, and 109 cases in
1945.14 This confirms what we have already seen in Chapter 2: the litigation before the Bombay
High Court remained stable even as the population of the Bombay Presidency and the size of the
legal profession in Bombay rose.
These figures also tell us something about the nature of law reporting in British India. We
saw in Chapter 2 that there were as many as 8,481 cases in 1869. Yet, only seventy-one cases
were reported in the law report in 1865. Likewise, though there were 6,312 filed before the
Bombay High Court in 1919, only 117 cases were reported in the law report in 1925. We can
therefore surmise that only about 1–2 per cent of the cases that were filed before the Bombay
High Court in the colonial era were actually reported in the law reports.15 The judge deciding the
case usually determined whether or not the judgment should be reported in the law reports, and
the judge usually decided to have the judgment reported if he felt that it dealt with an important
point of law. As such, even politically sensitive cases were reported in the law reports.16
The Appellate Side accounted for more than half of the court’s reported decisions (56 per
cent), followed by the Original Side (25 per cent), and criminal cases (19 per cent). Thus, though
we have seen that the Appellate Side was conventionally considered less lucrative and less
prestigious than the Original Side, as a precedent-setting institution, however, the court’s
Appellate Side counted for more than its Original Side.
LITIGANTS
Throughout its history, the overwhelming majority of cases before the Bombay High Court
concerned Indian litigants.17 In a sense, therefore, the court was an Indian court since its very
inception. In 1865, for example, less than 6 per cent of the court’s cases had British/European
litigants in them. Between 1865–1945, only 3.5 per cent of the court’s cases had one or more
British/European litigants in them. Most cases concerned Hindu litigants, especially on the
Appellate Side. Hindus made up 68 per cent of the cases that were decided by the court. Next
came Muslim litigants, who accounted for 12 per cent of the cases that were decided by the
court. Finally, Parsi litigants were in 7 per cent of the court’s reported cases.18 Muslim and Parsi
litigants were usually seen on the Original Side of the court, that is, in cases that originated in
Bombay city. Cases arose between members of the same community and between members of
different communities.
We saw in Chapter 2 that the first Indian Bombay High Court judge, Nanabhai Haridas, was
appointed to the court in the 1880s. This becomes especially interesting now that we know that
the court’s docket was dominated by Indian litigants decades before Haridas was appointed to
the court. This suggests that the impetus to appoint Indian judges to the court did not necessarily
come from Indian litigants, who used the court in large numbers even when the court was
entirely composed of British judges.
Both men and women were litigants before the court. For example, in a 1925 case,19 a
woman sued a man for breach of promise to marry. The court held that the couple’s two-year
engagement seriously prejudiced the woman’s ‘future life and prospects of marriage,’ and
decreed the suit in her favour. In another case,20 a woman plaintiff sued her deceased husband’s
brothers for maintenance. The brothers resisted, arguing that she was leading an ‘unchaste’ and
‘immoral’ life, being ‘kept’ by another man after her husband’s death. After quoting extensively
from Hindu law commentaries, the court held that she was entitled to a bare minimum
maintenance from the defendants. Interestingly, the government was rarely a litigant before the
court until 1945,21 when a series of tax cases suddenly inundated the court,22 and made the
government a large litigant. Today, the government is one of the largest litigants before courts in
India.23
LAWYERS
Like the litigants who used the court, the front-ranking lawyers who appeared on the Appellate
Side of the court, since its inception, were always Indians. As far back as in 1865, the Appellate
Side Bar was dominated not by Britons, but by four Indian lawyers: Dhirajlal Mathurdas,
Shantaram Narayen, Nanabhai Haridas, and V.N. Mundlick. We have already seen in Chapter 2
that Narayen, Haridas, and Mundlick were each being considered as potential judicial candidates
for the High Court, and that Haridas eventually became the first Indian to be appointed a judge of
the court. In 1865, Dhirajlal Mathurdas appeared in more reported Bombay High Court cases
than any other lawyer in Bombay—Briton or Indian, on the Original or Appellate Side.
Throughout the court’s history, Appellate Side cases were dominated by Indian lawyers.24
Likewise, throughout the court’s history, Indian lawyers dominated the court’s criminal
docket as well (given that most criminal cases before the court were appellate cases from the
mofussils), which was especially true of the Government Pleader, a post always held by an
Indian pleader, who appeared for the Crown in criminal cases. Interestingly, the Advocate
General25 would usually only appear in cases on the Original Side, while the Government
Pleader would usually only appear in cases on the Appellate Side or in criminal cases.26
Though the Appellate Side was historically always an Indian preserve, it was less lucrative
and prestigious than the Original Side. Throughout the court’s colonial history, the typical value
of a case on the Appellate Side of the court was much less than that of a case on the Original
Side. For example, available data suggest that the median value of cases filed on the Original
Side in 1885 was Rs 51,151, while the median value of cases on the Appellate Side was Rs 140.
This meant that a lawyer who was hired in a few Original Side cases was likely to have earned
more fees than a lawyer hired to appear in many Appellate Side cases.
In the nineteenth century, the Original Side was dominated by British barristers. In 1865, for
example, not even a single Indian Advocate appeared in a reported case on the Original Side of
the court, and understandably so: the first Indian barrister in Bombay, Badruddin Tyabji, only
got called to the Bar at the Middle Temple a few years later, in 1867. The Original Side
progressively underwent a process of Indianization. By 1885, though British lawyers still
dominated the Original Side docket, a few Indian lawyers occupied the middle tier of the
Original Side: lawyers like K.T. Telang (later, the second Indian Bombay High Court judge),
Badruddin Tyabji (later, the first Muslim High Court judge in Bombay), F.R. Vicajee, and
Pherozeshah Mehta, all of whom have already been encountered in previous chapters. In 1905,
the Original Side was still dominated by British barristers, but now, an Indian barrister, Dinsha
Davar (later, the first Parsi High Court judge), was one of the front-ranking lawyers on the
Original Side—the first time that an Indian lawyer was in a position of dominance there. After
British barristers Raikes and Inverarity, Davar, in 1905, had the highest number of reported cases
to his credit on the Original Side, more than even the British Advocate General of Bombay at the
time, Basil Scott (later Chief Justice of the High Court), which was an unprecedented
accomplishment.
By 1925, at a time when Indian judges were still a minority in the Bombay High Court, the
Original Side was almost entirely dominated by Indian lawyers. For the first time, an Indian
lawyer, Bhulabhai Desai, occupied the front-rank of the Original Side Bar—he had more
reported cases to his credit on the Original Side in 1925 than any other lawyer, Briton or Indian.
A British judge of the Bombay High Court described Desai as having ‘the capacity and manners
of a good English Barrister’.27 It is no coincidence, therefore, that Desai’s name occupies a
legendary status in the court’s history28—he rose to prominence at a time when Indian lawyers
were beating out British lawyers from their Original Side perch for the first time. According to a
British judge of the court, at around this time, it was becoming ‘increasingly difficult for young
English barristers to make their way against the competition of Indian barristers as Indian
lawyers increasingly absorbed the work of Solicitors in Bombay’.29 In 1925, there were only two
leading British lawyers left on the Original Side—Coltman and Campbell, and in 1945, there
were no leading British lawyers left in the court at all. Every single prominent lawyer in the court
in 1945 was Indian, including the leader of the Original Side Bar, former Advocate General, Sir
Jamshedji Kanga.30
Though Original Side Advocates in the nineteenth century were largely British barristers,
much of the solicitors’ work at the time was in Indian hands. Even in 1865, when there was no
Indian Advocate appearing on the Original Side of the court, an Indian solicitor, Camruddin
Tyabji, had one of the highest numbers of reported cases on the Original Side to his credit,
though the remaining solicitors were mostly British. By 1885, at least half the solicitors’ firms
with cases reported on the Original Side had Indian partners in them. Partnerships between
British and Indian solicitors were not uncommon at this time—the firm of Jefferson,
Bhaishankar, and Dinshah, one of the most successful Original Side solicitors’ firms at this time,
was a good example of this phenomenon.31 By 1905, at a time when the Original Side was still
dominated by British barristers, very few solicitors’ firms were in British hands.32 The leading
Original Side firm at this time was the Indian firm of Tyabji and Dayabhai. Thus, the demise of
the British solicitor on the Original Side preceded and foretold the demise of the British barrister
on the Original Side of the court.33
Surprisingly, racism and communalism were often missing when it came to the hiring of
lawyers, especially top-ranking lawyers. As far back as in 1865, Hindu litigants hired British
firms or the Muslim solicitor Camruddin Tyabji, to represent them in their cases. Two decades
later, in 1885, a Hindu woman, Kuverbai, hired two British solicitors’ firms34 to represent her,
who, in turn, hired a string of Advocates, including the Muslim Advocate Badruddin Tyabji, and
the Parsi lawyer, F.R. Vicajee.35 That year, a Parsi widow retained the Hindu pleader Shantaram
Narayen, to argue her case before two British judges.36 By 1925, the Bar had Indianized, and two
British litigants on opposite sides of a case both hired Indian lawyers to represent them before a
British judge.37 Likewise, in 1945, two British litigants on opposite sides of a case, both retained
Indian lawyers, and the case was decided by a bench of Indian judges.38 Ironically, in criminal
cases, it was most often an Indian Government Pleader who argued for the British Crown,
representing a foreign, colonial government in court. For example, in a criminal case in 1885,39
the Hindu accused was defended by the British lawyer Branson, but prosecuted by the Hindu
Government Pleader, V.N. Mundlick. Similarly, in a case in 1925,40 two Indian lawyers, Sir
Jamshedji Kanga (Advocate General) and S.S. Patkar (Government Pleader) represented the
British Secretary of State, before two British judges who rejected their arguments and held in
favour of the Indian plaintiff. In short, at the higher levels of the Bar, litigants did not care what
the nationality, race, or ethnicity of their lawyer was. It was not like Muslim litigants only
wanted Muslim lawyers, or Parsi litigants only Parsi lawyers, even in cases involving vexed
questions of Muslim or Parsi law respectively. Likewise, an Indian lawyer was no more or less
likely to be briefed to appear before an Indian judge over a British judge. We have already seen
in Chapter 1 that it was a British Chief Justice, Lawrence Jenkins, who was credited with
encouraging Indian lawyers to appear in Original Side cases in the Bombay High Court. The data
suggest that it was therefore primarily the institutional structure of the Original Side Bar (that is,
the fact that only Advocates could appear in Original Side cases), over any racial or ethnic
prejudice on the part of judges, solicitors, or litigants, which prevented Indian lawyers from
making a name for themselves on the Original Side in the early years of the Raj. This
institutional structure ceased to matter as the decades of the Raj wore on, especially once an
increasing number of Indian lawyers became barristers and Advocates.
JUDGES
The data suggest that the Indian lawyers who were appointed judges of the Bombay High Court
usually had a successful career at the Bar prior to their elevation to the Bench. A successful
lawyer was one who appeared in many cases in court, and whose appearance was accordingly
recorded in numerous cases in the law reports. In 1865, for example, Nanabhai Haridas had eight
cases in the law reports to his credit on the Appellate Side, making him one of the busiest
lawyers on the Appellate Side. Likewise, in 1885, though British barristers dominated the
Original Side Bar, Telang and Tyabji had the highest number of reported cases to their credit
among Indian lawyers on the Original Side. In other words, Telang and Tyabji were busy,
successful Original Side lawyers, at a time when it was uncommon for Indians to have much
work on the Original Side. In 1905, Dinsha Davar had eight reported cases on the Original Side
to his credit.41 In one case, Davar specifically earned encomiums from the Bench: a Civilian
judge praised Davar for his ‘able and interesting address’.42 That same year, Lallubhai Shah was
one of the busiest Pleaders on the Appellate Side. In 1925, H.V. Divatia was one of the busiest
Appellate Side lawyers, while Harilal Kania commanded a respectable Original Side practice. In
1945, on the eve of his appointment to the High Court Bench, P.B. Gajendragadkar was the
leader of the Appellate Side Bar, with twelve reported cases to his credit, which made him one of
the busiest Appellate Side lawyers that year. All of these successful lawyers: Haridas, Telang,
Tyabji, Davar, Shah, Divatia, Kania, and Gajendragadkar, were appointed judges of the Bombay
High Court.
In short, Indian lawyers who were appointed to the Bombay High Court Bench were selected
on the basis of the British tradition that judges should be picked from among leading practising
lawyers. The Indianization of the High Court Bench was therefore a sign of the Indianization of
the Bar. As more Indians became successful lawyers at the Bar, and as British lawyers started
fading away at the colonial Bar, a de facto transfer of power had already occurred from British to
Indian hands at the Bar in the 1920s, and the composition of the Bench subsequently reflected
this change in the power dynamics at the Bombay Bar.
We saw in Chapter 2 that the move to appoint Indian judges to the Bombay High Court
Bench in the nineteenth century might have been designed to secure the court’s legitimacy in the
eyes of the legal profession. In the nineteenth century, there were many British barristers
practising at the Bombay High Court Bar, and there was therefore no dearth of British barristers
who could have been elevated to the High Court Bench. On the Original Side, Indian lawyers in
the nineteenth century were not front-ranking lawyers like their counterparts in the twentieth
century. In the nineteenth century, the decision to appoint Indian lawyers to the Bench was
perhaps designed to secure the legitimacy of the court in the eyes of the Indian legal profession.
However, as the decades of the Raj wore on, the number of British barristers practising at the
Bombay High Court Bar dried up. Therefore, the appointment of Indian lawyers to the High
Court Bench in the twentieth century largely reflected the Indianization of the Bar which had
taken place at that time.
In the Bombay High Court, Indian judges often decided cases involving the personal law of
their own communities. For example, the first Parsi judge appointed to the Bombay High Court,
Dinsha Davar, decided the most important cases involving Parsi litigants during his tenure,
involving grave questions such as conversion to Zoroastrianism. For example, the landmark case
of Petit v. Jeejeebhoy,43 involving a deeply vexed question of Parsi law, was decided by a bench
consisting of Justice Davar and a British judge, Justice Beaman. Beaman concluded his
concurring opinion in strong praise of Davar: ‘I began by saying that I regard my Judgment as
merely a supplement to [Davar’s],’ he wrote in the concluding paragraph of his judgment, ‘I end
by repeating it.’ The fact that a Parsi judge was deciding cases involving Parsi litigants no doubt
helped bolster the legitimacy of the court’s pronouncements. Likewise, an Indian solicitor
recalled that Nanabhai Haridas, the first Indian judge of the High Court Bench, was known ‘for
being an expert on Hindu Law’ and ‘for quoting from the Shrutis and Smritis,’44 that is, from
authoritative Hindu religious texts. Similarly, when Raymond West, a former judge of the
Bombay High Court, wrote an obituary for Kashinath Telang, the late Hindu judge of the
Bombay High Court, West only mentioned Telang’s judicial contributions to Hindu law.45 The
presence of Indian judges on the High Court Bench therefore helped build legitimacy not merely
from the standpoint of making colonial institutions seem inclusive, but also because these judges
were very useful in personal law cases involving their own communities.
This was also true of lower courts. In 1925, for example, a case involving a question of
Hindu law was being appealed before the Bombay High Court.46 The case had been decided by
two lower court judges, both of whom were Hindus. The two British judges hearing the appeal in
the Bombay High Court dismissed the appeal. ‘Speaking generally,’ wrote Justice Marten, ‘the
litigants here have had the advantage of two careful judgments from learned Hindu Judges, who
are particularly acquainted with matters affecting the Hindu community.’47 However, it was also
not uncommon for Indian judges to be overruled by British judges on points of personal law. For
example, in a case involving Hindu law, three European judges took a view contrary to that of
Telang, though Telang was the acknowledged Hindu law expert among them.48
BENCH COMPOSITION
The High Court did not (and continues not to) convene in plenary sessions, but in benches of one
judge (‘Single Judge’), two judges (‘Division Bench’), or in rare cases, three or more49 judges
(‘Full Bench’). It was the Chief Justice’s prerogative to compose benches and to assign cases to
judges. On the Original Side, cases were usually suits and miscellaneous applications like
motions or chamber summonses, which were heard by Single Judges, and appeals from decisions
of Single Judges, which were heard by Division Benches. On the Appellate Side, cases came up
in appeal from the decisions of mofussil judges. Appeals were usually ‘second appeals,’50
meaning that a case which was originally decided by a subordinate judge (usually of the first or
second class), was then appealed before an intermediate appellate court like the District Court or
Sessions Judge, and the intermediate appellate court’s decision was now being appealed before
the High Court. Full Bench decisions were rare, and were usually reserved for cases in which
there was a difference of opinion between two judges on a Division Bench, or if conflicting
precedents had been set by different decisions of the High Court.
We have seen in Chapter 1 that though the Supreme Court and Court of Sudder Dewannee
and Sudder Foujdaree Adawlut of Bombay were merged to form the High Court in 1862, they
continued to sit separately until 1879, as the Original Side and Appellate Side. In fact, we saw
that lawyers often referred to the Appellate Side of the High Court in those years as the ‘the
Sudder’. However, the data suggest that during that time, the judges of the two divisions of the
court did not sit separately. In 1865, for example, barrister judges, who would have been
considered Original Side judges, sat with Civilian judges on the Appellate Side in Mazgaon, and
Civilian judges sometimes also sat with barrister judges on the Original Side at Hornby House.
Barrister judges most often decided cases on the Original Side, throughout the court’s
colonial history. Approximately 71 per cent of the reported Original Side cases at the court were
decided by a single barrister judge sitting by himself, or by a Division Bench in which at least
one of the two judges was a barrister.51 Apart from the Original Side, a barrister judge was more
likely to be used on the Appellate Side than in criminal cases. While 54 per cent of Appellate
Side cases were decided by benches which had barrister judges, only 26 per cent of the court’s
criminal cases were decided by benches which had barrister judges.
Civilian judges most often decided cases on the Appellate Side, to which they were more
suited, since they had a better knowledge of the rural districts of British India than barrister
judges. Accordingly, approximately 78 per cent of the reported Appellate Side cases of the court
were decided by a bench in which at least one judge was a Civilian.52 Since reported Appellate
Side cases were more numerous, this meant that Civilians had a large hand in the precedent-
setting function of the High Court. However, the most common Division Bench on the Appellate
Side was one in which one judge was a barrister, and the other a Civilian. Interestingly, criminal
cases were also most often decided by Civilian judges. Approximately 71 per cent of the criminal
cases which came up before the Bombay High Court were decided by benches that had at least
one Civilian judge on them.53 Civilians were less commonly used on the Original Side.
Pleader judges were most often used on the Original Side or in criminal cases, rather than on
the Appellate Side. Since Pleaders practised on the Appellate Side, one would have guessed that
they would have most often staffed Appellate Side Benches. Instead, Pleaders sat in only 20 per
cent of Appellate Side cases, whereas they sat in 31 and 30 per cent of Original Side and
criminal cases respectively.
OPINION WRITING
Seniority
Commentators of the court’s early history thought that Indian judges barely wrote any
opinions,54 the implication being that Indian judges were not able to fully participate in the
court’s decision-making process. The data suggest, however, that this was not true. Opinion-
writing on the court was assigned not according to race, but according to seniority, where
seniority was measured by the date of a judge’s appointment to office.55 As such, opinion-
writing was historically dominated not by British judges, but by senior judges.56 In only 7 per
cent of the cases decided by benches of more than one judge on the Original Side, in only 8 per
cent of such cases on the Appellate Side, and in 20 per cent of such criminal cases, did the junior
judge on the bench write the sole opinion of the court. In most other cases, the senior judge wrote
the only opinion for the court, and the junior judge remained silent. In fact, ‘senior’ judges
exercised enormous powers on Indian High Courts: until 1927, if a disagreement arose among
judges on a bench, the view of the senior judge would always prevail.57 In other words, for a
long time, the ‘senior’ judge on a bench could never be the dissenting judge.
In the early years of the court’s history, Indian judges were usually the junior judges on a
bench, so they tended not to write many opinions. However, even in the early decades of the
court’s existence, whenever an Indian judge was the senior judge on a bench, he usually wrote
the opinion. Thus, for example, in 1885, in a bench consisting of Nanabhai Haridas and William
Wedderburn, the Indian judge, Haridas, was considered senior to the acting judge, Wedderburn,
and as a consequence, Haridas almost always wrote the court’s opinion, while his British
colleague nodded silently in agreement. In fact, Haridas participated quite fully in the court’s
decision-making. In one case decided in 1885,58 a British railway employee, C.P. Fox, was
charged with the offence of negligently omitting to carry a lamp on his trolley, and thereby
causing a railway collision which resulted in the death of one man. The accused was sentenced to
pay a fine of Rs 50 by the lower court. A bench of Justices Nanabhai Haridas and William
Wedderburn called for the records, and enhanced the sentence of the accused to include a
month’s simple imprisonment.59 We saw in Chapter 2 that Haridas had been appointed to the
court a few years after the Ilbert Bill controversy, which was still fresh on everybody’s mind at
the time this case was decided. Despite the controversy, Haridas presided over a bench involving
a British accused, and even enhanced the man’s sentence, an order which was later confirmed by
a Full Bench of the High Court.60 This suggests that Indian judges were not marginalized on the
court even when they were a minority on the court. Indian judges participated in 43 per cent of
the cases decided by the Bombay High Court during the British Raj, and especially dominated
decision-making on the court in the twentieth century.61
As the decades went by, and as Indian judges rose to positions of seniority on the court,
Indian judges started dominating the court’s opinion writing function. In the 1940s, for example,
it was characteristic for the court’s few British puisne judges to agree with the senior Indian
judge on the case, and to say no more than ‘I concur’ at the end of the opinion. The norm that the
senior judge gets to write the court’s opinion has survived in independent India to this day.62
Concurring opinions
There was very little individualistic behaviour on the court until the 1920s, when separate
concurring opinions started being written like never before. A typical concurring opinion was
one where a judge (usually the junior judge on a Division Bench), acknowledged that he agreed
with the majority opinion authored by the other (usually senior) judge, but that he would like to
add a few words of his own to the decision.63 Very few, if any, concurring opinions had been
written on the court in the 1860s, 1880s, and 1900s, but in 1925, 33 per cent of the reported cases
had a judge writing a separate concurring opinion, and in 1945, the proportion of concurring
opinions had gone up to 42 per cent. The most substantial proportion of concurring opinions was
written on the Original Side, where, in 1945, 82 per cent of the reported cases had a judge
writing a concurring opinion.
The sudden growth of concurring opinions presents a puzzle. Why did so many concurring
opinions start being written on the court as time went by? One would have guessed that junior
British judges grudgingly wrote concurring opinions when the senior judge writing the majority
opinion on the bench was Indian, as a way of undermining the authority of the senior Indian
judge. However, this was not true. A large number of concurring opinions were written by
British judges where the senior judge was also British, and by Indian judges where the senior
judge was Indian. The writing of concurring opinions, then, had little to do with racial
antagonism. This was also not because of increasing disagreement on the court. It will be seen
that dissenting opinions were hardly ever written on the court, and therefore, the rise of
concurring opinions was not a sign of growing disagreement on the court. One might argue that
the rise in concurring opinions was a sign that notions of deference to seniority were beginning
to crumble but that is probably not true either. There is little other evidence to suggest that
seniority was not considered important in British India in the 1920s, 1930s, and 1940s.64 Further,
seniority is still considered very important on Indian courts today,65 a sign that it survived
colonialism. Likewise, the writing of concurring opinions cannot be said to be evidence that
junior judges were getting bolder. Judges like Ranade, Telang, Tyabji, and Chandavarkar were
gutsy, bold judges, but they seldom wrote a concurring opinion when a senior judge spoke for
the court.
The rise in the number of concurring opinions at this time was probably a sign that opinion
writing on the court was becoming less collaborative. There is evidence that the court’s Original
Side docket was rising at this time. As a result, there was perhaps less time for the opinion-
writing process on the court to be as collaborative as it probably once was. In earlier days, judges
had more time to consult one another on written opinions. In one case decided in 1865, Justice
Westropp recorded how he had thought it fit to consult the Chief Justice and a senior judge on a
point of law, even though he was the only judge hearing the case.66 ‘I have had an opportunity of
consulting the Chief Justice and Sir Joseph Arnould as to the effect of a winding up order,’ he
wrote, ‘...and understand them fully to concur in the opinion...’ In another case decided that year,
Westropp indicated that he had informally consulted the Chief Justice on a point again: ‘I have
brought this matter to the notice of the Chief Justice, who fully concurred with me in thinking
that the account books of a defendant are not liable to seizure or sale.’67 In those earlier days,
after writing an opinion, the senior judge probably had time to consult the junior judge on the
opinion. The junior judge might have suggested a few additions, and the senior might have
incorporated some or all of those additions into his judgment. Now, in a busier court with a
rising caseload, judges no longer had time to collaboratively discuss their opinions. One would
imagine that a senior judge now sent his opinion to the junior judge, and if the junior had
anything to add, he did so in a separate opinion. It is important to emphasize here that what was
written in these concurring opinions was not any disagreement with the holding in the majority
opinion, but only additional reasons in support of its conclusions. The rise in individualistic
behaviour on the Bombay High Court in the final decades of the British Raj was therefore
possibly a sign that the opinion-writing process itself was becoming less collaborative, probably
as a result of how busy the court was getting.
Additionally, there might have been an element of judicial culture involved in the rise of
concurring opinions on the court at this time. For example, judges on a bench at this time might
not have been discouraged from writing separate opinions.
Length of opinions
The length of opinions increased substantially during the colonial era. For example, a substantial
number of reported criminal cases in 1865 were not more than one paragraph long. By 1945,
they were several pages long. Between 1865–1945, the length of opinions on the Original Side
had gone up by 123 per cent, on the Appellate Side by 231 per cent, and in criminal cases, by
532 per cent. These figures reflect not only a general increase in the number of pages of each
opinion, but also an increase in the number of words per page in the law reports.68 The rise in the
length of opinions over the years might have had something to do with technology - judgments in
the 19th century had to be handwritten (which meant they had to be kept short), whereas in the
20th century, they could be typewritten (which possibly made them longer). However, by today’s
standards, the length of opinions on the Bombay High Court during the British Raj was still very
short. Opinions on the Original Side tended to be longer than any others, but even in 1945, the
average length of an Original Side opinion was only 5.3 pages,69 which pales in comparison with
today’s opinions. The steady rise in the length of opinions on the court might possibly also tell us
that the nature of legal work was becoming more complicated: with more lawyers, more
arguments, and (as we will see) more citations, the work of the judge had increased, not merely
in terms of the number of cases which he had to hear, but also in terms of the increasingly
complex shape that the law was beginning to take. The practice of writing separate concurring
opinions, probably a product of how busy the court was getting itself, no doubt added to the
average length of opinions.
Tone
There was always a tone of respect and a certain esprit de corps among the judges of the court.
When Chief Justice Leonard Stone overruled a decision of Justice Chagla in appeal, he
respectfully wrote: ‘I think, if I may say so with the greatest respect to the learned trial Judge,
that he was led away by the controversy on the question of lien and has not given sufficient
weight to the condition precedent.’70 When a judge wrote a concurring opinion, he often found it
necessary to justify why he was writing it, as a mark of deference to the opinion of his
colleague.71 Dissent was virtually non-existent on the court. In fact, as we have seen, up to 1927
it was impossible for a junior judge in a Division Bench to differ from the senior judge. Out of
around 411 cases that were decided by a bench of two or more judges, only three cases had
dissenting opinions written in them.72 Even today, dissent continues to be a rare occurrence on
courts like the Supreme Court of India.73
On the other hand, the judges dealt with lower appellate courts quite sternly. For example, in
one case, the High Court sharply expressed its dissatisfaction with ‘the loose way in which
divorce cases are at present conducted in the trial courts’.74 In another case, the Sessions Judge
in the lower court was informed by the High Court that ‘his proceedings in the case were highly
irregular’.75 In another case, the court went even further and directed the Registrar of the High
Court to write to a subordinate magistrate whose decision was being considered in appeal, in
order to ‘to call his serious attention to the very great neglect of duty which has been exhibited
by him in these proceedings, in making an order against one party in the absence of that party,’
and to warn him that ‘[s]uch conduct strikes at the very root of the administration of Justice; and
the Chief Justice and Judges hope that no similar instance of dereliction of duty on the part of
this Magistrate may come under their observation, as in that case they will feel bound to bring
the conduct of the Magistrate to the special notice of the Government of Bombay’.76
Interestingly, race had little to do with how High Court judges treated the lower courts. For
example, in one case decided in 1885,77 Nanabhai Haridas, an Indian judge, chided a British
judge sitting in a lower court, E.R. Cappel, for his decision. ‘We are surprised to find,’ wrote
Haridas, ‘that the First Class Magistrate considered that to be lawful, which is expressly
prohibited by s. 374 of the Penal Code.’ Both Indian and Briton judges were likely to have
treated lower courts with an air of superiority,78 and their own colleagues with respect. This
attitude was directly reflected in the court’s reversal rate. In general, the decision of a single
judge of the High Court was less likely to be reversed in appeal by a Division Bench of the court,
than decisions of lower courts.
Style
Opinion-writing on the court was generally terse, with the odd exception. One could hardly say
that nineteenth century decisions issued by the Bombay High Court belonged to a ‘grand style’
of writing opinions, or that twentieth-century opinions were more ‘formalistic’.79 Throughout the
British Raj, rarely would one see the mark of an Oliver Wendell Holmes, an Alfred Denning, or
a Krishna Iyer in the court’s judgments. Opinions were written legalistically and were directed to
the issues of the case. One exception to the convention of writing dry judgments, though, was
Justice Blagden who wrote with a flourish. A former All Soul’s Fellow at Oxford, in one case,
Blagden wrote of his inability to understand a point: ‘I confess myself, no doubt entirely through
my own mental incapacity, quite unable to follow this train of reasoning, and trust I may be
forgiven for echoing the dying request of (I think) Sir Isaak Newton for “More Light”.’80 In
another case, Blagden colourfully opened his judgment with a thought on arbitration and the
legal profession:
Some years before the present war, and for aught I know to the contrary since, a man used to stand outside the Courts of
Justice in London with a banner inscribed on one side with the words ‘Arbitrate, Don’t Litigate’ and on the other with the
words ‘Beware of Lawyers.’ Goddard L.J. once remarked to me that he thought that man was the best friend of the legal
profession. I must say that the present case seems to show that the learned Judge was perfectly right.81
CITATION
Decisions of English courts were most likely to be cited on the Original Side of the Bombay
High Court, and understandably so, given that all the British barristers practised on the Original
Side, and cases which originated in Bombay were likely to have had more cosmopolitan issues
involved.82 For example, while Appellate Side cases dealt with traditional questions of the Hindu
and Muslim law of property and inheritance, Original Side cases concerned more westernized
issues like the law of inns. ‘There is no law, but the Common Law of England,’ wrote Justice
Westropp in one case in 1865, ‘to regulate the relation of innkeeper and guest in Bombay in a
case between a European and a Parsi’.83 Such issues were unlikely to arise on the Appellate Side.
The question in that case turned on the technicality of whether the plaintiff was a ‘guest,’ not a
‘lodger,’ in the defendant’s hotel, which would determine whether the defendant was liable to
compensate the plaintiff for a robbery which had taken place in the plaintiff’s room. Citing only
English cases and treatises in that case, the court held in favour of the plaintiff. Thus, in 37–58
per cent of the cases on the Original Side, judges cited one or more English decisions in their
judgments. By contrast, on the Appellate Side, the court’s judges cited English decisions in 11–
16 per cent of their judgments. The court’s use of English precedent had little to do with race:
Indian judges were as likely to have cited English cases as British judges were.
However, judges typically always found it necessary to justify their use of foreign precedent
in a case, especially as the years rolled on and an increasingly voluminous body of Indian case
law emerged. In the case discussed above, Westropp justified his use of English cases because,
according to him, only the common law of England dealt with questions of innkeepers and
guests. Likewise, in another case decided on the Original Side in 1885,84 Justice Basil Scott was
called upon to determine the liability of directors in a joint-stock company. He justified his use
of ‘English commercial rules and…the current of English decisions’ by saying that joint-stock
companies themselves were ‘an institution of purely English origin’. However, he qualified his
use of English cases by saying that he would only use them ‘so far as they can be suitably
applied to a people whose trade is of comparatively recent growth’. Similarly, in a case involving
hire-purchase agreements, decided in 1925, Justice Marten relied on decisions of the House of
Lords because ‘the very expression “hire purchase agreement” is not one that originated in this
country’ and there were consequently no authorities on hire-purchase agreements issued by
Indian courts.85 Ironically, courts in independent India today rarely feel the need to justify the
use of foreign precedent.
Where an Indian statute modified the law of England, however, judges stayed away from
English decisions. For example, in a case involving the law of easements, decided in 1905, Chief
Justice Lawrence Jenkins explained that ‘though many English authorities were cited to us, I
have mentioned none,’ not because he had ‘omitted to consider them,’ but because ‘in this
Presidency the Law of Easements is defined by the Indian Easement Act, 1882, and it therefore
seemed to me …a wiser policy to go back in a humble spirit to the words of the Act by which
our decision must be governed’.86 On the other hand, if an Indian statute was silent as to the
meaning of a term used in it, the court would look at the corresponding British statute to shed
light on its meaning. That is what happened in a case decided in 1905, where the High Court
looked at the English Factory and Workshop Act, 1895, to shed light on the meaning of the term
‘occupier’ which was used, but not defined, by the corresponding Indian Act.87
Apart from English decisions, however, decisions of courts in other countries were seldom
relied on. A lone decision of the United States Supreme Court88 was cited by a judge of the
Bombay High Court for the first time in 1945, in a case where the constitutionality of a wartime
government order for the protection of tenants was under challenge.89 The court’s twenty-two
page decision in that case (which included two concurring opinions) was one of the lengthiest
decisions that emerged in my study of the court’s cases. However, the court cited the United
States Supreme Court’s judgment to say that it was not very helpful because the American
Constitution was not very similar to the erstwhile Indian constitution.90 Instead, the court
preferred to use decisions of Canadian and Australian courts since the constitutions of those
countries were more similar to the constitution of India. There was, thus, a heavy preference for
decisions of English courts in the Bombay High Court, over decisions of courts in other
countries, which were rarely cited. This is consistent with the educational pattern which was seen
in Chapter 3: when future judges went abroad to study, they overwhelmingly went to England
(sometimes, elsewhere in the United Kingdom), but never to other countries. Even today, given
India’s colonial past, decisions of courts in the United Kingdom remain more popular in Indian
courts than the decisions of any other country.91
Oddly, the Bombay High Court did not rely on decisions of the Privy Council very
extensively. Though the Privy Council exercised final appellate authority over the Bombay High
Court, the Bombay High Court was more likely to cite one of its own decisions, even a decision
of another High Court in India, than a Privy Council decision. This probably had something to do
with the fact that the Privy Council was far away, and it took time for its decisions to reach India
in those days. For example, in one case decided in 1945, Justice Blagden wrote that he had not
cited a decision of the Privy Council in one of his earlier judgments because that decision ‘had
not reached India’ at that time,92 though such excuses could only be applied for very recent Privy
Council decisions. Further, the low number of cited Privy Council decisions probably also had
something to do with the low volume of cases decided by the Privy Council in the first place, as
against the High Courts in India where a high volume of cases, and therefore precedents, was
generated.
In the early years of its existence, the Bombay High Court relied on learned treatises quite
extensively, but as the decades rolled on, the court relied on treatises less, and on its own
decisions, and on decisions of other Indian High Courts, more. In 1865, for example, 45 per cent
of the cases on the Appellate Side saw a judge relying on a treatise, usually a treatise on Hindu
law. At that time, only 27 per cent of the cases on the Appellate Side saw a judge cite a Bombay
High Court decision, and 21 per cent of Appellate Side cases had a judge citing a decision of
another High Court in India. This drastically changed by 1945, when only 14 per cent of the
judgments on the Appellate Side had treatises cited in them, but 74 and 63 per cent of judgments
on the Appellate Side had Bombay High Court decisions and other High Court decisions cited in
them, respectively. This suggests that in the early years of its existence, the Bombay High Court
had few precedents to rely on, as a consequence of which it relied on treatises. However, as the
years went by, the number of precedents set by Indian High Courts increased, and treatises did
not need to be relied on as extensively any more. On the Appellate Side, treatises generally
continued to be used for traditional questions, for example, treatises on Hindu law by West and
Buhler, Mandlik, or Gharpure,93 which probably went out of use once Hindu law was codified in
the 1950s, by independent India’s first parliament. On the other hand, on the Original Side, one
of the most frequently cited treatises was Halsbury’s Laws of England (the Hailsham edition), a
series of books which will still be seen on the shelves of law libraries in Mumbai. Interestingly,
treatises written by D.F. Mulla, an acting judge of the Bombay High Court, and later, a judge of
the Privy Council, were frequently cited in judgments of the Bombay High Court. In one case
decided by the court in 1945, for example, Justice Chagla relied on Mulla’s ‘well-known treatise
on the Transfer of Property Act,’ particularly on Mulla’s view that a decision of the Allahabad
High Court was ‘erroneous and…contrary to the principle that a mortgage interest cannot be
severed without the consent of all mortgagees and mortgagors’.94 In other words, a treatise
written by Mulla was used to explain why the court was not going to follow a decision issued by
another High Court. Usually, however, decisions issued by other High Courts were considered
very authoritative in the Bombay High Court. In a case decided in the court in 1905,95 involving
the issue of restitution of conjugal rights, the court followed a decision issued by a Full Bench of
the Allahabad High Court. Speaking for the court, Chief Justice Lawrence Jenkins (who, himself,
had come to Bombay after being a puisne judge of the Calcutta High Court), wrote that
‘notwithstanding the forcible criticisms that have been urged against the cases that we have cited,
we ought still for the sake of conformity to follow them’.
Indian statutes were relied on extensively by the court. Even in 1865, nearly half of the
court’s judgments cited an Indian statute. By 1945, there was not a single judgment of the court
on the Original Side which did not make a reference to an Indian statute, and an overwhelming
number of judgments on the Appellate Side, and in criminal cases, relied on Indian statutes as
well. In civil cases, the most commonly cited statutes had to do with procedure, like the Civil
Procedure Code, Limitation Act, or with the substantive law of property, like the Transfer of
Property Act or the Deccan Agriculturists Relief Act. In criminal cases, the most commonly cited
statutes were the Indian Penal Code and the Criminal Procedure Code. Statutes were always
more likely to be cited than judicial opinions—a clear consequence of the modification of the
common law in India with the enactment of codes and statutes.
***
Two findings presented in this chapter are particularly important. The first is that though race
defined the colonial experience, it only went so far in defining justice during the colonial era. We
have seen in the previous chapter that the Indian legal profession was not immune from racism,
and that Indian lawyers and judges were manifestly aware of their racial identities. However,
there were many features of the Bombay High Court’s Bar and Bench which undermined any
potential for institutional racism. The hiring of lawyers, for example, tells us that the legal
profession, in one sense, rewarded a lawyer’s talent, not the colour of his skin. Indian litigants
hired the best lawyers for their case—which often included lawyers from communities to which
the litigants did not belong themselves. British solicitors’ firms hired Indian Advocates to argue
their cases in court. Likewise, opinion writing on the court was defined not by race, but by
seniority. It was the senior judge on the bench who usually wrote the opinion, not the British
judge. This meant that where an Indian judge was the senior judge on the bench, for example, the
bench of Nanabhai Haridas and William Wedderburn, the Indian judge wrote the court’s opinion
and the British judge silently nodded in agreement. In many cases, it was Indian lawyers like
V.N. Mundlick who ironically represented the government’s case before the court, and British
judges who held against the government and in favour of the Indian accused. Though race was,
by no means, irrelevant in British India, this chapter suggests that colonial courts like the
Bombay High Court were not perceived to be emblems of unfaltering racial discrimination
against Indians.
The second important finding presented in this chapter is that the Bombay High Court went
through a phased process of decolonization. The court was always an Indian court in terms of its
litigants, who were overwhelmingly Indian even at the court’s very inception in the 1860s.
Further, the court’s Appellate Side Bar was also entirely Indian in composition from the very
beginning. It was the Original Side Bar which was British for much of the nineteenth century.
However, as the decades of the Raj wore on, first the solicitors, then the Advocates themselves,
became Indian. Thus, in the early decades of the twentieth century, a silent, market-driven
transfer of power had already taken place at the High Court Bar from British lawyers to Indian
ones. By 1925, not only were all the important solicitors Indians, but even the leading Original
Side lawyers were almost all Indians. By travelling to England and getting called to the Bar at
one of the four Inns of Court, many Indian lawyers overcame the competitive advantage which
British lawyers enjoyed at the colonial Bars. Indian litigants found it easier to relate to Indian
solicitors, and many British judges recognized talent where they saw it, regardless of race. As a
result, Indian lawyers made a name for themselves on the Original Side, and the size and
prominence of British lawyers on the Original Side diminished substantially. The Indianization
or decolonization of the Bench which occured in the coming decades merely reflected the
Indianization of the Bar which had already taken place. This suggests that the process of
decolonization in India did not take place overnight in 1947, but in phases starting in the early
twentieth century, leading up to 1947.
CHAPTER FIVE
The Structural Peculiarities of a Colonial Judiciary
This chapter describes four features of the judiciary in colonial India which formally undermined
its independence from the executive government. First, the Chief Justice of important courts like
the Bombay High Court was always a Briton. Second, judges lacked security of tenure during
most of the time that India was under colonial rule. Third, temporary ‘acting’ judges were
frequently appointed to the court. Fourth, the judiciary lacked separation of powers as a large
proportion of judges belonged to the Indian Civil Service—judges who began and ended their
careers in the executive government. The next chapter, however, will discuss whether these
features of the colonial judiciary actually undermined judicial independence in practice.
CHIEF JUSTICE
During the colonial era, twelve judges occupied the most important seat in the Bombay High
Court—the post of Chief Justice. The Chief Justiceship of the High Court was one of the most
important positions in a province, after the Governor,1 a feature common to British colonial
rule.2 According to the official ‘warrant of precedence’ in 1905, for example, the Chief Justice of
the Calcutta High Court was the seventh most important official in all of British India, and Chief
Justices at other High Courts stood at a high number eleven on the list.3 The Chief Justice of the
High Court had crucial powers like determining the composition of benches4 (a power which,
according to one colonial official, gave the Chief Justice the power to ‘pack’ the Bench),5
assigning cases to judges,6 recommending names for judgeships on the High Court and
subordinate courts,7 and even recommending appointments to posts like Government Pleader,8 in
addition to having numerous other responsibilities.9 The Chief Justice also had a say in whether a
temporary ‘acting’ judge got confirmed as a permanent judge.10 The post was a very prestigious
one and came with a customary knighthood11—in fact, Chief Justices in British India drew
higher salaries than puisne judges in England.12 In 1935, the Chief Justice of the Bombay High
Court drew a higher salary than the Chief Justice of the United States Supreme Court.13 Chief
Justices could also make recommendations for knighthoods themselves.14
All the twelve Chief Justices of the Bombay High Court in the colonial era were British
barristers. This was a practice common to British colonialism, and Chief Justices in other
colonies would also be picked from among the ranks of British barristers,15 though this practice
was particularly stark in India, where the post of Chief Justice was more prestigious than in any
other British colony.16 The historian Buckee argued that the post of High Court Chief Justice
was too great a tool of patronage in the hands of the Secretary of State, for it to be wasted on an
Indian judge.17 In other words, the suggestion was that the Secretary of State would appoint
political friends to Chief Justiceships on Indian High Courts. However, the evidence for the
Bombay High Court suggests that the Chief Justiceship was only rarely used as a tool for
exercising patronage. Immediately prior to becoming Chief Justices of the Bombay High Court,
seven candidates were puisne judges in the Bombay High Court,18 two were practising barristers
in Britain,19 one was the Chief Justice of the Allahabad High Court,20 one was a judge of the
Calcutta High Court,21 and one was the Advocate General of Bombay.22 Thus, only two of
twelve Chief Justices were appointed from the practising Bar in Britain, where considerations of
patronage might have prevailed.23
Interestingly, among the seven judges who became Chief Justices of the Bombay High Court
after having served as puisne judges in the court, the ‘seniority norm’24 (which evolved after
independence) was rarely followed, if at all. In other words, when a Bombay High Court judge
was promoted to the post of Chief Justice during British rule in India, he was rarely ever the
most ‘senior’ judge of the court, on the date of his promotion. Until 1935, judges from the Indian
Civil Service were prohibited, by law, from holding the post of Chief Justice of a High Court,
and as a consequence, senior Civilian judges were also repeatedly superseded by less senior
barrister judges.25
Three Indian judges came close to becoming Chief Justices of the Bombay High Court, but
either fate, or judicial politics, intervened. They were Badruddin Tyabji, Lallubhai Shah, and
Harilal Kania.
In 1902, Badruddin Tyabji was appointed to act as Chief Justice of the Bombay High Court,
the first time that an Indian was temporarily appointed to the post. At the time, Sir Lawrence
Jenkins was the permanent Chief Justice of the court. Being a barrister-judge, Tyabji wondered
whether he would become the permanent Chief Justice of the court if Jenkins retired. His
biographer-son later wrote that ‘it was not free from doubt,’ at the time, ‘that the Government
would not import a judge from England or elsewhere as they had done before, to avoid an Indian
becoming Chief Justice’.26 Tyabji took a year’s furlough and went with one of his sons to
England, to improve his health, which had periodically been a source of worry for him. There, he
met the Secretary of State for India, Lord Morley, and asked him about whether he would be
appointed Chief Justice if Jenkins retired. Tyabji threatened Morley that if he were discriminated
against in the matter, he was disposed to resign his office.27 Morley assured Tyabji that the
colonial government in Bombay thought ‘very highly’ of him and held him in ‘great respect,’
and that Tyabji would not be superseded.28 However, the issue became moot as Tyabji passed
away shortly thereafter, in England.
Many years later, another senior Bombay High Court judge pondered over his chances of
becoming the Chief Justice. It will be recalled that under successive constitutions in British
India, the Chief Justice of a High Court had to be a barrister—a requirement which naturally
operated to the disadvantage of Indians. Tyabji was a barrister, but he passed away before his
candidature to the Chief Justiceship of the Bombay High Court could become an issue.
Sometime in the 1920s, a senior Indian Pleader judge of the Bombay High Court, Lallubhai
Shah, wrote a memorial to the Secretary of State, contesting the conventional interpretation of
the barrister clause in the constitution. According to Shah, the clause did not require High Court
Chief Justices to actually be barristers—it only indicated that the Chief Justice would notionally
be counted as one among the court’s barristers. This interpretation was rejected,29 and though
Shah temporarily served as Chief Justice of the Bombay High Court on three separate occasions,
he was never made the court’s permanent Chief Justice.30 When Chief Justice Macleod resigned
from office, Lallubhai Shah was ignored despite his being the most senior judge of the court at
the time, and a judge junior to him, Amberson Marten, was appointed Chief Justice in June 1926.
Shah died in harness a few months later, in November 1926.
Thereafter, in the early 1940s, the Bombay High Court almost got its first Indian Chief
Justice. By now, the British seemed to be quite sure that they were going to leave India soon.31
The Chief Justice of the High Court, John Beaumont, was due to retire in 1942 under the terms
of his appointment. At the time, the most senior judge of the court was an Indian—Harilal J.
Kania.32 It was said that Beaumont had an ‘anti-Indian bias,’33 and wanted the next Chief Justice
to be an Englishman. However, the Governor of Bombay, Sir Roger Lumley, persuaded
Beaumont to offer the Chief Justiceship to the Advocate General at the time, Motilal Setalvad.
When Beaumont offered the Chief Justiceship to Setalvad in 1941, Setalvad refused because he
did not want Kania to be superseded, among other reasons.34 However, Beaumont did not get
along with Kania,35 and he wrote to the government that he did not think ‘Kania would be a
success’ as Chief Justice.36 As a consequence, Beaumont’s term was extended until a suitable
replacement could be found.37 Accordingly, instead of retiring in 1942, Beaumont retired in
1943.38
In the meantime, Setalvad was replaced by another Indian lawyer, N.P. Engineer, as
Advocate General of Bombay.39 Despite his Indian identity, Engineer would subsequently go on
to conduct the case of the prosecution, as the Advocate General of British India, in the
sensational trial of officers of the Indian National Army who had fought against the British
during the Second World War.40 The loyalty of both Kania and Engineer towards the British
Empire and towards the rule of law was unimpeachable. The barrister clause had also been done
away with by this time—after the Government of India Act was enacted in 1935, even non-
barristers could become Chief Justices of High Courts. The fact that neither Kania nor Engineer
were barristers could not, therefore, have been held against them.
However, instead of conferring the Chief Justiceship upon Kania or Engineer, the colonial
administration appointed a barrister practising in the United Kingdom, Leonard Stone. After
Setalvad declined, no attempt was made to find an Indian replacement for Beaumont, and
Stone’s appointment evoked considerable protest at the Bar.41 Outraged, the Bombay Bar
refused to give Beaumont the customary ‘reference’ at his retirement,42 perhaps justifiably so
because Beaumont had played an important role in finding his successor. In particular, Beaumont
had rejected one of the candidates who was being considered for the post of Chief Justice
because, in his words, ‘he is a Jew and they are a racial lot’.43 When Stone eventually came to
Bombay, he tried to make amends by treating Kania with a great deal of respect. According to
Stone, Kania was ‘very disappointed and intended to resign,’ but Stone managed to persuade him
to stay on as a judge of the court. Stone later called Kania ‘the obvious successor to Sir John
Beaumont’.44
The High Courts of Calcutta, Madras, and Bombay did not have an Indian Chief Justice
during the colonial era,45 and these were arguably the most important courts of colonial India.46
Consider that nationalist leaders like Gandhi, Tilak, and Jinnah worked within the boundaries of
the jurisdiction of the Bombay High Court. British Chief Justices shared the ideological biases of
the British government. One such example was Courtney Terrell, Chief Justice of the High Court
at Patna between 1928–38. Terrell seemed to generally have been quite charitable towards
Indians—he wore an Indian dress at home, treated lower caste Indians with respect, and was
appalled by what he called the ‘barbarian aloofness’ of Europeans when they avoided a reception
held in honour of the Indian poet Rabindranath Tagore in Patna. Even so, Terrell’s views
towards India and Indians were dubious. ‘There is no doubt in my mind,’ he said, ‘that India is
not a place for “institutions” but for personal rule’47. He had a very uncharitable view of Indian
legislative institutions. ‘Debates in councils,’ he wrote, ‘are such as to make an honest man weep
with despair that such lunatics should be trusted with anything of importance’48. Consistent with
the official British view on India, Terrell believed that Indians, except for the martial races, were
weak on account of the climate, and on account of the religion which prohibited most Indians
from eating meat.49 Newspapers in India, those powerful instruments which Indian leaders like
Gandhi and Tilak used to spread nationalist ideas, were a menace for Terrell. ‘There is no more
poisonous press in the world,’ he wrote, ‘than in India’50. Terrell wanted juvenile Indian
offenders to be treated psychiatrically rather than imprisoned. He argued that this ought to have
been done in India because the ‘average Indian student between 16 and 22 is at the same stage of
mental development as the English boy between 9 and 15, and his nervous instability is far
greater’51. The British Chief Justice Terrell thought that Indians were different from Britons—a
view which an Indian Chief Justice would have been unlikely to harbour.
Letters written by Norman Macleod, Chief Justice of the Bombay High Court between 1919–
26, to his son similarly demonstrated that he too had dubious views about Indians and nationalist
politics in India. Speaking about B.G. Horniman and Annie Besant, who supported the
nationalist cause in India, and were both Irish, he wrote that they ‘ought to have been quietly put
on board a ship long ago and sent home’52. His description of a native prince was not very
flattering. Writing to his son about a ceremony which was held in 1918, he said: ‘The Maharajah
of Kolhapur who weighs about 25 stone read his [speech] after the fashion of a child in the First
Standard’53. During the Rowlatt Act agitation in 1919, Macleod wrote to his son that the
provisions of the statute were being ‘willfully misrepresented to the ignorant people by persons
interested in fomenting trouble’.54 Speaking about the Jallianwalla Bagh massacre which took
place in the aftermath of the agitation,55 where the British General Dyer ordered troops to fire on
unarmed men, women and children who were peacefully demonstrating in an enclosed park from
which there was no escape, Macleod wrote to his son that the incident could not be viewed in
isolation: ‘Of course Dyer was wrong if you considered the Jallianwalla meeting as an isolated
incident without mentioning that practically the whole country was up and defying the
authorities.’56 In one letter to his son, Macleod referred to Gandhi and his followers as ‘Gandhi
and some of his henchmen’57. Later, Macleod wrote a letter to the Times in 1940, where he
criticized the recent offer of dominion status made to India. ‘To try and visualise an India united
so as to be capable of acting as an equal partner in the British Commonwealth,’ he wrote, ‘is
really beyond the wit of man’58. Macleod once also used an opportunity in court to criticize Sir
Pherozeshah Mehta, the prominent Parsi political leader. For this, Macleod was criticized by
Annie Besant.59
Similarly, Chief Justice Beaumont of the Bombay High Court viewed the civil disobedience
nationalist movement with suspicion, and issued strong orders against the lawyers who
participated in it.60 Eventually, Beaumont became very irritable when the Congress government
came to power in Bombay in 1937.61 In fact, he was ‘furious’ when one of his favourite Indian
lawyers, Motilal Setalvad, resigned the post of Advocate General in the wake of the Quit India
movement, designed to protest against India’s involvement in the Second World War without the
consent of the Congress.62 Chief Justice Sir Grimwood Mears of the Allahabad High Court
similarly disdained Indian nationalist politics. He met Jawaharlal Nehru on numerous occasions
and tried to get him to join the government as Education Minister and to give up nationalist
politics.63
The colonial government’s attitudes towards Lawrence Jenkins, the beloved barrister-Chief
Justice of the Bombay High Court, are instructive. In the midst of his term as Chief Justice of the
Bombay High Court, Jenkins was suddenly called on to serve on the Council of India—an
executive body which advised the Secretary of State in Britain. The Governor of Bombay,
George Clarke, had recommended Jenkins to the Secretary of State, John Morley, for
appointment to the Council of India.64 Thereafter, in the correspondence between the Secretary
of State for India, John Morley, and Viceroy of India, Minto, Chief Justice Jenkins kept coming
up. Minto wanted Jenkins to return to India and serve as Chief Justice of the High Court at
Calcutta. At the time, Curzon’s partition of Bengal65 had created a serious state of unrest in
British India, especially in Bengal, and a useful Chief Justice was probably necessary to have
around in that context.66 Morley did not want to let go of the ‘sensible and highly competent’
Jenkins.67 In one of his subsequent letters to Minto, Morley said that he had asked Jenkins
whether he was interested in moving to Calcutta to become Chief Justice there. Jenkins had
replied, ‘I will do whatever you tell me to do…. if you think I should be more useful at Calcutta,
I’ll go; if you want me here I’ll gladly stay’68. Morley was considerably impressed with
Jenkins’s loyalty and intelligence. ‘Do remember that he has made a sacrifice to duty,’ he wrote
to Minto, when it was clear that Jenkins was moving to Calcutta as Chief Justice, ‘just as if he
were a soldier’69. It is telling that in a set of letters which had nothing to do with the judiciary,
Jenkins was mentioned by Morley on at least five occasions.70 The fact that Jenkins was drawn
out, during his term as Chief Justice of the Bombay High Court, to serve on the executive
Council of the Secretary of State for India, is problematic from a separation of powers standpoint
by itself. However, the correspondence between Morley and Minto suggests that British Chief
Justices who served on important High Courts in India were staunchly loyal men, highly trusted
by the administration. Interestingly, Jenkins later fell out of favour with Minto, who refused to
recommend his name for a Star of India knighthood, on account of his ‘exaggerated Native
proclivities’.71 However, Jenkins was one of the Secretary of State’s most trusted men in India,
and the two frequently exchanged letters.72
Interestingly, though Indians were barred from becoming Chief Justices of important High
Courts in British India, Britons from traditionally marginalized communities were eligible to
hold the post. In England, Catholics were barred, in practice, from holding judicial office until
the mid-twentieth century.73 However, the first Chief Justice of the Bombay High Court, an Irish
barrister by the name of Sir Mathew Richard Sausse, was a Roman Catholic.74
Accordingly, no matter how loyal or qualified an Indian was, the colonial government could
never get itself to trust him with the post of Chief Justice on an important court in British India,
and British men always had to be at the helm of affairs. Some of these appointments were
questionable. For example, some considered it ‘a matter of surprise’75 when Basil Scott was
appointed Chief Justice of the Bombay High Court. Previously, Scott had been an acting High
Court judge in 1905, and all his decisions during that time had been reversed in appeal. The
British Chief Justice was a powerful symbol for who was really in charge in India—no matter
how many Indians got to the High Court Bench, the British, this policy seemed to convey, were
still in charge. Despite the fact that the British Raj was formally predicated upon notions of racial
equality, racial difference was still at the heart of its most fundamental decisions on questions of
law and justice in the colonies.
Though Indians had acted temporarily as Chief Justices of the Bombay High Court since the
early twentieth century with Badruddin Tyabji’s appointment as acting Chief Justice, it was only
after India became independent that an Indian judge, M.C. Chagla, became the permanent Chief
Justice of the Bombay High Court in 1948.76 Interestingly, there is some evidence to suggest that
Leonard Stone, the last British Chief Justice of the Bombay High Court, was forced to resign by
Indian political leaders, against his will, from the Chief Justiceship of the Bombay High Court
when India became independent in 1947, though he would have liked to have continued in
office. Chief Justice Gajendragadkar somewhat cryptically wrote in his autobiography that Stone
‘conveyed to the authorities concerned that he would be willing to continue even in free India.
That, of course, was not to be and could not be, and Stone was disappointed to some extent.’
This is especially interesting because Chagla believed that Leonard Stone resigned his Chief
Justiceship voluntarily.77 With Indian independence, nationalism booted colonialism out the
door. David Potter pointed out that though there were as many as 608 Europeans in the Indian
Civil Service in 1946, there were only three left in 1952.78
TENURE
We have seen in Chapter 1 that judges in England enjoyed security of tenure since 1701. Further,
in the 1830s, decades before the High Court was established at Bombay, judges in Britain’s
white settler colonies were conferred security of tenure—they held their appointments during
good behaviour, and many of the standards applicable to Britain’s judiciary were adopted in
these colonies.79 The judiciaries in Britain’s multi-racial colonies, however, were tightly
controlled,80 and as discussed in Chapter 1, until 1935, all High Court judges in India held their
offices ‘durante placito’ or ‘during Her/His Majesty’s pleasure,’ meaning that they enjoyed no
formal security of tenure and could be removed at will. This discriminatory treatment raised
eyebrows even in Britain, where questions were repeatedly asked in Parliament about why
judges in India held their offices during the ‘pleasure’ of the Crown.81
The history of judicial tenure in the Bombay High Court can be classified into three periods.
During the first period, beginning with the establishment of the court (or even earlier) and
extending up to 1899, judges did not enjoy any formal or informal security of tenure. In the
second period, extending from 1899 until the enactment of the Government of India Act, 1935,
judges enjoyed informal security of tenure—they mandatorily retired at age sixty and were
usually not removed from their offices before reaching that age. During the third period, starting
with the enactment of the Government of India Act, 1935, they enjoyed formal security of tenure
—it was now a legally entrenched rule that judges mandatorily retired at the age of sixty, and
that judges could not be removed, during ‘good behaviour,’ before reaching the age of sixty.
In the first period, leading up to 1899, judges did not enjoy security of tenure—they held
their offices during ‘pleasure,’ and retirements or resignations82 from the court were ad hoc and
random. Consider the example of two judges appointed to the court in the nineteenth century in
their forties—Sir Lyttleton Holyoake Bayley and Sir John Scott. Appointed to the court in
1869,83 Bayley served on the court for twenty-six years and retired in 1895,84 at the approximate
age of sixty-eight. By contrast, Scott was appointed to the court in 1882, and retired after ten
years in 1892,85 at the approximate age of fifty-one. However, most judges at this time seemed to
have resigned their offices because of illness or old age,86 or because they were going to serve in
another, more important, branch of government such as the executive or legislative council of the
Governor of Bombay.87
However, the resignation of one Bombay High Court judge, Robert Hill Pinhey, occurred
under suspicious circumstances. On his last day as a judge in court in October 1885, Pinhey said
to the lawyer addressing him, ‘someone with even greater eloquence than yourself has persuaded
me that it is my duty to resign’.88 Though we do not know who Pinhey was referring to, Pinhey’s
own judicial career suggests that it could possibly have been somebody in the executive
government. Over the course of his career in the Bombay High Court, Pinhey had done much to
antagonize the executive government, though ironically, he was actually a member of the Indian
Civil Service and therefore theoretically a part of the government himself. We have seen in
Chapter 4 that the Bombay High Court did not (and continues not to) convene in plenary
sessions, and that it sat in benches of one or more judges during the British Raj. In around 1883–
4, Pinhey was sitting in a Division Bench (that is, a bench of two judges) with another judge of
the court.89 The lawyers appearing before him cited the decision of a Full Bench (that is, a bench
of three or more judges) on the point before the court. However, much to everyone’s surprise,
Pinhey refused to follow the Full Bench decision, and wrote in his judgment, ‘ten wrongs do not
make a right’.90 Though this was an ordinary property dispute, not a sensational political case,
Pinhey’s decision to ignore precedent caused considerable worry within the executive
government.91 The Judicial Member of the Governor’s Executive Council92 wrote to the
Governor that he considered this to be ‘certainly the most unjudicial proceeding I have ever
heard of’.93 The Governor of Bombay wrote a letter to Chief Justice Charles Sargent asking him
whether the government should take any action to resolve the issue. Sargent, however, defended
his judges and wrote back to the Governor, saying that ‘however much one may regret’ Pinhey’s
decision, it was within his ‘competence’ to decide the way he did.94 The Chief Justice thus
informally advised the Governor not to do anything about the issue.95
However, that was not all for Pinhey. In another hugely controversial decision, issued barely
a month before his retirement,96 Pinhey refused a Hindu husband’s claim for restitution of
conjugal rights over his wife. The wife, Rukhmabai, had been married at the age of eleven, and
had never cohabited with her husband. Now, several years later, Pinhey said that it would be
‘barbarous,’ ‘cruel’, and ‘revolting’ to force her to stay with her husband.97 The decision rattled
orthodox Hindu public opinion, and was eventually reversed by the Bombay High Court on
appeal.98 We do not know who persuaded Pinhey to retire when he did, but his track record on
the Bombay High Court suggests that it might have been the government.
This does not imply, however, that the government only asked independent-minded judges to
resign. It is likely that judges who had become too old or inefficient were asked to resign by the
government. In fact, the absence of formal security of tenure did not necessarily make the court’s
judges feel as though they lacked independence. When Ranade’s adversaries claimed that he was
soliciting an appointment as a dewan or chief minister in a princely state, Ranade countered,
‘[t]hose who set up such reports have no idea of the independence we enjoy and have no
imagination to understand how difficult it is for us to reconcile ourselves to the subordination
which a Dewanship implies’.99
In the second period, starting with 1899 and leading up to 1935, judges informally enjoyed
security of tenure—though they still held their offices during the ‘pleasure’ of the Crown, the
Secretary of State followed an informal policy that judges would not be removed from office
without cause, and that they would have to mandatorily retire at the age of sixty. After 1899,
when a judge was appointed to office, he was required to give the government a written
undertaking that he would voluntarily retire from office at the age of sixty.100 This unwritten
rule, frequently referred to in official correspondence as the ‘sixty years rule’, owed its origins to
paragraph 8 of Judicial Despatch Number 18, dated April 25, 1899 sent by Secretary of State
Lord George Francis Hamilton to the Viceroy.101 Throughout the late 1910s, the 1920s, and
early 1930s, most judges resigned their offices at the age of sixty. An article published in the
Bombay Law Reporter in 1913 complained about the ‘age limit of sixty fixed for the retirement
of Judges of the Indian High Courts’.102 Thus, in 1918, Frank Beaman, a judge who had
eventually almost become blind,103 retired at the age of sixty;104 in 1926, Chief Justice Sir
Norman Cranstoun Macleod resigned at age sixty;105 and in 1930, Amberson Marten resigned
his office at the approximate age of sixty. Accordingly, judges in the first few decades of the
twentieth century had some measure of security of tenure, by virtue of the fact that they typically
held on to office until they reached the age of sixty. After the 1935 law came into being, this
practice had the sanction of formal law behind it.
Yet, the norm that judges should retire at the age of sixty, prior to 1935, was not absolute. In
the decades leading up to 1935, though judges typically retired at the age of sixty, there was
always ‘room for…arrangement’.106 In 1906, for example, the Times of India had to explain to
its readers why an unpopular judge, Henry Aston, had not retired upon reaching the age of sixty
earlier that year, despite ‘the sixty years rule’.107 Aston had received ‘the honour of an unasked-
for extension of six months’.108 Later, John Beaumont, whom we have already encountered, was
offered the Chief Justiceship of the Bombay High Court at the age of fifty-two, and Beaumont
refused to accept it if he was forced to retire at the age of sixty,109 because a Chief Justice had to
serve in office for eleven-and-a-half years in order to qualify to earn a full pension of 1,500
pounds after retirement. As a concession to Beaumont, under the terms of his appointment, he
was permitted to hold office either until he reached the age of sixty-five,110 or ‘on completion of
a full term of service qualifying for a maximum pension,’ whichever came earlier.111 His
retirement was delayed by an additional year at the request of the Secretary of State.112 He
retired in 1943—much after the 1935 law had taken effect,113 and after serving in office for over
five years more than the law permitted. After his retirement, he was rewarded with a post on the
Privy Council.114 In his reminiscences, Beaumont wrote that when he was offered the Chief
Justiceship on the Bombay High Court:
The only stipulation which I made was that the undertaking to retire at the age of 60, usually required from a judge
appointed to an Indian High Court, should in my case be extended to the age of 65, in view of my then age, and this was
agreed to. In fact, owing to the war, I remained in Office till after my 66th birthday.115
Perhaps the most startling example of exceptions that were made to the ‘sixty years rule’ was the
case of Justice Dinsha Davar in 1909. Davar had been appointed to the Bench at the age of fifty.
In order to earn a full pension of 1,200 pounds116 after retirement, a judge had to serve in office
for eleven-and-a-half years. If Davar were to retire at the age of sixty, he would only have served
in office for ten years—one-and-a-half years short of the period of service necessary in order to
earn a full pension. On 2 March 1908, Davar wrote a letter to the Chief Justice of the Bombay
High Court and threatened to resign if his term were not extended beyond the age of sixty:
You will remember that after Mr. Justice Tyebji’s death you sent for me and asked me if I would accept his place if offered
to me, and I said I would. What sacrifice of income that involved I think you know. The main consideration which induced
me to consent was that there would be some compensation in the pension of £1,200 a year which I would secure on
completing a service of eleven and a half years. After I had agreed to accept the place I discovered that I would be required
to sign a writing agreeing to tender my resignation on completing the age of 60 years. I had then no knowledge of what my
exact age was, but I ascertained that on the 6th of November 1906 I would complete my fiftieth year. This would not enable
me to earn my full pension, and I was seriously considering the advisability of withdrawing my consent, but I was informed
that the rule was not intended to be uniformly enforced in cases of Judges who were physically and mentally fit to continue
in office and desired to do so….117
The Chief Justice of the Bombay High Court forwarded Davar’s letter to the government, and
recommended that Davar be granted an extension because he was a stellar candidate:
The vacancy leading to the appointment was caused by Mr. Justice Tyabji’s death, and it was strongly felt that an Indian
Barrister [should] be [appointed]. Davar was the only Indian barrister fit for the post, and he was in every way qualified for
it: he was one of the leaders of the bar and had gained the public confidence, that his appointment was received with
universal approval [which] has since been amply justified. In accepting the judgeship Davar made a considerable financial
sacrifice, for I was given to understand that his income at the time was not less than Rs. 10000/- a month. Unless the
assurance he seeks is made in his favour he will not be able to earn his pension, and this, I fear, will lead to his immediate
retirement with a view to resuming his practice at the Bar. This [would] be a distinct loss to the Bombay High [Court], and I
doubt whether any Indian Barrister [could] be found at Bombay fit to succeed him in the [Court].118
Then, something very important happened to Davar. A few months after making his extension
request, he decided a sensational political case—perhaps the single most important case decided
by the Bombay High Court during the British Raj—in which he sentenced one of the
government’s most powerful political opponents, Bal Gangadhar Tilak, to prison for sedition.119
It was only after the Tilak case that the government took up Davar’s extension request, in 1909.
A heated debate ensued about whether to extend Davar’s term beyond the age of sixty. However,
unlike the Chief Justice, members of the government focused not on Davar’s stellar credentials,
but on the political undertones of the issue. In the confidential file maintained by the
Government of India on the matter,120 one official remarked that Davar’s term should be
extended for ‘political reasons.’ Another jotted down, ‘I think we should support Davar, J.’s
application and I think so on the ground that it is desirable to keep him on the Bench at present.’
However, one official, Sir Guy Fleetwood Wilson, worried that if Davar’s request were granted,
the government would be seen as having rewarded a judge for deciding an important case in the
government’s favour. He wrote down in the file: ‘If we [grant Davar’s request] what answer have
we, if we are asked “why should the Hon’ble Mr. Justice Davar get this special advantage; is it a
reward for having ‘ridden to orders’ in the Tilak case?” This seems to me to be a genuine
danger.’ However, another official in the government, Sir H. Adamson, rejected Wilson’s
argument: ‘I think that if the Honourable Member had appreciated the rectitude of motive that
characterizes all the Governments in India and all the Indian Judges of the High Courts, and the
grotesque impossibility that Mr. Justice Davar or any other Indian Judge should have “ridden to
orders”, he would not have thought that we had anything to fear from such criticism as he
suggests.’
Finally, the Viceroy, Lord Minto, weighed in on the file in February 1909, and opined that
Davar’s request should be granted for political reasons. He wrote:
Besides the actual hardship of Mr. Davar’s case there are no doubt political reasons for extending his period of service.
From that point of view we are rather in the horns of a dilemma! The Hon’ble Sir H. Adamson tells us that if Mr. Davar’s
request is not granted, it will be alleged that he has been thrown over in consequence of his action in the Tilak case and as a
mark of censure on the Government of Bombay whilst the Hon’ble Sir Guy Fleetwood Wilson warns us that if it is, we shall
be accused of rewarding the judge for having ridden to orders. It seems to be a choice of evils. It is probably best to risk the
second of these appalling criticisms!
Accordingly, the Viceroy in Council wrote an official despatch121 to the Secretary of State in
England, requesting that Davar’s term be extended beyond the age of sixty. The Secretary of
State granted the request on ‘public grounds,’122 though he warned that this should not be made a
precedent:123
I have considered in Council the letter from Your Excellency’s Government in the Finance Department, no. 62, dated the
11th March 1909, in which you ask that you may be permitted, in the case of Mr. Justice Davar of the Bombay High Court,
to relax the rule requiring a Judge to retire on attaining the age of 60, to the extent of giving him an assurance that if he
remains fit in health he will be allowed to continue in service after the age of 60 until he has earned the full pension…On
public grounds I am willing to sanction your proposal in this case. I am, however, of opinion that it is generally desirable to
maintain the rule, as heretofore, with strictness; and the case should, therefore, not be considered a precedent.
In short, the ‘sixty years rule’ was relaxed in the case of Justice Dinsha Davar, who had only
recently decided a highly visible political case in favour of the government, a case which will be
discussed in great detail in the following chapter. At the time, many officials in the government,
including the Viceroy, believed that Davar’s term ought to be extended for ‘political reasons’.
There is therefore some evidence to suggest that the ‘sixty years rule’ was bent for political
reasons. After 1913, the Secretary of State permitted the Government of India to extend the
service of a judge beyond the age of sixty up to a maximum period of one year, either for ‘public
reasons,’ or ‘in exceptional circumstances, to enable [the judge] to earn a full pension, provided
that he is physically and mentally fit to discharge his duties’.124
In the mid-1920s, one Bombay High Court judge was almost removed from office. His name
was Abdealli Kajiji, and he was strongly suspected of having committed misconduct. Kajiji was
suspected by the government of having secretly set up and engaged in the management of a
shipping company which eventually went bankrupt after losing nearly eight million rupees. The
constitution prohibited judges like Kajiji from engaging in a trade or business otherwise than as a
shareholder.125 It came to light that Kajiji had possibly used his nineteen-year-old son as a cover
to get around this hurdle—the son was serving as a director of the company. Worse, brokerage
payments made by the company to the son were deposited into Kajiji’s own bank account, and
Kajiji was unable to account for some of the money. After lengthy internal debate, the
government decided to suspend Kajiji and to set up an enquiry commission consisting of two
High Court judges to figure out whether he was guilty of misconduct. However, before Kajiji’s
suspension was announced, he tendered his resignation, and the resignation was accepted
because the government wanted to avoid a scandal.126 Kajiji’s resignation had little to do with
his politics, and there are scarce concrete examples of High Court judges who were removed or
forced to resign, during this time, due to political reasons.
In the third period, starting with the enactment of the Government of India Act, 1935, judges
formally held their offices during ‘good behaviour,’ and were not removed until they reached the
mandatory retirement age of sixty. It is important to note here that in 1899, when mandatory
retirement was introduced in British India, higher court judges in Britain themselves did not
mandatorily retire at a specified age. In fact, it was only sixty years later, in 1959,127 that a
mandatory retirement age was introduced for higher court judges in Britain.128 Why was
mandatory retirement introduced in India at all, given that judges in Britain did not mandatorily
retire at the time? This might possibly have had something to do with the idea that the colonies
were laboratories for the metropole, and policies which were sought to be subsequently
introduced in the metropole were first tested in the colonies.129 However, mandatory retirement
for colonial judges perhaps also signified their subordinate status to judges in the metropole who
held their offices unhindered by term restraints.
TEMPORARY JUDGES
We saw in Chapter 2 that the colonial administration used ‘acting’ or temporary judgeships to
test the suitability of candidates under consideration for a High Court appointment. ‘Acting’
appointments were made by the local colonial government and did not have to be confirmed by
the Secretary of State.130 Acting judges were not subject to the ‘sixty years rule’ either.131 The
first Indian permanent judge of the court, Nanabhai Haridas, was tested out as an ‘acting’ judge
on ten separate occasions over a span of ten years before being appointed a puisne judge of the
High Court. This phenomenon was not reserved for Indian judges alone—British candidates too
were often first appointed as ‘acting’ judges and later as permanent puisne judges.
Such tests of suitability were not always entirely misplaced. The irascible lawyer, Thomas
Anstey, was appointed an acting judge of the court in 1865, but he was never confirmed as a
permanent puisne judge, probably because he treated people with ‘unbecoming and undue
severity’.132 In contrast to Anstey, when John Scott was due to retire from the court in 1891, the
Indian newspaper the Indu Prakash wrote that the best candidate to replace him was Charles
Farran, a lawyer who had proved himself to be ‘quite an ideal Judge, winning the confidence and
esteem of the Bench, the Bar and the public,’ while serving as an acting judge of the court.133 In
a colonial, non-democratic context, acting appointments like those of Anstey and Farran
permitted the government to gauge the public reaction to a proposed appointment. Further, if a
lawyer was unsure of whether he would enjoy being a High Court judge, he could also use his
experience as a temporary judge in order to decide whether a career in the judiciary suited him.
Two years before being appointed Chief Justice of the Bombay High Court, the Advocate
General of Bombay, Basil Scott, was appointed an acting judge of the court when Justice Tyabji
went on furlough.134 Most of Scott’s decisions were reversed in appeal, but he was still
subsequently made the Chief Justice of the Bombay High Court.135 This suggests that temporary
judgeships on the court were not meant to determine whether a person would make an excellent,
infallible judge. Instead, it is quite likely that they were used to determine how a potential judge
would behave in court. Interestingly, after 1971, senior Queen’s Counsel are appointed to sit as
temporary judges called ‘Deputy High Court Judges’ in the United Kingdom,136 though this
practice has been questioned there on the grounds of undermining judicial independence.137
However, since their appointments were temporary in nature, ‘acting’ judges had even less
security of tenure than regular judges. Theoretically, acting judgeships could have been used to
determine whether the judge would cooperate with the political establishment. Importantly, this
practice did not exist in Britain at the time. As a young Chagla wrote in the Bombay Law
Journal, ‘[i]f the complicated and elaborate judicial machinery of England can be run smoothly
without such appointments, I cannot understand why India cannot be able to dispense with this
luxury’.138
The vast majority of the ‘acting’ judges of the Bombay High Court did not go on to become
regular puisne judges.139 Between 1862–1947, if approximately eighty-three permanent judges
(including Chief Justices) were appointed to the court, nearly forty-four ‘acting’ judges were
appointed to the court during that time who did not go on to become regular judges of the
court.140 The position of a temporary judge on the court was tenuous. If he wanted to be
confirmed, an acting judge had to please the existing judges of the court, especially the Chief
Justice. One such temporary judge—George Clifford Whitworth—made the mistake of
disagreeing with Chief Justice Lawrence Jenkins in a case. Whitworth’s appointment was never
confirmed. In a passage written for the Bombay Law Journal after retirement, Justice Frank
Beaman recalled his tenure as an acting judge, sitting with Chief Justice Jenkins:
I was then still on probation, and previous melancholy examples had taught me that if I wanted to be confirmed, I should be
wise to keep my mouth shut, until I was spoken to…. You might not disagree with [Chief Justice Lawrence Jenkins]. That
was evidence clear and conclusive of your own hopeless incompetence, as poor Whitworth found to his cost, when he was
put in to act for a short time, and sat with Lawrence. He was tactless enough not only to differ from him, but in one case at
any rate, to be plainly right. So he was promptly and finally banished at the end of his acting term, to the outer darkness of
the Mofussil…. After that no acting civilian Judge was ever known to differ from Sir Lawrence Jenkins, until he was safely
over the period of probation and had been confirmed.141
In fact, Whitworth subsequently wrote a memorial of complaint to the Secretary of State,

attacking Lawrence Jenkins in scathing terms. In it, Whitworth wrote that Jenkins lacked judicial
experience, and that he had consequently had disagreements with Jenkins in several cases. ‘I am
well assured,’ wrote Whitworth to the Secretary of State, ‘that all the opposition [to Whitworth’s
promotion] has proceeded from [Jenkins], and him alone’142.
It was not only Chief Justice Lawrence Jenkins who refused to confirm judges who disagreed
with him. Chief Justice John Beaumont did this to two temporary judges, Nanavati and Wild,
who disagreed with him.143 All this points, once again, to the conclusion that dissent was
strongly discouraged on colonial courts like the Bombay High Court, something we have already
seen in the previous chapter. Gajendragadkar, who otherwise thought very highly of Beaumont,
narrated Nanavati’s story in his autobiography:
Nanavati was one of our most distinguished district judges, independent and fearless in his approach. During the term he
differed with the Chief Justice on two or three occasions and Beaumont did not like it. Beaumont probably thought that the
view which Nanavati was taking on each occasion was unreasonable if not perverse. That was the way Beaumont was likely
to look at a point of view which differed from his own. The result was that he sent Nanavati at the end of the term back to
Poona as a district judge, and Nanavati never saw the High Court again.144
Even if an acting judge fulfilled his duties satisfactorily, there was no guarantee that he would be
made a permanent judge of the High Court. One barrister, Mathew Henry Starling, was
appointed to act as a judge of the Bombay High Court on at least six different occasions,145 but
he was never made permanent. Chief Justice Norman Macleod recounted that though Starling
fulfilled his duties as an acting judge ‘with much success,’ he was passed over, ‘to everybody’s
amazement and disgust’. Instead, Sir Arthur Strachey was appointed to the court. ‘It was a
thoroughly bad appointment,’ wrote Macleod, ‘but the Strachey family were all powerful at the
India Office, and they were mindful of their own in the younger generation’146. ‘Acting’ judges’
seniority on the court was also tenuous. Badruddin Tyabji was appointed an ‘acting’ judge of the
Bombay High Court before Strachey was, but Strachey was made a permanent judge before
Tyabji—this meant that Strachey was more senior than Tyabji on the court.147
One Indian acting judge, Mancherji Pestonji Khareghat, was not confirmed because he did
not ideologically believe in the death penalty, and could not get himself to sentence anyone to
death.148 Thus, the ‘acting’ judgeship was also an ideological test of suitability. This was not lost
on the Bar.149 As one colonial-era Bombay lawyer, K.M. Munshi, wrote, ‘[t]hough the
requirements of the situation made it necessary to appoint additional judges, the practice of
recruiting on the Bench practising lawyers who had no stability of tenure, scarcely added to the
dignity and worth of the Bench’.150
What happened to a temporary judge if he was not made a permanent judge of the court?
Temporary judges typically went back to doing what they did prior to their appointment to the
High Court Bench. In the twentieth century, this meant that most temporary judges would return
to their law practices at the Bombay High Court. This probably created a privileged class of
lawyers practising at the Bombay Bar—lawyers who had been conferred ‘acting’ judgeships on
the court as a mark of their accomplishments. At a time when the ‘silk’ system of designating
seniority and distinction among members of the Bar did not exist in Bombay unlike in Britain,
that is, at a time when there were no formally designated ‘senior’ lawyers or ‘Queen’s Counsel’
in Bombay,151 accepting an ‘acting’ judgeship might have been one way in which lawyers
formalized their seniority and reputations at the Bar. Consider the example of the prominent
Indian lawyer, Sir Dinshah Fardunji Mulla—still remembered for his many treatises on Indian
law.152 In 1922, when Mulla was approximately fifty-four years old, and probably a senior
member of the Bombay Bar, he was appointed an ‘acting’ judge of the Bombay High Court.153
Once his appointment came to an end, he went back to his law practice in Bombay, serving as
‘acting’ Advocate General of Bombay on two occasions.154 If Mulla had been offered a
permanent judgeship in 1922, at the age of fifty-four, he would probably have declined,155 as his
tenure on the court would have been quite short. Instead, he accepted an ‘acting’ appointment,
which permitted him to return to law practice in Bombay, with the added status and prestige of
having served as a judge of the Bombay High Court. Indeed, the profile of ‘acting’ judges
differed from that of regular judges in this important respect—acting Judges were appointed to
the court much older than regular judges, typically being in their fifities when they got to the
court.156 Since many ‘acting’ judges would have had to return to law practice at the Bar, they
knew that they would have had to decide cases in a manner generally acceptable to the
permanent judges of the court—judges on whom they would have had to depend for their
continuing careers at the Bar.
‘CIVILIAN’ JUDGES
Perhaps the most interesting story about the Bombay High Court during the colonial era is that a
substantial proportion of its judges were members of the (predominantly British) ‘Indian Civil
Service’—‘Civilians,’ as they were called. We have already seen that 47 per cent of the court’s
judges were Civilians.157 The policy of having Civilian judges serve on the Bombay High Court
was not entirely ill-intentioned. Having served as judges in the interior districts of the Bombay
Presidency, Civilian judges probably brought their experiences of rural India, its customs and
languages, to the court’s decision-making.158 Consequently, Civilian judges would often sit
primarily on the Appellate Side of the court, hearing appeals from the districts. However, as
members of the civil service, Civilian judges started (and often ended) their careers in the
executive government. As such, they were criticized not only because they lacked formal legal
training or etiquette, but also because they had been socialized to a ‘government is good’
mindset, and because they were not considered to be independent of the government.159 One
such Civilian judge, Robert Stonehouse Broomfield, was perhaps promoted to the Bombay High
Court because of the deft manner in which he sentenced Gandhi to six years’ imprisonment for
sedition, as a Sessions Judge in Ahmedabad.160 Though the judiciary was not comprehensively
and formally separate from the executive in Britain either,161 this use of civil service judges was
completely alien to Britain, where only members of the Bar could become superior court
judges.162 The Indian National Congress had long argued against the use of Civilian judges on
High Courts,163 and separation of powers between the executive and judiciary was an important
plank of its platform.164 Civilians might perhaps have been necessary to have around on the court
in the initial years of its existence since few qualified and trained judges were available in
Bombay at the time.165 However, this was no longer true as time progressed and as the Indian
Bar increased in strength.
Civilians had not been appointed to the Recorder’s Court or Supreme Court of Bombay. In
the early nineteenth century, these independent Crown courts, manned by British barristers, were
meant to impose checks and balances on the corrupt Company administration in India. Now,
during the British Raj, the High Courts were no longer meant to police the colonial
administration, and the presence of Civilians on the courts might have ensured the courts’
fidelity to the executive. Civilian judges were still considered to be a part of the Indian Civil
Service, and did not resign from the service before joining the judicial side.
Though Civilians did not have a law degree, they had to study law as part of their curriculum
for the Indian Civil Service. After coming to Bombay, Civilians took legal courses166 at the
Government Law School and wrote departmental examinations in order to rise up the ladder.167
Most barristers in Bombay did not have a law degree either—we have seen that getting called to
the Bar in England did not require a law degree. However, Civilians had never practised law at
the Bar, and they were consequently often seen as lacking in essential legal training. Early in his
career on the High Court Bench, Civilian judge Henry James Parsons asked the Advocate
General of Bombay, F.L. Latham, for a precedent. Latham replied: ‘You will find that, my Lord,
in any elementary textbook.’168 Another Civilian judge, Frank Beaman, seemed almost to be
overwhelmed by the high level of legalese on the Original Side of the Bombay High Court in his
initial days as a High Court judge.169 Beaman considered it part of his ‘education’ in his initial
days to sit with Chief Justice Jenkins in court, his only job being to concur with Jenkins.170 In
one suit, another Civilian, Robert Broomfield, was unable to figure out, by looking at a witness’
demeanour and by hearing his testimony, that the witness had obviously been bought out by one
of the parties in a suit, something which was said to have occurred more easily to a lawyer
judge.171
Civilians were also untrained in the etiquette of the legal profession. There are numerous
examples of Civilian judges who behaved oddly, and in a manner unbecoming of a High Court
judge. When Badruddin Tyabji went to pay a customary courtesy call on Civilian judge Henry
Parsons, Parsons rudely asked Tyabji, ‘What can I do for you? I am busy’172. ‘So am I,’ Tyabji
apparently replied, before storming out.173 The Judicial Commissioner at Rajkot, Kenneth
Barlee, who later went on to become a judge of the Bombay High Court, used to sit in court with
his ‘two large black dogs. [Incidentally, Barlee later accidentally ran over a five-year-old boy
with his car at Chowpatty in Bombay. The boy died as a consequence of the accident]’.174
Civilian judge Maurice Hayward, who also became a High Court judge later, used to sit in court
in his pajamas in the rural districts of Bombay, in the hot weather, though ‘native’ lawyers would
appear before him in full British courtroom attire.175 Gajendragadkar, a judge of the Bombay
High Court who went on to become a Chief Justice of the Supreme Court of independent India,
thought very highly of Civilian judge Robert Broomfield. Yet, Gajendragadkar wrote in his
autobiography that Broomfield ‘was apt to be abrupt and even rude’.176
The prominent lawyer Chimanlal Setalvad once nearly complained to the Chief Justice about
the conduct of Civilian judge Edward Candy. Candy, who had a reputation for being ‘easily
irritable’ and for shouting at lawyers, reprimanded Setalvad for taking a seat in his chamber
while addressing him. Eventually, Setalvad was discouraged from making the complaint by a
British barrister who said to him, ‘[d]on’t take Candy seriously. Nobody has ever accused him of
good manners.’177 Badruddin Tyabji once flung a brief in Candy’s courtroom, when Candy
refused to follow established practice and to give him some time to read his brief.178
Before becoming a High Court judge, Civilian judge Frank Beaman used to make Hindu
witnesses take an oath by holding the tail of a cow in court,179 a practice which was demeaning
and which the High Court strongly disapproved of.180 That was not the end for Beaman. As a
District Judge, Beaman wrote in the newspapers, criticizing judgments of High Court judges, as
a result of which he was passed over for promotion to the High Court.181 Then, as a High Court
judge, Beaman once wrote an article in the Times of India on a controversial subject. The Chief
Justice reprimanded him, and an Indian legislator threatened to ask a question about Beaman’s
conduct in the legislature, but the matter was dropped when Beaman promised not to write again
in any other newspaper.182 The newspaper Indu Prakash considered Beaman’s writings to be a
perfect example of the ‘rabid writing a Civilian of the imperialist school’ could engage in.183
Civilian judges on other High Courts also seemed to lack the etiquette of the profession.184
More seriously, however, Civilian High Court judges were thought of as being pro-
government on the Bench.185 Even two British Chief Justices thought so. The first of these was
Chief Justice Lawrence Jenkins. In his private letters to the Secretary of State in England,
Jenkins repeatedly complained about Civilian judges, lamenting that ‘their training is not
calculated to secure that quality of detachment [which] is so essential in a judicial officer’.186
The second of these was Sir John Beaumont. Being government servants, Beaumont once wrote,
Civilian judges had not internalized the ‘independent spirit of the Bar,’ and they consequently
tended ‘to look at cases from the Government angle’.187 During the proceedings of one criminal
case, Civilian judge Henry Aston was accused of beginning with the backwards presumption that
a man is guilty unless proved innocent. The accusation was leveled by a British barrister judge,
Louis Russell, who said to Aston: ‘You as a Civilian Judge often start with a presumption in
favour of the prosecution while I as a Barrister Judge start with the presumption that the accused
is innocent and the prosecution must prove that he is guilty.’188 Junior magistrates were expected
to convict those who were prosecuted before them. A failure to convict at least 50 per cent of the
accused that came before a magistrate was seen as a sign of weakness.189
In political cases before the Bombay High Court, there was a feeling in some quarters that
Civilian judges were on the government’s side. A Bombay lawyer, M.R. Jayakar, recalled in his
memoirs how a Civilian judge was socialized into believing that any Indian demand for ‘Swaraj,’
or independence, no matter how peacefully made, was ‘seditious’ and illegal. Writing about his
experiences appearing before a Civilian judge in one case, he wrote:
The hearing [in the case] was before a British Civilian Judge, who had, some time previously, delivered a judgment
interpreting the Sections relating to Sedition in the Indian Penal Code perhaps too liberally for the sentiments of his Civilian
set….In support of my view I tried to refer to the Judge’s previous decision, but unfortunately that decision had, in the
meanwhile, made the Judge so unpopular with some members of the executive Government and with his friends in the Civil
Service that he shied away at the mere mention of the ruling and would not allow me even to refer to any passage in that
decision.190
In political cases, Jayakar found that British judges, especially Civilians, were particularly
willing to trust the local police:
These cases were…particularly difficult to win when they were heard by British Judges, and the difficulty was worse when
the British Judge happened to be a member of the Indian Civil Service, who had, in his early days, rubbed shoulders with
the District Police and had formed hostile views about the demand for Swaraj….Some British Barrister Judges too had this
faith in the veracity of the Police statements…drawn from their experience of the British Police in England, whose
behaviour and relations with the public were essentially different.191
The career trajectory of Sir Charles Gordon Hill Fawcett, a Civilian who became a High Court
judge in 1920192 (and later, one of Bombay’s first legal historians), illustrates the typical career
of a Civilian judge who made it to the High Court. Fawcett began his career as an Assistant
Collector and Magistrate, a combined executive and judicial post typical of the British Raj.193 In
fact, whenever Indian nationalists demanded ‘separation of powers’ between the executive and
judiciary, they mostly referred to separating executive and judicial functions in the lower
judiciary.194 Fawcett then switched over to the judicial department, where he served variously as
Assistant Judge and Sessions Judge; Under-Secretary to the Government in the Political,
Judicial, and Legislative departments, and Secretary to the Governor’s Council for making Laws
and Regulations; and Remembrancer of Legal Affairs. Then, he served in two high level Civilian
posts which were considered stepping stones to a judgeship on the Bombay High Court—as
Judge and Sessions Judge, Poona, and Agent for the Sardars in the Deccan;195 and as Judicial
Commissioner of Sind.196 Finally, he became a puisne judge of the Bombay High Court in 1920.
After serving in the Indian Civil Service for five to seven years, a Civilian could then be
transferred to the judicial side of the service—a path which eventually lead up to the High Court
of Bombay. However, the judicial side of the Indian Civil Service was not considered very
prestigious, and a promising Civilian would often be seen protesting ‘violently’ if he were posted
to it.197 It was generally felt that the government preferred to have its brightest and best Civilians
serve on the executive side of the service instead of the judicial side.198 ‘The cadre of judges was
regarded as a scrap heap,’ wrote one Civilian in his autobiography, ‘[a]nyone whose work as an
assistant Collector had not been satisfactory, anyone whose health had broken down as mine had
done, was at once pitchforked out of the executive line and made a judge’.199
After becoming a High Court judge, a Civilian could then be drawn out to serve as the
‘Judicial Member’200 of the Bombay Governor’s Executive Council for a customary period of
five years. One judge, Charles Gurdon Kemball, served on the Governor’s Executive Council
while also being a member of the Bombay High Court, though this was strongly objected to by
the Secretary of State.201 Another Civilian judge who became the Judicial Member of the
Council, Herbert Mills Birdwood, went so far as becoming the acting Governor of Bombay.202
Sir Maurice Henry Weston Hayward, a Civilian Judge, served as the Home Member of the
Governor’s Council,203 and another Civilian judge, James Gibbs, served on the councils of both
the Governor of Bombay and the Governor General of India.204
A position on the Governor’s (or Viceroy’s) Executive Council was considered more
prestigious than a High Court judgeship,205 especially because it was remunerated better.206
After getting appointed to the Council, former Civilian High Court judges would advise the
executive government on judicial appointments and legal strategies. For example, after having
served on the Bombay High Court, when Maxwell Melvill was appointed to Bombay Governor
Sir James Fergusson’s Council in 1884, Melvill helped Fergusson decide whom to appoint to the
High Court. For instance, he vetoed Badruddin Tyabji’s appointment to the High Court, writing
to the Governor, ‘I hardly think Mr Budrudin would command sufficient respect’.207 Melvill also
advised Fergusson on the best legal strategy the government could pursue in an important murder
case which had attracted the Governor’s attention.208 As members of the Governor’s Executive
Council, these judges were also required to participate in the proceedings of the Bombay
Legislative Council.209
Civilian judges who decided against the colonial government would not be promoted to the
Governor’s Executive Council. That was the fate of John Jardine, a Civilian judge of the
Bombay High Court who repeatedly held against the government. In one case, an Indian poet
was being prosecuted for writing a poem in which he called on one community of Indians to
‘fight again for the country’s good’.210 Jardine acquitted him, and upheld his right of free speech.
More importantly, Jardine then annoyed the government by pursuing a complaint filed against
corrupt magistrates who were involved in the sensational Arthur Crawford corruption scandal.211
Eventually, in 1897, when the time came for Jardine to be promoted to the Governor’s Executive
Council according to the usual custom, the government appointed somebody else to the post.212
Jardine resigned in protest soon thereafter.213 As Setalvad wrote in his memoirs, ‘[g]overnment
never forgave Jardine for what they conceived to be the obstruction that the High Court caused
them in the matter’.214 Accordingly, not only were the (mostly Briton) Indian Civil Service
judges thought to be more sympathetic to the executive government’s viewpoint (being a part of
the government themselves), but they also had a lot to lose by going against the government in
their judicial decisions. Their use on the court was therefore an important instrument by which
the administration could have controlled the colonial judiciary.215 The next chapter will go into
the question of whether these judges were actually not independent.
The fate of Civilian judge Sir William Wedderburn also presents an interesting case study of
how wayward Civilian judges could be reined in by the colonial government.216 Wedderburn
was a member of the judicial side of the Indian Civil Service in Bombay. He was heavily
interested in politics—not only did he help found the Indian National Congress in 1885, but he
also served as its fifth president in 1889, and was even elected to the House of Commons in
Britain in 1893. During his term on the judicial side of the civil service in Bombay, Wedderburn
offended the government in numerous ways. He engaged in political activities which went far
beyond the scope of his judicial office. For example, in the late 1870s, he presided over a
political meeting convened to find a solution to the contentious dispute between moneylenders
and peasant farmers (called ‘ryots’) in the Deccan. This was a serious political question at the
time, and the government eventually enacted the Deccan Agriculturists Relief Act in 1879 to
address it.217 In 1885, Wedderburn spoke to a Calcutta newspaper and pamphlet, and ‘attacked in
strong language the whole system of administration in [Bombay] Presidency’.218 Perhaps most
interestingly, while he was serving as an acting judge in the Bombay High Court in 1885, a
bench of Justices Nanabhai Haridas and Wedderburn decided a series of racially charged cases
against the interests of the white defendant or complainant involved—cases which drew the
attention of the India Office in England.219
Between 1880–5, while serving as a senior judge in the civil service, Wedderburn constantly
complained to the Secretary of State in England that the Bombay government was penalizing
him, and overlooking him for promotions. During this time, Wedderburn complained, the
Bombay government had overlooked him for the posts of Legal Remembrancer and Judicial
Commissioner of Sind, and that he was accordingly being ‘systematically excluded from all
posts of influence’.220 In his memorial of complaint to the Secretary of State, Wedderburn wrote
that he was ‘confident that sympathy shown to the people of India will not be held by [the
Secretary of State] in Council to be a disqualification for situations of trust and influence’.221
Though the Bombay Government repeatedly denied Wedderburn’s claims, it informed the
Secretary of State that ‘on more than one occasion [Wedderburn] has shown a certain want of
discretion by engaging in a public discussion of matters of administration which did not lie
within the sphere of his duties’.222 Wedderburn was censured for speaking to the press and for
criticizing the government. Eventually, he was denied a permanent seat on the High Court, quite
possibly because of his controversial decisions while sitting with Haridas. Though the Secretary
of State at times found some merit in Wedderburn’s claims, no action was taken in his favour.
Many judges—and not only the Civilians223—performed various legislative and advisory
tasks for the government as well. As we have seen, High Court judges were frequently expected
to comment on draft legislation.224 In 1884, the Governor of Bombay privately solicited the
views of Chief Justice Charles Sargent on ‘the working of the jury system’ in the rural districts
of the Presidency. Sargent responded by saying that though he had ‘never had occasion to
consider the working of the jury system in the Mofussil,’ he would ‘unofficially’ consult his
‘colleagues who have been in the habit of taking the Criminal work’ and let the Governor know
‘what the general opinion is in the High Court’.225 Sir Romesh Chandra Mitter, a judge of the
Calcutta High Court who, in 1886, became the first Indian judge to act as Chief Justice of that
court, also served as a member of the Viceroy’s Legislative Council concurrently with his
judgeship.226 In the early twentieth century, Chief Justice Jenkins of the Bombay High Court was
part of a committee to revise the Code of Civil Procedure, during which time he was said to be
on ‘special duty’ with the Legislative Department of the Government of India.227 Similarly, Sir
Basil Scott, a subsequent Chief Justice of the Bombay High Court, served on the infamous
Justice Rowlatt sedition committee, which had been constituted in order to determine whether
the draconian Defence of India Act, a wartime statute which severely restricted civil liberties in
British India, ought to have been extended once the First World War came to an end.228 The
committee’s recommendations led to the enactment of the ‘Rowlatt Acts’ under which civil
liberties were restricted despite the end of the war.229 Though judges have often historically been
consulted on legislation in the Anglo-American world, the use of High Court judges on
legislative bodies in colonial India was particularly problematic because it afforded yet another
opportunity for colonial judges to interact with the government and to be socialized to a
government-is-good mindset.
We have already seen that a substantial proportion (47 per cent) of the judges appointed to
the Bombay High Court were Civilians. The colonial administration came up with an ingenious
way of masking these Civilian judges as barristers—it started encouraging Civilians to formally
get called to the Bar in England. We know that the examinations at the Inns of Court were not
very rigorous, and consequently, becoming a barrister did not give a Civilian in Bombay much
by way of additional formal legal training. Civilians in Bombay had already studied law as part
of their Indian Civil Service curriculum as probationers in England, they had already taken law
courses in Bombay and passed departmental examinations, indeed they had already worked for
several years as judges in the rural districts. All this probably gave them superior legal training
than the formal education at one of the Inns of Court.230 Even so, in 1913, the Secretary of State
instituted a scheme231 under which Civilian judges who went to England on furlough were
offered attractive financial incentives232 to ‘undertake a course of study at one of the Inns of
Court’ during their time there, with a view to getting called to the Bar. Further, the Inns of Court
were persuaded to permit Civilians to keep their terms in instalments rather than
consecutively.233 At least three Bombay Civilians took advantage of this scheme.234 After
getting called to the Bar, a Civilian who made use of the scheme did not start practising law at
the Bar, but he went back to being a Civilian judge.235
This arrangement was probably encouraged by the Secretary of State in order to address the
criticism that Civilians lacked formal legal training, and to thereby soften any opposition against
having such a high proportion of Civilian judges serving on the High Courts. Getting called to
the Bar under the scheme improved a Civilian judge’s chances of getting promoted to the High
Court. About 40 per cent of the Civilian judges of the Bombay High Court were also qualified
barristers—they were Civilians in disguise.236 However, it appears that the permissible quota of
Civilians on the Bombay High Court was never exceeded. In other words, Civilians (even
Civilians who were barristers) never occupied more than one-third of the seats of the Bombay
High Court.
Civilian judges evoked mixed feelings at the Bar and Bench.237 Some strongly disliked
Civilians. One Indian lawyer called the Indian Civil Service ‘the most powerful Trade Union that
has ever existed in this world’.238 Another wrote that Civilian judges were ‘a mediocre lot’ who
did not deserve ‘any special comment’.239 Others, however, praised Civilian judges. One of the
Chief Justices of the Bombay High Court, Sir Michael Roberts Westropp, said of Civilians:
‘Every day of my acquaintance with these judges convinces me more and more of the admirable
manner in which they perform their arduous duties throughout this Presidency.’240 Likewise,
Chief Justice Gajendragadkar mostly praised Indian Civil Service judges.241
After India gained independence, Civilian judges generally became less unpopular.242 A
Civilian eventually became the Chief Justice of the Bombay High Court,243 several Civilians
served on the Supreme Court of India, and one even became the Chief Justice of the Supreme
Court of India244—all of them were Indians, not Britons. In post-colonial India, lawyers and
judges began to praise Civilian judges retrospectively. Motilal Setalvad, for example, said:
‘What a fuss the Bar made in those days and later on the question of the appointment of civilian
judges to the High Court! Looking back over the years one wonders whether the froth and foam
expended over this question by the Bar and other bodies was really justified.’245 However, this
retrospective assessment of Civilian judges must be understood in the context of the time in
which it was made. When Setalvad made this assessment in the 1960s, he had before him a very
different brand of Civilian judges, who were loyal not to a British government, but to an Indian
one. Setalvad himself was the Attorney General of India, and if Civilian judges were pro-
government, they were also likely to have been pro-Setalvad in most cases, which might explain
why Setalvad saw their presence on the court as justifiable after independence. It has been
pointed out that in one of the first major confrontations between the government and judiciary in
independent India, the case of Golak Nath v. Punjab,246 all the three Civilian judges on the
Supreme Court of India sided with the government’s view.247 Setalvad continued, ‘[m]any of
these judges have distinguished themselves as Chief Justices of the High Courts and have filled
with distinction the offices of judges of the Supreme Court’.248 In other words, in order to justify
the presence of Civilian judges in the post-colonial judiciary, attacks on colonial-era Civilian
judges had to be reassessed and watered down. For this reason, post-colonial commentaries on
pre-colonial Civilian judges deserve to be read with scepticism. Incidentally, after Indian
independence, the Indian Civil Service was abolished, and the Indian Administrative Service did
not have a judicial side, so Civilian judges eventually ceased to exist.249
***
To summarize, this chapter has demonstrated that the colonial judiciary in the High Court of
Bombay had four institutional peculiarities which stood to undermine its independence.
First, the Chief Justice of the High Court—an immensely powerful figure – was always a
British barrister. There was no justifiable reason why some Indian judges were not elevated to
the post of Chief Justice of the Bombay High Court during the colonial era. The fact that Justice
Kania was overlooked is particularly important. Despite what we have seen in previous chapters
about the lack of racial discrimination against Indians on colonial courts, it is hard to deny that
Indians were racially discriminated against when it came to the post of High Court Chief Justice.
Second, judges held their offices during the ‘pleasure’ of the Crown for most of the colonial
era, which meant that they lacked security of tenure. In the nineteenth century, Justice Robert
Hill Pinhey resigned his office under suspicious circumstances. It is plausible, though we do not
know for sure, that he was forced to resign by the government for deciding cases unfavourably.
Starting in 1899, however, an informal policy was instituted by the Secretary of State according
to which judges would hold their offices until the age of sixty, and they would not be removed
earlier. During that time, there is no evidence to suggest that judges were removed from office
for deciding cases unfavourably to the government. However, the ‘sixty years rule’ could always
be relaxed in exceptional cases, and we saw this most strikingly in Justice Davar’s case, where
the government decided to extend Davar’s term in office after he had decided the Tilak case
favourably. It is possible (though there is no evidence to back this up) that Davar sentenced Tilak
strategically, in order to get an extension in office. After 1935, judges finally held their offices
during ‘good behaviour,’ and they could not formally be removed, without cause, before their
mandatory retirement at the age of sixty.
Third, the Bombay High Court had numerous ‘acting’ or temporary judges, who also lacked
security of tenure, and were therefore not in a good position to be able to decide cases
independently. Acting judges could not make the mistake of disagreeing with the Chief Justice,
and those whose ideologies did not suit the administration were not confirmed. Acting judges
Whitworth, Nanavati, and Wild made the mistake of disagreeing with the Chief Justice, and were
not confirmed as a consequence. Acting judge Khareghat could not get himself to condemn any
prisoner to death, and so he was not confirmed either.
Fourth, and finally, a large proportion of the judges of the Bombay High Court belonged to
the Indian Civil Service, who often began and ended their careers in the executive government.
As such, they were accused of being biased in favour of the colonial government. They were
considered to be lacking not merely in formal legal training but also in the etiquette of the legal
profession. Additionally, maverick judges like Jardine and Wedderburn could be contained by
the government.
CHAPTER SIX
Independence of the Judiciary
The aim of this chapter is to determine whether the Bombay High Court functioned
independently of the other branches of government in the colonial era. We will see that the
nature of relations between the executive government and the High Court in colonial Bombay
were strained, even though the High Court was not meant to play the policing role of Crown
courts under the East India Company regime. We will see that colonial courts in Bombay
decided criminal cases quite independently of the other branches of government, and that the
average criminal conviction rate was a modest 50 per cent. However, we will also see that
important and sensational political cases, usually involving sedition, were typically decided by
the High Court in favour of the government. This chapter concludes by discussing why the
Bombay High Court decided routine criminal cases independently of the government, but
sensational political cases in favour of the government, attributing this to such factors as cultural
independence, ideological bias, or strategic self-interest.
THE RELATIONSHIP BETWEEN THE EXECUTIVE AND JUDICIARY

During Company rule in India, Crown courts like the Recorder’s Court and Supreme Court were
meant to vigilantly impose checks and balances on the government, and tussles between the
executive and judiciary repeatedly occurred after the impeachment of Warren Hastings. When
the Recorder of Bombay, Sir Edward West, dismissed a Company servant for corruption, the
Governor of Bombay, Mountstuart Elphinstone, was rumoured to have challenged West to a duel
(though it eventually turned out that this rumor was untrue).1
However, after the dissolution of Company rule in 1858, courts were no longer required to
police the administration, as the colonial government was now directly under the Crown and
Parliament. Relations between the executive and judiciary seemed to be quite comfortable
thereafter, perhaps a little too comfortable. In his autobiography, Sir Richard Temple, Governor
of Bombay between 1877–80, described the Chief Justice of the Bombay High Court, Sir
Michael Westropp, as ‘one of my fastest friends’,2 adding that he ‘had a particular friend in’
another High Court judge, Lyttleton Bayley.3 Similarly, Chief Justice Lawrence Jenkins shared a
very close bond with Secretary of State Morley.4 High Court judges were often summoned to
meet the Governor of Bombay. For example, Justice Badruddin Tyabji once received a note from
the private secretary to the Governor, saying, ‘His Excellency would like to see you here on your
way to Court tomorrow (Thursday) morning.’5 Likewise, in a letter to his son, Chief Justice
Norman Macleod wrote in 1919: ‘My afternoon was disturbed by being called to see the
Governor at the Secretariat.’6 Governor Willingdon and his wife used to invite judges to visit
their Poona home.7 Judges often had to interact closely with executive officials on administrative
matters, and then judicially determine the validity of actions taken by those very same officials
with whom they had to maintain such close contact.8 Further, when a high official in the
executive government arrived in or departed from Bombay, judges of the Bombay High Court
were invited to, and perhaps expected to be present at, the railway platform or pier. For instance,
a few days before the Viceroy, Lord Curzon, left India in April 1904, Justice Tyabji received a
letter from the acting chief secretary to the government of Bombay, which said, ‘I am directed by
His Excellency the Governor in Council to invite you to be present at the Victoria Terminus at
the public arrival of His Excellency the Viceroy in Bombay on Saturday, the 30th instant, at 8-45
A.M. (Bombay time), and also at the Apollo Bandar at 12-30 P.M. on the same date on the
occasion of His Excellency’s public departure from India’.9 In turn, High Court judges did not
think it inappropriate to request the executive government for personal favours. For example,
Justice Tyabji repeatedly requested the Viceroy of India and the Governor of Bombay to give his
nephew a job in the government service.10 Eventually, the Governor of Bombay appointed
Tyabji’s nephew to the post of Protector of Pilgrims.11
However, even under the Crown, conflicts often occurred between the executive and
judiciary, over administrative and judicial matters,12 conflicts that will be examined in greater
detail in this chapter. In fact, relations between the executive and judiciary were often not cordial
during this period. For example, the Chief Justice and other judges of the High Court once
privately complained to the Crown that the Bombay government had ordered an officer to
disregard its orders. The Secretary of State dealt with the complaint evasively and no action was
taken.13 In 1910, the Governor of Bombay insulted the judges of the High Court at a public
function by refusing to permit them to stand to his right according to established custom.14 The
judges later complained to the Governor about this. Further, the court even had to give up its
printing press in 1933.15
There is a general consensus in the literature that courts in British India were not
independent16 of the other branches of government: in Washbrook’s formulation, that the
colonial judiciary’s notional autonomy from the executive was an ‘illusion’ which was never
realized, that ‘the law was a department of the executive’.17 This is also the intuitive position,
since it is hard to imagine an independent judiciary in a colonial India: putting colonialism and
independence together would be an oxymoron. However, there is a growing literature which
argues that courts in colonial India enjoyed some measure of independence or ‘partial
autonomy’,18 not merely in cases that lacked any political significance,19 but also in sensitive,
politically important cases.20
This claim bridges the disciplinary divide. It is not only historians who have suggested that
colonial courts enjoyed a measure of autonomy from the other branches of government.
Members of the legal profession in India have long argued, quite counterintuitively, that courts in
colonial India were independent of the executive. Their claims, however, are not entirely
convincing. For example, Bombay lawyers frequently refer to a judge in colonial Bombay, Sir
John Peter Grant, who locked himself up in court when the government refused to comply with
his wishes,21 though this incident does not prove that the Bombay High Court was independent
of the executive during the British Raj: first of all, because Grant was not a High Court judge (he
served on the Supreme Court in the East India Company period, when Crown judges were
supposed to be suspicious of the Company state),22 and second, because Grant eventually lost his
fight with the executive—the Privy Council held in favour of the government. Grant himself was
recalled to England, and he eventually resigned his office and went to practise at the Calcutta
Bar.23
However, even contemporary writers claimed that the High Courts of India were independent
of the executive.24 Such avowals of the independence of the colonial judiciary in British India
are hard to reconcile with the established literature on what it takes to build a judiciary that is
independent of the other branches of government. American legal scholars have repeatedly
argued that there are two structural prerequisites for an independent judiciary: security of tenure,
and security of compensation.25 Since Alexander Hamilton’s Federalist No. 78, scholars have
argued that judges must hold office during ‘good behaviour’, not during the ‘pleasure’ of the
executive, for the judiciary to function independently of the executive. This has metamorphosed
into a debate about whether Article III judges in the United States should be removed by means
other than impeachment.26 However, as we have seen, judges of the Bombay High Court held
office during the Crown’s ‘pleasure’ for most of the British Raj. If the judges of the Bombay
High Court did not hold their offices during ‘good behaviour’, how could they have been
independent of the executive? This chapter will contribute to a growing body of scholarship
which suggests that factors besides formal structure go into making an independent judiciary.27
We saw in the previous chapter that the Bombay High Court had four peculiar institutional
features which theoretically stood to undermine its independence from the executive: a British
Chief Justice, the absence of security of tenure, the use of acting judges, and the use of judges
from the Indian Civil Service. This chapter argues, however, that these four institutional
peculiarities did not seriously undermine the independence of the judiciary in practice. In terms
of security of tenure in particular, it will be recalled that the court went through three phases.
During the first phase, from the court’s establishment in 1862 until 1899, judges did not enjoy
either formal or informal security of tenure, that is, judges held their offices during the ‘pleasure’
of the government, and could theoretically be hired and fired at will. During the second phase,
from 1899 until the enactment of the Government of India Act, 1935, judges enjoyed informal
security of tenure, that is, though there was no formal, legislative policy that judges would hold
their posts during ‘good behaviour’, and though judges continued to theoretically hold their posts
during the ‘pleasure’ of the government, there was an informal understanding that a judge would
not be removed from office except upon reaching the retirement age of sixty. Finally, during the
third phase, after the Government of India Act was enacted in 1935, judges formally held their
offices during ‘good behaviour’, meaning they could only be removed for misbehaviour. One
would have surmised that these three phases of tenure would have impacted the way in which
judges decided cases. Since much of the literature on the independence of the judiciary
emphasizes that a judge should have security of tenure in order to be independent, one would
have guessed that a Bombay High Court judge was not independent during the first phase, in the
nineteenth century, then only marginally independent during the second phase up to 1935, and
finally, independent during the third phase starting in 1935. The historical evidence, however,
suggest that this was not true.
ROUTINE CRIMINAL CASES

During the colonial period, the Bombay High Court routinely prepared a statistical report on the
administration of civil and criminal justice in the Bombay Presidency nearly every year,28 and
sent it specially to the India Office in London.29 I surveyed these reports at ten-year intervals and
discovered something quite interesting: as the table below demonstrates, the conviction rate in
criminal cases in the Bombay Presidency during the British Raj was actually quite modest. For
example, in 1895, only 37 per cent of nearly 3,00,000 people who stood trial, being accused of a
criminal offence, were convicted by a criminal court in the Bombay Presidency, including those
who pleaded guilty. The average conviction rate in criminal cases in the Presidency was
approximately 50 per cent during the British Raj. By contrast, the criminal conviction rate in
modern-day Japan is 99.9 per cent, while in federal cases in the United States it is 87 per cent.30
Plea-bargaining did not exist in British India and was introduced in India only relatively recently.
However, those who confessed to their crimes and pleaded guilty (which, in some cases, might
be considered the functional equivalent of a plea bargain31), appeared to have been counted in
these statistics as among those who were convicted. In other words, the contested criminal
conviction rate, that is, the conviction rate in those cases which were actually contested, where
the accused did not enter a plea of guilty, was actually even lower.
A high conviction rate in criminal cases usually reveals one of two things: either that the
prosecutors are only bringing strong cases to trial where the chances of winning are nearly
certain, or that the judges deciding the cases are being coerced in some manner into deciding
criminal cases in favour of the administration.32 The fact that the conviction rate in criminal
cases in Bombay was low or modest, however, suggests that in criminal cases (cases which
pitted ordinary people against the colonial government’s police and prosecutorial
administration), colonial judges in British India often worked without fear or favour, independent
of the other branches of government. After all, we have already seen how the colonial
government was highly cost-conscious in India, and it is therefore very unlikely that prosecutions
would have been indiscriminately brought to trial at state expense. Since prosecutors were
unlikely to have brought frivolous cases to trial in British India, the modest conviction rate in
criminal cases suggests that colonial judges functioned independently of the other branches of
government.
Table 6.1 Conviction Rate in Criminal Cases across All the Courts in the Presidency of Bombay during the British Raj
Notes:
1. Data were not available for the year 1875. The earliest available data on criminal cases decided by the Bombay High Court
were available for the year 1879.
2. Those who are neither represented as acquitted nor convicted in this table met with some other fate, for example, they died or
escaped from prison.
Source: Data were compiled by the author from reports available at British Library, India Office Records, V/24/2152 –
V/24/2158.
The low conviction rate in criminal cases is surprising because scholars have often suggested
that the criminal justice system in British India was racist and biased in favour of the
government. For example, in her recently published book, Elizabeth Kolsky33 suggested that
European defendants were often let off easy for violent crimes committed against Indians by
criminal courts in British India. However, my data suggest an alternative interpretation of
criminal justice in British India. At any given point in time, the proportion of white, European
defendants who were tried in the criminal courts in the Presidency of Bombay was less than 1
per cent of the total number of criminal defendants tried that year. For example, among nearly
2,40,000 criminal defendants tried in the Bombay Presidency in the year 1905, only 566, that is,
less than 1 per cent of those tried that year, were Europeans. The overwhelming number of
criminal cases which arose in the Bombay Presidency therefore had nothing to do with white
crime against Indians. Further, the conviction rate in cases involving European defendants was
actually higher than the ordinary conviction rate. For example, in 1905, though the ordinary
conviction rate in criminal cases was 47 per cent, the conviction rate in cases involving European
defendants was 73 per cent. The criminal justice system in the Bombay Presidency was therefore
not likely to have been defined by cases involving white crime against Indian victims.
The Bombay High Court also decided criminal cases quite independently of the other
branches of government. In criminal trials on the Original Side of the court, the conviction rate
fluctuated approximately between 35 and 75 per cent. Available data suggest that when the
government filed an appeal in the High Court against an order of acquittal in a criminal case
decided by a lower court, the government usually lost the appeal.34
I also confirmed the low conviction rate in criminal cases independently of the official
statistics. Among 489 cases in the sample taken from the law reports, discussed in Chapter 4,
ninety-three cases,35 that is, nearly 20 per cent of the sample, were criminal cases. Over two-
thirds of these cases were decided against the government. Out of ninety-three criminal cases,36
sixty-three (that is, 67.7 per cent) were decided by the court in favour of the accused.37
Interestingly, the type of judge hearing the case did not make a difference to the outcome of a
criminal case.38 It did not matter, for instance, whether the judge hearing the case was a Civilian
or acting judge, a Briton or Indian—each was as likely to hold against the government as the
other. Further, the type of tenure enjoyed by a judge made no difference to the outcome either.
Thus, judges in the nineteenth and early twentieth centuries were as likely to hold against the
government in criminal cases, as they were after 1935, when judges enjoyed formal security of
tenure. This suggests that it takes more (or perhaps less) than formal security of tenure in order to
make a judiciary independent of the executive.
We saw in the previous chapter that ‘Civilian’ judges, that is, judges from the Indian Civil
Service, had a bad reputation at the Bar for being unconventional and possibly pro-government
in their attitude. However, the data suggest that Civilian judges decided cases independently of
the government. In one case decided on the Appellate Side in 1865,39 for example, a Full Bench,
of three judges, was hearing a case where a land owner sued the sub-collector of Kulaba over a
property dispute. The bench was composed of one barrister judge and two Civilian judges, all
Britons. Though the court eventually held in favour of the sub-collector, and against the private
plaintiff, one Civilian judge, Justice Tucker, wrote a dissenting opinion disagreeing with the
court’s holding in favour of the government—this was one of the few dissenting opinions in the
sample. In other words, Tucker’s professional background as a Civilian judge did not inhibit his
ability to independently decide a case against the government, even where that meant dissenting
from the opinion of his colleagues on the Bench.
It is true, however, that most criminal cases decided in the Presidency of Bombay were not
very politically significant. For example, in one case decided in 1885, a man was convicted by
the lower court for selling vegetables in his house, instead of selling them in the market, where
they could be sold by law. The convict was sentenced to pay a fine of two rupees. On appeal, the
case was heard by an Indian judge, Nanabhai Haridas, and an acting judge, William Wedderburn.
Like all the judges of the court, Haridas could theoretically have been removed, at will, by the
government. Even so, he decided the case in favour of the accused, and against the prosecution.
His colleague on the bench, Wedderburn, was an acting judge, whose temporary position on the
court made him especially vulnerable to the government’s whims. Yet, Wedderburn concurred
with Haridas. Both judges decided the case independently of the government. However, given
the low stakes involved in the case, it is likely that the case did not interest the government.
Many such criminal cases, where the court displayed a remarkable degree of independence, were
apolitical cases, involving low stakes. Very few criminal cases involved offences concerning the
state.
However, not all criminal cases that were decided against the government were unimportant.
We have already seen in the previous chapter that the Haridas-Wedderburn bench decided a
string of highly sensitive criminal cases against the government. Another good example of this
was a case decided in 1885, where the accused was tried for the offence of possessing arms
without a licence. The accused had been found in the unauthorized possession of a sword, but he
was acquitted by the trial court. After the Mutiny, the colonial government took offences like the
possession of weapons very seriously. It was rare for the colonial government to file appeals
from the decisions of lower courts, but the fact that it did so in this case suggests that the case
was not entirely irrelevant or unimportant. The case went up before the bench of Haridas and
Wedderburn at the Bombay High Court. The Government Pleader, V.N. Mundlick appeared for
the Crown. Where the Government Pleader or Advocate General appeared for the Crown in a
criminal case, that was another indicator that the case was important. Even so, this case was
decided against the government. The opinion of the court was written by the acting judge,
William Wedderburn, who had absolutely no security of tenure on the court. True, the crime of
possessing a sword was not a sensational or political offence of the kind we will encounter in the
coming sections of this chapter. Yet, the evidence suggests that cases like these, which were not
completely unimportant for the colonial administration, were decided against the government.
In the final decades of the Raj, the court heard increasingly important cases, and decided
those cases quite independently of the government. For example, in one case decided in 1945,40
a tenant argued at the Bombay High Court that the proviso to section 8 of the Bombay Rent
Restriction Order, 1942, a wartime rent-control order, was unconstitutional. The court held in
favour of the tenant and invalidated the provision. Likewise, in another case decided that year,
the publisher of a controversial Marathi book based on the life of the revolutionary leader, Veer
Savarkar, approached the court for relief against a government order directing him to furnish
security of Rs 2,000 for the book.41 The government contended that the book would incite
violence. The court held that the book was historical in nature and that the government’s order
was therefore illegal. In a habeas corpus case decided that year, the court ordered the release of a
person who was being preventively detained by the government under the wartime Defence of
India Act, on the ground that the government officer who ordered the petitioner’s detention had
not applied his mind to the case.42 Again, race had little to do with the court’s independence. It
was a British Chief Justice who authored the opinion in the habeas corpus case. The court’s
independent decisions in these three cases are unsurprising, given that the judges enjoyed formal
security of tenure at the time the decisions were issued. More interesting are the court’s earlier
decisions in criminal cases, where the court’s judges held against the prosecution and in favour
of the accused, despite lacking security of tenure.
POLITICAL CASES
The previous section suggests that the Bombay High Court decided cases independently of the
executive. Indeed, this is consistent with anecdotal histories which have been written of the
court, predominantly by the court’s own lawyers, in which the court has been described as a
bastion of judicial independence and integrity.43 This is also consistent with a rising body of
literature which argues that courts in colonial India were autonomous.44 However, the discussion
in the previous section reveals only a part of the story of the Bombay High Court’s colonial past,
and no discussion of the independence of the judiciary during the colonial era would be complete
without discussing a few of the most notorious cases decided by the court at that time, especially
the Tilak trials. The cases that are discussed in this section have left an indelible mark on the
public memory of the court. These cases were constantly brought up in autobiographies and
writings on the court, and some are part of the curricula at Indian law schools. In fact, after
Indian independence, Tilak’s second trial was memorialized in a commemorative tablet which
sits, to this day, in the wall outside the central courtroom on the second floor of the Bombay
High Court building. After discussing these important cases—cases which have been drawn out
in this section from primary sources like autobiographies where they were discussed—this
section will attempt to reconcile the quantitative independence of the judiciary seen in the
previous section with the cases discussed herein.
The Tilak Trials

Perhaps the most important litigant who ever set foot in the Bombay High Court during the
colonial era was the nationalist leader, Bal Gangadhar Tilak, whose demand for ‘swarajya’, or
complete independence, from British rule, is known by every school child in Maharashtra, if not
India.45 Like many of the High Court’s Indian judges, Tilak was a student of Deccan College in
Poona and the Government Law School in Bombay.46 The antagonism of men like Tilak towards
the colonial government baffled British administrators who believed that English education
would create allies, not enemies, among the ‘natives’. Tilak was a contemporary of Justice
Chandavarkar, and an intellectual rival of Justice Ranade.47 He was involved in a series of cases
before the Bombay High Court, the most famous one being in 1908.48
Tilak’s first criminal trial in the Bombay High Court set the stage for what was to follow. In
1897, he was arrested in connection with an article entitled ‘Shivaji’s Utterances’ which
appeared in his Marathi newspaper, Kesari49 later described by the Rowlatt Committee as ‘the
most influential Marathi paper in Western India’.50 The government’s view was that Tilak’s
writings had incited the murder of two British officials in Poona. The perpetrators of the
murders, the Chapekar brothers,51 had intended to murder the Plague Commissioner (and
Collector), Walter Charles Rand, an unpopular official during the plague epidemic.52 In the wake
of the plague, the government had taken sanitation out of the hands of the Municipal Corporation
of Bombay, and placed it under an exclusively European body called the Plague Committee.53
This was headed by Rand in Poona. The committee had become very unpopular because it sent
insensitive British soldiers into people’s houses to carry out its operations.54 One evening, Rand
lent his buggy to Lieutenant Charles Egerton Ayerst and his wife. Thinking that Rand was in the
buggy, the Chapekar brothers murdered Ayerst by mistake. After realizing their mistake, they
later also murdered Rand. The murders both occurred on an evening when the sixtieth
anniversary of the coronation of Queen Victoria was being celebrated in Poona.55
The allegation against Tilak was that it was his article which had incited the murder by the
Chapekar brothers. After his arrest, Tilak applied for bail. Bail was initially denied by the Chief
Presidency Magistrate, and by a bench of Justices Parsons and Ranade in the Bombay High
Court.56 However, an Indian judge sitting by himself on the Original Side of the court, Justice
Badruddin Tyabji, subsequently released Tilak on bail.57 Interestingly, Ranade and Tilak were
both Hindu, Chitpavan Brahmins.58 Yet, Ranade denied bail to Tilak, while a Muslim judge,
Tyabji, released him on bail. Once again, this tells us that judges in colonial India defied neat
racial or communal categorization. The bail amount, however, was one lakh rupees (Rs
1,00,000)59—an enormously high figure, higher than the annual salary of the Chief Justice of
Bengal, one of the highest paid judges in the Empire. Consider that as a leading Bombay lawyer,
Badruddin Tyabji himself took an entire year to earn 1,23,260 rupees a few years before, in
1890.60 Tilak had to furnish nearly the entire annual income of a prosperous lawyer for his bail.
Tyabji’s order was thus an interesting compromise—he let Tilak off on bail, but slapped a
prohibitively expensive bail figure on him. The amount was paid by a Gujarati mill owner.61
At the end of the trial, a ‘special jury’ consisting of six Europeans and three Indians found
Tilak guilty of sedition, voting presumably along racial lines, with the European jurors finding
Tilak guilty and the Indians finding him not guilty.62 In fact, though most criminal cases were
tried by common juries where the number of ‘natives’ was likely to exceed the number of
Europeans, all sedition trials were held before such ‘special juries’ in which the number of
European jurors exceeded the number of Indian jurors.63 Tilak was sentenced to eighteen
months’ rigorous imprisonment,64 though he was released after one year.65
Tilak’s trial at the High Court Sessions was presided over by a British judge, Arthur
Strachey. According to a subsequent Chief Justice of the Bombay High Court, Norman Macleod,
the charge delivered by Justice Strachey to the jury contained ‘one serious blunder’—Strachey
described ‘disaffection’ (the offence of sedition under section 124-A of the Indian Penal Code
included exciting “disaffection” towards the government in India) as ‘want of affection’, which
was incorrect.66 This was corroborated by Thomas Strangman, an Advocate General of Bombay
who, in Tilak’s trial, held a junior brief for the prosecution. Strangman too realized that Strachey
had made a ‘slip’ by defining disaffection as ‘absence of affection’ instead of ‘contrary to
affection’.67 However, despite Strachey’s blunder, Tilak’s appeals were rejected all the way up to
the Privy Council. Tilak applied to the High Court for a certificate permitting him to appeal to
the Privy Council. The application was heard and rejected by three British judges68 (including
Strachey), one of whom was a Civilian.69 Eventually, Tilak’s petition for leave to appeal was
denied by a bench of the Privy Council which had Sir Richard Couch on it,70 who was a former
Chief Justice of the Bombay High Court.
Though the Hindu judge Ranade was on the court in 1897, it was a British barrister
(Strachey) who was picked to preside over the Tilak trial that year. In fact, a prominent Bombay
lawyer claimed that during Tilak’s trial in 1897, Ranade was being observed by detectives who
‘hovered’ around his residence.71 The fact that both Ranade and Tilak were members of the same
community—Chitpavan Brahmins—was a fact the colonial government was aware of,72 and this
quite possibly bothered the government. What makes this story even more complex is that
Ranade and Tilak were actually staunch ideological opponents—Ranade was a liberal-minded
social reformer who wanted to do things like educate women and attack child marriage, while
Tilak opposed any social reform which was state-driven. Rukhmabai’s case,73 which we have
already encountered, brought this clash of perspectives out well. There, a husband filed a suit in
the Bombay High Court to compel his wife, Rukhmabai, to live with him. Rukhmabai was only
eleven years old when the marriage between them had taken place, and the couple had never
cohabited. The husband filed the suit when Rukhmabai turned twenty-two.74 Though not a High
Court judge at the time this case was decided, Ranade took a public stand in favour of
Rukhmabai. Criticizing Ranade, Tilak accused him of being a ‘unique manipulator of
arguments’, lamenting that ‘judges in ancient days were far more strict than those at present’, and
continuing, ‘Rao Bahadur (Ranade) had no business interfering with the dharma shastra’.75
Ranade and Tilak also strongly disagreed on the age of consent controversy in the late nineteenth
century, involving child marriage. Ranade wanted the age of consent to be increased by the state,
which Tilak opposed.76 Tilak frequently made Ranade the target of his editorial criticism, once
accusing him of ‘uncharitableness, and petty-mindedness’.77 In fact, Tilak found fault with the
other Hindu judges of the Bombay High Court as well. To Tilak, K.T. Telang and others like him
were ‘not Hindus…but mere renegades and worse enemies for us than people of other
religions’.78 Again, this suggests that racial identities could not easily be reduced to simplistic
binaries in the colonial era. Tilak, Ranade, and Telang, were all upper-caste Hindus, and Indians,
yet they did not see eye to eye on many of the central issues of the day.
Given that Ranade and Tilak were such strong ideological opponents, it is remarkable if the
story about Ranade being observed by the government during the Tilak trial is true. No matter
how erudite, liberal, and loyal Ranade might have been on the court, as far as the colonial
government was concerned then, he was still untrustworthy in Tilak’s case. Perhaps this distrust
was not entirely misplaced. When Tilak was convicted for sedition, even his staunch opponents
like Gopal Krishna Gokhale felt sympathetic towards him,79 and it is therefore plausible that
Ranade might have empathized with Tilak’s plight too.80 [However, it is also possible that the
Tilak case was not assigned to Ranade by the Chief Justice precisely because the Chief Justice
knew that Ranade and Tilak were ideological opponents, and that Ranade would therefore not
have been considered unbiased in that case.] Thus, even though it was seen in the previous
section that race had little to do with the independence of the judiciary during the colonial era, in
important political cases like the Tilak trials, issues like race and community did tend to boil to
the surface.
For Tilak, this was only the beginning. His second trial is arguably one of the most famous
cases in India’s legal history. In 1908, Tilak was found guilty of sedition once again, for writing
two articles (when translated to English, entitled ‘The Country’s Misfortune’ and ‘These
Remedies are Not Lasting’) published in his Marathi newspaper, in which he advocated
‘Swarajya’ or independence for India, and condoned the use of a bomb for political
assassinations. Interestingly, Jayakar wrote in his autobiography that it was well known that
Tilak had not actually written the articles in question – they had been authored by a sub-editor at
Kesari.81 The articles were written in the wake of the accidental murder of two European women
in Muzaffarpur82—the perpetrator had intended to murder an unpopular British magistrate, who
was incidentally riding in the carriage ahead of the women.83 The presiding judge in the trial, an
Indian, refused Tilak’s application to be tried by a regular jury. Instead, Tilak was tried before a
‘special jury’ once again, consisting of a majority of Europeans, seven in number, with only two
Parsis on it,84 and in all likelihood, no juror on that jury was capable of reading the original
Marathi articles for which Tilak was being tried.85 This time, however, Tilak was tried before an
Indian judge, the Parsi Justice Dinsha Davar, who, we have seen, was formerly one of the first
leading Indian Advocates on the Original Side of the court. We have also seen in the previous
chapter that Davar had requested the government for an extension in office only a few months
before the Tilak trial came before him. Interestingly, the prosecutor cited Strachey’s incorrect
definition of ‘disaffection’ abundantly while addressing the jury.86 During the trial, which lasted
eight days, Tilak conducted his own defence, using the courtroom as a platform to make a
political statement.87
Once again, the jurors presumably voted along racial lines.88 As Secretary of State Morley
wrote to the Viceroy, ‘the jury is most obviously a packed jury; it is evidently not the Goddess of
Chance that has brought about the singular result of 7 Europeans and 2 Parsees, and not one
Hindu’.89 The Parsi judge presiding over Tilak’s trial, and the Parsi jurors were seen as potential
traitors by some in the local community. The Governor of Bombay later described in his
memoirs how, during the Tilak trial, ‘threatening letters’ were sent to himself, to Davar and the
Indian jurors, ‘with horrible details of the manner of our approaching deaths’.90 This time, Tilak
was sentenced to an enormously high sentence of six years’ transportation to Burma by the
judge, Justice Dinsha Davar. This was an incredibly atypical sentence. Most criminal cases
which came up before the Bombay High Court involved minor sentences, which seldom went
beyond a few years’ imprisonment. To the empirical, quantitative observer of the court’s
criminal docket over the years, Tilak’s six year sentence is startling.
More interestingly, at the end of the trial, Justice Davar condemned Tilak in harsh terms. He
accused Tilak of having ‘a diseased and perverted mind’.91 In contrast to Broomfield’s dignified
treatment of Gandhi many years later, Davar said to Tilak while announcing his sentence: ‘It is
most desirable in the interest of peace and order and in the interest of the country which you
profess to love, that you should be out of it for some time.’92 Interestingly, prior to his elevation
to the Bench, Davar had served as Tilak’s lawyer in a case involving sedition—a case which had
propelled Davar’s own career.93 Now, Davar treated his former client quite harshly in court.
Why did Davar treat Tilak the way he did? Perhaps he was trying to appease the government, to
express his loyalty to the British Empire, and to perhaps get the government on his side so that
he could get his extension in office. If so, one might argue that Davar was not ‘independent’ of
the executive. However, it is also possible that Davar truly believed, however incorrectly, that
Tilak had committed a serious crime. The fact that Tilak had written an article praising the
attempted murder of a British magistrate, and that Davar was himself a judge in British India,
might have affected Davar’s judgment as well—Davar’s words, then, might have been an
expression of solidarity with the members of his profession.94 A plot to kill Justice Davar was
hatched after his decision.95 Riots broke out in Bombay soon after.96
We have seen that the Tilak trial was conducted before a jury that was packed with
Europeans. However, the Tilak trial stands out in the annals of India’s legal history not because
of the jury’s verdict, but because of the sentence imposed by the judge, Justice Dinsha Davar, on
Tilak. Under the Indian Penal Code at the time,97 Davar was free to let Tilak off with virtually
any sentence he pleased. Davar could, for example, have imposed a fine of one rupee on Tilak,
or sentenced him to a term of one day in prison. Instead, Davar chose to have Tilak transported
for a surprisingly long term of six years. The fact that Davar imposed a sentence of
transportation on Tilak is also significant. We have already seen that travelling overseas was
against the caste rules of upper-caste Hindus at the time. By sentencing Tilak to serve out a
sentence overseas, Davar had imposed a de facto sentence of excommunication on Tilak as well.
The story goes that before passing his sentence, Davar asked Tilak whether he had anything
to say after his trial, upon which Tilak uttered the famous words:98 ‘Inspite of the verdict of the
jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and
nations and it may be the will of Providence that the cause I represent may be benefited more by
my suffering than by my remaining free.’99 A decade after India became independent, Tilak’s
words were inscribed on a tablet inserted outside the central courtroom of the Bombay High
Court, which had served as the High Court Sessions courtroom where Tilak was tried.100 History
disowned Davar’s harsh words, and exonerated Tilak.
Viceroy Minto was elated with Davar’s decision, and he recommended that Davar be
appointed to the Viceroy’s Executive Council when its first Indian member resigned.101
Secretary of State Morley rejected this suggestion, saying that ‘the record of Davar in the case of
Tilak has not tended to make him popular with our Indian friends’.102 However, we have already
seen that the Viceroy requested the Secretary of State to permit Davar to continue in office after
reaching the age of sixty, and the request was granted on ‘public grounds’.103 Interestingly,
Morley thought that it was a serious mistake to prosecute Tilak. The correspondence between
him, the Governor of Bombay, and the Viceroy suggests that the men in the metropole did not
always agree with the ‘men on the spot’. The Viceroy and Governors of the provinces of India
were subject to the (often racist) public opinion of the British community in India, while the
Secretary of State was concerned with answering questions in the British Parliament. They
therefore tended to share different perspectives on the rule of law in India. As Morley wrote to
the Governor of Bombay:
By the way, I don’t count among welcome things, the proceedings against Tilak.... Since writing to you an hour ago, I have
come across the article in the Kesari for which I understand Tilak is being prosecuted. I confess that at the first glance I feel
as if it might have been passed over…. I won’t go over the Tilak ground again beyond saying that, if you had done me the
honour to seek my advice as well as that of your lawyers, I am clear that I should have been for leaving him alone. And I
find no reason to believe that any mischief that Tilak could have done would have been so dangerous as the mischief that
will be done by his sentence. Of course, the milk is now spilled and there’s an end on’t.104
Morley particularly wanted to avoid making a martyr out of Tilak. He was afraid that if Tilak
were given a heavy sentence, that would ‘make the moderate game much harder to play’.105
Eventually, after hearing of Davar’s lengthy sentence against Tilak, Morley worried that the
‘moderate’ faction of the Congress would ‘be bound, by the necessity of the thing, to take
[Tilak’s] side against us’.106
Tilak applied for leave to appeal to the Privy Council again, and his application was rejected
by the Bombay High Court again, by a bench of two British judges.107 After the verdict of the
jury was announced, one newspaper alleged that the government had obtained Tilak’s conviction
with Justice Davar’s collusion. The editor of the newspaper was hauled up by the High Court and
convicted for committing contempt of court.108
However, when Tilak was brought up before the Bombay High Court again in 1916, for three
speeches he had delivered in Belgaum, the court held in his favour.109 This time around, Tilak’s
speech was not considered seditious by the government, and a Magistrate had only ordered him
to submit a bond for good behaviour in the future. On appeal before the High Court, a bench
consisting of a British Civilian and an Indian judge110 found that no such bond was necessary.111
Jinnah appeared for Tilak in this case, and he ‘turned round and shook hands with Tilak’ when
he won.112
Other Important Cases

The other political cases which came up before the Bombay High Court typically all had to do
with criticism of the government in some form.113 For example, very soon after the Tilak case, in
September 1908, Chhaganlal Lalubhai Thanawalla, the editor and proprietor of a Gujarati weekly
called the Hind Swarajya was convicted of sedition by the Bombay High Court for writing an
article which had the title, when translated into English, ‘Britannia what is this?’114 In the article,
Thanawalla urged Britons to go back home, and wrote that oppressed Indians had been forced to
use bombs. The trial was conducted under a British acting judge, Raymont Knight, and a special
jury. Like Tilak, Thanawalla conducted his own defence. The jury convicted Thanawalla by a
majority of six to three. The judge then sentenced him to three years’ rigorous imprisonment, and
to a fine of Rs 2,000. The government was keeping a close watch on cases of this kind. After the
Thanawalla case had been decided, Viceroy Minto sent a telegram to Secretary of State Morley,
informing him what the verdict and sentence were.115
In a case decided in 1920, Gandhi came up before the Bombay High Court, on a charge of
committing contempt of court for publishing two articles (entitled ‘O’Dwyerism in Ahmedabad’
and ‘Shaking civil resisters’) in his newspaper, Young India. Gandhi had called into question the
conduct of the British District Judge of Ahmedabad. The Registrar of the High Court had
initially requested Gandhi to write a letter of apology, which he refused to do.116 A bench
consisting of two British judges (including one Civilian) and one Indian judge,117 convicted
Gandhi, but only reprimanded him and cautioned him as to his future conduct.118 According to
one of those judges, Maurice Hayward, ‘[t]he case had attracted the attention of the Governor
who feared that the commitment of Gandhi to prison might result in rioting as did his arrest
previous’.119 Consequently, the Governor had written a letter to the judges before the case,
‘much to the indignation’ of the British barrister judge, ‘to enquire what were the intentions of
the High Court’. ‘But we had no intention of committing [Gandhi] to prison,’ wrote Hayward in
his handwritten memoirs, continuing, ‘when the case came on again for judgment we considered
it sufficient to find his contempt proved and to cancel his licence to plead as a Barrister of the
High Court. He was as a result subsequently disbarred by the Council of the Inns of Court in
England.’ Interestingly, though Hayward wrote about this episode in the handwritten draft of his
memoirs, it was subsequently almost entirely deleted from the printed typescript of his memoirs
which are in his private papers.120
Likewise, the editor of Tilak’s newspaper, N.C. Kelkar, got into trouble with the Bombay
High Court for criticizing its decision in the Private Walker case. During a shooting trip near
Poona in 1923, a European soldier, Private Walker, shot a villager dead. As a European British
subject, Walker was tried before a jury consisting of a majority of European jurors. The jury
returned a unanimous verdict of not guilty. Unsatisfied with the result, the British Sessions Judge
referred the case to the Bombay High Court. A bench of exclusively British judges—the Chief
Justice and a Civilian judge—acquitted Private Walker.121 After the court’s decision was
announced, the Kesari carried an article indirectly accusing the judges of racial bias. In it, Kelkar
wrote: ‘Both the pans of the scale for weighing justice are not of one and the same colour but one
pan is black and the other is white.’122 He was prosecuted for committing contempt of court by a
different bench, once again consisting exclusively of British judges—a barrister and Civilian.123
Kelkar was convicted and ordered to pay a fine of Rs 5,000 and costs of Rs 200.124
The Kesari was not the only newspaper to allege that British courts in India favoured white
defendants charged with criminal offences. In 1891, the Indu Prakash reported three murder
cases recently decided by the Bombay High Court involving white defendants. In each case, the
accused was either found not guilty or given a far more lenient sentence than he deserved. ‘Each
case,’ wrote the Indu Prakash, ‘has ended in a way that leaves behind a strong feeling in the
mind that justice has not been satisfied.’125 In one of the cases, the judge ordered the jury to
disbelieve ‘native’ witnesses. ‘If native witnesses are not to be believed’, commented the Indu
Prakash, ‘why have the solemn farce of a trial at all.’126
The Bombay High Court also penalized lawyers who were involved in sedition. For example,
in 1909, the court suspended a Pleader, Waman Sakharam Khare, for making anti-government
speeches. Between 1907–8, Khare had made numerous speeches at public gatherings, which had
attracted the attention of the government. In these speeches, Khare had argued that British rule
had ruined Indian industries, that the English were like robbers, that Indian land would all pass
into the hands of whites, and that Europeans were irreligious demons who attacked Hinduism
and forced Indians to go hungry. In 1909, the District Magistrate of Nasik127 ordered Khare ‘to
execute a personal recognizance of Rs. 2,000…to be of good behaviour for one year, with two
substantial and respectable sureties for Rs. 1000 …each’. A question then arose before the
Bombay High Court as to whether Khare’s licence to practise law ought to be suspended as well.
A bench of Justices Chandavarkar and Heaton ordered that Khare’s sanad, or law licence, would
be suspended for a year, after which he would have to appear before the court again in order to
have it restored.128 Once more, the colonial government was paying close attention to cases of
this kind, and after the decision was announced, the Government of India notified the Secretary
of State by telegram.129
Another such case arose in 1919, and involved three lawyers, practising in Ahmedabad, who
took the so-called ‘Satyagraha pledge’130 to disobey the Rowlatt Bills, which we have previously
encountered, in the event that they became law.131 The Rowlatt Bills sought to normalize a
wartime statute which impinged upon civil liberties. The District Judge forwarded the case to the
High Court, and the question before the court was whether the lawyers should be disciplined for
taking the pledge. The case was heard by a Full Bench, that is, a bench of three judges, only one
of whom was an Indian.132 The court decision was unanimous.133 In the majority judgment,
Chief Justice Macleod said that there was nothing wrong with citizens expressing their opinions
as to the merits or demerits of a proposed legislative measure, but the Satyagraha pledge went
much beyond ‘a mere expression of opinion’. The court held that it would be disinclined to grant
a sanad to any signatory of the pledge, because a lawyer could not consistently advise his clients
to obey the law while simultaneously taking a pledge to disobey the law. However, the lawyers
were only let off with a warning,134 and their case was dismissed for the time being, subject to
the risk that it could be brought back if the lawyers misbehaved. This caused considerable
dissatisfaction within the government, and a debate ensued about whether the decision should be
appealed.
The Bombay High Court was also responsible for bankrupting an anti-government
newspaper, the Bombay Chronicle.135 The Collector of Dharwar had filed a defamation suit
against the newspaper, upon which the court issued a decree against the paper, forcing it to go
into liquidation.136 The Bombay Chronicle was a noted critic of the government, and its editor,
Benjamin Guy Horniman, had been summarily deported to England in 1919.137
Another important case relating to the right to protest in British India was the Sergeant Carter
case, which Chief Justice Chagla discussed in his autobiography.138 A statutory commission
under the chairmanship of John Simon had been set up by the British government in the 1920s to
look into constitutional reforms in India.139 The ‘Simon Commission’ was boycotted by Indian
political parties, and a procession was being led in Bombay in protest, with banners like ‘Down
with British Imperialism’ and ‘Simon, Go Back’ on display. During the procession, a British
sergeant of police, Carter, assaulted two young lawyers. Carter was prosecuted and convicted
before the Presidency Magistrate, an Indian judge by the name of M.S. Pandit.140 The case came
up in revision before a Division Bench of two Indian judges of the Bombay High Court—
Justices Mirza and Patkar. Then, the British Chief Justice, Amberson Marten, unexpectedly took
the ‘extraordinary step’ of withdrawing the case from this bench and hearing it by himself with
another British barrister judge, Norman Wright Kemp. Sergeant Carter was acquitted by this
bench. According to Chagla, the bench perpetrated various irregularities of procedure: for
example, the judges re-appreciated the evidence despite the case having come up in revision, and
no lawyer appeared to support the conviction (though an empirical observer of the court’s docket
would notice that lawyers seldom appeared on either side in revision cases during the colonial
era). Chagla wrote that the British Chief Justice withdrew the case from Indian judges because he
wanted Carter acquitted, and could not trust his Indian colleagues to do so:
The motive behind the procedure was evident, the sole object being to acquit Sargeant Carter, and to condemn the Simon
boycott agitation. Sir Amberson Marten could not trust the two Indian judges to deal with the matter, but had to have an
English bench to handle a petty case of assault.141
In fact, as a young lawyer, Chagla, later the first Indian Chief Justice of the Bombay High Court,
criticized the Sergeant Carter decision in an article intended for the Bombay Law Journal.
However, the journal decided not to carry Chagla’s article for fear of being committed for
contempt of court. Chagla and his colleague, Purshottam Tricumdas, resigned from the editorial
board of the Bombay Law Journal in protest.142
However, Indian judges on the Bench were not always viewed with suspicion by the colonial
government in political cases. The use of Davar in the Tilak case speaks to this. Another good
example of an Indian judge who decided in favour of the government in political cases was
Justice Chandavarkar, who we have encountered in Chapter 2. Chandavarkar was a
contemporary of Tilak’s—in 1877, both Chandavarkar and Tilak were among only a handful of
students to graduate from the B A program of Bombay University in the first class.143 In a non-
political case prior to Tilak’s trial in 1908, Chandavarkar had held against Tilak in harsh terms,
accusing him of giving false evidence.144 ‘Mr. Justice Chandavarkar is a Hindu Judge of the
highest reputation,’ wrote Valentine Chirol, a British journalist, ‘and the effect of this judgment
is extremely damaging to Tilak’s private reputation as a man of honour, or even of common
honesty.’145 Chandavarkar was eventually reversed by the Privy Council. Subsequently,
Chandavarkar played a key role during the Savarkar brothers’ cases.146 The Savarkar brothers
were revolutionary leaders who conducted their operations in London and Nasik. Though
Marathi was not his native tongue, Chandavarkar understood and spoke Marathi. In 1909, the
case of Ganesh Damodar Savarkar came before a bench of Justices Chandavarkar and Heaton (a
Civilian judge). Savarkar had been convicted by a Sessions Judge at Nasik for writing four
poems in a series of eighteen Marathi poems published in the book Laghu Abhinava Bharata
Mala. Citing mythological and historical examples in support of their premises, the poems
suggested that independence for India could only be achieved by means of violence. Savarkar
had appealed against his conviction to the Bombay High Court. The poems had been translated
to English for the benefit of the judges, but Chandavarkar brought his special knowledge of
Marathi to the case. ‘The translation of the poems into English brings out the sting clearly
enough,’ he wrote in his judgment, ‘but to those who know Marathi, who can either sing or
understand the poems sung, the venom is too transparent to be mistaken for anything else than a
call to the people to wage war against the British Government.’147 The sentence was affirmed,
and Savarkar was sentenced to transportation for life. Chandavarkar’s decision in the Savarkar
case proved that Indian judges were trustworthy for the colonial government in political cases as
well. Several years later, the Rowlatt Committee, which had Chief Justice Basil Scott of the
Bombay High Court as one of its members, referred to the Savarkar decision and the fact that ‘a
Marathi-speaking Judge’ had characterized Savarkar’s poems as illegal.148 Subsequently, the
‘Nasik Conspiracy’149 trials, centring around Ganesh Savarkar’s more famous younger brother,
Vinayak Damodar Savarkar (called ‘Veer Savarkar’), were heard by a special bench which had
Chandavarkar on it.150 Veer Savarkar was tried for surreptitiously sending twenty Browning
pistols with ammunition, from London to Bombay, with intent that they would be used to
assassinate political targets in India.151 Veer Savarkar too was sentenced to transportation for
life.
However, not all political cases ended in favour of the government.152 We have already seen
that Tilak’s final encounter with the High Court ended successfully for him. Another such
example was the Kahanji sedition case, decided by Justice Ranade in 1897. Against the backdrop
of the Hindu-Muslim riots, in 1893, a Hindu newspaper editor published a poem with the lines,
‘Fight again for your country’s good. / Brave, brave are the Kamatis’.153 He was convicted of
sedition by the district court. On appeal, Ranade reversed the sentence.154 Apparently, the
Governor of Bombay, Lord Harris, was not pleased with this decision, and he said, ‘this decision
discouraged Government from prosecuting the authors of what Government might regard as
inflammatory publications, except upon the most confident opinion from their legal advisors’.155
In fact, several years later, Ranade wrote a concurring opinion in another sedition case in which
he strongly disagreed with Arthur Strachey’s definition of the term ‘disaffection’ in Tilak’s case.
In that case, the bench of Parsons and Ranade reduced the sentence against the accused Natu
brothers, in marked contrast to the strong sentence which had been issued against Tilak.156
When political cases were decided against the government, the government had no option but
to respect the court’s decision. For example, the Indu Prakash reported the government’s
helplessness when the court decided against its position in a case referred to as the ‘Poona Riots
Case’ in the late nineteenth century. The Sessions Judge of Poona had acquitted the accused. The
government appealed, but the High Court rejected the appeal. After the decision, the Indu
Prakash wrote: ‘The High Court rejected the appeal and so the Government has to keep quiet.
This surely does not add to the dignity of Government.’157
There were murmurs that judges were not able to decide political cases objectively. In the
late nineteenth century, Chief Justice of the Calcutta High Court, Lawrence Jenkins wrote to
Secretary of State Morley that it was understood that subordinate judges would be promoted if
they convicted Indians in ‘political cases’, and added that it had ‘gone out of fashion to give the
prisoner the benefit of the doubt’.158 When Sir Shadi Lal retired as Chief Justice of the Lahore
High Court in 1934, he recounted an English case where a communist had sued the chief of
London police and won. Hinting at cases involving nationalists in India, Lal continued: ‘Would it
be improper to ask what would be the thought of a judge in India who acted in a similar manner?
Would he not thereby subject himself to disfavour and even resentment which would be
manifested in no uncertain manner?’159 However, Chief Justice Beaumont, who served on the
Bombay High Court between 1930–43, wrote in his reminiscences that judges were able to keep
their political ideologies separate from their decision-making on the court during his tenure:
In the years 1930 to 1943, which covered my span of duty, there were political troubles which resulted in a good many
convictions on charges of sedition, and many such cases came on appeal or revision to the High Court. It was of course
inevitable that judges, whether English or Indian, would have their own political sympathies, which had to be suppressed on
the Bench. I only know of one case in which a judge allowed his political sympathies to influence the exercise of his
judicial discretion.160
CULTURAL INDEPENDENCE, IDEOLOGICAL BIAS, AND STRATEGIC SELF-
INTEREST
To briefly recap, we have seen thus far that the Bombay High Court usually decided routine
criminal cases in favour of the accused, but politically sensitive criminal cases (often involving
sedition) in favour of the government. The distinction between ‘political’ cases and apolitical
cases was clearly drawn out in the colonial judge’s mind,161 and the evidence suggests that these
two kinds of cases were decided differently. This raises two important questions. First, how
could the court’s judges have decided routine, criminal cases against the government, despite the
fact that they lacked security of tenure as we have seen in the previous chapter? Second, and
perhaps more importantly, did the fact that the court decided political cases in favour of the
government mean that its judges were not independent of the other branches of government?
It might be useful here to refer to the literature on judicial independence in authoritarian
regimes.162 Though judicial independence is more easily associated with liberal democratic
regimes, scholars have shown that courts in authoritarian regimes also sometimes have features
of judicial independence, because, among other reasons, illiberal authoritarian regimes need the
legitimacy which independent courts can bring them. For example, Inga Markovits demonstrated
that even judges in a town in communist East Germany enjoyed a certain measure of
independence. Where they decided cases in favour of the regime, Markovits found, they did so
not out of ‘blind submission’, but because of their belief in the benevolence of the regime
itself.163 Few judges there lost their jobs due to political reasons, not because of political
toleration, but because the selection process for the judiciary ensured that judges shared the
regime’s political ideologies, and because competent judges were hard to replace.
However, this literature typically argues that the judicial independence found in authoritarian
regimes is flawed for at least two reasons: first, independent courts do not get to decide
important politically sensitive cases, but only ordinary cases which pose no threat to the
regime;164 second, the courts in authoritarian regimes which do decide politically sensitive cases
decide them in favour of the regime either because they are pressured into doing so, or because
they chose to behave strategically so that they can live to fight another day. We have seen that
the Bombay High Court decided routine criminal cases independently, but politically sensitive
cases in favour of the executive government, which makes it resemble marginally independent
courts in authoritarian regimes.
What explains the fact that the Bombay High Court decided routine criminal cases against the
government even though its judges lacked security of tenure? One explanation could be that the
government simply did not care about these cases, because routine criminal cases did not pose
any serious threat to the existence of the British Empire. However, it would not entirely be
correct to say that the routine criminal cases decided by the Bombay High Court were
unimportant. These cases were ‘routine’ in the sense that they did not create national or
international headlines, or involve offences which posed a serious danger to the very existence of
the British Empire, but that does not mean that they were inconsequential to colonial officials
and administrators on the ground. Criminal cases were often launched against defendants as a
result of the decisions of colonial officials: police officers, bureaucrats, and prosecutors. Though
these officials were not necessarily high-ranking colonial officials like the Governor of a
province, they were nonetheless a vital part of the government. The criminal cases decided by the
Haridas-Wedderburn bench in the nineteenth century could hardly be described as unimportant,
though they were not political cases. Most criminal cases which arose before the Bombay High
Court came by way of an appeal, which naturally meant that these cases were important enough
to be heard and decided by the Bombay High Court. Therefore, it is not entirely true to say that
these cases were unimportant or inconsequential for the colonial government, though they may
not have been important enough for powerful, high-ranking government officials to get
concerned about. In fact, Sir Richard Temple, Governor of Bombay between 1877–80, claimed
to have taken special pains to ensure that the High Court functioned independently in routine
criminal cases. As he later wrote in his autobiography:
At Bombay…I maintained the best possible relations with the High Court of Justice….In the execution of the Criminal Law
I was anxious to give due support to its authority. Sometimes pressure was put upon me from the outside to interfere with
sentences capital and other. But I steadily refrained from doing so, save by the advice of the Judges.165
The independence of the Bombay High Court in routine, criminal cases probably had something
to do with judicial culture. After all, the mere fact that the Bombay High Court’s judges were
free to decide routine criminal cases against the government does not explain why those cases
were actually often decided against the government. That might be explained by culture: it is
possible that though the judges of the court were not structurally independent, they were
culturally independent. The Chief Justice of the Bombay High Court was always a British
barrister brought to India from the practising Bar in the United Kingdom, and it is possible that
the Chief Justice brought the cultural independence of the British Bar and judiciary with him to
India. ‘The British barristers, who practised in this Court’, wrote one colonial-era Indian judge of
the Bombay High Court, ‘brought with them the traditions of the English Bar’,166 including a
tradition of independence.
There are many anecdotal examples which suggest that Bombay High Court Chief Justices
fought against the other branches of government in order to preserve the independence of the
judiciary during the British Raj. We have already seen, in the previous chapter, how Chief
Justice Sargent, who held the office of Chief Justice between 1882–95, stood up for his judges,
Pinhey and Bayley, when the Governor was annoyed by one of their decisions. Consider the
additional examples of Chief Justices Westropp, Jenkins, Scott, Macleod, and Stone:
Michael Westropp held the office of the Chief Justice of the Bombay High Court between
1870–82. In this capacity, he often exchanged letters with the Governor of Bombay on
administrative matters like the expenses of running the court, delays in the administration of
justice, or leave rules affecting judges.167 In one such letter, Westropp, used harsh language to
criticize a resolution he had received from the government about the expenses of running the
Bombay High Court. In his letter to the government, Westropp accused the author of the
government resolution of being ‘an incompetent writer, possessing no value beyond the
expression of a desire for economy’. The Government of India strongly objected to Westropp’s
language. In the file maintained on the issue, one official in the government accused Westropp of
demonstrating a ‘considerable ignorance of official usage and a somewhat petulant intolerance of
control’. Over the question of how to deal with Westropp, the government official wrote down:
‘In dealing with [the matter] we should bear in mind the relaxing character of the Bombay
climate, which is very conducive to nervous irritability.’168
In Chapter 1, we encountered Lawrence Jenkins, who held the office of the Chief Justice of
the Bombay High Court between 1899–1908. Jenkins brought a culture of judicial independence
even to political cases, and he believed that the local government had to be distrusted in ‘matters
of this class’.169 In fact, Jenkins became an unpopular figure in the government for his judicial
independence in political cases. An incident which took place in Madras in 1918 illustrates this
well.170 The incident took place in the courtroom of Sydney Gordon Roberts, a British member
of the Indian Civil Service, who was serving as the Sessions Judge of South Arcot in the Madras
Presidency. An Indian lawyer appearing before Roberts cited a judgment of Lawrence Jenkins, in
a case which had been decided while Jenkins was on the Calcutta High Court. After citing
Jenkins’ judgment, the lawyer said, ‘[t]he judgment was that of that eminent judge, Sir Lawrence
Jenkins, now of the Privy Council, and is entitled to great weight’. This infuriated the Civilian
judge Roberts, who retorted, ‘Jenkins! He is a scoundrel, despicable scoundrel.’ Perhaps in some
disbelief, the lawyer continued, ‘I am referring to Sir Lawrence Jenkins, formerly Chief Justice
and now of the Privy Council.’ Unfazed, the judge responded, ‘Yes, Sir, I know. He is an
infamous scoundrel. He is a disgrace to our race. Don’t mention his name.’ Finally, at the end of
the case, the judge concluded:
You see, Jenkins was a Judge who was anxious to earn cheap popularity. He always twisted the Penal Code and the
provisions of the Criminal Law, and let go unpunished a large number of scoundrels. He never cared for the spirit of the
law. His judgments were responsible for the passing of the Defence of India Act, and the weakening of the hands of the
Government. Don’t refer to his name.171
Though Roberts issued a solemn public apology soon thereafter, his comments did not go
unnoticed. Taking note of ‘the violent and improper language’ and the ‘gross breach of
propriety’ in his ‘unseemly outburst’, the Government of Madras ‘severely reprimanded’
Roberts, and, after consulting with the Madras High Court, forced him to resign.172 It was well
known that Jenkins was an unpopular figure among British officials in India on account of his
sympathies towards Indians. In his private correspondence with Viceroy Minto, Secretary of
State Morley wrote that Jenkins was considered to be a ‘Pro-Native partisan’.173
Basil Scott held the Chief Justiceship of the Bombay High Court between 1908–19. When
the Delhi Durbar was held in 1911 to crown King George V and Queen Mary, Scott was
displeased by the fact that he and his brother judges were going to be presented to the king and
queen as representatives of the Bombay government, while the Chief Justice and judges of the
Calcutta High Court were going to be presented to them separately.174 Scott requested that he
and his colleagues be presented to the king and queen separately, like the Calcutta judges, but the
request was refused. Scott then devised an ingenious trick to get around this problem (according
to one subsequently annoyed British administrator, it was a ‘deadly plot’175). On the day of the
coronation, when the Bombay High Court judges were presented to the king and queen, they
quickly formed a semi-circle around them, blocking everybody else from the Bombay
Government’s deputation out, then swiftly bowed and left the stage, making it seem as though
they too had been presented to the king and queen separately, not as part of the Bombay
government. Though this seems like a minor issue, matters of protocol and precedence were
taken very seriously in British India. Through this symbolic act, the judges of the Bombay High
Court had managed to assert their independence from the executive, and to establish their
coordinate status with the Calcutta High Court.
Norman Macleod was the Chief Justice of the Bombay High Court between 1919–26, and he
repeatedly fought with the executive government on administrative matters. In 1919, he asked
for three more judges to be appointed to the court, to help reduce the case arrears on the Original
Side, but the government refused.176 In return, Macleod ‘openly and publicly’ attacked the
Bombay government.177 In 1925, Macleod also fought the Bombay Government over the
appointment of the Registrar of the Appellate Side.178 The Bombay Government wanted to
introduce a rule that only members of the Indian Civil Service would be eligible to hold the post
of Appellate Side Registrar. However, Macleod was pleased with the work that was being done
by the acting Registrar of the court, N.D. Gharda, who was an Indian Pleader, and who would be
disqualified from becoming the permanent Registrar if the Bombay Government’s rule came into
being. Macleod contended that it was only the Government of India, not the Bombay
Government, which had the ‘powers to make rules limiting the Chief Justice of Bombay in his
selection of officers for employment in the High Court’. This question was eventually referred to
the Privy Council, and Macleod insisted on being represented in its proceedings at state expense.
Though Macleod finally lost this fight too,179 when the Privy Council held that the Bombay
Government could introduce the rule it wanted, the government paid for the solicitors who were
engaged by Macleod before the Privy Council. Given Macleod’s contentious relationship with
the executive, in 1926, he should not have been very surprised by the fact that he ‘did not even
get a notice in the gazette commending [his] services’ when he retired from office.180
Leonard Stone was the last of the British Chief Justices of the Bombay High Court, and he
held the office between 1943–7.181 In 1945, he wrote a long memorial to the Secretary of State,
complaining about how the colonial government had resorted to unacceptable, repressive
measures during the II World War to curb individual liberty.182 The government’s wartime
measures, he wrote, provided for the detention of persons without trial, for the arrest of persons
by the police without warrant, and for the censorship of habeas corpus petitions. Stone advised
the Secretary of State that it was a ‘sincere belief’ among ‘many responsible and respectable
people in India’, that ‘grave abuses’ had taken place, and that the public faith in Justice had been
impaired. Concluding with a flourish, he warned the Secretary of State that unless the situation
were attended to, the ‘legislative-executive will continue to usurp judicial functions until Justice
is bankrupt’. Stone wrote in his memorial that even before the war, there had been a tradition of
‘hostility between Government and the High Courts’, and that the High Courts in India had
always fought off attempts by the other branches of government to impinge upon judicial
independence. ‘Whilst executive strategy has fluctuated between calling upon Judges to co-
operate and devising means for curtailing judicial independence by gaining administrative
control over the Courts,’ he wrote, ‘the Judges, blind to policy and suspicious of co-operation,
have struggled for their independence, not only on the Bench, but in their conditions of service
and in their superintendence over the administration of Inferior Courts, both Civil and Criminal.’
Rather than undermining the court’s independence, then, the practice of having a member of
the British Bar serve as the Chief Justice of Bombay probably bolstered the court’s
independence. Having been brought up in a cultural environment of judicial independence, the
British Chief Justice probably engendered a similar atmosphere of independence on the colonial
High Court in Bombay, where the judiciary consequently acted independently of the executive.
The idea of judicial independence, then, is not merely structural, but also cultural.
Could it be that the conviction rate in routine, day-to-day criminal cases was so low because
most criminal cases were initiated upon a private complaint as against a police report? Broadly
speaking, a magistrate in India can take cognizance of a criminal case either upon a police report,
or upon a private complaint. Could it be that most of the routine criminal cases decided in the
Bombay Presidency during the British Raj were initiated upon a private complaint, as opposed to
being initiated by the police and prosecutorial administration of the state? This is a possibility, as
there are scarce data which tell us whether criminal cases in the British Raj were initiated upon a
private complaint or police report. However, even assuming that the vast majority of criminal
cases were initiated in Bombay Presidency upon a private complaint, the central thesis presented
in this book still stands. After all, if most of the criminal cases were, in reality, contests between
private parties, then the state hardly had any opportunities for coming into conflict with
individuals at the Bombay High Court, and hence, the day-to-day decision-making of the High
Court presented very few occasions for the ordinary observer to question the independence of the
High Court. In other words, the Bombay High Court decided so few politically sensitive cases
involving serious contests between the state and individuals (cases like the Tilak trials) during
the colonial era, that it was largely perceived to be a court which functioned independently of the
executive government.
Why, then, were the politically sensitive cases mostly decided in favour of the government?
183 Cases like the Tilak case were important enough to attract the attention and concern of high-
ranking colonial officials, but what mechanism, if any, ensured that colonial judges decided these
cases favourably? Since most of the politically sensitive cases arose in the early twentieth
century, the judges were quite unlikely to have been afraid of being removed from office for
deciding an important case against the government. This is because we have seen that after 1899,
the Secretary of State instituted an informal policy of not removing judges except for
misbehaviour, and deciding a case against the government did not constitute misbehaviour. I
have also not been able to find any archival evidence which might suggest that colonial judges
were pressured by the administration into deciding politically sensitive cases in favour of the
government after 1899. Quite the contrary, the government’s file on Davar seen in the previous
chapter suggests that many colonial officials were concerned about preserving the independence
of the judiciary.
It is possible that politically sensitive cases were decided by the Bombay High Court in
favour of the government because the court was acting strategically, like some courts do under
authoritarian regimes. The court might have decided to hold in favour of the government so that
it could live to fight another day—to decide sensitive cases against the government so that it
could retain the power to decide the vast bulk of its routine cases independently. Another kind of
strategic thinking might have gone into the court’s decisions in these cases as well, based more
on the self-interest of the individual judge. Think about Justice Davar, who wanted an extension
in office so that he could earn a full pension. Though Davar had no reason to worry about being
removed from office for potentially deciding the Tilak case against the government, he might
have thought (though there is no hard evidence which points in this direction) that if he decided
the case in favour of the government, his request for an extension might have been considered
more favourably. Rational, self-interested judges might therefore have thought that it was in their
best interest to decide politically important sensitive cases in favour of the government, so that
they could earn discretionary favours from the government. It bears repeating that there is no
hard archival evidence to suggest that this kind of strategic thinking was prevalent on the
Bombay High Court in the colonial period.
Another view is possible as well: the Bombay High Court in the colonial period decided
politically sensitive cases independently and with all integrity, that there was no pressure or
strategic thinking involved in such cases. This view is based on the idea that there is a difference
between judicial independence and ideological bias, and though the judges of the Bombay High
Court were independent of the other branches of government, they had an ideological bias in
favour of British rule in India. It is possible that judges like Davar and Chandavarkar decided
political cases in favour of the government because they genuinely believed, howsoever
incorrectly, that the prisoners before them posed a serious threat to life as they knew it. Though
the judges of the Bombay High Court were independent of the executive, they shared some of
the core ideological beliefs of the executive, like Inga Markovits’ East German judges. Just as a
communist was unlikely to have been appointed to the United States Supreme Court during the
Red Scare, a nationalist was unlikely to have been appointed to the Bombay High Court during
the British Raj. That did not mean, however, that either of these courts was not independent,
though it might have been ideologically biased.184
On the United States Supreme Court, judges often share the partisan biases and ideologies of
the political party responsible for appointing them, but nobody would question the fact that the
judges of the court are independent of the other branches of government, despite those biases. A
conservative justice on the United States Supreme Court may harbour conservative ideological
biases, but judges may be independent of the other branches of government despite this.
Likewise, the judges of the Bombay High Court too shared the ideological biases of the
imperialist regime. They had grown up, prospered, and risen to power under British imperialism,
under conditions which made them think of the existence of British rule in benevolent terms.
They did not hesitate to hold against the government in cases which did not challenge the
fundamental character of the way of life they were familiar and comfortable with. Yet, when the
existence of British imperialism itself was challenged, the judges decided the case in favour of
the government, not necessarily because they lacked independence, which they did not in most
cases, but because they genuinely believed in the benevolence of British rule in India.
To sum up our comparison of the colonial-era Bombay High Court with independent courts
in authoritarian regimes, we must note two things. First, the routine criminal cases which the
court regularly decided against the government were not exactly unimportant cases, and these
cases were possibly decided against the government on account of a spirit of judicial
independence imported to the colonies by British Chief Justices who came from the metropole.
Second, and more importantly, the court was not precluded from hearing important, politically
sensitive cases, and where the court’s judges decided these cases in favour of the government,
they usually did so not out of fear of reprisal, but out of strategic self-interest or ideological bias.
Finally, it is also important to emphasize here that the sensational political cases which came
up before the Bombay High Court—cases like the Tilak case of 1908—were rare occurrences on
the court. We have seen that most of the cases the court decided were ordinary cases involving
no politically significant or sensational outcomes. Perhaps this helps explain why the Bombay
High Court retained its perceived legitimacy and transitioned seamlessly from colonialism to
independence after 1947. Most of the cases the court decided were routine cases, which were
decided independently of the other branches of government. Therefore, as an institution, the
Bombay High Court was perceived to be an independent court. It was rare for cases like the
Tilak case to come up before the court, especially in the final decades of the Raj. Therefore, by
the time India became independent, the Bombay High Court had earned the reputation of having
functioned independently in most of the day-to-day cases of the court, despite a few aberrations.
***
Thus, this chapter has suggested that the colonial judiciary had a certain degree of independence
from the other branches of government, despite the fact that it was not formally or structurally
independent for much of the British Raj. We saw in the previous chapter that High Court judges
in colonial India held their offices during the ‘pleasure’ of the Crown until 1935. Even so, the
Bombay High Court’s judges decided their cases independently of the executive, though there
was always the theoretical risk that they could be removed from office. Much of the literature on
judiciaries argues that structural security of tenure is indispensable for achieving the
independence of the judiciary. This chapter suggests otherwise. Judges on the High Court of
Bombay were arguably rather independent despite lacking formal security of tenure.
The independence of the judiciary is not always structural, but also cultural. Routine, day-to-
day criminal cases were often decided in favour of the accused, not the government. This is
surprising because we know that the court’s judges lacked security of tenure. However, it was
perhaps the cultural independence of the Bombay High Court’s judges—a culture of
independence imported to Bombay from the British Bar and Bench—which made the court
decide criminal cases against the government.
Further, there is a difference between judicial independence and ideological bias. A judge
may harbour an ideological bias, but that does not mean that he is not independent of the other
branches of government. A conservative justice on the United States Supreme Court harbours a
preference for the conservative point of view, but he is still independent of the other branches of
government. Likewise, though the Bombay High Court’s judges might have harboured an
ideological bias in favour of British rule, they were still independent of the other branches of
government.
Perhaps most importantly, the Bombay High Court probably derived its legitimacy from the
routine, day-to-day cases it decided. The overwhelming majority of the cases decided by the
court in the colonial era were routine cases, which were decided quite independently of the other
branches of government. Political cases like the Tilak case were rare occurrences on the court. It
was perhaps for this reason that the court earned a reputation for being an independent court. The
political cases were too few to permanently and indelibly tarnish the image of the court.
Conclusion
Now let us return to the question with which we began: why did the Bombay High Court
transition so seamlessly from colonialism to independence? In the colonial era, the court had
been responsible for sentencing many of India’s most prominent nationalist leaders to prison.
Yet, none of the court’s judges were penalized, or removed from office, in independent India.
Instead, colonial-era lawyers and judges continued to command respect in India’s legal
profession. This book has made the case that the survival of colonial courts like the Bombay
High Court in independent India can, at least partially, be explained by looking at how those
courts functioned and evolved under the British Raj. The claim is not that courts in British India
were normatively legitimate institutions because they ‘correctly’ decided cases substantively.
Instead, the claim is that in many ways, colonial courts were perceived to be legitimate, and to
not be oppressive colonial institutions of injustice, especially by those who had the power to
change things after India became independent.
India became independent on 15 August 1947. Though Chief Justice Leonard Stone was
possibly forced out of office,1 all the remaining judges of the Bombay High Court under the
British Raj now comfortably transformed into becoming High Court judges in independent India.
Included among the court’s judges at this time was the British Civilian judge, Eric Weston. Not
merely did Weston continue as a judge of the Bombay High Court after Indian independence in
1947, but in 1950, he was even appointed to the Punjab High Court as its Chief Justice, despite
the fact that he was a member of the Indian Civil Service.2 Mahomedali Currim Chagla, a judge
who had been appointed to the Bombay High Court during the British Raj in 1942 under the
reviled Chief Justice Beaumont, and whose warrant of appointment at that time had referred to
him as the British King’s ‘Trusty and Well Beloved’ subject,3 became the first Indian Chief
Justice of the Bombay High Court in independent India, superseding the most senior judge of the
court, the Civilian judge Kshitis Chandra Sen.4
India was still a British dominion between 1947–50, which was reflected in the judicial
system. The High Courts were regulated by the Government of India Act, 1935, a law enacted by
the British Parliament. More importantly, the Privy Council in England still had final appellate
jurisdiction over Indian courts up to 1949, and partially even up to 1950.5 No significant
personnel changes occurred in the Bombay High Court during this period of transition: the
court’s judges, for example, were not all summarily dismissed from office. In fact, when the new
Constitution of India came into force on 26 January 1950,6 Article 376 of the Constitution
specifically provided that ‘the Judges of a High Court in any Province holding office
immediately before the commencement of’ the Constitution would, unless they chose not to,
automatically become ‘the Judges of the High Court in the corresponding State’, entitled to all
the salaries and benefits of High Court judges under the new Constitution.7 In fact, though Indian
citizenship was an essential eligibility criterion for becoming a High Court judge under the
Constitution of independent India, an amendment8 to Article 376 in 1951 specifically provided
that any colonial-era judge who was not a citizen of India was still entitled to be appointed to the
Chief Justiceship of a High Court. In other words, the framers of India’s Constitution specifically
wanted to ensure that colonial-era British judges, who were not Indian citizens, could hold high
judicial office in independent India. What explains this seamless transition of colonial judicial
institutions from the British Raj to independent India?
First of all, the process of decolonization in colonial courts was gradual, and had lasted
several decades, such that on the eve of India’s independence, the Bombay High Court was no
longer perceived to be a British court, but was, in many ways, an Indian one, and had been one
for some time.9 The court in the colonial-era was meant for deciding ordinary cases between
Indian litigants. In a sense, the Bombay High Court was an Indian court from its very inception:
even in the 1860s, its litigants were overwhelmingly Indians, and its Appellate Side Bar
consisted almost exclusively of Indian lawyers. When it was set up, however, two components of
the Bombay High Court were entirely British in their composition: first, the court was staffed by
an exclusively British judiciary, and second, its prestigious and well-remunerated Original Side
Bar overwhelmingly consisted of British barristers and solicitors. The institutional design of the
court and the legal profession ensured, in the initial years, that these two components of the court
would remain in British hands. By law, two out of every three judges of the court had to be
barristers and Civilians—professional categories which were usually dominated by Britons.
Travelling to England was expensive and cumbersome for most Indians, and against the rules for
upper-caste Hindus. The Chief Justice of the court had to be a barrister—a requirement which
prevented Indian judges from ever holding the most important judicial post in the Bombay
Presidency during the British Raj. It was easier to become an ‘Advocate’ on the Original Side of
the High Court if one were a barrister called to the Bar in the United Kingdom, as opposed to
merely having had a law degree from the Government Law School.
Yet, Indian lawyers were not marginalized under the British Crown to the same extent as they
had been under the East India Company, and Indians slowly started infiltrating the higher
echelons of the legal profession under the British Crown. First, in the nineteenth century, Indian
solicitors rose in prominence on the Original Side of the court, perhaps as a result of a market-
driven process whereby Indian litigants preferred to retain Indian solicitors, with whom they bore
a cultural affinity (or perhaps because they were cheaper than British solicitors who had an eye
towards retiring in Britain). There were hardly any Indian solicitors practising before the
Supreme Court in the Company era, but under the Crown, Indians started qualifying as solicitors
on the Original Side. Indian solicitors were able to secure equally good results for Indian litigants
as British solicitors, which made them an attractive option for the Indian litigant. Second, in the
early twentieth century, the identity of the Original Side Bar fundamentally changed—by the
1920s, the front-ranking lawyers on the Original Side of the court were Indians, and only a
handful of prominent British lawyers remained at the Bar. Succeeding at the legal profession
often meant that Indians had to disregard or reform social norms. In order to become barristers
and Civilians, Indians had to overcome their distrust of travelling overseas. Hindu caste
prohibitions were initially ignored and later reformed by ambitious law students in order to
facilitate career-enhancing journeys to the metropole. Third, by the 1940s, the Bench of the
Bombay High Court had almost entirely been decolonized—eleven of the thirteen judges of the
court, on the eve of independence, were Indians. The decolonization of the colonial judiciary
reflected the decolonization of the colonial Bar. In a process which had stretched out over
decades, the identity of the court had slowly transformed—from being a partially Indian court,
the court had become an almost entirely Indian court, even before India became independent in
1947. Thus, the process of decolonization in the Bombay High Court was not a revolutionary
one, but one which took place over several decades, starting even in the nineteenth century prior
to the rise of the nationalist movement.
The composition of the judiciary was not always determined solely by official, top-down
policies like the Morley-Minto or Montagu-Chelmsford reforms, but was vastly influenced by
bottom-up changes which took place on the ground, changes like the increasing competition at
the Bar. For example, a shift took place in the background of Indian judges who served on the
court between the nineteenth and twentieth centuries. While nineteenth century Indian judges
were usually ‘public spirited’ lawyers, like Telang and Tyabji, twentieth century Indian judges
like Davar and Lallubhai Shah were legal professionals with no interest in politics. This change
took place less as a consequence of conscious recruitment strategies adopted by the colonial
administration, and more as a result of fundamental changes which had taken place in the legal
profession and in Indian politics at this time.
Next, the colonial judiciary surprisingly behaved in a manner which was remarkably
independent of the executive branch of government, from day-to-day, despite the fact that judges
did not enjoy formal security of tenure until 1935. Cases like the Tilak case decided in 1908
seldom came before the Bombay High Court, and the overwhelming majority of cases decided
by the court in the colonial-era were routine cases which were decided independently of the other
branches of government. In other words, the Bombay High Court was not seen as a political
court exercising coercive functions under the British Raj—it was mostly an apolitical court
which played a facilitative role in deciding routine cases usefully.
Judges held their offices during the ‘pleasure’ of the Crown, and it was only with the
Government of India Act in 1935 that they held their offices during ‘good behaviour’, though
incidents involving judges like Robert Hill Pinhey did not take place after 1899 when judges
enjoyed informal security of tenure. Many judges were ‘acting’ judges with even less job
security than regular puisne judges. A large proportion of the judges of the Bombay High Court
were members of the Indian Civil Service—officials who began and ended their careers in the
executive government. In the nineteenth century, troublesome Civilian judges like Jardine and
Wedderburn were penalized by the government, though there were scarce examples of this
occurring later on. Further, the Chief Justice of the court was always a Briton. Yet, criminal
cases—cases which most often brought individuals into direct conflict with the colonial
government—were often decided against the government and in favour of the Indian accused,
and in the Presidency of Bombay, the conviction rate in criminal cases was modest.
The Bombay High Court appeared to decide routine criminal cases independently of the other
branches of government, but sensational political cases like the Tilak case in favour of the
government. There are many possible reasons which might explain why routine criminal cases
were often decided in favour of the accused. Perhaps these cases were not important enough to
attract the attention of high-ranking colonial officials like the Governor of the Presidency, and so
courts like the Bombay High Court felt free to decide them fairly, in order to earn some
legitimacy. Perhaps it had to do with judicial culture—the British barristers who came to
Bombay as Chief Justices might have brought the culture of judicial independence from the
British Bar and Bench to the Bombay High Court, and fostered a culture of independence in day-
to-day cases. We have seen anecdotal evidence that Chief Justices like Westropp, Sargent,
Jenkins, Scott, Macleod, and Stone, all fought off the executive in order to retain the
independence of the judiciary. Perhaps the independence of a judiciary, then, has more to it than
structure. Or perhaps the routine criminal cases were mostly initiated upon private complaints,
with the result that the vast majority of cases which came up before the Bombay High Court did
not involve serious contests between the colonial state and the individual at all, leaving scarce
opportunities open for anyone to question the court’s independence.
Likewise, there are many possible explanations for why sensational political cases were
usually decided in favour of the government. Perhaps the judges were acting out of strategic self-
interest, either to live to fight another day, or to get some discretionary favours from the
government like an extension in office, which is what Davar might possibly have been motivated
by in the Tilak case. However, perhaps the fact that sensational political cases were decided in
favour of the executive points to the fact that the Bombay High Court’s judges were
ideologically biased, though still independent. The judicial appointments process was designed
to ensure that only those who believed in the benevolence of British rule would become judges.
Dissent was strongly discouraged in the legal profession—students at Indian universities had no
incentives to think critically; students of the Government Law School were barred from engaging
in contentious political debates; for a long time, the colonial government was the sole dispenser
of legal education; lawyers who took Gandhi’s Satyagraha pledge were reprimanded; lawyers
who engaged in nationalist politics were called ‘extremists’ by the officialdom and were often
kept out of the system. Indians who became judges of the Bombay High Court had prospered
under British rule, and were likely to have considered British rule to be a blessing in India.
Before his elevation to the Bench, Davar, for example, was no briefless, disgruntled lawyer on
the sidelines of the legal profession—he was one of the most prominent and successful Indian
lawyers on the Original Side of the Bombay Bar. His livelihood, his success, and his status in
society, had all come into being under conditions created by British rule in India. Davar was
therefore naturally predisposed to look upon someone like Tilak—someone who had challenged
the very existence of British colonialism and the way of life Davar was familiar with—with
suspicion and distrust. That does not mean, however, that Davar was not an independent judge,
though he might have had an ideological bias in favour of British rule. There is a difference
between being forced to decide a case a certain way, and being predisposed to deciding a case a
certain way because of one’s ideological views. Comparably, United States Supreme Court
judges are not considered any less independent for harbouring conservative or liberal ideological
biases. A judge is likely to harbour various ideological views at any given point in time,
especially in favour of the way of life he is most familiar or comfortable with, but that does not
mean that he is not an independent judge.
Finally, though race was a pervasive part of life in colonial India, the Bombay High Court
was not a symbol of racial discrimination against Indians. This claim must be made cautiously.
Indians were not permitted entry into clubs like the Byculla Club and Yacht Club, which meant
that Indian lawyers were precluded from attending dinners held in honour of retiring British
judges. The mass transit system was a breeding ground for racism and intolerance from which
Indian lawyers and judges were not exempt. British lawyers and Britons who were members of
the officialdom sometimes looked upon themselves with an air of superiority on account of their
race. Indians were racially discriminated against when it came to the post of Chief Justice of the
Bombay High Court. It was initially very difficult to qualify as an “Advocate” if you were an
Indian, and 2/3rd the seats of the court were reserved for Barristers and Civilians who were
usually Britons in the early years. ‘Special’ racialized juries, with a majority of white jurors,
were used in political cases involving sedition, or in cases involving white defendants, though
sentencing remained in the judges’ hands, and Davar’s excessive sentence against Tilak could
hardly be described as white racism against the ‘natives’. Yet, for several reasons, the Bombay
High Court was not perceived to be an irretrievably racist institution.
The British judges of the Bombay High Court were mostly not racist towards their Indian
brethren: in fact, Britons and Indians on the High Court Bench were great friends. Their
relatively similar class backgrounds helped them share warm social relations off the Bench.
Though the Bombay High Court gave Britons from marginal communities the opportunity to rise
up the social ladder, Indian judges on the court came from a relatively privileged section of
Indian society. The legal profession in Bombay itself was structured in a manner which
privileged elites. In order to succeed in the legal profession in Bombay, a person needed a call to
the Bar at one of the Inns of Court in the United Kingdom, or a law degree from the Government
Law School in Bombay city, both of which were expensive paths for the ordinary Indian student.
Indian judges of the Bombay High Court were ‘gentlemen’ in Indian society—the sons of
merchants and lawyers, they studied at English-medium high schools and universities where they
learned British history and Latin. They studied at Cambridge University in England, or migrated
to Bombay in their academic careers—which meant that they had a certain basic level of
financial resources.
Of course, there is a difference between racism at the personal and institutional levels, and
merely because there was an absence of personal racism among the Briton and Indian judges of
the Bombay High Court, does not necessarily mean that the court was not institutionally racist.
However, this book has made the case that the Bombay High Court, in many ways, was not
institutionally racist either. Only a microscopic minority (between 1–3 per cent) of the cases that
came before the court, indeed before any court in the Bombay Presidency, involved white
litigants, or white crime against Indian victims. Therefore, the Bombay High Court did not even
have the occasion to be perceived to be an institutionally racist court. The court was not
institutionally racist for other reasons as well. Indian lawyers who formally appeared before the
Bombay High Court were mostly judged on the strength of the merits of their arguments, not the
colour of their skin, and race played a marginal role in determining how lawyers got hired at the
Bombay Bar. Further, it was not race, but seniority, that determined which judge got to write the
opinion of the court in a case. There was a tone of respect in how the British and Indian High
Court judges referred to each other in their judgments, which was not so for how they treated
lower court judges – both Britons and Indians. It was a British Chief Justice—Lawrence Jenkins
—who helped Indian lawyers gain a toehold on the Original Side for the first time. It is perhaps
for this reason that Jenkins’s statue remains on the front lawns of the Bombay High Court today,
there for every judge to see as he is driven into the judges’ entrance of the court’s building each
morning. Though statues of British figures disappeared from Bombay soon after India became
independent,10 Jenkins’s statue has still been retained by the court, perhaps as a mark of respect
for the judge who encouraged talented Indian lawyers to appear on the Original Side, despite his
white racial identity, and at the risk of being openly called a ‘scoundrel’ by his white brethren in
India.
In many ways, this book ties into and sheds new light on a question posed by Marc Galanter
in a paper published in 1972.11 In it, Galanter asked why post-independence attempts to replace
India’s legal system with indigenous law and legal institutions failed. Galanter found that this
was because of several reasons: the existing legal institutions in India were supported by an
influential class of lawyers who were both dependent on it for their survival and convinced of its
general virtue; the indigenous revivalists did not suggest any vivid alternatives to the legal
system; there was no real concrete grievance against the legal system which could mobilize
popular support; and the law and legal system itself had been indigenized over the years, and
made ‘suitable to Indian conditions’.12 The history of the Bombay High Court examined in this
book suggests that over a period of time, colonial legal institutions like the Bombay High Court
had come to be seen as something quite apart from British colonialism. Galanter told us in the
1970s that an influential class of lawyers was convinced of the virtue of the legal system perhaps
because the legal system itself had been modified to suit Indian conditions. This book suggests
that Indian lawyers were convinced of the virtue of legal institutions set up during British
colonialism, not merely because those institutions were indigenized, but also because those
institutions earned perceptions of legitimacy by functioning independently of the other branches
of government and in a manner generally untainted by racial discrimination. The phased
decolonization of the Bombay High Court’s Bar and Bench in a process which began against the
backdrop of the Ilbert Bill controversy in the 1880s, the independence with which the court
functioned, and the general absence of racial discrimination in the day-to-day functioning of the
court, served to make institutions like the Bombay High Court perceived to be legitimate by the
time independence came. As such, legal institutions like the Bombay High Court had legitimacy
in the eyes of India’s founding fathers who debated and drafted the new Constitution of India in
the Constituent Assembly, many of whom were lawyers themselves. The survival of the Bombay
High Court from colonialism to independence was not merely because of path dependency, but
because of the perceived legitimacy it had earned for itself in the colonial period.
In a book published in 2010,13 Elizabeth Kolsky sought to debunk the argument that criminal
justice in British India was racially neutral. She found that ‘British police, judges, and juries in
India routinely collaborated across the hierarchies of class to buttress the racial basis of colonial
dominance’.14 In her book, Kolsky focused on violent crimes committed in the mofussils by
‘non-official’ whites in India against ‘native’ victims, and on how the criminal justice system in
British India was lenient towards white defendants. The findings presented in this book suggest
an alternative vision of British Indian colonial legal institutions from the one Kolsky portrays in
her book. Firstly, Kolsky did not carry out an empirical, quantitative analysis of the decisions of
colonial legal institutions in British India. We now know that less than 1 per cent of the criminal
cases which came up in the Presidency of Bombay in any year involved white defendants. Thus,
the overwhelming majority of cases which came up before courts like the Bombay High Court
had nothing to do with white litigants, with racial violence perpetrated by whites against Indians,
or with racial discrimination against Indians. Institutions like the Bombay High Court therefore
derived their legitimacy from the overwhelming majority of cases which they decided, which
were routine, day-to-day cases, filed between Indian litigants. Secondly, Kolsky relies a little too
extensively on the Bengal Presidency, and an argument can plausibly be made that Bombay was
different from Bengal. Bombay was more heterogeneous in its composition than Bengal, and we
have seen that in the tumultuous 1880s, the judges of the Bombay High Court supported the
Ilbert Bill, where their counterparts on the Calcutta High Court rejected it, perhaps because of
this reason. What was true of Bengal in the colonial period was perhaps not equally true of
Bombay at that time. Thirdly, Kolsky wrote about crime in the rural districts of British India—
the mofussils—as opposed to the presidency towns. By contrast, this book has focused on why
high-level British colonial legal institutions like the Bombay High Court located in the
presidency towns gained legitimacy and survived colonialism. It can plausibly be argued that
legal institutions in the more cosmopolitan, heterogeneous presidency towns operated differently
from those in the more conservative, rural districts of British India. After all, even the Ilbert Bill
controversy centred around the mofussils, not the presidency towns where Indian judges were
permitted to try white defendants even at the time of the Ilbert Bill.
Is the story told in this book, about the perceived legitimacy of the colonial-era Bombay High
Court and its survival in independent India, one which is unique only to the Bombay High
Court? What about the other High Courts of colonial India—courts in Calcutta, Madras,
Allahabad, Patna, and Lahore? Owing to constraints of time and resources, it was not feasible for
me to study all these institutions in my book. More research therefore needs to be done on the
colonial judiciaries of other High Courts in India, to confirm whether the findings presented in
this book are also true of the other colonial-era High Courts. We know from previous scholarly
work done on the legal profession of High Courts like Allahabad and Madras,15 that the Bar
generally underwent a process of decolonization, and that Indian lawyers attained a status of
near-equality to British lawyers starting around the 1920s. More work needs to be done in order
to understand the process of the decolonization of the Bench on the other High Courts, and
whether those High Courts functioned independently, and without racial discrimination, though I
consider it likely that trends similar to the ones explored in this book might be seen on other
colonial High Courts in British India as well. Likewise, we need to know more about why other
British colonial institutions in India like the police, the armed forces, and the bureaucracy
survived colonialism,16 which might shed some light on whether lasting institutions were some
of the positive legacies (undoubtedly among the many negative ones) of British colonialism.
Could it be that the leaders of free India did not want to destabilize the new country in a
period of turmoil, and so they decided to leave colonial institutions—institutions like the courts,
the bureaucracy, the armed forces, and the police—intact, despite their colonial past? In other
words, could it be that the objective of retaining the Bombay High Court and its judges in
independent India was to maintain some stability, to maintain the status quo, at a tenuous
moment of transition, under the shadow of partition-related rioting and mass migration? Perhaps.
But even so, the choice of retaining colonial institutions like the Bombay High Court in
independent India would not have fostered stability if these institutions were perceived to be
oppressive instruments of colonial injustice. Stability and perceptions of legitimacy go together
—if India’s founding fathers decided to preserve colonial institutions in independent India for
maintaining stability, that decision was no doubt made easier by the fact that institutions like the
Bombay High Court were not perceived to be illegitimate colonial institutions of racist British
injustice. Further, it is clear that India’s founding fathers did much to destabilize the status quo.
They pursued an ambitious agenda of land reorganization under which land was redistributed
from landlords or ‘zamindars’, who had helped preserve and stabilize the British Raj in India, to
tenant farmers. They integrated the ‘native states’—more than 500 states ruled by Indian princes
—into the Union. True, the Constitution of independent India preserved British Indian laws on
the statute books,17 and as a consequence, statutes like the Indian Contract Act and Indian
Evidence Act of 1872, and even the Indian Penal Code of 1860, including, ironically, the section
on sedition under which Tilak was convicted, still remain on the statute books in India today.
However, India’s founding fathers also pursued a radical policy of legislative reform: they
enacted a ‘Hindu Code’ reforming Hindu law, they introduced universal adult franchise, and the
Constitution itself had a bill of rights and brought about affirmative action. If the Bombay High
Court had borne the indelible stamp of being an instrument of colonial oppression, India’s
founding fathers could also perhaps have brought about at least a personnel change on the court
in independent India.
It remains to be pointed out that things did change in the Bombay High Court when India
became independent. After 1947, the post of Chief Justice has never been reserved for a British
judge: indeed, no Briton has ever held the post of Chief Justice in Bombay after independence.
The Indian Civil Service, which became the Indian Administrative Service after independence,
ceased to have a judicial cadre, and ‘Civilian’ judges eventually dried up on the court. Even
though the Constitution of independent India recognizes ‘acting’ judges,18 acting judges too have
generally ceased to be appointed to courts like the Bombay High Court. Thus, many of the
structural peculiarities of the Bombay High Court which we saw in Chapter 5 were discarded in
independent India.19 Further, the Constitution of independent India expanded the jurisdiction of
the High Courts,20 making it possible for courts to issue prerogative writs, orders, and directions
against the government—powers which have only expanded over the years. Therefore, if courts
like the Bombay High Court are considered legitimate today (though problems of arrears and
delay undermine every present-day Indian court’s legitimacy), a lot of this must be explained by
looking at what happened on the court after India became independent. However, this book has
made the case that the court’s seamless survival from colonialism to independence without any
substantial personnel changes can be explained by looking at how the court functioned and
evolved over time during the colonial period.
APPENDIX
CHIEF JUSTICES OF THE BOMBAY HIGH COURT, 1862–1947

Sir Mathew Richard Sausse
Sir Richard Couch
Sir Michael Roberts Westropp
Sir Charles Sargent
Sir Charles Frederick Farran
Sir Louis Addin Kershaw
Sir Lawrence Hugh Jenkins
Sir Basil Scott
Sir Norman Cranstoun Macleod
Sir Alfred Amberson Barrington Marten
Sir John William Fisher Beaumont
Sir Leonard Stone
PUISNE JUDGES OF THE BOMBAY HIGH COURT, 1862–1947

Sir Joseph Arnould
Henry Hebbert
Claudius James Erskine
Alexander Kinloch Forbes
Henry Newton
Henry Pendock St George Tucker
Augustus Brooke Warden
James Gibbs
Francis Lloyd
Sir Lyttleton Holyoake Bayley
Sir Maxwell Melvill
Charles Gurdon Kemball
John Philip Green
Sir Raymond West
Robert Hill Pinhey
Sir John Scott
Nanabhai Haridas
Herbert Mills Birdwood
Sir John Jardine
Henry James Parsons
Sir Edward Townshend Candy
Kashinath Trimback Telang
Mahadev Govind Ranade
Sir Arthur Strachey
Badruddin Tyabji
Edmund McGildowny Hope Fulton
Louis Pitman Russell
William Henry Crowe
Herbert Batty
Sir Narayan Ganesh Chandavarkar
Henry Faure Aston
Sir Stanley Lockhart Batchelor
Sir Frank Clement Offley Beaman
Sir Joseph John Heaton
Sir Dinsha Dhanjibhai Davar
Sir Lallubhai Asharam Shah
Edward Millard Pratt
Sir Maurice Henry Weston Hayward
Abdealli Mahomedali Kajiji
Sir Charles Gordon Hill Fawcett
Sir Louis Charles Crump
Sir Norman Wright Kemp
Mirza Ali Akbar Khan
Sir Govind Dinanath Madgavkar
Sir Cecil Patrick Blackwell
Sir Sitaram Sunderrao Patkar
Sir William Thomas Webb Baker
Sir Sajba Shankar Rangnekar
Sir Stephen James Murphy
Sir Robert Stonehouse Broomfield
Sir Bomanji Jamsetji Wadia
Sir Kenneth William Barlee
Sir Harilal Jekisondas Kania
Sir Navroji Jehangir Wadia
Sir Harsidhbhai Vajubhai Divatia
Sir Albert Sortain Romer Macklin
Kshitis Chandra Sen
Keshavrao Balkrishna Wassoodew
Mahomedally Alladinbhoy Somjee
Narayan Swamirao Lokur
Mahomedali Currim Chagla
John Basil Blagden
Sir Eric Weston
Nariosang Hormazdyar Cooverji Coyajee
Ganpat Sakharam Rajadhyaksha
Natwarlal Harilal Bhagwati
Rajaram Shripad Bavdekar
Pralhad Balacharya Gajendragadkar
Yadnyeshwar Vasudeo Dixit
Shamrao Raghunath Tendolkar
Hashmatrai Khubchand Chainani
ACTING/ADDITIONAL JUDGES OF THE BOMBAY HIGH COURT, 1862–1947

James Fraser Hore
Thomas Chisholm Anstey
Rao Bahadur Janardhan Wassoodew
George Atkinson
Sir Ernest John Trevelyan*
Francis Dawes Melvill
John Marriott
Albert John de Hochepied Larpent
Francis Law Latham
Sir William Wedderburn
William Ellerker Hart
Matthew Henry Starling
Edward Hosking
George Clifford Whitworth
Rao Bahadur Vasudev Jagannath Kirtikar
George Jacob
Raymont Knight
Mancherji Pestonji Khareghat
Sir Mahadev Bhaskar Chaubal
Lindesay John Robertson
Diwan Bahadur Ganpat Sadashiv Rao
Sir Chimanlal Harilal Setalvad
Charles Augustus Kincaid
Sir Jamshedji Behramji Kanga
Sir Dinshah Fardunji Mulla
Hormazdyar Cooverji Coyajee
Vicaji Fardunji Taraporevala
Philip Edward Percival
Furdunji Soranji Talyarkhan
Jehangir Dinsha Davar
Sir Kenneth McIntyre Kemp
Diwan Bahadur Krishnalal Mohanlal Jhaveri
Balak Ram
Arthur Clement Wild
Frederick William Allison
Faiz Hassan Badruddin Tyabji
Diwan Bahadur Padmanabh Bhaskar Shingne
Dhirajlal Dayabhai Nanavati
Atmaram Anant Chitre
Sir Noshirwan Phirozsha Engineer
Douglas Reay Norman*
Govindlal Narbheram Thakor
Indranarayan Brijmohanlal
Kasambhoy Alladinbhoy Somjee
Mangaldas Vithaldas Desai
Rangacharya Appacharya Jahagirdar
*I was unable to independently confirm, using historical records, that these judges actually did serve as judges of the Bombay
High Court.
NOTES
Introduction
1. Chagla was appointed acting Chief Justice of the Bombay High Court with effect from 15 August 1947, the day on which
India became independent, and he was later confirmed as the court’s first permanent Indian Chief Justice sometime in
February 1948. See, ‘Bombay’s Acting Chief Justice’ (1947); ‘British System of Law’ (1948). However, Chagla did not
point this out in his autobiography. In it, he merely wrote: ‘On August 15, 1947, I took charge of the office of Chief
Justice of Bombay from Sir Leonard Stone….I was the first Indian to be Chief Justice, and I fully realised the weight of
my responsibilities.’ See, Chagla (1974: 147). We will see that Chagla was not the first Indian judge to act as Chief Justice
of the Bombay High Court.
2. Letter dated 8 February 1948, from Kanga to Chagla, M.C. Chagla Papers, Nehru Memorial Museum and Library. Others
who wrote similar messages to Chagla included: Vicaji F. Taraporewala (‘The first Indian Chief Justice will have to
maintain the tradition of independence of the judiciary’); the outgoing Chief Justice of the Bombay High Court, Sir
Leonard Stone (‘I am confident that you, who will be the first permanent Indian Chief Justice of Bombay, will uphold and
maintain the great traditions of our Court’); and T.K. Tope, later principal of the Government Law College (‘I have no
doubt that the High Court under your regime will maintain and continue its traditions of learning fearlessness and
independence of which we are justly proud’). M.C. Chagla Papers, Nehru Memorial Museum and Library.
3. Chagla wrote in his autobiography, published in the 1970s, several decades after India became independent: ‘The Bombay
High Court had a long line of distinguished Chief Justices, and had very high traditions as one of the premier High Courts
of India. When I took office, I offered a prayer that I would have the capacity to maintain those traditions, and that when I
retired it should not be said of me that I had in any way lowered them or had not proved worthy of them. Whether my
prayer was answered or not, it is for others to judge’ (1974: 147).
4. M.C. Chagla Papers, Nehru Memorial Museum and Library.
5. See, Zanasi (2008).
6. See, Markovits (1996); Blankenburg (1995).
7. Including acting judges, there were about 129 judges who served on the court in the colonial era. Of these, seventy-six were
British (fifty-four permanent, twenty acting, two unknown) and fifty-three were Indian (twenty-nine permanent, twenty-
four acting).
8. Broadly speaking, ‘prosopography’ is the use of quantitative, social science research techniques to study a group of subjects
in history. See, Stone (1971); Heil (undated); Verboven et al. (undated).
9. See, Chandrachud et al. (2012). See further, Deshpande (2012); ‘The Bombay High Court: Celebrating 150 years of Legal
Heritage’.
10. It had civil, criminal, admiralty, vice-admiralty, testamentary, intestate, and matrimonial jurisdiction. See, Report of the All-
India Bar Committee (1953: 8).
11. At around the time that the court was established, Bombay would experience an unprecedented economic boom from a rise
in cotton prices owing to the American Civil War, and a few decades later it would become India’s premier city. See,
Kidambi (2007: 17); Ranganathan (2008: 11); Strangman (1931: 147).
12. The population of the Bombay Presidency was 18.8 million in the 1891 census, and 21.9 million in the 1931 census.
13. According to the 1891 census, the total area of the Bombay Presidency was stated to be 1,94,109 square miles.
14. As a Governor of Bombay triumphantly remarked in his autobiography, ‘[b]esides the government of a large British Indian
population with a capital city of the very first rank, I had the supervision of several clusters of Native States. Beyond the
limits of India proper, I governed Aden, and with it controlled the south-western corner of Arabia. I had to do with Perim
and Jedda on the Red Sea, with the island of Socotra off the Somali coast of Africa, with Muscat on the Persian Gulf, and
with Bussora in Mesopotamia’ Temple (1896: 6). Sir Richard Temple was the Governor of Bombay between 1877–80.
15. See further, Schmitthener (1968–9: 359, fn 130).
16. High Court at Bombay: 1862 to 1962 (1962); Mehrotra and Dwivedi (2004); Chandrachud et al. (2012).
17. A leading British lawyer, Inverarity, was known to not make notes in court, while an Indian lawyer, Bhulabhai Desai, was
said to have made copious notes.
18. Justice Louis Russell suffered from an ailment which made him sleep in court. Setalvad (1962: 55); Strangman (1931: 25–
6). These anecdotes focus on how lawyers tried to wake Russell up, and how Russell tried to stay awake.
19. Two legal historians, Phiroze Malabari and Charles Fawcett, both of whom were officially connected with the Bombay
High Court, wrote about courts which existed in seventeenth and early eighteenth century Bombay. See, Malabari (1910);
Fawcett (1934). Their studies were primarily descriptive, designed to shed light on structural changes in British judicial
institutions over time. None of these scholars wrote about the Bombay High Court, or its place in the political structure of
the British Raj.
Scholars studying India’s legal history have been tempted to study courts in all of India, without particularly focusing
on any region. For example, in his recently written PhD dissertation, Mitch Fraas wrote about the Mayor’s Courts of
Calcutta, Madras, and Bombay, in the first half of the eighteenth century. See, Fraas (2011). Why does my book only
examine the judiciary that served on the High Court of Bombay, leaving out those on other letters patent High Courts in
British India? [‘Letters patent’ High Courts are High Courts which were originally set up by the British Crown in colonial
India. High Courts which came into being in independent India were established by the government of independent India
and are not ‘letters patent’ High Courts.] The choice of studying only the Bombay High Court as against studying all the
letters patent High Courts, in this book, was a choice aimed at securing depth over breadth. Focusing on one court
enabled me to get into more detail than I would have, had I been studying all letters patent courts in British India, and to
unearth a richer understanding of the institution and the period. Further, the choice of Bombay over other courts was also
motivated by practical and personal considerations. A study of all letters patent courts would have been too large a
project, too unfeasible for me to undertake alone. I found that more information was available about the judges of the
Bombay High Court, than for any other High Court in British India. Further, having grown up in Mumbai myself, I was
more familiar with, and more interested in, the legal history of Bombay. However, that is not to say that the other letters
patent courts in British India are invisible in this book. This book has relied on autobiographies of judges who served on
other High Courts in India, and references will periodically be made to other High Courts. Names like William Markby,
Romesh Chandra Mitter, Eardley Norton, and Courtney Terrell—all members of the legal profession in parts of British
India besides Bombay, will keep coming up.
20. Vachha (1962). For a similar history of the court which extends beyond the colonial era, see, Rana (2014).
21. For example, Vachha writes about one High Court Chief Justice, Michael Roberts Westropp, in the following manner: ‘He
is noted for some extremely lengthy and learned judgments…on the whole, Westropp made an upright, independent and
erudite judge.’ Vachha (1962: 71–2). However, Vachha does not give us vital information about Westropp—when he was
born, what his family background was, where he studied, why he came to India, how he got appointed to the Bombay
High Court, and why his term came to an end. Though his was one of the first and most valuable studies of the Bombay
High Court, Vachha does not engage with important questions in the literature either in law or history. For example, he
does not tell us whether the court’s judges had security of tenure, or whether they were subject to the rule of ‘colonial
difference’. His study was incomplete—he only wrote about twenty-seven of the 129 judges who served on the Bombay
High Court in the colonial era. Further, Vachha’s book itself counts as a primary source, not a secondary one—Vachha
made it clear that his book was based in a large part on his personal appraisal of the judges and lawyers he knew well, and
on what he learned from the Scottish lawyer, J.D. Inverarity. Vachha (1962: 69). Vachha himself was old enough to be a
professor of the Government Law College, Bombay, between 1921 and 1925. See, The Law College Magazine, Bombay,
2 (1931). As such, he was writing first-hand accounts of the history of the court in many instances.
22. See, Taraporevala (2010).
23. See, for example, Indian Judges (1932).
24. The judges are M.G. Ranade, Badruddin Tyabji, and Narayan Chandavarkar.
25. Mankar (1902); Kellock (1926); Tucker (1977); Noorani (1969).
26. Chandavarkar (1955); Tyabji (1952).
27. For instance, consider the following excerpts from Badruddin Tyabji’s biography, written by his son [Tyabji (1952)]:
‘Badruddin was no doubt honoured and valued for his love of work, industry and sterling character, for he was regular in
prayers, and all other duties set for him, but that did not mean, that he received any special indulgence, or was pampered
in any way…’ [p. 14]; ‘On one occasion guns were fired in his honour, on another, a special steamer was chartered to take
him back to Bombay, and in some cases of great public interest, processions were formed, and he was driven in a
decorated carriage to his residence, covered with garlands and flowers.’ [p. 35]; ‘It is evident, that the many battles
Badruddin fought must have been hard indeed. Firm and steadfast to his points, and by nature hot tempered and impatient,
he could still tolerate and even appreciate his opponent’s view and possess such remarkable degree of self-control, that at
the council table he could be calm, persuasive, and with wise statesmanship, win over his opponent.’ [p. 117]; ‘He was
first Indian at the Bar, first in the Council, first on the platform. He had gained great distinction in his work from the
Anjuman and social reform. He had become famous, his name had become a household word, he was cited as an example
to emulate and follow. He was trusted by the people and Government alike. There is little doubt that at this time,
Badruddin’s opinion had more weight and carried more influence with the general public, the cultured and intellectual
classes and Government circles than any other leader of the time in this part of the country.’ [p. 157]; ‘he was a powerful
and skilful cross examiner, and an expert in accounts. He could be depended upon to master both facts and law and was
gifted with great ability for reasoning.’ [p. 267]. In fairness, however, it must be said that Badruddin Tyabji’s son clearly
pointed out that his was a ‘lay biography’, so he quite clearly and honestly made no pretences of being a historian. See,
Tyabji (1952: 291).
28. However, the descendents’ biographies were useful in that they were a rich source of primary materials which are otherwise
lost to history. For example, the biography of Justice Chandavarkar, written by his nephew, contains excerpts from
Chandavarkar’s diary, and his letters, which seem to have been lost to history. Badruddin Tyabji’s son relied on ‘huge
files of my father lying neglected containing some six or seven thousand ill-assorted papers of every description, though
largely the most trivial’ while writing his biography. Tyabji (1952: xv).
Others who wrote biographies of these judges either did not focus extensively on the judge’s judicial career, [See,
Tucker (1977)] or also partook of hagiography. [See, Noorani (1969). For example, consider the following statement,
taken from p. 96: ‘The eminence that he (Tyabji) achieved was not because of his deep knowledge of the law alone, but
also due to the force of his personality, his robust commonsense and fierce spirit of independence.’] Further, the
methodology of judicial biography lends itself to the criticisms that the biographical genre is usually susceptible to. Like
all conventional biographies, judicial biographies begin and end with the life of the subject, and therefore sometimes fall
short of deciphering broader trends in history, though they are illuminating about the individual life, or about the subject’s
intellectual history. [See, for example, Ibbetson (1998); Horowitz (2012).] They are often chronological, not thematic, and
are too descriptive to be of substantial value to scholars engaged with broader debates in the field. At times, the subject of
the biography is too extraordinary to be considered a representative figure in history. [Mary Jane Mossman wrote an
illuminating, thematic biographical essay on the life of Cornelia Sorabji, the first woman to appear in a British court
anywhere in the Empire. Mossman (2004). However, Sorabji was an exceptional figure, who could hardly be said to have
been representative of the average woman who aspired to have a professional career in British India. For example, Sorabji
had a wealthy and generous benefactor. Further, her ‘Parsi Christian Indian’ identity made her particularly
unrepresentative. For more recent biographies of Cornelia Sorabjee, see, Gooptu (2006); Sorabji (2010).] By contrast, a
study of several judges who served on a court, of the kind proposed in this book, addresses some of these defects in the
biographical genre, though this book will still construct narratives using biographical techniques.
29. Buckee (1972).
30. Paul (1991); see further, Paul (1986).
31. Buckee focused on why Indian lawyers did not strongly participate in the freedom struggle. She concluded by finding that
they did not do fervently patriotic things like boycott courts, because they were financially dependent on courts for their
subsistence. Paul wrote a descriptive history of the ‘vakils’, that is, the Indian lawyers, of Madras between 1802–1928,
and how they rose to a position of equality with British barristers in the 1920s. Duman’s study of the English and colonial
Bars likewise pointed out inequalities of opportunity between British and Indian lawyers. Duman (1983a: 134). As far as
the English Bar was concerned, Duman questioned the importance of the industrial revolution in altering the composition
of the English Bar.
32. Another scholar, Rohit De, examined the backgrounds of judges who served on the Federal Court of India after it was set up
in 1935 and found that racial identities and professional backgrounds were poor predictors of actual outcomes of cases.
De (2012). Focusing on a series of confrontations between the executive and judiciary in the period 1942–4, De
concluded that the Federal Court displayed a remarkable degree of independence because it was a new court that was
trying to carve an institutional role for itself. However, De did not seem to lay much emphasis on the fact that after 1935
(when the Federal Court was created), judges on the Federal Court and High Courts were given formal security of tenure
for the first time—they no longer held their offices during the ‘pleasure’ of the Crown, but during ‘good behaviour’. My
book will seek to answer whether formal mechanisms like security of tenure genuinely make a difference in achieving
independence for courts. Further, De’s use of a series of highly visible confrontations between the executive and
judiciary, though illuminating, makes one wonder how the judiciary behaved in other, less important cases. Rather than
selecting important cases, this book will use a random sample of decisions issued by the Bombay High Court, in order to
assess how independent the court really was.
33. For example, Duman carried out a prosopographical study of the 208 judges who served on the Bench in England between
1727–1875, focusing on questions of professionalization, and whether the industrial revolution had any impact in
professionalizing the legal profession. See, Duman (1982). This book, particularly chapters 3 and 4, will draw on some of
Duman’s findings in order to shed light on the colonial judiciary in India, as well as to discuss the process of
professionalization at the colonial Bar in Bombay. See further, Burkholder and Chandler (1977) (examining the
background and qualifications of 693 men appointed to the high courts in the Spanish Americas and Philippines between
1687–1821, as a way of studying the participation of ‘creoles’ in government); Brawn (2006) (a collective biography of
thirty-three judges who served on the highest trial court in the province of Manitoba, which cuts across themes like the
importance of political connections for judicial appointments, the professional or non-professional backgrounds of judges,
and the changing nature of the Manitoba Bar).
34. Dewey (1993). See further, Gilmour (2005).
35. Arnold (1986).
36. Omissi (1994).
37. See, De (2012).
38. Thus, M.P. Jain’s classical legal history textbook is almost entirely devoted to the formal evolution of courts in British
India. Jain (1981).
39. For a discussion of the ‘law and identity’ approach, see, Sharafi (2007a).
40. See, Sharafi, (2006); Sharafi (2009); Sharafi (2007a: 1064–5).
41. Sharafi (2009).
42. Sharafi (2006).
43. Likhovski (2006). Binyamin Blum similarly demonstrated that the Irish identity of the Chief Justice of Palestine shaped his
anti-executive decisions during the Arab Revolt in the 1930s. Blum (2011). Emphasizing the importance of location in
shaping identities, Swanepoel argued that the identities of British judges in colonial East Africa were shaped by English
law because they did not serve in any one place for too long. Swanepoel (2010); see further, Mossman (2004).
44. Likhovski (2006: 1).
45. See, Swanepoel (2010); McLaren (2011); Currey (1968); Ibbetson (1998).
46. For example, William E. Nelson wrote about how judges on a colonial court in Pennsylvania aggressively maintained their
independence by preserving property rights in their decisions. Nelson (2006). It was the decisions themselves, not the
judges or their backgrounds, which formed the basis of the study.
47. Further, the independence of the judiciary cannot be measured by selecting cases in any one field of substantive law.
Chapter 4 of this book will undertake an empirical investigation of cases decided by the Bombay High Court—the chapter
will examine a representative sample of all of the court’s cases, not merely a selection of cases in any substantive field or
contentious area of law.
48. John McLaren, for example, wrote selective case studies of colonial judges who were disciplined or threatened with
discipline, to demonstrate that the law was an important tool for extending imperial authority. McLaren (2011). Likewise,
Joseph H. Smith argued that conflicts over judicial tenure in the colonial period helped shape the security of tenure
provisions of the United States Constitution. Smith (1976).
49. See, for example, Chatterjee (2002); Guha (1987).
50. Washbrook (1981); Dirks (1986); Brimnes (2003).
51. Derrett (1999).
52. Fraas (2011).
53. The word ‘subaltern’ means a person holding a subordinate position or occupying a lower status. The subaltern studies
movement in India aimed to study Indian history from the bottom up, by looking at figures who are often ignored in
India’s history, like peasants, subordinate police constables, etc.
54. Guha (1982).
55. All India Reporter; Indian High Court Reports (Bombay); Bombay Law Journal; Bombay Law Reporter.
56. High Court at Bombay (1962); High Court of Judicature at Bombay (1988); Mehrotra and Dwivedi (2004); Chandrachud et
al. (2012).
57. The Times of India was described as ‘the leading Bombay English daily’ by M.R. Jayakar in his memoirs. Jayakar (1958). It
was founded in 1838 as ‘The Bombay Times and Journal of Commerce’ and was a bi-weekly newspaper. In 1850, it was
rechristened the Bombay Times, when it became a daily, and in 1861, it became The Times of India. Pearson (1957: 39–
40). The Times of India was moderate in its attitude towards Indians. However, another newspaper which was around at
the time, the Bombay Gazette, was anti-Indian and conservative in its outlook.
58. This resource consisted of compilations from such sources as: The India Lists of 1900, 1920; Who’s Who in India; The
Cyclopedia of India 1907–9; Indian Yearbook and Who’s Who; The India Office and Burma Office List for 1939; Sen
(1973).
59. For example, ‘ACAD’ (A Cambridge Alumni Database).
60. Bombay Law Journal (1923–46); Bombay Law Reporter (1899–1946).
61. ‘The Law College Magazine’, published by the Government Law College (1930–47); The Balliol College Register, 2nd
edition (1833–1933); The Balliol College Register, 3rd edition, (1900–50); The India Office List; The India List and India
Office List; The India List: Civil and Military; The Indian Army and Civil Service List.
62. Available at http://hosted.law.wisc.edu/wordpress/sharafi/south-asian-law-students-at-the-inns-of-court/ (accessed 25 June
2013).
63. See further, Indian Judges (1932).
64. Buckland (1906).
65. See, Foster (1893); Foster (1891); Foster (1885).
66. Boase (1965).
67. Burtchaell and Sadleir (1924); Venn (1947); Danvers et al. (1894); Peile (1913).
68. Inverarity (1912); Dillon (1920); Gandhi (1927–8); Strangman (1931); Jayakar (1958); ‘The Reminiscences of a Solicitor’
(1935–6: 18, 61, 156); Sethna (1936); Payne (1940); Kanga (1940); Setalvad (1962); Kanga (1962); Ferreira (1962);
Munshi (1963); Setalvad (1971).
69. Candy (1905); Chandavarkar (1910); Candy (1911); Kaikini (1911); Davar (1911); Telang (1916); Beaman (1924–7);
Kincaid (1934); Macleod (1945a); Macleod (1945b); Wadia (1945); Beaumont (1946); Setalvad (1946); Marten (1962);
Beaumont (1962); Stone (1962); Chagla (1962); Chainani (1962); Mahajan (1963); Gajendragadkar (1963); Hidayatullah
(1981); Gajendragadkar (1983); Sinha (1985); Chainani (1988); Chagla (2011).
70. Crawford (1894); Temple (1896); Morley (1917); Clarke (1927); Lawrence (1929); Montagu (1930).
71. Reed (1952).
72. Wacha (1920); Nehru (1942); Gandhi (1949); Prasad (1957); Dwarkadas (1969).
73. Dufferin (1890).
74. At the National Archives of India, I referred to files in the Home Department, Judicial Branch, and to the private papers of
the following colonial-era lawyers and judges: Bhulabhai Desai, Badruddin Tyabji, M.R. Jayakar, Pherozeshah Mehta,
B.R. Ambedkar, and K.M. Munshi.
75. At the Nehru Memorial Museum and Library, I referred to the private papers of the following colonial-era lawyers and
judges: B.G. Kher, Bhulabhai Desai, M.C. Chagla, Chimanlal Setalvad, and P.B. Gajendragadkar.
76. At the British Library, I referred to the India Office Records, and the private papers of Sir Edward West [Mss Eur D888];
John Elphinstone [Mss Eur F87]; Viceroy Ripon [Add Ms 43611, 43618, 43629, 43630]; Sir James Fergusson [Mss Eur
E214]; Sir Maurice Henry Weston Hayward [Mss Eur D839], John Morley [Mss Eur D573], and John Lawrence [Mss
Eur F90].
77. Private Papers of Sir Norman Cranstoun Macleod, Chief Justice of the Bombay High Court, HCA/D/63/A.
78. Private Papers of Sir Lawrence Jenkins, Chief Justice of the Bombay High Court, record reference: 1464–71, 1546, 1551–6,
1567–9.
79. See, Potter (1986: 16).
80. Microfilm copies of the Indu Prakash were accessed for some portions of the 1880s and 1890s. The following Gale
databases were also relied on: 19th century British Library newspapers, and 19th century UK periodicals.
Chapter 1 Background
1. See, for example, Guha (1997: 156). Guha sees the Mughal grant of the Diwani to the Company in the eighteenth century as
‘the truly inaugural moment of the raj’.
2. Its first ‘factory’ was established at Surat in 1612. See, Hunter (1899: 47–9).
3. See, Pearson (2003: 148).
4. The term ‘Presidency’, during Company rule in India, signified that the official in charge of the area was a ‘President’.
Broadly speaking, there were three administrative units by which the Company governed its settlements in India—a
Presidency, an Agency, and a Factory. Typically, the title of the person governing at the settlement determined the rank
and status of the settlement. Thus, if the title of the chief Company administrator at a settlement was ‘President’, the
settlement would rank as a Presidency. A Presidency occupied the highest rung in the administrative hierarchy. If the chief
administrator at the settlement, on the other hand, had the title ‘Agent’, the settlement would rank as an Agency. Agencies
were under Presidencies—but one Agency could also have been subordinate to and dependent upon another Agency. The
title ‘Governor’ used for Bombay was quite unique in this context. At the time of Bombay’s transfer to the British, the
Company had three Presidencies in the Indian Ocean world—Surat, Fort St. George (that is, Madras), and Bantam. At the
turn of the century, there were three Presidencies in India—Bombay, Fort St. George, and Bengal. See generally, Bruce
(1810).
5. Apparently, this was part of a deal in which Charles II borrowed 50,000 pounds from the Company for shipbuilding and
defence projects. See, Dossal (2010: 13).
6. See, Jain (1972).
7. The Supreme Court was set up only a few years after the Company defeated one of its most formidable rivals—the
Marathas—and became a territorial sovereign on the west coast of the Indian peninsula. See, Subramanian (1996).
8. See, Grose (1766: 53–4); Kaye (1853: 321–2).
9. See, Drewitt (1907: 33). For more on knighthoods in British India, see, Cannadine (2001: 89).
10. Jain (1972: 283–7).
11. Section 1, Government of India Act, 1858. Queen Victoria’s proclamation of 1858 was read out in Bombay with all due
pomp and ceremony on 1 November 1858. Wacha (1920: 709).
12. Theoretically, the Viceroy could also be called the Governor-General, but the first Viceroy, Lord Canning, preferred being
called ‘Viceroy’ to ‘Governor-General’, and the term ‘Viceroy’ was therefore always used. See, Gilmour (1994: 149).
13. Misra (1970: 3).
14. The Indian Secretary was one of the five secretaries of state who were a part of the British cabinet. Wolpert (1967: 2). For
the relationship between the Secretary of State, India Council, and Viceroy, see, Gilmour (1994: 150).
15. The India Office was unconnected with the Indian Civil Service. Robb (1976: 9).
16. British India consisted of eleven provinces, not all of which had Governors at the helm. During Viceroy Curzon’s reign
(1899–1905), two provinces (Bombay and Madras) were headed by Governors, four (Bengal, Burma, the North-Western
Provinces, and the Punjab) by Lieutenant-Governors, and five by Chief Commissioners. Gilmour (1994: 156).
17. The Viceroy’s Executive Council was also called the ‘Supreme Council’. For the structure of the Viceroy’s Council, see,
Gilmour (1994: 151). The members of these councils were not appointed by the Viceroy or Governor, but by the
Secretary of State in England. See, Temple (1896: 5). The Bombay Legislative Council seemed to have met for a few
months in Bombay, and for a few months in Poona. Cf., Pilgamker (1895). The Governor of Bombay spent December–
March in Bombay, April–May in Mahabaleshwar, June–September in Poona, and October-November in Mahabaleshwar
again. See, Fleming (2004: 86).
18. Clarke (1927: 223).
19. Reed (1952: 79–80, 89). It was customary that the Viceroy would not be appointed from amongst the Governors. Lord
Willingdon, who became Viceroy, served as Governor of both Bombay and Madras, and as Governor-General of Canada,
before he could be made Viceroy. Reed, ibid., p. 88.
20. ‘Administrative Report of the Bombay Presidency, 1889–90’ (1891); Gilmour (1994: 182).
21. Section 1, Indian High Courts Act, 1861 (24 & 25 Vict. C. 104).
22. The letters patent of 26 June 1862 was replaced a few years later by the letters patent of 28 December 1865.
23. To be precise, the Judicature Acts of 1873 and 1875 established a Supreme Court consisting of a High Court and a Court of
Appeal. See, Duman (1982: 18, 175); see further, Dey (1905: 90).
24. Clause 1, Letters Patent dated 26 June 1862; section 8, Indian High Courts Act, 1861 (24 & 25 Vict. C. 104).
25. Interestingly, the Original and Appellate divisions of the Bombay High Court were initially so distinct that they were not
even housed in the same building in Bombay. See, ‘Dinner to the Hon. H.M. Birdwood’ (1897).
26. Lawyers on the Original Side of the Bombay High Court had anglicized nicknames. Thus, Jehangir Davar, the son of
Justice Dinsha Davar, and later an acting judge of the court himself, was referred to as ‘Jack’ Davar. Taraporevala (2010:
117). Anglicized nicknames are around on the Original Side of the court to this day, where names like ‘Micky’, ‘Eddy’,
‘Jimmy’, ‘Freddy’, and ‘Danny’ have often been heard.
27. See, Kincaid (1934: 230). See further, British Library, Sir Maurice Henry Weston Hayward Papers, Ms Eur D839/5. The
Civilian judge of the Bombay High Court, Maurice Hayward, wrote in his memoirs that the Bombay High Court ‘was a
combination of the old Court of Bombay and Island known as the Presidency Proper manned from the Bombay Bar and
the old Sadar Court or Chief Court of Appeal for the rest of the Presidency known as the Mofussil manned by the Civil
Service’.
28. Inverarity (1912: 7). In 1879, the Times of India referred to the Appellate Side of the Bombay High Court as the ‘Sudder
Adawlut’. ‘The New High Court’ (1879).
29. Tyabji (1952: 26).
30. See, Maluste and Doshi (2010: 13, 43). In the eighteenth century, the Elphinstone Circle area was known as ‘Bombay
Green’, where the English town was located. See, Burnell (1933: 20–7); Kosambi (1986: 38–49).
31. Mody (vol. 1, 1921: 26); Vachha (1962: 215). This was previously where the Court of Sudder Dewannee and Sudder
Foujdaree Adawlut sat. ‘The New High Court’ (1879). The court sat in a bungalow rented from Byramjee Jejeebhoy,
behind the Sir Jamsetjee Hospital. Inverarity (1912: 7). Apparently, the Registrar of the Appellate Side lived in the
building. Inverarity, ibid.
32. The land was referred to as the ‘Esplanade’ by British Civilians, as the ‘Parade Ground’ by the army, and as the ‘Maidan’
by everyone else. Guha (2002: 12).
33. Mehrotra and Dwivedi (2004: 27).
34. Mehrotra and Dwivedi, ibid., p. 39.
35. Mehrotra and Dwivedi, ibid., pp. 39–71.
36. Sections 205–6, Government of India Act, 1935.
37. In fact, even one ‘Division Bench’ (that is, a bench of two judges) in a High Court was not bound to adhere to the decision
of another Division Bench of the same court. Dillon (1920: 20–1).
38. See, Kincaid (1934: 78–9, 125). See further, Setalvad (1946: 328–9).
39. Beaumont (1946: 15). In Bombay, the Indian Civil Service had a right to at least half the District Judgeships of the
province.
40. Beaumont, ibid., p. 17.
41. In 1895, the Bombay Provincial Service had seventy-five executive officers and 125 judicial officers. Judicial officers in
this service were usually called subordinate judges. A member of the judicial side of this service could aspire to become a
District Judge, the Registrar of the High Court’s Appellate Side, or a Judge of the Small Causes Court in Poona. See, ‘The
New Bombay Provincial Service’ (1895). Three judges of the Bombay Provincial Service became High Court judges.
These were M.G. Ranade, K.B. Wassoodew, and N.S. Lokur.
42. It seems that there were three such ‘police courts’, scattered across the city of Bombay at Girgaum, Mazagon, and the
Esplanade. Judges of the police courts were called ‘Presidency Magistrates’. The Chief Presidency Magistrate sat at the
Esplanade police court.
43. The City Civil Court came into being after independence.
44. For example, as a High Court judge, Maurice Hayward inspected courts at Ahmedabad and Surat. See, British Library, Sir
Maurice Henry Weston Hayward Papers, Mss Eur D839/9.
45. Later, this figure was increased to twenty [section 1, Indian High Courts Act, 1911 (1 & 2 Geo. V, C. 18)]. The Government
of India Act, 1935, (section 220) said that the number of judges of the High Court would be fixed from time to time.
46. The number was fixed by the letters patent. See, Clause 2, Letters Patent dated 26 June 1862. See further, Mehrotra and
Dwivedi (2004: 25). Though Chief Justices tried to get more judges appointed to the court over the years, the government
resisted these overtures. When Chief Justice Sir Norman Macleod requested the government for more judges after the
First World War, he lamented, ‘[n]eedless to say, Government had made no response to my demands for extra Judges,
whether for two or for three’. Macleod (1945b: 1). Thereafter, Chief Justice Amberson Marten tried to get more judges
appointed too, but, in his words: ‘Our proposals for more judges had a lamentable history of frustration by opposition and
delay.’ Marten (1962: 15). By the time John Beaumont became the Chief Justice of the Bombay High Court in 1930, the
court had ten judges—four were from the Indian Civil Service, and interestingly, the tenth judge was annually appointed
by the Government of India. Beaumont (1962: 20–1).
47. See, Dey (1905: 91).
48. Dey, ibid.
49. Before 1830, there were two puisne judges in addition to the Chief Justice, but the number of puisne judges was later
reduced by one.
50. In 1894, in High Court criminal cases, for example, a judge could not override a jury if all nine jurors were unanimous in
their opinion. However, if a majority of six of them agreed on the verdict, or if they did not agree on a verdict, the judge
could discharge the jury. In criminal cases in the mofussil (that is, in the rural districts of British India), a judge who did
not agree with the verdict of a jury could have the case referred to the Bombay High Court. ‘Amending the System of
Trial by Jury in India’ (1895).
51. See, ‘The Imperial Gazetteer of India: The Indian Empire’ (1907).
52. See, Vachha (1962: 225–6); ‘The Bar Grievance’ (1865). It is not clear when the ‘Vernacular Court’ ceased to exist.
53. This is not surprising, given that the Company was plagued by litigation at home, and that Whig lawyers were influential
figures in the ‘Glorious Revolution’ which spelled doom for the Company in its erstwhile form. See, Stern (2011: 41–60,
143–63); Landon (1970); Malabari (1910: 173). The Company’s attitude towards lawyers might also have been a
reflection of the generally disreputable state of the Bar in England during the Restoration. Schmitthener (1968–1969:
339).
54. Data have been compiled by the author by looking at the East India Register and Directory and the East India Register and
Army List.
55. Of course, there might have been several Indian ‘Pleaders’ practising in courts at that time. However, official British
sources did not list out names of (or give any figures for) such Indian Pleaders. For example, though the name of the
‘Advocate General’ of Bombay would annually be reported in the East India Register and Army List, the name of the
‘Government Pleader’ during that time was repeatedly omitted. This practice continued during the British Raj.
56. This was unlike Madras where even Vakils could practise on the Original Side of the High Court starting in 1863. Paul
(1986: 170–2).
57. See, ‘The Dual System’ (1938–39); Gajendragadkar (1963).
58. See, ‘The New Small Causes Courts Act’ (1893).
59. Clauses 7–10, Letters Patent of the Bombay High Court, 26 June 1862; Clauses 9–10, Amended Letters Patent of the
Bombay High Court, 28 December 1865. Pleaders in courts below the Bombay High Court were likewise subject to the
High Court’s disciplinary jurisdiction under section 56 of Regulation II of 1827.
60. In this book, lawyers called to the Bar in England or Ireland, or members of the Faculty of Advocates in Scotland, will be
generically referred to as ‘barristers’.
61. A barrister’s application would have to be initialed by the judges of the Bombay High Court, and he would then have to pay
a fee of Rs 500. This seems to have been a fairly straightforward process. Macleod (1945a: 404).
62. The merchant philanthropist, Rustomjee Jamshedji Jeejeebhoy, had set up a scholarship of Rs 1,50,000 to send five Indians
to England to be called to the Bar. Applicants were required to have had suitable family connections, and family members
who occupied respectable positions in society. Tyabji (1952: 21). However, this scholarship seems to have ceased during
Bombay’s ‘Share Mania’ financial crisis in 1865, which was caused by the end of the American Civil War. The war had
temporarily raised cotton prices, benefitting Bombay’s cotton merchants. Mody (vol. 1, 1921: 9). In addition to the Rs.
20,000, the scholarship included a sum of Rs 10,000 which was to be presented to each candidate upon his successful
return to India as a barrister. See, Pherozeshah Mehta Papers, National Archives of India.
63. Chandavarkar (1955: 87–8); Conlon (1977: 152–67).
64. Gandhi (1949: 31–5).
65. Wolpert (1962: 118).
66. ‘The Reminiscences of a Solicitor’ (1935–6: 19).
67. Tyabji (1952: 17).
68. Telang (1916: 298).
69. Duman (1983a: 132). The policy backfired because Indian barristers occupied the front-ranks of the anti-British nationalist
movement, the most prominent example being Gandhi, who was called to the Bar at the Inner Temple. See further,
Buckee (1972).
70. A former Chief Justice of India, B.P. Sinha, wrote in his autobiography that he had decided not go to Cambridge University
in 1920 ‘in obedience to the wishes of my grandfather not to cross the Seas’, despite having had a three-year scholarship
to study history there. Sinha (1985: 17). See further, Prasad (1957: 35–6, 53–4). But see, Useem and Useem (1955: 2–3).
71. Dillon (1920: 6).
72. See, Dillion, ibid., p. 4.
73. Nehru (1942: 18).
74. Prasad (1957: 30).
75. See, Duman (1983a); Duman (1982: 13, 34); Paul (1986: 117). The Madras High Court even gave those who had not
completed the entire qualifications process at one of the Inns of Court preferential treatment in enrolling as a vakil. Paul,
ibid., p. 165.
76. Gandhi (1949: 66–8).
77. Abel (1988: 38); Paul (1986: 117); Jayakar (1958: 54). See further, Swanepoel (2010: 11–13). Given that many Indians
wrote the matriculation examination in Britain two to three years before studying law, this process could have entailed a
four to five years’ stay in Britain. Schmitthener (1968–9: 365, fn 176). Students at Oxford and Cambridge, however, had
to attend a fewer number of dinners. Chagla (1974: 35). Further, the Council of Legal Education gave concessions to
Indian candidates, by which they could get called to the Bar after spending eight terms at the Inns instead of the
conventional twelve. Duman (1983a: 132).
78. See, Dillon (1920: 2).
79. Gandhi (1949).
80. Gandhi, ibid.
81. HCA/D63/A5, ‘Reminiscences Early Days’, p. 29.
82. Ibid.
83. See, Karwe (1938: 22–3).
84. Karwe, ibid.
85. This examination, which was later called the ‘Advocates OS examination’, was very difficult until 1919, when the standards
were relaxed a little. See, P.B. Vachha, Note dated 3 June 1965, in the Bhulabhai Desai Papers, National Archives of
India. The Advocates Examination ceased to be mandatory after 1926. Under section 9(2) of the Indian Bar Councils Act,
1926, one could also become an Advocate if one merely passed the LL.B. examination. See, File 269, M.R. Jayakar
Papers (Reel 31), National Archives of India.
86. In 1892, the prominent lawyer Chimanlal Setalvad made a speech in the Bombay Legislative Council where he said: ‘It
cannot, for a moment, be pretended that barristers go through examination tests that are in any way higher than the tests
laid down for attorneys and pleaders. I venture rather to say that the barristers’ examination can bear no comparison
whatever with the law examinations that are held in India.’ Proceedings of the Council of the Governor (1893: 60).
87. File 269, M.R. Jayakar Papers (Reel 31), National Archives of India.
88. Setalvad (1946: 153). Gandhi was advised to get called to the Bar at one of the Inns of Court in England because it virtually
took half the time to get called to the Bar there than it did to get a B.A. degree in India. Guha (2013: 32).
89. See, Report of the All-India Bar Committee (1953: 10–19).
90. Karwe (1938: Appendix 7).
91. See further, Hariani (1990: 11).
92. Until Chief Justice Charles Sargent came along, a person only needed to have passed the Matriculation examination in order
to sit for the Attorney’s examination. Sargent changed the rule, and thereafter only those with a bachelors degree in the
arts or sciences could take the examination. Kanga (1962: 67).
93. Report of the All-India Bar Committee (1953: 10–19).
94. Karwe (1938: 25). The period of apprenticeship for law graduates was two years instead of three years.
95. See, Sethna (1936: 22–3).
96. ‘The Reminiscences of a Solicitor’ (1935–6: 65).
97. Karwe (1938: 10–11).
98. Karwe, ibid.
99. Dillon (1920: 2–3).
100. See, for example, Setalvad (1946: 20).
101. Consider the Kesouji Issur case, where a plaintiff sued a railway corporation. Jenkins visited the railway platform to see
whether there was insufficient light there, like the plaintiff claimed, instead of relying on witness testimony. On appeal,
the Privy Council criticized Jenkins for this. See, Tyabji (1952: 297–8).
102. Tyabji, ibid., p. 350.
103. Setalvad (1946: 20); Jayakar (1958: 37); Kanga (1962: 69); On Jenkins’s interest in the welfare of Indian lawyers, see,
Beaman (1924–1925: 207); Beaman (1926–7: 5–12). See further, Schmitthener (1968–1969: 367).
104. Kanga (1940: 362).
105. Setalvad, Reminiscences, (51).
106. Montagu (1930: 154); Kanga (1962: 71). Lord Willingdon, the Governor of Bombay between 1913–18, also set up a club
where Europeans and Indians could mix. Kanga, ibid., p. 89. Later, when Secretary of State Edwin S. Montagu visited
Bombay in 1917, he said that the establishment of the Willingdon Club was ‘intended to punish the Yacht Club and the
Byculla Club for their refusal to admit Indians’. Montagu (1930: 4). But see, Strangman (1931: 96). The Willingdon
Sports Club is still in existence.
107. Beaman (1926–7: 8).
108. Wolpert (1967: 62).
109. Kincaid (1934: 113–14). In fact, while serving as Chief Justice of the High Court at Calcutta, Jenkins regarded the Indian
acting judge Chatterji to be ‘infinitely the better man’ as compared to the British acting judge Richardson, whom he
considered ‘an indifferent lawyer and a very slow worker’. Jenkins wrote to the then Secretary of State, Morley, ‘it is very
disheartening to find that merit [should] not be regarded as the test, and to have an inferior European’s claims advocated
in opposition to a native who is palpably his superior’. British Library, John Morley Papers, Mss Eur D573/46, Jenkins to
Morley, letter dated 14 July 1909. On an earlier occasion, Jenkins advised Morley to appoint an Indian judge to the 15th
judgeship of the court. ‘I hope the pleader bar will not be forgotten,’ he wrote, ‘for I feel very strongly that there the best
judge can be found for our present needs.’ British Library, John Morley Papers, Mss Eur D573/46, Jenkins to Morley,
letter dated 3 June 1909.
110. Wolpert (1967: 184).
111. An association of Pleaders was established in Bombay in 1864, under the name Vakils’ Association of Western India. In
1881, this became the ‘Pleaders’ Association of Western India’, and in 1929, the ‘Advocates’ Association of Western
India’. Gajendragadkar (1963: 3). See further, Samant-Gupte (2014).
112. However, High Court Pleaders were officially called ‘Vakils’ or ‘Vakeels’ in Bombay as well. Clause 8 of the original
Letters Patent of the Bombay High Court, dated 26 June 1862, and Clause 9 of the Amended Letters Patent of the
Bombay High Court, dated 28 December 1865, called Appellate Side lawyers ‘Vakeels’, not Pleaders. It is perhaps for
this reason that the report of the All India Bar Committee referred to ‘Vakils’ in Bombay. See, Report of the All-India Bar
Committee (1953: 10–19). In fact, under the Bombay Pleaders Act, 1920, only district lawyers were formally termed
‘Pleaders’, while High Court lawyers who were not Advocates were termed ‘Vakils’. However, since the nineteenth
century, High Court Appellate Side lawyers were usually always called ‘High Court Pleaders’. They were referred to as
such in the Bombay High Court’s decisions at that time. See, In re: The Pleaders of the High Court, 8 B. 105 (1883). For
a long time, there was a ‘High Court Pleaders’ Examination’, which suggests that Appellate Side High Court lawyers
were called Pleaders, not Vakils. Further, individual High Court lawyers identified themselves as ‘Pleaders’, not ‘Vakils’.
For example, when Chimanlal Setalvad first enrolled as a lawyer at the High Court Bar in 1887, he said he enrolled as a
‘Pleader’, not a ‘Vakil’. See, Setalvad (1946: 17). Even in the twentieth century, Indian Appellate Side lawyers seldom
referred to themselves as ‘Vakils’ in Bombay. The terminology was usually ‘Pleader’ instead of ‘Vakil’.
113. Setalvad (1946: 146).
114. Circular Orders (1871). Candidates would often complain that the standard of passing the examination was too high. See,
‘The Pleader’s Examination’ (1891).
115. ‘The Last Pleaders’ Examinations’ (1891). Likewise, only nine out of 300 candidates passed the ‘lower’ examination. The
Indu Prakash opined that the pass rate was very low because there was no law school which gave adequate classes to
these candidates. Similarly, in 1892, only three candidates passed out of forty-six in the higher examination, and only
thirteen passed out of 363 candidates in the lower examination. ‘The Pleaders’ Examinations’ (1892). Likewise, in 1886,
only ten candidates out of 216 passed. ‘The Last Subordinate Judge’s and Pleader’s Examination’ (1886).
116. See, Dillon (1920: 4).
117. See, Dillon, ibid., pp. 5–6.
118. The term ‘Government Pleader’ has been retained to this day, though ‘Pleaders’ have ceased to exist as a category of
lawyers.
119. Even names of the Legal Remembrancer (usually a member of the judicial branch of the Indian Civil Service) and the
Government Solicitor were reported in this list, though Government Pleaders were left out of it. Names of a few
Government Pleaders like Nanabhai Haridas and V.N. Mundlick were reported in this list, but thereafter the list mostly
omitted to mention who held the post of Government Pleader. This is despite the fact that the post was quite prestigious
for Indian Pleaders, considered virtually a stepping-stone to a judgeship on the Bombay High Court.
120. See, Swanepoel (2010: 97).
121. Since 1865, the Government Pleader was paid a salary of Rs 300 per month. Since 1877, in criminal cases, he was paid a fee
of Rs 30 for the first accused, and since 1901, an additional fee of Rs 15 for every subsequent accused involved in the
case. These rates were revised in the 1920s. See, National Archives of India, Home Department, Judicial Branch,
November 1920, No. 87–89.
122. For an account of the history of its enactment, see, Paul (1986: 431–84).
123. See, Report of the All-India Bar Committee (1953: 10–19, 57).
124. Eligibility criteria for High Court judgeships were prescribed by section 1 of the Indian High Courts Act, 1861 (24 & 25
Vict. C. 104), section 101(3) of the Government of India Act, 1915, and section 220(3) of the Government of India Act,
1935. Interestingly, ‘Advocates’ were not formally eligible to be appointed judges on a High Court. Despite this,
however, Indian lawyers who only qualified as ‘Advocates’ on the Original Side, would still be appointed judges, because
the definition of ‘Pleader’ included Advocates under the Code of Civil Procedure. See, Chapter 2.
125. Interestingly, the Chief Judge of the Small Causes Court also had to be a barrister, like the Chief Justice of the High Court.
See, ‘The New Small Causes Courts Act’ (1895).
126. Mancherji Pestonji Khareghat was selected for the Indian Civil Service in 1882 (the year in which he also graduated from
Balliol College, Oxford), spent two years training in England, and finally qualified to join the service in 1884. ‘Mr. M.P.
Khareghat Dead’ (1943).
127. O’Malley (1931: 222). Indians became eligible to join the Indian Civil Service only in 1854. See, Kolsky (2010: 86). See
further, Reed (1952: 62–3). Though the Indian Civil Service examination was held in India (first in Allahabad, then in
Delhi), Europeans could only take it in London. Potter (1986: 91).
128. See, ‘Mr. Justice B. Tyabji’ (1906). See further, Bombay Law Journal, 2 (1924–25: 212–18). Tyabji was also the first
Muslim barrister. Schmitthener (1968–1969: 366). The first Indian barrister, G.M. Tagore, was called to the bar at
Lincoln’s Inn in 1862. Duman (1983a: 131).
129. O’Malley (1931: 209). Incidentally, Satyendranath Tagore was Rabindranath Tagore’s elder brother. Maloni (1999: 187–9).
Tagore was eventually passed over for appointment to the High Court. See, Kincaid (1934: 31).
130. Though the quota system was retained under section 101(4) of the Government of India Act, 1915, it was not seen anywhere
in the Government of India Act, 1935. Further, under section 101(3) of the Government of India Act, 1915, ‘barristers’
were still eligible for being appointed to a High Court with only five years’ practice, but under section 220(3) of the
Government of India Act, 1935, ‘barristers’ now had to have ten years’ standing in order to be considered so eligible.
131. The official warrant of appointment usually read: ‘We being graciously pleased to appoint Our Trusty and Well Beloved
[name of candidate, with title] to be a Judge of the High Court in [place] do hereby appoint him the said [name of
candidate] to be a Judge of the High Court in [place] upon the retirement of the Honourable [judge to be replaced].’ See,
Hidayatullah (1981: 134); Mahajan (1963: 106). Norman Macleod’s warrant read: ‘George the fifth by the Grace of God
of the United Kingdom of Great Britain and Ireland of the British Dominions beyond the seas King Defender of the Faith
Emperor of India To all to whom these Presents shall come Greeting: Know Ye that We of Our especial grace Have
appointed and by these presents Do appoint our trusty and well beloved Norman Cranstoun Macleod Esquire Barrister at
law to the office of Judge of the High Court of Judicature at Bombay to fill an additional appointment recently sanctioned
for that Court To hold the same during our pleasure with all wages profits and advantages due and of rights belonging
thereto In Witness whereof We have caused these Our Letters to be made patent Witness Ourself at Westminster the
Seventh day of June in the first year of Our reign.’ HCA/D63/A2/a, warrant of appointment of Norman Macleod.
132. See, Chapter 3.
133. See, for example, Chief Justice Charles Sargent to Governor Sir James Fergusson, letter dated 22 June 1884, British Library,
Sir James Fergusson Papers, E214/20. Sargent recommended to Governor Fergusson that the temporary vacancy created
by the absence of Bayley (who was ‘far from well [and] about to apply for privilege leave’) should be filled by appointing
either Farran or Hart to the Bench.
134. Before 1937, the Governors of Bombay and Madras would directly send their recommendations for judicial appointments to
the Secretary of State. The Secretary of State could consult the Viceroy on those recommendations if he wished. After
1937, the Governors of Bombay and Madras sent their recommendations to the Viceroy, who then conveyed those
recommendations, with comments, to the Secretary of State. See, National Archives of India, Home Department, Judicial
Branch, F.29/5/1/36-Judl; National Archives of India, Home Department, Judicial Branch, F.89/34-Judl. One such typical
recommendation was made by the Viceroy to the Secretary of State in a telegram dated 10 January 1947, which said,
‘Bombay High Court. A permanent vacancy has arisen due to transfer of Blagden to Rangoon High Court. Governor in
consultation with Chief Justice recommends appointment in this vacancy of Pralhad Balacharya Gajendragadkar, Senior
Additional Judge. Gajendragadkar has been on the Bench since March 1945. He was recruited from the Bar and is now 46
years old. I support recommendation. If you agree to support the appointment to the King, I will obtain usual medical
certificate and undertaking.’ British Library, India Office Records, L/PO/8/75.
The Chief Justice had a role to play on other High Courts as well. M. Hidayatullah’s name was recommended for a
judgeship on the High Court of Nagpur by the Chief Justice of that court. Hidayatullah (1981: 131). Similarly, Mehr
Chand Mahajan was asked to be a judge on the Lahore High Court by the Chief Justice of that court. Mahajan (1963:
104–5). See further, ‘New Judge of Bombay High Court’ (1926).
135. ‘The High Court is consulted’ in matters concerning the promotion of Civilian judges, wrote Chief Justice John Beaumont,
‘but its views do not always prevail’. Beaumont (1946: 15). See further, Kincaid (1934: 191). Kincaid wrote about his
appointment to the Viceroy’s Legislative Council, which was almost vetoed by the Chief Justice of the High Court.
Eventually, the Governor prevailed: ‘Ordinarily there would have been no difficulty, but the Chief Justice, on grounds
very flattering to me but at the same time most annoying, objected to my appointment to the Council. He claimed that I
was one of his ablest and most experienced judges. I naturally did not look at the matter in the same light. I pulled every
string I could in support of the Bombay Government, and in the end Lord Willingdon overruled the Chief Justice.’
136. Mahajan (1963: 105–6). When Chief Justice Stone recommended Civilian Rajaram Bavdekar’s name for elevation to the
High Court Bench, an aggrieved Civilian judge, Moose, complained to the Secretary of State that his claims for
appointment to the High Court Bench had been ignored. However, Stone prevailed, and Bavdekar was appointed to the
Bench. Gajendragadkar (1983: 65).
137. See, Kincaid (1934: 91). Files maintained in the India Office on judicial appointments reveal that there was a checklist of
steps which had to be followed in order to appoint a judge to the Bombay High Court. These were especially followed in
the 1930s and 1940s. The steps were: ‘Vacancy, King’s Pleasure, King’s Pleasure received in the S. & G. Department,
Draft warrant to typists, Warrant to King, Warrant for sealing, Telegram to Viceroy drafted, Telegram to Viceroy sent,
Letters to India drafted, Letters to India sent, Communiqué to Information Department, London Gazette Notification to
Mails Room, Gazette Notification published, To Editor I.O. List, Copy for Warrant Book, P.A.’ British Library, India
Office Records, L/PJ/8/104.
138. Chief Justice Michael Westropp, for example, routinely discussed judicial appointments on the lower courts of the Bombay
Presidency in his correspondence with the Governor of Bombay, Sir James Fergusson. See, British Library, Sir James
Fergusson Papers, Mss Eur E214/20. But see, Candy (1905).
139. See, HCA/D63/A/5, Reminiscences of Norman Macleod, p. 64. One such superseded judge, Maurice Hayward, wrote about
this in his memoirs: ‘Batchelor was junior to me and to a number of other District Judges including Beaman and Heaton
but had been specially selected a couple of years before for his good work as a District Judge of Ahmedabad by the Chief
Justice Sir Lawrence Jenkins. There had been considerable indignation in the services and it was pointed out to me by one
of the junior men…that even in my case it could not be justified as Jenkins knew nothing of my work as District Judge
beyond his jurisdiction in Sind. It was also embarrassing to Batchelor who fully aware of his lack of experience
overworked himself in order to justify the appointment and broke down under the strain and had to take long leave. He
would have been the first to acknowledge that it would have been better for him to have had further experience as a
District Judge before being raised to the High Court.’ British Library, Sir Maurice Henry Weston Hayward Papers, Mss
Eur D839/4. Interestingly, Hayward himself was selected to be an acting judge of the Bombay High Court in supersession
of a judge who was senior to him, E.M. Pratt. Hayward refused to accept the appointment and so it was offered to Pratt.
However, Pratt obstinately declined the appointment too, so Hayward eventually accepted the appointment. British
Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/9. Later, in 1946, R.S. Bavdekar’s appointment to
the Bombay High Court resulted in the supersession of four Indian Civil Service District Judges. In a telegram dated 19
May 1946, the Viceroy wrote to the Secretary of State that the superseded officers were ‘not considered suitable for
elevation to the Bench’, and that ‘Bavdekar is superior on merits’. British Library, India Office Records, L/PO/8/75.
140. For example, Chief Justice Norman Macleod made some recommendations in 1926. The acting Governor of Bombay, H.S.
Lawrence, wrote back to Macleod, saying: ‘I am sorry if you should have suffered any inconvenience from the delay in
making these appointments, but Government thought it best to wait until they received the instructions of the Secretary of
State regarding your successor. I think you will recognize that the new Chief Justice should have a voice in determining
the men who will be his colleagues in the future.’ HCA/D63/A1/f, 16 April 1926. This made Macleod quite bitter.
141. File 794, M.R. Jayakar Papers (Reel 148), National Archives of India.
142. Letter dated 13 December 1944, from Leonard Stone to Jayakar, File 794, M.R. Jayakar Papers (Reel 148), National
Archives of India.
143. Even judgeships on lower courts were sometimes said to have been staffed on considerations of patronage. When J.S. Slater
was appointed to act as the Chief Presidency Magistrate for the second time, the Indu Prakash strongly criticized the
move. ‘Perhaps Mr. Slater’, the editor wrote, ‘has qualifications which the other claimants have not’. The editor
continued, ‘[t]he manner in which Government have evinced their anxiety on various occasions to provide for this
briefless barrister gives cause to believe that he is in the good graces of the powers that have these appointments in their
giving, and that he has an influential friend ready to advance him at the cost of other people’. ‘The Chief Presidency
Magistrateship’ (1894).
144. The newspaper had been started by Gopal Hari Deshmukh in Bombay in the 1860s. Deshmukh had also founded the
newspaper ‘Dnyan Prakash’ in Poona. Chandavarkar (1955: 34).
145. ‘A Word in Favour of Mr. Justice Farran’s Appointment’ (1891).
146. ‘A Shameless Act of Nepotism’ (1895).
147. See, Terrell (1979: 31). Prior to Courtney Terrell’s appointment as Chief Justice of the High Court at Patna, Viceroy Irwin
wrote to Secretary of State Birkenhead requesting that the post of Chief Justice be staffed by a person directly from
London.
148. HCA/D63/A1/D, letter dated 2 May 1919, from Norman Macleod to his son, Torquil.
149. Letter dated 5 August 1941, Asrut E. Gandhi to Chagla, M.C. Chagla Papers, Nehru Memorial Museum and Library.
150. See, McLaren (2011: 7).
151. Section 4, Indian High Courts Act, 1861 (24 & 25 Vict. C. 104). This was retained by section 102 of the Government of
India Act, 1915.
152. Section 220(2), Government of India Act, 1935.
154. Under the Indian High Courts Act, 1911 (1 & 2 Geo. V. C. 18).
155. See, section 7, Indian High Courts Act, 1861 (24 & 25 Vict. C. 104); section 105(2), Government of India Act, 1915; section
222(2), Government of India Act, 1935. Under Article 224 of independent India’s Constitution, though ‘acting’ judges
can be appointed to the High Courts of independent India too, importantly, they cannot not be removed by the President
in his discretion before the absent judge returned.
156. See, Chandrachud (2012b).
157. Duman (1983a: 137). For more on a High Court judge’s terms of service during the British Raj, see, British Library, India
Office Records, L/PJ/6/749, File 667. On the issue of how High Courts in India were financed, see, Misra (1970: 562–4).
158. See, The India Office List, 1893. The Viceroy earned Rs 2,50,800 per annum, the Governors of Bombay and Madras earned
Rs 1,20,000 per annum, the Commander-in-Chief of India earned Rs 1,00,000 per annum, and members of the Supreme
Council earned Rs 76,800 per annum, respectively. Adopting the Indian practice, the British counted numbers in “lacs” in
India, where 1 lac = 100,000. When written numerically, a figure in lacs has an extra comma, e.g., 1,00,000.
159. The India List and India Office List; The India Office and Burma Office List. Chief Justice Leonard Stone was informed that
in 1942–3, the Chief Justice of Bombay would have to pay income tax of Rs 21,000 on his annual salary, leaving a net
income of Rs 39,000 or Rs 3,250 per month. British Library, India Office Records, L/PO/8/75. Interestingly, Stone was
also informed by the government official: ‘In case you have forgotten I might mention that there are 12 pies in an anna,
and 16 annas in the rupee!’ In the 1920s, one Bombay High Court judge worried about his tax liability in Britain for
income earned in India. See, British Library, India Office Records, Q/11/4, File 159.
160. See, The India Office List, 1893. They earned Rs 61,440 per annum in 1893.
161. In Kenya and Tanganyika, for example, judges were paid according to their seniority. Swanepoel (2010: 72).
162. The India List and India Office List; The India Office and Burma Office List. Judges of the Calcutta High Court initially
drew higher salaries than judges elsewhere in India. Their salaries were eventually reduced and brought in line with those
of other judges in British India in the nineteenth century, during Ripon’s Viceroyalty, which caused resentment. Gopal
(1953: 119–20).
163. The India List and India Office List; The India Office and Burma Office List. High Court puisne judges stood at number
sixteen on the list. Confusingly, members of the Supreme Council were considered lower in status than the Chief Justice
of Bengal according to the ‘warrant of precedence’, though they were paid more. Likewise, members of the Bombay
Governor’s Executive Council were considered lower in status than the Chief Justice of the Bombay High Court
according to the ‘warrant of precedence’, though they were paid more. In 1923, a Bombay judge complained that the
Judicial Commissioner of Sind was too low down on the warrant of precedence. See, British Library, India Office
Records, Q/11/4, File 159.
164. A judge became eligible to earn a pension after eleven and a half years of continuous service. In 1905, the Chief Justice of
the Calcutta High Court earned an annual pension of 1,800 pounds if he served eleven and a half years in office (of which
five years and nine months had to have been served as Chief Justice). With similar conditions, Chief Justices at other
High Courts earned an annual pension of 1,500 pounds, while judges earned a pension of 1,200 pounds. By 1922, the
rules had become more complicated, and even judges who had served less than eleven and a half years in service were
eligible for pensions, though at a reduced rate. See, The India Office and Burma Office List, 1922.
165. Tyabji (1952: 33, 266).
166. See, High Court Judges (India) Rules, 1922, available at British Library, India Office Records, L/PJ/6/2004, File 2081; The
India List and India Office List; The India Office and Burma Office List. High Court judges’ salaries seemed to have been
raised only marginally, to Rs 48,000 per annum. Clive Dewey points out that salaries in the Indian Civil Service were
quite the same in 1858 and 1947. Dewey (1993: 5).
167. For example, the Bombay University fee for the second LL.B. examination rose from Rs 10 in 1892 to Rs 50 in 1893. ‘The
Bombay University Finance’ (1892); ‘Candidates for LL.B. Examination’ (1893).
168. British Library, India Office Records, IOR/Q/11/16, File 571. Food prices alone had risen by 110 per cent in Bombay at that
time.
169. See, Potter (1986: 96–7).
170. The judge was Heaton. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/9. Likewise, Chief
Justice Leonard Stone worried about the finances of taking on the Bombay bungalow and establishment of the outgoing
Chief Justice Beaumont in the 1940s. Stone to Kemp, letter dated 10 February 1943, British Library, India Office
Records, L/PO/8/75. It was suggested to him that he could either stay with another High Court judge (with whom he
could share the rent), or take up residence at the Byculla Club.
171. See, Potter (1986: 33). Potter says that the Chief Justice of the United States Supreme Court drew the equivalent of Rs 4,550
per month at the time. By contrast, the Chief Justice of the Bombay High Court earned Rs 5,000 per month.
172. Clause 10(1), Part D, Second Schedule, Constitution of India. See further, Advani (1969).
173. See, India List and India Office List, 1905.
174. For example, during his twenty-nine-year long service on the Bombay High Court between 1866–95, Charles Sargent went
on furlough for a total period of two years, one month, and eighteen days, between 1870–1, in 1883 and in 1894. See,
British Library, India Office Records, L/PJ/6/391, File 291. Interestingly, a High Court judge had to request the Secretary
of State’s permission, towards the end of his furlough in England, for returning to India. See, for example, British Library,
India Office Records, L/PJ/6/184, File 1413. Furlough was also permitted on medical certificate. For example, John Philip
Green, a judge of the Bombay High Court, fell ill in 1880, and left for England on furlough, on a medical certificate.
British Library, India Office Records, L/PJ/6/6, File 272. Around 1881, he was struck by paralysis, and he resigned his
office. ‘Editorial Article No. 3’ (1883).
175. See, National Archives of India, Home Department, Judicial Branch, F.1199/34-Judl. (‘Residential accommodation for the
Judges of the Bombay High Court’). The rent would not exceed 10 per cent of the judge’s salary. See further, British
Library, India Office Records, IOR/L/PJ/7/961.
176. HCA/D63/A/5, ‘Reminiscences’, p. 32. His landlord belonged to the Jewish Sassoon family. When Chandavarkar became a
High Court judge the early twentieth century, he moved into a mansion on Peddar Road, with carpeted floors and an
English-style bath. Conlon (1977: 131, n 38). However, this was probably something Chandavarkar paid for himself.
177. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/6. Hayward repeatedly mentioned this in his
memoirs: ‘I had been unable to find a bungalow and Amberson Marten who had come out three years before as a
Barrister Judge kindly offered me in a share in their bungalow on Malabar Hill.’ [pp. 12–13]; ‘Meanwhile I had settled
down again with the Martens and was fully occupied in my work in the High Court.’ [p. 19]; ‘I put up again with the
Martens…. I also made unsuccessful enquiries for a bungalow on Malabar Hill.’ [pp. 38–9]. It was only when Hayward
became a member of the Governor’s Council that he got his own bungalow from the government.
178. For example, Norman Macleod had to pay a little over 20 pounds to the Bombay government in connection with the
administrative fees paid for his appointment as a High Court judge. See, HCA/D63/A2/6, letter dated 21 July 1910, from
J.H. Duboulay, Secretary to Government, Bombay, to Justice Norman Macleod; National Archives of India, Home
Department, Judicial Branch, July 1910, No. 119. ‘I rather grudged’, wrote one Civilian judge about his experience of
being elevated to the Bombay High Court, ‘the expense of the purchase of a full set of robes including a full bottomed
wig which cost £ 20 [and I] resented having to pay for a £ 20 stamp on my Letters Patent.’ British Library, Sir Maurice
Henry Weston Hayward Papers, Mss Eur D839/6.
179. Section 6, Indian High Courts Act (24 & 25 Vict. C. 104); section 104, Government of India Act, 1915; section 221,
Government of India Act, 1935.
180. See, British Library, Chief Justice Westropp to Lord Ripon, letter dated 24 August 1881, Ripon Papers, Add Ms 43629. This
was a part of the Secretary of State’s policy, encapsulated in a Government of India resolution—resolution No. 698,
Department of Finance and Commerce, dated 21 May 1881. Under the policy, where British High Court judges were paid
Rs 3,600 per month (incidentally, this was lower than what the salary of a High Court judge had been previously), Indian
High Court judges were paid two-thirds this amount, that is, Rs 2,400 per month. This racial discrimination in
compensation, however, did not last long. In 1886, the Government of India recommended to the Secretary of State that
racial discrimination while compensating British and Indian High Court judges be done away with. See, National
Archives of India, Home Department, Judicial Branch, January 1886, No. 253–255. Further, in 1899, the Secretary of
State refused to accept the Viceroy’s proposal to compensate judges recruited from the Bar in the United Kingdom better
than judges recruited from the local Bar in Bombay. See, British Library, IndiaOffice Records, L/PJ/6/749, File 667.
181. Dillon (1920: 4). For this reason, when Dinsha Davar sentenced Tilak to transportation, N.C. Kelkar (a close associate of
Tilak) called him a ‘quack in red robes’. As a High Court Sessions judge, Davar was wearing the conventional scarlet
robe during the Tilak trial. ‘Second Tilak Trial-1909’, website of the Bombay High Court,
http://bombayhighcourt.nic.in/libweb/historicalcases/cases/Second_Tilak_Trial_-1909.html (accessed 11 May 2013);
Vachha (1962: 268). The arrival of the Sessions Judge at the Bombay High Court was customarily heralded by the
‘hereditary bugler on a squeaky native horn’. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur
D839/6.
182. Ferreira (1962: 133); Terrell (1979: 15).
183. See, Swanepoel (2010: 133–5).
184. For example, Justice Chandavarkar gave his gown and wig to Justice Patkar. ‘Mr. Justice Patkar’s Gown and Wig’ (1932).
185. When Chandavarkar went to England in 1885, a local newspaper was quick to report that he ‘wore the Indian headdress’.
Kaikini (1911: 261). Though he was not a Bombay High Court judge at the time, Chandavarkar’s pictures with the court’s
judges suggest that he probably wore the headdress in court too. Badruddin Tyabji’s son wrote that Tyabji ‘appeared in
Court in his own oriental costume, which consisted of a long robe or coat known as Angarkha and a Saya, a loose robe
over it, and an amama or turban of white fabric of gold. Underneath the Angarkha, was a white Kurta or shirt, in which
he wore three studs of fine pearls, set with diamonds. On his finger was a valuable diamond ring.’ Apparently, ‘this
remained his mode of dress to the end of his life’. Tyabji (1952: 25). A twentieth-century lawyer and acting judge,
Jamshedji Kanga, wore the turban of a Parsi priest while appearing in court. Taraporevala (2010: 19).
186. When Gandhi entered a colonial courtroom in South Africa in the nineteenth century, he kept his headgear on, most
probably because he was used to leaving his headgear on in Indian courts like the Bombay High Court as well. His not
taking his headgear off in South Africa, however, attracted adverse consequences. See, Guha (2013: 67–8, 78).
187. For example, during Pherozeshah Mehta’s stay in London during the 1860s, his Parsi headdress, a ‘dainty little black velvet
cap, gay with long flowing blue tassels attached to a button fixed in the center at the top, from which radiated some skeins
of silk’, evoked puzzled looks. Mody (vol. 1, 1921: 13). Likewise, when Chandavarkar travelled to England in 1885, his
turban was considered quite a curiosity, but Chandavarkar’s photographs reveal that he continued to wear his turban as a
judge, even though he wore the judge’s customary robe and bands. Chandavarkar (1955: 48).
188. See, P.B. Vachha, Note dated 3 June 1965, in the Bhulabhai Desai Papers, National Archives of India.
189. Circular Orders (1871: 65).
190. As the Civilian, Hayward, wrote in his memoirs: ‘It was the custom for native shoes to be taken off and left at the door
before entering a house and the custom was recognised by every Hindu member entering the Council Chamber. But on
the first day Tilak slipped in with his native shoes on. So I stood at the door waiting for him the next day but he did not
come and as all other members were present, I moved to my seat to open the meeting. At that moment Tilak stalked in
with his shoes on as an open insult to the Governor. I pointed it out to Vidal who was there as a member but he refused to
do anything about it but I think the Governor was told after the meeting.’ British Library, Sir Maurice Henry Weston
Hayward Papers, Mss Eur D839/4.
191. See, McQueen (1999).
192. For example, the sons of Justices Tyabji and Davar used to appear before them in court. Setalvad (1971: 21). According to
one British judge of the court, one Parsi Indian judge ‘had a son at the Bar who practised so regularly before him that he
was said to have an armchair in his father’s court’. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur
D839/5.
Interestingly, P.B. Vachha wrote that a Bombay High Court judge, F.C.O. Beaman, practised at the Bombay High
Court Bar after retiring from judicial office, but that he did not make a very successful Advocate. Vachha (1962: 93).
However, this is strange because judges who were appointed to the High Courts after 1899 were required to give an
undertaking which stipulated, among other things, that the judge would not practise ‘in the High Court to which [he was]
appointed or to which [he] may [have been] transferred, or in any of the Courts subordinate thereto’. See, British Library,
India Office Records, L/PJ/6/2004, File 2081. Beaman was appointed to the Bombay High Court around 1906. It would
therefore be surprising if Vachha was correct about Beaman’s alleged post-retirement law practice at the Bombay High
Court Bar.
193. Taraporevala (2010: 31).
194. This might have been the Parsi merchant, Burjor Framroze Joshi, who was called the ‘Potato King of Bombay’. Luhrmann
(1996: 95).
195. HCA/D63/A1/D, letter dated 12 March 1919, from Norman Macleod to his son, Torquil.
196. Tyabji (1952: 285).
197. Thus, in 1902, the Registrar of the Appellate Side of the Bombay High Court, R.D. Sethna, wrote a letter to the Chief
Secretary (Judicial Department) of the Governor of Bombay, referencing a request for an opinion on the City of Bombay
Police Bill (No. 1 of 1902). Sethna wrote, ‘In reply, I am to say that their Lordships refrain from expressing any opinion
on questions of policy that are involved in the Bill, and in the limited time at their disposal they are unable to frame any
comment on the details of the Bill viewed in its legal aspect, except that they would suggest that the definition of “a place
of public amusement” in clause (e) of Section 3 should be so framed as at least to include a race-course and its
appurtenant premises’. Though the judges refused to express an opinion on policy, they opined on the clarity of the
statute. Proceedings of the Council of the Governor (1901). Similarly, Sethna wrote another letter to the government in
1904. On that occasion, it seems that the government had asked the judges of the Bombay High Court for their opinion on
extending the provisions of the Deccan Agriculturists Relief Act to the entire Presidency. Sethna wrote, ‘In reply, I am to
say that the proposal involves a question of policy on which the Honourable the Chief Justice and Judges refrain from
expressing an opinion beyond stating that so far as the working of the Act has come under their observation, they are
unable to say that the Act has effected the purpose for which it was designed’. Proceedings of the Council of the
Governor (1904).
198. Before the Constitution of independent India came into force, the chief minister of the province of Bombay was called the
‘Prime Minister’.
199. Letter dated 23 January 1940, from Beaumont to Kher, B.G. Kher Papers, Nehru Memorial Museum and Library.
200. See, Chagla (1974: 125). One judge, Sir Maurice Hayward, said that this practice had ‘two good reasons’ in support of it:
‘one that it was largely a waste of time [to read case papers in advance] as it was certain that a number of appeals down
for hearing could never come on owing to various reasons necessitating postponement and the other more important that a
study of the papers beforehand led inevitably to passing a final opinion on the case before hearing the arguments of the
appellants (sic) pleader.’ British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/6.
201. Kincaid (1934: 92–3).
202. Prasad (1957: 70); ‘The Reminiscences of a Solicitor’ (1935–6: 159).
203. For example, when Norman Macleod became Chief Justice, he described the event in a letter to his son: ‘The Courts opened
on Monday. A few words of congratulation were offered by the Advocate General but the affair was badly stage managed
and the attendance was not remarkable so I did not say as much as I otherwise wld. have done in reply…’
HCA/D63/A1/D, letter dated 18 June 1919, from Norman Macleod to his son, Torquil.
204. HCA/D63/A1/D, letter dated 5 November 1918, from Norman Macleod to his son, Torquil.
205. See, Badruddin Tyabji Papers (Reel 5), National Archives of India.
206. William Wedderburn was the ‘Vacation Judge’ in 1885. See, William Wedderburn to Courtenay Ilbert, letter dated 10
September 1885, in British Library, Mss Eur D594/39.
207. See, Chagla (1974: 124).
208. See, for example, the opinion of Justice Beaman in the case of Sir Dinsha Manockji Petit and Others v. Sir Jamsetji
Jeejeebhoy and Others, 11 Bombay Law Reporter 85 (1909).
209. See, for example, the oral arguments in the case of Jamsetjee Jeejeebhoy (Bart.) and Others v. Cooverjee Pragjee and Jacob
Jumal, in Report of the Proceedings of the Towers of Silence Land Suit (1875).
210. Ibid.
211. See, Chagla (1974: 139–40).
212. See, Barker (2004).
213. Erskine Perry, ‘Minute on Legal Education in Bombay’, 3 November 1853, British Library, John Elphinstone Papers, Mss
Eur F87/128. Prior to his retirement, Perry used to deliver lectures in law in Bombay.
214. Perry imagined that the law institution in Bombay would be funded in three ways: from private endowments, fees from
pupils, and assistance from the government. He therefore felt that only wealthy students, who could pay hefty fees, be
admitted to the law program, saving exceptional cases of poor students who demonstrated ‘superior scholarship’.
215. Perry imagined that the law institution in Bombay would have three professors: two ‘English practising barristers’ and one
‘Native Judge’.
216. See, ‘History of the Government Law College, Bombay’ (1930); Karwe (1938). See further, ‘Bombay Law College
Centenary’ (1960). Eventually, by convention, the principal of the Government Law School started holding the chair.
Incidentally, Perry subsequently served on the India Council—the council of the Secretary of State for India, in England.
Perry also wrote a minute of dissent on the Vernacular Press Act, which Lytton was permitted to enact by the Secretary of
State. Mody (vol. 1, 1921: 96–7).
217. The name of the ‘Government Law School’ was changed to ‘Government Law College’ in 1925. Karwe (1938: 67).
218. In 1860, the Government Law School was granted affiliation by the University of Bombay. Karwe, ibid., p. 13.
219. Karwe, ibid., p. 7.
220. Karwe, ibid. Between 1890–1908, five other law schools had been established in the mofussils, one each in Poona,
Ahmedabad, Karachi, Baroda, and Bhavnagar. Report of the Legal Education Committee (1949: 7–9). However, these
only trained students for a part of the LL.B. examination, and these colleges were closed down after 1908. Karwe, ibid.
221. The prospectus of the Government Law College in 1930 said that classes were conducted every weekday between 5.45 pm –
6.45 pm, and every Saturday between 3 pm – 4 pm. However, one division was held in the mornings. ‘Prospectus of the
Government Law College’ (1930).
222. Chagla (1974: 65–6).
223. See, Chandavarkar (1910: 1).
224. Setalvad (1946: 161). See further, Tyabji (1952: 66).
225. ‘The Government Law School’ (1889).
226. See, Davar (1911: 4).
227. Haridas and Telang were also the first professors of the Government Law School to not have been barristers. Haridas was an
acting professor at the Government Law School between 1880–1, and became a permanent judge of the Bombay High
Court only three years later, in 1884. Telang was an acting professor of the Government Law School between 1882–4,
and again between 1887–90, and he became a High Court judge in 1889. Tyabji was an acting professor at the
Government Law School between 1886–7, and became a judge in 1895. For a list of professors of the Government Law
College, see, The Law College Magazine, Bombay, 2 (1931: 33–3).
228. Charles Frederick Farran, a professor at the Government Law School between 1868–72, eventually became the Chief Justice
of the Bombay High Court in 1895.
229. The following professors at the Government Law School became judges (either puisne or acting) of the Bombay High Court
during the British Raj: Louis Pitman Russell, Lindesay John Robertson, Dinsha Dhanjibhai Davar, Abdealli Mahomedali
Kajiji, Ganpat Sadashiv Rao, Dinshah Fardunji Mulla, Faiz Badruddin Tyabji, Vicaji Fardunji Taraporevala, Mirza Ali
Akbar Khan, Kenneth McIntyre Kemp, Bomanji Jamsetji Wadia, Sajba Shankar Rangnekar, Padmanabh Bhaskar
Shingne, Harsidhbhai Vajubhai Divatia, Mahomedali Currim Chagla, Mahomedally Alladinbhoy Somjee, Natwarlal
Harilal Bhagwati, Nariosang Hormazdyar Cooverji Coyajee, Yadnyeshwar Vasudeo Dixit, and Shamrao Raghunath
Tendolkar.
230. Karwe (1938: 28–32).
232. These were: Lindesay John Robertson, Dinsha Dhanjibhai Davar, Ganpat Sadashiv Rao, Dinshah Fardunji Mulla, Mirza Ali
Akbar Khan, and Bomanji Jamsetji Wadia. Each of these principals had also served as professors of the Government Law
School. The other two principals during this period, M.R. Jardine, and B.N. Lang, went on to become acting Advocates
General of Bombay.
233. Chagla credited his professorship at the Government Law School to one of his friends who convinced the Chief Justice of
the Bombay High Court, Norman Macleod, to appoint him to the post. Chagla (1974: 65–6). Later, Chagla was denied an
extension at the Government Law School because of another Chief Justice, Amberson Marten. Chagla (1974: 114).
234. For example, consider that Rajendra Prasad became a professor at the Law College in Calcutta thanks to a judge of the High
Court there, Sir Ashutosh Mukherji, who saw Prasad appearing in a case and was impressed. Prasad (1957: 62).
235. Dr B.R. Ambedkar was the last part-time principal of the Government Law College. A.A.A. Fyzee was the college’s first
full-time principal. Bhandarkar (1946). See further, The Law College Magazine, 9 (1938: 2).
236. In fact, one of the arguments made against making the Government Law College a permanent institution of learning was that
‘no competent lawyer in good practice [would] accept the post of professor’ if it were a full-time post. ‘Is it Desirable that
the Government Law School should be made a Full-Time Institution? (1937).
237. The foundation stone of the college was laid in 1939. The Law College Magazine, 11 (1939: 1). The new building was
completed in May 1941, and classes started being held there in June 1941. The formal opening ceremony of the building
took place on 25 November 1941. Bhandarkar (1946: 35–6). Previously, it was housed at the Elphinstone Institution.
238. Report of the Legal Education Committee (1949). Between 1855–61, one did not need to have a bachelors degree or even be
admitted to an undergraduate program in order to gain admission into the law program in Bombay. After 1861, one
needed to have been admitted to an undergraduate program in Arts or Science in order to be admitted to a law program in
Bombay. Between 1861–89, it was theoretically permissible for a person to pursue all three years of the law program
concurrently with his undergraduate program in the Arts, though he would only be awarded the degree in law two years
after he was awarded his undergraduate degree of B.A. or B.Sc. Between 1889–1908, a person could only pursue the first
year of a law program concurrently with his undergraduate studies in Arts or Science, and the next two years of the law
program would have to be pursued after he obtained his B.A. or B.Sc. degree. From 1908 onwards, a person could not be
admitted to a law program unless he had an undergraduate degree in Arts or Science. Interestingly, it was only in 1931
that those with an undergraduate degree in commerce (called B.Com), were permitted to get admission to a law program.
Report of the Legal Education Committee (1949: 9).
239. Report of the Legal Education Committee (1949).
240. Karwe (1938: 19). The other student was Bal Mangesh Wagle.
242. Karwe, ibid., p. 56. This number seemed to remain constant thereafter, declining during the years of the Second World War.
See, The Law College Magazine, Bombay, 15 (1946).
243. This was not true of other educational institutions in Bombay, for example, Elphinstone College.
244. See, Chandavarkar (1955: 15).
245. Bhandarkar (1946: 36).
246. Karwe (1938: 34). The first female student to be admitted to the school was Miss C.C. Ferreira. Karwe, ibid., p. 61.
However, in 1897, Cornelia Sorabji had been permitted to take the law examination without obtaining a certificate of
attendance from the Government Law School. Karwe, ibid., p. 34.
247. Miss M.A. Tata. See, The Law College Magazine, 2 (1931).
248. See, Mossman (2004). However, when Sorabji applied to Chief Justice Charles Sargent of the Bombay High Court to be
admitted to the Bar in Bombay, Sargent replied, ‘You see you are not a man, & no woman should be allowed to meddle
with the law’. Mossman, ibid., p. 76. It was only in November 1923 that the first woman Advocate, Mithan Tata, was
admitted to the High Court Bar in Bombay. Vachha (1962: 120–3).
249. Mehta (1931). Likewise, an obituary published in the Indu Prakash in 1895, of an Indian lady—a professor of French at the
Wilson College—reveals interesting insights into erstwhile attitudes towards women. The obituary read: ‘She was very
kind of heart and though fond of books she was ever willing and ready to take her full share of the ordinary household
duties.’ Her love of books did not get in the way of what, according to the writer, was a more important love for a woman
—ordinary household duties. ‘The Late Ms. Ratanbai Vakil’ (1895).
250. Chief Justice Beaumont felt that the Secretary for Education in the Bombay Government regarded lawyers as a ‘turbulent
body’ and as the government’s ‘political opponents’. See, The Law College Magazine, Bombay, 13 (1942: 17). See
further, Buckee (1972). The historian, Buckee, found that the colonial government considered Indian lawyers to be very
suspicious. However, interestingly, Indian lawyers, themselves, had divided loyalties, and many of them refrained from
participating in the non-cooperation movement.
251. Nurullah and Naik (1951: 275).
252. Nurullah and Naik, ibid., p. 217.
253. Nurullah and Naik, ibid., p. 273.
254. Nurullah and Naik, ibid., p. 273. For example, amongst others, the following judges of the Bombay High Court served as
Vice-Chancellors of Bombay University during their judicial tenure on the High Court: Alexander Kinloch Forbes, James
Gibbs, Sir Raymond West, H.M. Birdwood, K.T. Telang (Telang was the first Indian Vice-Chancellor of Bombay
University), Sir John Jardine, E.T. Candy, Sir Narayan Ganesh Chandavarkar, Sir Joseph John Heaton, M.C. Chagla, and
N.H. Bhagwati. Sir B.J. Wadia and Sir N.J. Wadia each served as Vice-Chancellors of Bombay University after they
retired as judges of the Bombay High Court. Bombay University was not the only place where judges served as Vice-
Chancellors. Maurice Gwyer, Chief Justice of the Federal Court of India, for instance, served as Vice-Chancellor of Delhi
University between 1938–50. See, Nair (2013).
255. Wacha (1920: 715). Contrary to what Wacha wrote, however, Arnould was not the first Vice-Chancellor of Bombay
University. Sir William Yardley and Sir Henry Davison served as Vice-Chancellors before him. Interestingly, Arnould
was said to have later declined an offer to be the Chief Justice of the Bombay High Court. Wacha, ibid., p. 254.
256. Tyabji (1952: 70).
257. Tyabji, ibid. This was Lord Dufferin.
258. Useem and Useem (1955: 35–6). But see, Gumperz (1965: 154, 326–8). Gumperz found that the curriculum was not
designed to train Indians to be low level clerks, but to be leaders, though they were ironically not permitted to hold posts
of leadership in the administration. In fact, Bombay University also conducted the ‘Matriculation Examination’ which
students had to pass in order to graduate from high school. However, the emphasis in the education system in colonial
India was on building character, not on encouraging scientific inquiry. Indian education was modelled on the Victorian
public schools of England, at a time when those schools themselves were moving from an emphasis on character to
scientific inquiry.
259. Jayakar (1958: 16).
260. Jayakar, ibid., p. 16.
261. Likhovski (2006: 106–23).
262. Setalvad (1946: 161–2). See further, Tyabji (1952: 65–9).
263. Setalvad, ibid., p. 162.
264. Setalvad, ibid., p. 161.
265. ‘History of the Government Law College’ (1930: 53).
266. Chagla (1974: 114). For the same reason, B.R. Ambedkar was denied an extension as well. Chagla, ibid.
267. Davar (1911: 6).
268. Eventually, a mildly worded article, on whether India should get dominion status or independence, appeared in the
magazine’s pages only in 1945—two years prior to independence.
269. The Law College Magazine, Bombay, 1 (1930: 50–1).
270. The first editor of the magazine was B.K. Desai, a professor of the college between 1929–32, who eventually became Court
Receiver. See, The Law College Magazine, Bombay, 9 (1938: 3). Over the years, the magazine was edited, amongst
others, by Professors Nariosang Hormazdyar Cooverji Coyajee and Yadnyeshwar Vasudeo Dixit—both of whom went on
to become Bombay High Court judges. See, The Law College Magazine, Bombay, 15 (1946: iv–v).
272. ‘Sir John Beaumont’ (1945: 2–4).
273. See, Chapter 5.
275. Ibid.
276. See, Buckee (1972).
277. Buckee, ibid., pp. 318–29. For example, in 1930, attempts to discipline lawyers who had participated in Gandhi’s movement
to disobey salt laws failed in the Bombay High Court.
278. Report of the Legal Education Committee (1949: 7–9).
Chapter 2 The Rise of the Indian Judge

1. Wassoodew had previously served as the Principal Sudder Ameen of Surat, and then as a judge of the Small Causes Courts
at Dharwar and Bombay [‘Article No. 4’(1865)]—in other words, he belonged to the ‘subordinate judge’ category.
2. Tucker (1977: 17).
3. Tucker, ibid., p. 17.
4. Chainani (1988: 5).
5. When Kinloch Forbes, a puisne judge of the Bombay High Court, died in 1865, Wassoodew was apparently appointed in
his place, subject to the confirmation of the Secretary of State. ‘Civil Appointments’ (1865). However, it is not known
why Wassoodew never became a puisne judge of the Bombay High Court. Buckland referred to him as ‘the first native
Judge of the Bombay High Court’. Buckland (1906: 442). Wassoodew died in 1894, so it is also not possible that he died
prior to being confirmed as a permanent judge of the court.
6. In the newspaper reports of the time, his first name was variously spelled as Janardhun, Janardhan, Janurdhun, and
Janardan, and his last name as Wassodewjee, Wasoodew, and Wasudew. Vachha, for example, called him ‘Jagannath
Wassudewji’. Vachha (1962: 74). This error was repeated by Taraporevala. Taraporevala (2010: 148). Interestingly, even
the colonial government misspelled Indian judges’ names. For example, Harilal Kania’s middle name was written
incorrectly as ‘Jaykisandas’ instead of ‘Jekisondas’ in his Letters Patent from the Crown, appointing him to the Bombay
High Court in 1933. When Kania tried to get the error corrected, the India Office apologetically wrote to him saying that
the error could not now be rectified. See, British Library, India Office Records, L/PJ/8/104. Likewise, ‘Yadnyeshwar’
Vasudeo Dixit was spelled ‘Yadryashwar’ Vasudeo Dixit by the government, though the error was caught in time to be
rectified. British Library, India Office Records, L/SG/7/849A.
7. ‘Article No. 9’ (1886).
8. Though we do not know the exact date on which Wassoodew’s term came to an end, it can be conjectured that he did not
serve on the court very long.
9. Haridas took Maxwell Melvill’s seat on the Bench. Melvill had been promoted to the Governor’s Council. See, British
Library, India Office Records, L/PJ/6/124, File 869; L/PJ/6/127, File 1126.
10. For much of the British Raj, the British community in India was referred to as the ‘Anglo-Indian’ community. However,
starting approximately in the 1920s, the term ‘Anglo-Indian’ was used to describe Eurasians—those with both European
and Asian parents. See, Sinha (1995: 23). Under Article 366 of the Constitution of independent India, an ‘Anglo-Indian’
is a person whose father, or any of whose ‘male progenitors in the male line’ is or was of European descent, and who is
domiciled in India, having been born in India, to parents habitually resident in India. Thus, the Constitution uses the term
‘Anglo-Indian’ in both senses—an Anglo-Indian under the Constitution is a person of either mixed or pure European
descent.
Indians who went abroad to study during the Raj would especially point out that Britons in India were very different
in their attitude towards Indians from Britons in the United Kingdom, who were usually less racist.
11. Chandavarkar (1955: 45).
12. Tucker (1977: 161).
13. Tyabji (1952: 126, 149).
14. Tucker (1977: 163).
15. Tyabji (1952).
16. Tucker (1977: 111).
17. Gopal (1953: 120–1).
18. Gopal, ibid. Ripon referred to Garth as ‘a prejudiced second rate Tory lawyer with strong party feelings to which he is apt to
give way’. Gopal, ibid., p. 119. Mitter eventually did not become Chief Justice of the Calcutta High Court. See, ‘The
Chief Justiceship of Bengal’ (1886); ‘The New Chief Justice of Bengal’ (1886).
19. Gopal, ibid., pp. 120–1.
20. In fact, it would take another few decades for an Indian, Badruddin Tyabji, to act as the Chief Justice of the Bombay High
Court. Tyabji acted as the Chief Justice of the Bombay High Court in 1903.
21. Gopal (1953).
22. For an account of the Ilbert Bill controversy in the context of colonial masculinity, see, Sinha (1995).
23. Under section 4(u) of the Code of Criminal Procedure of 1872 (Act No. X of 1872), a ‘European British subject’ was ‘(1)
any subject of Her Majesty born, naturalized, or domiciled in the United Kingdom of Great Britain and Ireland, or in any
of the European, American, or Australian Colonies or Possessions of Her Majesty, or in the Colony of New Zealand, or in
the Colony of the Cape of Good Hope or Natal; (2) any child or grand-child of any such person by legitimate descent’.
24. Jain (1972: 300–7); Kolsky (2010: 78); Gopal (1953: 125).
25. Kolsky points out that the Code of Criminal Procedure in British India, at this time, only applied to the mofussils. There
were three sets of criminal procedures in British India: the High Courts’ Criminal Procedure Act, the Presidency
Magistrates Act, and the Code of Criminal Procedure. Kolsky (2010: 97). Since the Code of Criminal Procedure only
applied in the mofussils, it was only there that there was a formal racial distinction between Indian and British judges in
criminal procedure.
26. See, Kolsky (2010: 78–103). Though Indian judges in the High Courts, and Indian magistrates in presidency towns could
theoretically exercise criminal jurisdiction over European British subjects, it is unlikely that such powers were ever
actually exercised. Gopal, for example, found that no Indian High Court judge had ever, sitting single, exercised original
criminal jurisdiction over a European. Gopal (1953: 145).
27. Kolsky (2010: 97). The Indian Civilian was Behari Lal Gupta.
28. Gopal (1953: 133–4).
29. Gopal, ibid., p. 144.
30. ‘The Judges and the Jurisdiction Bill’ (August 1883).
31. Gopal (1953). See further, Letter of the High Court of Bengal (1883). Since this book is not concerned with any court other
than the colonial-era Bombay High Court, I do not have sufficient data in order to conclusively say whether the Calcutta
High Court was generally more or less racist than, or equally as racist as, the Bombay High Court. The Calcutta High
Court’s behaviour during the Ilbert Bill controversy, however, suggests that it was more racist than its counterpart in
Bombay.
32. Gopal (1953).
33. Tucker (1977: 23).
34. British Library, James Gibbs to Ripon, letter dated 6 March 1883, Ripon Papers, Add Ms 43611.
35. Bayley would go on to serve another, longer, term as president of the club between 1888–95. See, Sheppard (1916).
36. British Library, James Gibbs to Ripon, letter dated 26 February 1883, Ripon Papers, Add Ms 43611.
37. British Library, James Gibbs to Ripon, letter dated 6 March 1883, Ripon Papers, Add Ms 43611.
38. ‘The Judges and the Jurisdiction Bill’ (1 September 1883).
39. ‘The Ilbert Bill Opinions: The Bombay Officials’ (1883).
40. Ibid.
41. ‘Article 12—No Title’ (1883).
42. Gopal (1953: 161).
43. As Thomas Metcalfe points out, the Western educated Indian presented a challenge to the idea of an abiding ‘difference’
between Indian and British identities. As a consequence, the ‘babu’ was deprecated as a ‘caricature Englishman’.
Metcalfe (1994: 106, 203–14). On British attitudes towards educated Indians, see further, Cohn (1996: 86–96).
44. ‘Death of Hon. Mr. Justice Nanabhai Haridas’ (1889).
45. See, Westropp to Fergusson, date unclear, British Library, Sir James Fergusson Papers, Mss Eur E214/20.
46. However, Westropp was only recommending Haridas for an acting judgeship on the Bombay High Court, because of a
temporary vacancy that had arisen on the court due to the absence of Kemball on leave. Governor Philip Wodehouse had
first appointed Haridas to act as a High Court judge. After having acted as a High Court judge on numerous occasions,
Haridas was passed over for an acting appointment by J.D. Melvill, under the regime of the then Governor of Bombay,
Sir Richard Temple. After Melvill passed Haridas over, Temple wrote a consolation letter to Haridas, ‘informing him that
he was not to regard himself as passed over or his claim ignored’. Westropp to Fergusson, ibid. Now, Westropp probably
wrote to Governor Fergusson in order to ensure that Haridas would not be passed over for an acting appointment again, as
he had been under Temple.
47. Westropp wrote that his own preference was for ‘Latham or some other barrister in good practice’ to be appointed to the
temporary vacancy on the High Court Bench instead of Haridas, but that that would neither be ‘satisfactory’ nor ‘right’.
Westropp to Fergusson, ibid.
48. See, Chapter 1, ‘Compensation’.
49. Haridas relied on section 6 of the Indian High Courts Act, 1861, which provided that a High Court judge’s salary could not
be altered to his disadvantage after he was appointed. Haridas also complained that the policy was being unfairly applied
to him. Under the policy, the Secretary of State had also lowered the salaries payable to British High Court judges
(though British judges were still to be paid more than Indian judges). However, Britons who were serving as acting High
Court judges when the policy came into being were not asked to refund a portion of their salaries like Haridas was.
Haridas objected to this, and he paid his portion under protest.
50. British Library, Chief Justice Westropp to Lord Ripon, letter dated 24 August 1881, Ripon Papers, Add Ms 43629.
51. British Library, Chief Justice Westropp to Lord Ripon, letter dated 12 September 1881, Ripon Papers, Add Ms 43630.
52. ‘The Late Mr. Justice Nanabhai Haridas’ (17 June 1889).
53. Ibid.
54. This is contrary to the Allahabad High Court, where the first Indian to be appointed from the ‘Pleader’ category—Sir
Sundar Lal Dave—was appointed in 1916. Buckee (1972: 71).
55. ‘The Late Mr. Justice Nanabhai Haridas’ (18 June 1889).
56. One member of the Governor’s Executive Council, Mr Tucker, wanted Shantaram Narayen to be appointed to the High
Court Bench as its first permanent native judge. Another member of the Council, James Gibbs, preferred Vishwanath
Narayen Mundlick, who had worked as Gibbs’ personal assistant when Gibbs was the Commissioner of Income Tax in
Bombay. Since Governor Philip Wodehouse could not decide between these two candidates, he asked the Chief Justice of
the Bombay High Court to decide whom to appoint. The Chief Justice picked Haridas instead.
Mundlick especially went on to have a very illustrious career—as Chairman of the Municipal Corporation of Bombay,
Fellow and Syndic of Bombay University, member of the Legislative Council of the Governor of Bombay, and as the first
native member of the Viceregal Council. ‘Death of Mr. Shantaram Narayen’ (1891); ‘Death of Rao Saheb V.N.
Mundlick’ (1889). However, unlike Haridas, Mundlick’s father was ‘a wealthy man, highly connected, and possessing
considerable influence in his District’. ‘Untitled Article’ (1889).
57. Chandavarkar (1911b: 32–7). Mundlick was famous for having organized the ‘Madhav Baug agitation’ in 1886 against
legislative interference with infant marriage and enforced widowhood, when B.M. Malabari wanted Hindu law to be
reformed. Chandavarkar (1955: 79–86).
58. Chandavarkar, ibid., p. 80.
59. Wolpert (1962: 60).
60. It is not entirely clear why this was. Perhaps this had something to do with the fact that courts could bring about incremental
social change, which created less opposition than the more drastic social change which legislatures could bring about. The
central legislature’s attempt to reform the age of consent among Hindu women in the late 19th century caused an uproar
among the conservative Hindu community (which we will see below), whereas judgments produced less resistance, and
unpopular judgments like the Rukhmabai decision, which we will encounter in subsequent chapters, could be overruled
more easily.
61. See, Cannadine (2001: 43–4).
62. Narayen, on the other hand, was an industrialist. He had a soap factory (the first of its kind in Bombay) and a spinning and
weaving factory. See, ‘Untitled Article’ (1891). Perhaps this got in his way when his name was suggested for the High
Court judgeship.
63. Wacha (1920: 170, 762). The first Sir Jamsetjee Jeejeebhoy (1783–1859) was one of Bombay’s most famous merchants
who carried out an opium trade with China. See, Luhrmann (1996: 87). He was knighted in 1842, and in 1857 he was
created the first Indian baronet. He was succeeded by his eldest son, Cursetjee Jamsetjee, who took his father’s name.
Cursetjee died in 1877 (and not in 1908, as the Oxford Dictionary of National Biography presently suggests). ‘Death of
Sir Jamsetjee Jeejeebhoy, Bart., C.S.I.’ (1877). The Jamsetjee who felicitated Haridas was probably the third baronet.
Rapson (2004).
64. ‘The Evening Party to Mr. Justice Nanabhai Haridas’ (1884). See further, ‘An Entertainment to the Hon’ble Mr. Justice
Nanabhai Haridas’ (1884).
65. Setalvad (1946: 18).
66. ‘Death of Hon. Mr. Justice Nanabhai Haridas’ (1889). He died in 1889.
67. For example, Richard Tucker wrongly identifies Telang as ‘the first Indian judge on permanent appointment to the court’.
Tucker (1977: 278). This is not as uncommon a mistake as one would think.
68. Buckland (1906: 372). His first name was also occasionally spelled ‘Sambhunath’ or ‘Sumboo Nath’. Pandit owed his
appointment to his good fortune—an Indian lawyer, Romaprosad (also ‘Rama Prasad’) Roy (who was, incidentally, the
youngest son of Raja Ram Mohan Roy), was going to be the first Indian judge appointed to serve on the Calcutta High
Court, but he died before he could assume his position. Buckland, ibid., p. 366. When Pandit died in 1867, he was
replaced by Dwarkanath Mitter.
69. Indian Judges (1932: 37).
70. The first Indian judge of the Madras High Court was Sir Tiruvarur Mutusawmy Aiyar (sometimes spelled ‘Muthusami
Ayyar’). Unlike his counterparts in Bengal, Aiyar belonged to the subordinate judge category.
71. ‘The Vacancy on the High Court Bench’ (June 1889). The names being considered included Badruddin Tyabji, Shantaram
Narayen, and Mahadeo Ranade.
72. Even judicial appointments on courts outside the Bombay Presidency were being commented on in the local press. See, for
example, ‘The New Native Judge in the Punjab Chief Court’ (1885); ‘Appointment of Natives to Higher Posts’ (1886).
73. However, commentaries on judicial appointments were not always about qualified Indians losing out to unqualified
Europeans. In 1895, the Indu Prakash expressed dismay that an under-qualified Indian customs official, Mr Kothari, was
appointed to replace the British Deputy Registrar of the Bombay High Court, Mr Watkins. Kothari’s only qualification,
according to the newspaper, was that he was ‘a son-in-law of Mr Patel of the Small Causes Court’. ‘The Recent High
Court Appointment’ (1895). Likewise, in 1895, the Indu Prakash criticized the government for appointing Ghellabhai
Haridas as Sheriff of Bombay, overlooking the stronger claim of another Indian candidate, Mr Bhalchandra, for the post.
‘The New Sheriff of Bombay’ (1895). However, the fact remains that the government’s recruitment policy to high-level
posts in Bombay was now under public scrutiny, and the government was increasingly coming under pressure for not
appointing Indians to important judicial posts. Thus, after Haridas’s death, leaving his seat vacant was likely to prove a
difficult path to go down.
74. When William Hart went on leave, the Bombay Presidency Association submitted a memorial to the government protesting
against the appointment of C.W. Chitty as his replacement. ‘A Protest Against Two Recent Appointments’ (1891). As one
commentator wrote at the time, ‘are there no native members, I ask, of the Bombay Bar who could discharge the duties of
Chief Judge at least as satisfactorily, as a European junior barrister?’ ‘Contribution: Free Thoughts’ (1891). The
opposition to Chitty’s appointment rested on the fact that he did not meet the criteria necessary to be appointed to the
post.
75. The protest was made on the ground that the Briton’s appointment breached the policy of keeping one seat on that court
reserved for a native. The Briton judge was Webb. ‘A New Magisterial Appointment’ (1891); ‘The Presidency
Association’s Protest Against Mr. Webb’s Appointment’ (1891). This suggests that the protest was not about the
legitimacy of the court in the eyes of the litigant. Instead, it was about its legitimacy in the eyes of the Indian lawyer.
Webb’s appointment to the court denied Indian lawyers a chance to serve on an important position in the judiciary, and
was illegitimate for that reason. Webb was eventually appointed to the post, notwithstanding. ‘The New Judicial
Appointments’ (1892).
76. ‘The Presidency Association’s Protest Against Mr. Webb’s Appointment’ (1891). The Bombay Government did not take
very kindly to this protest, and it responded in harsh terms. ‘The Government of Bombay in Conflict with Native Public
Opinion’ (1891). In another instance, the Indu Prakash commended the government for appointing an Indian lawyer,
Hormasji Dadabhai, the leader of the Small Causes Court Bar, as the Fifth Judge of the Bombay Small Causes Court,
instead of the less qualified European, Mr Vanderstrasten. ‘The Fifth Judge of the Bombay Small Causes Court’ (1891).
Likewise, in 1894, the Indu Prakash criticized the government for appointing a ‘briefless’ British barrister to act as the
Chief Presidency Magistrate in Bombay. ‘The Chief Presidency Magistrateship’ (1894). At the time, the post was
reserved for a British barrister. See, British Library, India Office Records, Q/2/2/152 (containing the statement of
Chimanlal Setalvad, made to an official, government-appointed commission). The Indu Prakash also criticized the
government at this time for appointing an unqualified British official, Mr Wilkins, to the post of Fourth Presidency
Magistrate, overlooking more qualified lawyers, like the Indian lawyer Moroji Kashinath. ‘An Unfortunate Appointment’
(1894).
77. For example, the controversy over Webb’s appointment reached Britain’s Parliament, where one member asked the
government whether there was no competent and qualified native barrister available for the appointment instead. ‘Mr.
Webb’s Appointment Questioned in Parliament’ (1891).
78. This is what the Bombay government wrote to the Secretary of State in a judicial despatch dated 25 June 1889, available at
British Library, India Office Records, L/PJ/6/257, File 1212.
79. The term ‘public-spirited men’ is borrowed from Mody, who used it to describe Pherozeshah Mehta. Mody (vol. 1, 1921:
144).
80. It was not until 1910 that an Indian would be appointed to the Governor’s Executive Council in Bombay. The first holder of
this post was Sir Mahadev Bhaskar Chaubal, who, incidentally, also acted as a judge of the Bombay High Court in 1908.
‘Bombay High Court: New Judge’ (1908).
81. For example, in 1864, two out of the four Indian members of the Governor’s Legislative Council were confirmed
businessmen: Rustomjee Jamsetjee Jeejeebhoy and Jugunath Sunkershett. [The occupations of the other two members
(Madhoorow Vittul Vinchoorkur and Shett Premabhaiee Hemabhaiee) are unknown]. Likewise, two of the four Indian
members of the Governor’s Legislative Council in 1870 were probably princes: His Highness Meer Mahomed Khan
Talpoor and Shreeniwas Raojee Rao Saheb Punt Prutinidhi. [Likewise, the occupations of the other two members
(Munguldass Nuthoobhoy and Framjee Nusserwanjee Patel) are unknown].
82. Meetings would be held there when the government would refuse to grant permission for such meetings to be held at the
Town Hall. This was especially so during Lytton’s administration. See, Mody (vol. 1, 1921: 105). See further, ‘A
Projected Town Hall for Bombay’ (1892). When Gandhi visited India in the nineteenth century to raise support for the
cause of the Indian community in South Africa, the public meeting convened for him in Bombay was held at the Framji
Cowasji Institute Hall. See, Guha (2013: 104).
83. ‘The Vacancy on the High Court Bench’ (July 1889).
84. Ibid. For example, the Indu Prakash reported that there was a rumour that Badruddin Tyabji had been offered a High Court
judgeship at two-thirds the salary. It confirmed that this rumour was untrue.
85. British Library, India Office Records, L/PJ/6/255, File 999. See further, British Library, India Office Records, L/PJ/6/1158,
File 1434.
86. Interestingly, the Bombay Government did not consult its own local legal advisors on the question, like the Advocate
General of Bombay, because it did not trust that their local advisers would entirely be impartial on the question, because
they were themselves considered candidates for judicial appointment to the High Court Bench. As the Bombay
Government explained to the India Office: ‘There are obvious reasons why the opinion of counsel in England should be
obtained on the particular subject rather than that of members of a small local Bar including several candidates for the
vacant Judgeship.’ British Library, India Office Records, L/PJ/6/257, File 1212.
87. The Attorney General at the time was Sir Richard Webster, and the Solicitor General was Sir Edward Clarke. See, British
Library, India Office Records, L/PJ/6/257, File 1212.
88. According to Chimanlal Setalvad, Telang was considered to be a ‘Pleader’ on a technical ground—the definition of
‘Pleader’ in the Civil Procedure Code included Advocates. Setalvad (1946: 36).
89. ‘The New Judge’ (1889).
90. Ibid.
91. Indian Judges (1932: 256).
92. However, Telang was an excellent student of Sanskrit. He was, for some time, a Sanskrit Scholar at Elphinstone High
School, and he won the Bhugwandass Purshotumdass Prize for getting the highest marks in Sanskrit in his M.A.
examination ‘The Late Hon. Mr. Justice Telang C.I.E.’ (1893).
93. Tucker (1977: 3).
94. For more, see, Conlon (1977).
95. ‘The New Judge’ (1889).
96. ‘The Late Hon. Mr. Justice Telang C.I.E.’ (1893).
97. The Indu Prakash said of him: ‘His political work was almost contemporaneous with his Professional work.’ Ibid.
98. Tyabji (1952: 64–5). The Rajabai clock tower was named after the mother of the merchant philanthropist, Premchand
Roychand, who donated the money for it. Wacha (1920: 680–1). Eventually, it was only under Viceroy Curzon that
British India got a uniform standard time, in 1905. Jayakar (1958: 68). See further, Mody (vol. 2, 1921: 493–518). For
more on the clock tower of Bombay, see, Cannadine (2001: 48). Interestingly, the Rajabai Clock Tower became the
subject of a sensational murder trial in Bombay in the 1890s. See, ‘The Verdict of the Jury in the Rajabai Clock Tower
Case’ (1891).
99. Gumperz (1965: 321).
100. Telang (1916).
101. Contrary to what Jamnadas Dwarkadas wrote, however, it does not appear as though Telang ever served as president of the
Indian National Congress. See, Dwarkadas (1969: 147).
103. Chandavarkar, ibid., pp. 45–6.
104. ‘The New Judge’ (1889).
105. Mody (vol. 2, 1921: 212).
106. Masselos (2004).
107. See, ‘Sir P.M. Mehta Dead: Review of his Career’ (1915).
108. The ‘Parsis’ are ‘Zoroastrians who fled to India after the seventeenth-century conquest of Persia by Arab Muslims’. Sharafi
(2006: iii).
109. Mehta was called to the Bar at Lincoln’s Inn in 1868.
110. ‘Sir P.M. Mehta Dead: Review of his Career’ (1915).
111. He studied at Elphinstone College. Mehta got his B.A. degree in 1864 in the second division, and his M.A. degree that same
year in the second class.
112. Mody (vol. 1, 1921: 212).
113. Telang (1916: 199).
114. Telang, ibid., p. 188.
115. Telang, ibid., pp. 189–90.
116. Tyabji (1952: xvi).
117. Telang (1916: 216).
119. Ranade (1900: 320–1).
120. Telang (1916: 294).
123. Telang, ibid., pp. 189–90.
125. Telang, ibid.
126. Telang played a behind the scenes role in the Age of Consent controversy. See, Indu Prakash, 17 November 1890; ‘Mr.
Telang’s Reply’ (1891).
127. ‘The New Judge’ (1889).
128. Buckland (1906: 417–18). Telang did not appear to have been in the best of health even as a lawyer. In January 1888, a year
before he was appointed to the High Court Bench, Telang wrote a letter to Pherozeshah Mehta, complaining about his bad
health: ‘I have had a recent attack of cough & cold, & still later I have been suffering from want of sleep & fever. I am
afraid I am not even now quite fit for work & am going to consult the doctor about my state of health today.’ Pherozeshah
Mehta Papers, National Archives of India.
129. Website of the Bombay High Court, http://bombayhighcourt.nic.in/libweb/judges/RanadeMG.pdf (accessed 5 February
2013). Ranade had two names—a Vaishnavite name, Madhav, and a Shaivite name, Mahadeo. He was known as
Mahadeo since his days in college. Tucker (1977: 18). Others who were possibly being considered for the post were V.J.
Kirtikar, P.M. Mehta, Badruddin Tyabji, and J.J. Gazdar. ‘Successor to Mr. Justice Telang’ (1893).
130. The ‘Chitpavan Brahmins’ are a sub-category of the Brahmin caste, found primarily in Maharashtra. For more on this
community, see, Punekar (1967).
131. Tucker (1977: 4).
132. Tucker, ibid., p. 10; Mankar (1902: 15–17); Kellock (1926: 1–3).
133. Ranade (1900).
134. Tucker (1977: 290).
135. Ranade (1906).
136. Gumperz (1965: 316, 381).
137. Tucker (1977: 34). It is perhaps for this reason that Sir Stanley Reed identified him later as having had ‘one drooping and
watery eye’. Tucker, ibid., p. 220.
139. The series was entitled ‘Uncha Majha Jhoka’. See, for example, Episode 230, on the Zee Marathi channel on Youtube,
http://www.youtube.com/watch?v=ApG7qrgRL2k (accessed 20 September 2013).
140. Ranade was the first judge of the provincial Bombay Civil Service to be appointed to the Bombay High Court. Over the
years, it seems that only a few other such judges were appointed to the court—Dayaram Gidumal (who, it seems, never
took up his appointment), Keshavrao Balkrishna Wassoodew, and Narayan Swamirao Lokur. ‘Mr. Justice Wassoodew’
(1942); ‘Pleader Judge’ (1946); ‘Mr. Justice Wassoodew’ (1943). Additionally, Rangnekar was the Chief Presidency
Magistrate of Bombay before being elevated as a judge of the Bombay High Court.
141. Tucker (1977: 191); Kellock (1926: 74).
143. See, Tucker, ibid., p. 100.
144. Tucker, ibid., p. 45. In fact, unlike the other Indian judges who sat on the court in the nineteenth century, Ranade was a
mediocre, uncharismatic public speaker. Tucker, ibid., p. 77. A Governor of Bombay described him as ‘the ugliest man in
the Presidency’. Tucker, ibid., p. 78. [The Governor was Lord Reay]. Sir Stanley Reed of the Times of India described
him as ‘a man notoriously indifferent to appearances’. Tucker, ibid., p. 220.
145. Tucker, ibid., p. 48; Kellock (1926: 163).
149. Tucker, ibid., p. 114; Kellock (1926: 30).
150. Tucker, ibid., p. 121; Mankar (1902: 45–6); Kellock, ibid., pp. 68–9..
151. Tucker, ibid., p. 124; Mankar, ibid., pp. 46–7; Kellock, ibid., p. 72.
152. Tucker, ibid.; Mankar, ibid., p. 47; Kellock, ibid.
153. Thana was on the outskirts of the town of Bombay. Nasik was a town about 100 miles north-east of the town of Bombay.
Dhulia was even further away, about 200 miles north-east of the town of Bombay.
156. Tucker, ibid., pp. 161–2.
158. Tucker, ibid., p. 209; Mankar (1902: 146); Kellock (1926: 83).
160. (1885) Indian Law Reports 9 Bom 529.
161. Tucker (1977: 214); Kellock (1926: 86–7).
162. Tucker, ibid., p. 216; Kellock, ibid., pp. 88–91.
164. Tucker, ibid.
165. Tucker, ibid., p. 80; Mankar (1902: 104); Kellock (1926: 57–62).
166. Tucker, ibid., pp. 245–9; Mankar, ibid., pp. 99–103; Kellock, ibid., pp. 104–10. See further, ‘The Mission House Episode’
(1892).
167. Apparently, Tyabji had been offered a judgeship on the court before, but he had declined on account of ill health. See,
Bombay Law Journal, 2 (1924–25: 212–18).
168. For example, in 1878, Tyabji was briefed by the following solicitors’ firms or individuals: Tyabji & Sayani, Robert Shipsey,
Mirza Hussein, Ardesir & Hormusji, Khunderrao Moroji, Lynch & Tobin, Moolja & Bomonjee, Pestonji Ravasji, Henry
Biamuell, Shamrao Pandurang, Shapurji & Makurda, Balkrishna & Shapanda, Mursookla and Munshi, Jemsetji Cusetjee
Cama, Allan & [illegible], Janardhan Gopal, Bhaishankar & Dinsha, Maepurlane and Gilbert, [illegible] Harrychand,
Smith & Frere, Clerk of the Crown, Jefferson & Payne, Present and Winter, [illegible] More Couroy, Naik? And
Hormusji, Public Prosecutor. See, Badruddin Tyabji Papers (Reel 5), National Archives of India.
169. Figures of Tyabji’s earnings have been obtained from his private papers: ‘Total of Fees for each year since the
commencement of my practice’, Badruddin Tyabji Papers (Reel 5), National Archives of India.
170. In 1889, Tyabji had the following terms with a law firm: ‘Minimum charge up to one hour: 3 gms = 45 Rs. If time does not
exceed 3 hours then at the rate of 3 gms per hour. For parts of an hour above one hour and not exceeding 3 hours one pie
for each quarter. Seven hours to count as a day = 400 Rs above & hours number of hours to be charged proportionately at
the rate of 7 hrs a day = 400 Rs.’ Badruddin Tyabji Papers (Reel 5), National Archives of India.
171. The words ‘almost in Europe’ are a little misleading. Tyabji meant that he was in Europe for almost seven months.
172. ‘Changes in the Local High Court’ (1895). See further, ‘The High Court Judgeship’ (1884).
173. ‘A Shameless Act of Nepotism’ (1895).
174. Ibid.
175. Ibid.
176. Tyabji was eventually appointed in the vacancy created by Bayley’s retirement. See, ‘The New Appointment to the High
Court’ (1895).
177. ‘Mr. Justice Strachey’ (1895).
178. Letter dated 22 October 1895, from Heaton to Tyabji, in the Badruddin Tyabji Papers (Reel 2), National Archives of India.
179. Letter dated 7 November 1895, from Governor Sandhurst to Tyabji, in the Badruddin Tyabji Papers (Reel 3), National
Archives of India. See further, ‘The New Appointment of a High Court Judge’ (1895).
180. ‘Changes in the Local High Court’ (1895).
181. ‘Mr. Justice Badruddin Tyabji’ (1895).
182. Tyabji (1952: 325); Wright, Jr. (1976: 217–38).
183. See, Census of India, 1901, Volume 1-A, Part II.
184. Ibid.
185. See further, Bhaiji (1937–8).
186. For more, see, Engineer (1994).
187. Tyabji (1952: 6).
189. Tucker (1977: 29).
190. Tyabji (1952: 30).
191. See, ‘Will of Badruddin Tyabji’, in the Badruddin Tyabji Papers (Reel 4), National Archives of India.
192. Tyabji (1952: 43–5).
202. Noorani (1969: 156–7).
203. Noorani, ibid., p. 159.
204. Tyabji (1952: 251–3).
206. Tyabji, ibid., pp. 245–6.
207. Wacha (1920: 740). The first Indian solicitor in Bombay was Khanderao Moroji. Camruddin Tyabji eventually became a
partner in a law firm called Green and Tyabji. Ibid.
208. See, Tyabji (1952: 29); ‘The Late Mr. Cumrudin Tyabji’ (1889).
209. Gandhi (1949: 69).
210. Tyabji was ‘acting’ in the position vacated by Justice L.H. Bayley. When Arthur Strachey was appointed to the court at
around that time, there was some opposition because it was thought that Tyabji was not going to be confirmed as a puisne
judge. ‘The High Court Appointment’ (1895).
211. Kanga (1940: 362). It cannot be said that Kanga, presumably being a Parsi, harboured ill-feelings towards Hindus and
Muslims. He showered praise on Justice Telang.
212. ‘Chandavarkar Educationist Social Reformer’ (1955).
214. Tucker (1977: 295).
216. Tucker (1977: 56).
217. Chandavarkar (1955: 46). The other two Indian delegates were Mun Mohan Ghosh from Bengal and Ramaswami Mudaliar
from Madras.
219. Beaman (1924–25: 208).
220. British Library, Sir Maurice Henry Weston Hayward Papers, Ms Eur D839/5.
221. See, for example, Kaikini (1911: 3, 93). This was actually quite common, and most Indians of the time referred to
themselves not as Indians, but as the ‘natives’.
222. Kaikini, ibid., p. 168.
224. Chandavarkar (1955).
225. Chandavarkar wrote a series of articles in the Times of India in 1886, entitled ‘Forces at Work’. See, Chandavarkar, ibid., p.
19.
226. Kaikini (1911: 17–18).
231. Chandavarkar, ibid., p. 224.
232. Kaikini (1911: 212–13).
233. Kaikini, ibid., p. 334. See further, Indu Prakash, 13 February 1893; ‘Why Despair?’ (1893).
234. Kaikini (1911: 334).
237. Tucker (1977: 230).
238. At least initially, this conference was closely related to the Indian National Congress. Its meetings would be held at the same
venues as Congress sessions, and immediately following Congress sessions. Chandavarkar (1955: 82).
239. Kaikini (1911: 309).
240. Kaikini, ibid.
242. See, Chandavarkar (1955: 112); Tyabji (1952: 280).
244. Misra (1961: 353).
245. Chandavarkar (1955: ix).
246. Chandavarkar, ibid., p. xii.
247. Interestingly, at this time, electric lights and fans had not yet been introduced into the High Court building. See, Speech of
Chimanlal Setalvad in the Bombay Legislative Council in 1906, Proceedings of the Council of the Governor (1907: 188–
9).
248. See, British Library, India Office Records, Q/2/2/152. In his statement to an official government-appointed commission,
Setalvad said, ‘I am one of those who view with dismay the introduction recently of communal considerations in the
filling of high public appointments like those of High Court Judges, which must result in the appointment of
comparatively inefficient men and the consequent lowering of the dignity, the prestige and the efficiency of institutions
hitherto held in great public esteem. This has led in recent years to the appointment as High Court Judges of gentlemen
who would never, in the ordinary course, have been thought of or considered fit for such appointment if they had not been
Mahomedans and whose supposed fitness for the high offices they were suddenly called upon, in some cases to their own
surprise, to fill, would never if the ordinary rules of selection had been followed been discovered, in preference to more
qualified and superior men who had the misfortune to belong to other communities. I maintain that considerations of race
and religion should be entirely eschewed in the making of these appointments, and the men best fitted to fill these posts
by ability, experience and integrity should be appointed, be they Europeans, Hindus, Mahomedans or Parsis. All that is
necessary to secure is that once fitness was established, race or religion should be no disqualification.’
249. Speech of Ramkrishna Gopal Bhandarkar in Proceedings of the Council of the Governor (1907: 139).
250. Tyabji too died in harness, when he was in England consulting an eye specialist: ‘Mr. Justice Tyabji: Sudden Death in
England’ (1906).
251. See, note 107, above.
252. See, Census of India, 1901, Volume 1-A, Part II; Census of India, 1931, vol. 1, Part II.
253. Potter (1986: 117).
254. See, Luhrmann (1996). See further, Mody (2005).
255. I carried out a study of the names of the law graduates of Bombay University for the years 1865, 1875, 1885, 1895, 1905,
1915, and 1929 (data for the year 1925 were not available), categorizing graduates according to the religion revealed by
their names. The study suggested that the proportion of Parsi law graduates in the nineteenth century was very high—30
per cent of the law graduates of Bombay University in 1885, for example, were Parsis. There were no Muslim law
graduates in Bombay University in 1865, 1875, or 1885. As the decades progressed, their numbers increased only slightly
in comparison with the increase in the number of Hindu law graduates. The result was that in 1929, Parsis represented
only less than 4 per cent of the law graduates of Bombay University. Even so, the number of Muslim law graduates never
seemed to catch up with that of Parsi law graduates. In 1929, less than 2 per cent of the law graduates at Bombay
University were Muslims. See further, Sharafi (2006).
256. Data were compiled by the author using Thacker’s Indian Directory (1946–7).
257. This was not lost on contemporary observers. Davar’s obituary in the Times of India read: ‘Sir Dinsha did not take any
active part in public life. He rigidly eschewed politics and refrained from publicly expressing his opinions on the
questions of the day.’ ‘Justice Davar’s Death: A Sketch of His Career’ (1916).
258. ‘No Title’ (1916).
259. Like most others before him, Kajiji too was tested out by the administration as a temporary ‘acting’ judge first [‘Former
Bombay Judge Dead’ (1936)] prior to his being appointed as a permanent judge.
260. ‘New Prothonotary’ (1910).
261. ‘Bombay Govt. Gazette’ (1913). There were rumours that Setalvad was going to be appointed to replace Chandavarkar.
However, Setalvad was sure this would not happen since he was involved in politics, and Chief Justice Basil Scott and
Governor Sydenham Clarke would not find a political candidate attractive. Setalvad (1946: 53). Shah too was relatively
young when appointed to the court. The Times of India later wrote that it was ‘the appointment of a comparatively
obscure practitioner dictated by the exigencies of the moment’. ‘An Eminent Judge’ (1926).
262. In 1893, the Judicial Commissioner of Sind was the highest paid lower court judge in Bombay. He earned Rs 30,000 per
annum, as much as the Prothonotary and Registrar of the High Court, the Government Solicitor, and Legal
Remembrancer.
263. The fact that he was warned about his political involvement several times before being temporarily appointed to the High
Court, probably did not help his candidature. See, Buckee (1972: 316).
264. Ratcliffe (1923: 60).
265. Chief Justices Basil Scott, Westropp and Farran, and Justice L.H. Bayley, served as Advocates General of Bombay.
However, it is not clear from the available data whether all of them served as permanent Advocates General.
266. A few of them were Indian Civil Service judges, some of whom worked as secretaries in the Legislative Department of the
Bombay government, and who consequently served as members of the Bombay Legislative Council. However, none of
these Indian Civil Service judges led the public lives which nineteenth-century judges like Telang, Ranade, Tyabji, and
Chandavarkar had led.
267. Tyabji (1952: 44).
269. Misra (1961: 327). Misra explains that the legal profession grew exponentially in India as a result of the ‘development and
diversification of the sources of wealth and the corresponding extension in the operational area of law’. Misra, ibid., p.
324.
270. Inverarity (1912: 8–9).
271. Misra (1961: 11).
272. Buckee (1972: 338–9).
273. Duman (1983a: 131).
274. Filing figures for the Bombay High Court were obtained from the following files at the National Archives of India, Home
Department, Judicial Branch: June 1873, No. 199–202; October 1881, No. 245–246; April 1881, No. 170–173; August
1881, No. 42–45; December 1903, No. 75–79; F. 999/27-Judl., 1927.
275. In total, approximately 666 suits were filed on the Original Side of the Bombay High Court in 1878 (the earliest year for
which data were available); 1,124 suits in 1885; 1,321 suits in 1895; 1,646 suits in 1905; 2,303 suits in 1915; 3,798 suits
in 1925; 2,229 suits in 1935; and 2,024 suits in 1945. British Library, India Office Records, V/24/2152–2158.
276. Original Side suits probably took up more of the court’s time than Appellate Side cases, which is why more judges were
appointed to the court in the twentieth century.
277. The institution of civil cases before all the civil courts of the Bombay Presidency went through cyclical periods of rise and
fall. The following number of civil cases were instituted before all the civil courts in the Bombay Presidency, in 1878:
1,47,565; in 1885: 1,52,969; in 1895: 2,16,594; in 1905: 1,42,207; in 1915: 1,62,417; in 1925: 1,64,521; in 1935:
1,99,853; and in 1945: 81,773. Likewise, the number of criminal cases that were before criminal courts in the Bombay
Presidency also went through cyclical phases of rise and fall. In 1878, there were 72,327 criminal cases which were
brought to trial; in 1885: 71,300; in 1895: 2,00,403; in 1905: 1,50,439; in 1915: 1,50,650; in 1925: 2,09,472; in 1935:
2,90,372; and in 1945: 4,18,287. However, the total number of criminal cases brought to the Bombay High Court
remained small. British Library, India Office Records, V/24/2152–2158.
278. Tucker (1977: 96).
279. For example, one acting British judge of the Bombay High Court, Charles Kincaid, wrote in his autobiography of how he
was very fond of the lawyer K.M. Munshi, who eventually served as Home Minister in the Congress government in the
1930s: ‘I found the Bar very pleasant and courteous’, wrote Kincaid, ‘I remember especially my agreeable relations with
Mr Munshi, a Gujarati advocate. Since then he has, unfortunately, become an extremist.’ Kincaid (1934: 230). Lawyer-
politicians like Munshi could no longer be appointed to the High Court Bench.
280. Potter (1986: 113).
281. Setalvad (1946: 53).
282. See, Chagla (1974: 94).
283. Chagla, ibid., p. 122.
284. Chagla, ibid.
286. Dwarkadas (1969: 28).
287. Dwarkadas, ibid.
288. Dwarkadas, ibid., p. 147. Tilak, however, forgave Telang for doing this. Dwarkadas wrote that Tilak felt that ‘in whatever
position [Telang] was, whether an official or a non-official, there was no doubt that the fundamental motive of his life
was to render selfless service to the country’. Dwarkadas, ibid., p. 147.
289. ‘The New Judge’ (1889).
290. Dwarkadas (1969: 40). See further, Chandavarkar (1955: 143).
291. Nehru (1942: 35).
292. Nehru, ibid.
293. Nehru, ibid., p. 94.
294. Luhrmann (1996: 124).
295. Mody (vol. 1, 1921: 212).
296. See, The India List and India Office List, 1905.
297. The lawyer was Satyendra Prasad Sinha (later Lord Sinha). Sinha was later the first Governor of an Indian province (Behar
and Orissa), and the second Indian to serve as a judge on the Privy Council. ‘Lord Sinha’s Death’ (1928).
298. They were K.G. Gupta and S.H. Bilgrami.
299. The judge was Ameer Ali, a retired Calcutta High Court judge. ‘India and the Privy Council’ (1926).
300. Tyabji (1952: 282). The prestige associated with becoming a judge of the Bombay High Court continued to go down over
the years. See, for example, Chainani (1962: 10).
301. Though Chagla claimed that Rs 4,000 was quite a bit of money in the 1940s [Chagla (1974: 124)], it was probably worth
more in the 1910s and 1920s.
302. Setalvad (1946: 319).
303. Setalvad, ibid.
304. Setalvad, ibid., pp. 319–22.
305. There is one further possibility why this shift in the nature of judges might have taken place at this time. When it was
established, the Bombay High Court was a relatively new court. The 1857 Mutiny was still fresh on people’s minds, and
the colonial government was eager to make its institutions appear legitimate to litigants. For this reason, the government
might have picked prominent Indian political leaders to staff the judgeships on the Bombay High Court. However, as the
years progressed and the court established itself, it was no longer necessary for the court to consist of popular political
figures, and the government focused on trying to build legitimacy in the eyes of lawyers—by appointing professional
lawyers to the Bench.
306. See, Setalvad (1946: 322).
307. See, Chagla (1974: 116–17).
308. See, ‘Hon. Mr. Justice M.R. Jayakar’ (1939).
309. Letter dated 26 July 1937, from Jayakar to Maurice Gwyer, M.R. Jayakar Papers (Reel 111), National Archives of India.
Jayakar wrote this letter to Gwyer because he wanted to be considered senior to Justice Sulaiman, his puisne colleague on
the Federal Court Bench.
310. Chagla wrote for the Bombay Chronicle and the Indian Daily Mail. Chagla (1974: 91).
311. Chagla, ibid., pp. 96–7, p. 120.
315. Chagla, ibid.
316. Chagla, ibid.
317. Chagla, ibid.
318. Before him, D.N. Bahadurji was the first Indian lawyer to serve as acting Advocate General of Bombay. Vachha (1962:
147).
319. Kanga was also not a barrister, which meant that he was barred from ever becoming the court’s Chief Justice according to
the law at the time he became Advocate General.
320. For example, in 1905, the Advocate General of the important Calcutta High Court was number thirty on the warrant of
precedence, while a puisne judge at the Bombay High Court was number sixteen on the list.
321. In 1905, the salary of an Advocate General was Rs 37,620 per annum. At that same time, puisne High Court judges earned
Rs 48,000 per annum.
322. It is possible that an Advocate General had security of tenure in office for five years, after which his services could be
terminated upon notice. For example, the warrant of appointment of Jamshedji Kanga specified that ‘it shall be lawful for
one of Our Principal Secretaries of State to determine your appointment at any time after the expiration of five years from
the date when your appointment shall take effect by giving to you six months previous notice in writing under his hand’.
323. Somewhat similarly, after having acted as a Bombay High Court judge, Sir Dinshah Mulla temporarily acted as Law
Member of the Viceroy’s Executive Council in 1928, the first Bombay lawyer to hold this post. Eventually, Mulla was
appointed a judge of the Privy Council—the fourth Indian to hold this post.
324. Davar (1911: 36).
325. For a discussion of constitutional developments which took place in British India, see, Ramaswamy (1956); Sapru (1929);
Boggs (1911).
326. Wolpert (1967: 175–7).
327. Wolpert, ibid., p. 178.
328. Clarke (1927: 288–9).
329. Report of the All-India Bar Committee (1953: 14). See further, Misra (1961: 328–9).
330. Rumbold (1979: 89). This declaration, which led to the constitutional reforms of 1919, was made for several reasons. It was
generally expected that India would be rewarded for her involvement in World War I. Misra (1970: 60–1). Montagu’s
declaration was also largely directed at appeasing nationalist leaders in India. The ‘home rule’ movement led by Tilak and
Annie Besant was making British officials nervous—Montagu’s predecessor had feared that India could become Britain’s
‘second Ireland’. Rumbold (1979: 71). In short, in the words of one author, Montagu’s declaration of 1917 was meant to
keep Indian nationalists quiet so that the British cabinet could focus its energies on winning the war. Rumbold, ibid., p.
101. The declaration was not received well by the British community in India. Kincaid wrote of Montagu in his
autobiography: ‘I am afraid that had Mr Montagu been as beautiful as Apollo, I should still have found his face
unpleasing ; for I believed then, as I believe now, that his proposed reforms would ruin the Indian Empire, which my
ancestors had helped to create.’ Kincaid (1934: 208).
331. Macleod (1945b).
332. Macleod, ibid. However, the court briefly had an eighth judge on it between around 1872–81, when John Green was
appointed to the court in order to help reduce arrears on the Original Side. Green was the fourth Original Side judge on
the court. When Green was struck by paralysis, the Secretary of State decided not to appoint anybody else in his place.
See, British Library, India Office Records, L/PJ/6/30, File 71; National Archives of India, Home Department, Judicial
Branch, October 1881, Nos. 245–246; April 1881, Nos. 170–173; August 1881, Nos. 42–45. Westropp had anticipated
this in his private letter written to Governor Fergusson at around that time [British Library, Sir James Fergusson Papers,
Westropp to Fergusson, Mss Eur E214/20]:
There is not, as far as I can learn, any probability of Green’s recovery from the paralysis with which he has been stricken.
His speech has not yet returned, and his mind is said to be much weakened, so that, if he is still alive in January next,
when his leave on medical certificate for one year will, I believe, expire, he will in all probability be compelled to retire
upon such pension as his period of service entitles him to receive, and his place will not, I think, be filled up by the
Secretary of State, unless some circumstances render the presence of an 8th Judge in the Court necessary.
333. Macleod, ibid.

334. However, it has already been seen that the size of the docket did not expand substantially, compared to its size in the
nineteenth century. Since Original Side suits took up more time than Appellate Side cases, however, and since more cases
were filed on the Original Side than on the Appellate Side in the twentieth century, more judges might have had to be
appointed to the court.
335. ‘Late Sir Govind Madgaykar’ (sic) (1947).
336. L.A. Shah. When Shah died in harness in 1926 [‘Late Sir Lallubhai Shah’ (November 1926)] another Hindu Pleader—
Sitaram Sunderrao Patkar, became a judge in his place [‘Bombay Govt. Gazette’ (1927)] and since Madgaonkar was still
on the court at that time, two seats on the court were occupied by Hindu judges.
337. These were Patkar, Madgaonkar, and Khan.
338. British Library, India Office Records, L/PJ/6/1977, File 967. The two judges who were appointed to these seats were
Stephen James Murphy and Sajba Shankar Rangnekar. Further, an ‘additional’ judge was sanctioned on the Bombay High
Court in the 1930s. See, British Library, India Office Records, L/SG/7/849A.
339. These were Kania, Wadia, Divatia, Sen, Lokur, and Chagla.
340. Terrell (1979: 14).
341. See, Arnold (1986); Potter (1986: 85–9).
342. Omissi (1994: 191).
343. The non-Indian puisne judge was Eric Weston.
344. See, Rule 34, High Court Judges (India) Rules, 1922, available at British Library, India Office Records, L/PJ/6/2004, File
2081.
345. Recall that the salary of a High Court judge in India remained much the same in the nineteenth and twentieth centuries in
colonial India.
346. Munshi (1963: 30–41).
347. See further, Buckee (1972: 76).
348. The term ‘regular’ judge here includes Chief Justices, acting Chief Justices, and puisne judges—that is, all categories of
judges except those who ended their judicial careers in the Bombay High Court as acting/officiating/additional judges.
349. Those who did include B. Tyabji, L.A. Shah, S.S. Rangnekar, and H.J. Kania.
350. See, Fraas (2011).
351. See, for example, Toharia (2003); Hurwitz and Lanier (2001); Shetreet (1985); Graham (2004); Slotnick (1984–85);
Goldman and Saronson (1994–95); Ifill (2000); Westergren (2004); Gruhl et al. (1981); Leeuwen (2006); Perry (1991);
Malleson (2009); Hale (2005); Ifill (1997).
352. Of course, the definition of diversity is context-specific. The U.S. Supreme Court today has no Protestant justice on it, even
though the majority of the country is Protestant, and yet this is not seen as something which takes away from its
legitimacy. Instead, the United States Supreme Court today would be considered illegitimate if it had no woman justice or
black justice on it, which would not have been so in 1890, when other diversity considerations (for example, ensuring that
different regions were well represented on the Supreme Court) might have prevailed instead. In British India in the 1860s
and 1870s, a ‘diverse’ court was probably one which had judges from every major Indian community on it.
353. See, Tucker (1977: 21); Chagla (1974: 170).
354. See, Swanepoel (2010). Interestingly, his name suggests that he was Parsi.
355. See, Likhovski (2006).
356. See, Misra (1961).
357. Other British colonies might not have had the same levels of education as were prevalent in British India. As a consequence,
the legal profession might have been stronger in India than in other colonies.
358. Misra, ibid., p. 325.
359. See, Toharia (2003).
360. Buckee (1972).
361. Indian lawyers, according to Buckee, had very few independent sources of income, and they needed their incomes from their
law practices in order to survive. Lawyers who participated in politics risked losing their clients, because they would no
longer be seen, heard, or be written about, in court. Buckee found that it was the likelihood of losing one’s cases to other
lawyers, more than government policies, which prevented Indian lawyers from participating in politics.
362. This chapter also suggests that recruitment data cannot easily be used to demonstrate that the Empire was weak. David
Arnold tried to suggest that the failure of the British colonial government to recruit Indians to colonial institutions
demonstrated the weakness of the Empire. He argued that in choosing not to join the Indian Police Service in Madras,
many Indians ‘resisted’ the colonial government and exposed its weak and vulnerable position. Arnold (1986: 47). This
chapter shows, however, that the recruitment of Indians to colonial institutions cannot be framed within neat binaries of
‘domination’ and ‘resistance’. It has been seen that when they were offered a seat on the Bombay High Court, many
prominent twentieth century lawyers declined. However, they did so not out of a patriotic sense of ‘resistance’ to colonial
rule, but out of self-interest: lawyers like Setalvad, Jayakar, and Kanga would rather have pursued other, better
opportunities which presented themselves in British India—opportunities that were not available to their counterparts in
the nineteenth century. Though this certainly tells us that colonial institutions were not omnisciently designed by the
government in a top-down manner, and that the British chose Indian judges as much as Indian judges chose the British,
[David Omissi made this point about the Indian army. ‘Not only did the British chose their soldiers,’ he wrote, ‘the
soldiers chose the British.’ Omissi (1994: 46)] it does not permit us to claim that the Empire was weak, or that recruitment
to colonial institutions was defined by ‘resistance’.
363. Toharia (2003).
364. India is a common law country. Further, no ‘symbolic reinauguration’ could be said to have taken place. Though the
Bombay High Court got an Indian Chief Justice for the first time, some High Courts in India had already seen Indian
Chief Justices.
365. See, Arnold (1986: 97); Potter (1986: 131–41).
366. See, British Library, India Office Records, L/PO/8/75. The British judges were: Chief Justice Beaumont, Blackwell,
Broomfield, and Macklin. The Indian judges were: B.J. Wadia, M.A. Somjee, N.J. Wadia, Kania, Divatia, Wassoodew,
and Sen (who was an additional judge, while the rest were all permanent judges).
Chapter 3 Race, Class, and the Bombay High Court

1. See, for example, Metcalfe (1994); Kolsky (2010).
2. This does not count approximately forty-six temporary judges who also served on the court during that time.
3. Interestingly, however, Indians were racially victimized in other British colonies (like South Africa) far more than they
were in India. See, Guha (2013: 74).
4. See, ‘The B.B. & C.I. Railway and the Treatment of a Native Judge’ (1885); ‘Mr. Justice Nanabhai Haridas and the B.B.
and C.I. Railway’ (1885); ‘The Late Mr. Justice Nanabhai Haridas’ (1889). Haridas was a sitting judge of the Bombay
High Court when the incident occurred.
5. Tucker (1977: 296).
6. Setalvad (1946: 434–5). According to another account, Ranade ‘refused to even recognize the man’s presence’. Tucker
(1977: 296). Ranade, though, seems to have been a constant target of European attack. A former civil servant of Bombay,
and member of the Council of India in Britain, William Lee-Warner, told Secretary of State Morley that Ranade was
dishonest. Wolpert (1967: 53). This was designed to discredit Gopal Krishna Gokhale, Ranade’s disciple, who visited
Morley in London in the early twentieth century and was influential in the consequent ‘Morley-Minto reforms’. A Civilian
judge of the Bombay High Court insinuated that Ranade harboured ill-feelings towards members of the lower castes in
India. While talking about one of his decisions which had been reversed by the Bombay High Court, F.C.O. Beaman
identified Ranade as ‘a very venerable Brahmin judge’ and ‘one of our greatest Hindu Judges’. Beaman was being
sarcastic and insinuating that Ranade harboured prejudices against ‘lower’ castes. Beaman (1925–26: 209).
7. It was not only judges who faced racism in India. In the late nineteenth century, the Maharajah of Kolhapur was insultingly
refused entry at a first-class railway waiting room. Tyabji (1952: 49).
8. Tyabji, ibid.
9. The rural districts of British India were referred to as the ‘mofussils’.
10. Tyabji (1952: 47). The ‘Traveller’s Bungalow’ incident, however, might have had something to do with the local Hindu
ruler’s dislike of Muslims. See, Letter dated 8 November 1895, from Orr to Tyabji, in the Badruddin Tyabji Papers (Reel
3), National Archives of India.
12. Davar also narrowly avoided being framed for theft by the Englishman. See, Taraporevala 2010: 118–19).
13. Nehru 1942: 20–1).
14. Tyabji (1952: 46).
15. See further, Guha 2002: 5–7).
16. For more on the Byculla Club, see, Sheppard (1916).
17. Pearson (1957: 52). ‘It is difficult—and sad—to think of Bombay without its Yacht Club’, wrote Pearson, former managing
director of the Times of India, ‘but now it has gone’. After independence, the rent for the land on which the Yacht Club
was located was raised to such an extent that it had to be given up. Pearson, ibid., p. 53.
18. Pearson, ibid. The Byculla Club was for the ‘burra sahibs’ or important officials, while the Gymkhana was for younger
officials. Pearson, ibid., p. 53. See further, The Gazetteer of Bombay City and Island (1977: 239–40).
19. Tyabji (1952: 34). Mody (vol. 1, 1921: 37).
20. Kanga 1962: 70–1). Incidentally, Inverarity’s choice of Byculla Club tells us a lot about him—a room there was quite
cheap, and usually kept either by young hopefuls who were waiting for opportunity, or by old seniors preserving their
wealth for retirement. Reed (1952: 17). One example of the former category was Norman Macleod. When Macleod first
arrived in Bombay, he went straight to the Byculla Club. He met another young lawyer who was staying there, Basil
Scott. Both Scott and Macleod went on to become Chief Justices of the Bombay High Court. HCA/D63/A/5,
‘Reminiscences’, p. 3. Inverarity, one of Bombay’s best known lawyers, was in the latter category.
21. Montagu (1930: 148).
22. Montagu, ibid., p. 4.
23. Interestingly, Pherozeshah Mehta started a club meant for Parsis only, to keep Europeans out. The club was named after
Viceroy Ripon. Taraporevala (2010: 58).
24. Montagu (1930: 154).
25. Montagu, ibid., p. 4.
26. Reed (1952: 150).
27. Reed, ibid, p. 18. The club was sold and its proceeds were distributed among all living members. According to the former
High Court judge Hayward, ‘[w]hen the British Government gave independence to India, European clubs were no longer
needed’. Hayward, a member of the club, received a sum of 1,000 pounds upon the sale of the Byculla Club. British
Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/9.
28. Tyabji 1952: 46–8).
30. Tyabji, ibid.
31. Nehru (1942: 168).
32. Kincaid (1934: 219).
33. Schmitthener (1968–9: 367).
34. In an article written in 1873 in the ‘Indian Statesman’, Pherozeshah Mehta pointed out that the British barristers of Bombay
drew handsome sums of money on account of the government patronage they received, while the Indian barristers did
only modestly well. Taraporevala (2010: 57).
35. Tyabji (1952: 29). Mody (Vol. 1, 1921).
36. Tyabji, ibid., p. 29. It is also perhaps for this reason that a well known Indian lawyer, F.R. Vicajee, though ‘the most lovable
of men’, ‘never succeeded in winning the confidence of the solicitors’. Macleod (1945a: 405).
37. ‘Injustice at the Temple of Justice’ (1895).
38. Setalvad (1946: 18). See further, Tyabji (1952: 28).
39. Setalvad, ibid., pp. 18–19.
40. Tyabji 1952: 26–7).
41. Wacha (1920: 738). The fact that D.E. Wacha held this view about Green, though Wacha was otherwise very deferential
towards British officials in his book, speaks to its veracity.
42. Setalvad (1946: 20). This is corroborated by D.J. Ferreira. See, Ferreira 1962: 133–4).
43. Setalvad (1946: 20).
44. Chagla (2011: 52). Of course, Chagla belonged to the chamber of M.A. Jinnah, and Chagla’s opinion of Strangman might
have been influenced by the fact that Jinnah had refused to associate with Strangman, because Strangman may once have
spoken to Jinnah insultingly. See, Setalvad (1946: 67); Munshi 1962: 99–100). Yet, Strangman’s views towards the
‘natives’ were certainly not flattering. Consider Strangman’s various views towards Indians, set out in his autobiography.
Strangman observed that Europeans had survived the Bombay plague of the late nineteenth century better than Indians.
This, according to Strangman, was because Europeans’ houses were ‘not rat-infested’, because Europeans ‘possessed a
higher stamina’, and because they had ‘the will to live’. Strangman (1931: 3). Strangman believed that imprisonment was
a ‘pleasant’ punishment for Indian habitual criminals, who deserved to be flogged instead. Strangman, ibid., p. 21.
Commenting on the Indian response to the Jallianwala Bagh massacre of 1919, Strangman identified what he believed
were ‘[t]wo of the main characteristics of the Indian’, namely, ‘a ready sentimentality and a strict, indeed a meticulous,
regard for the letter of the rule’. Strangman, ibid., p. 127. Chagla’s views on Strangman were clearly not out of place, and
it is interesting that even a twentieth-century British official in India like Strangman held dubious racial views on Indians,
bordering on an affirmation of white supremacy. Strangman’s views towards Scottish people were not very charitable
either. In his autobiography, he recalls how one of his Scottish witnesses broke down in the witness box during a cross-
examination. Strangman lost the case as a consequence. Citing this incident as proof of ‘the somewhat strange workings
of the Scottish mind in the witness box’, Strangman said that this was because ‘the natural caution of the Scot becomes
distorted under the influence of an oath’. Strangman, ibid., pp. 18–19.
45. Candy 1905: 138–9).
46. Candy, ibid.
47. Clarke (1927: 291). It seemed to have been a generally held view amongst the British that Indians were very litigious.
Courtney Terrell, Chief Justice of the High Court at Patna between 1928–38, for example, wrote that Indians had ‘a
passion for fighting and litigation’. Terrell (1979: 49).
48. On file with the author.
49. Luhrmann (1996). Cornelia Sorabji also identified herself as ‘Parsee by nationality’. Mossman (2004: 64). ‘The Parsis did
not consider themselves Indians’, wrote H.A.H. Payne, the President of the Bombay Incorporated Law Society, in 1940,
while talking about the nineteenth century. ‘They still clung to their Persian ancestry and in conversation used to divide
the Indian population into Parsis and Natives, (the term ‘Indian’ was not then used) and this necessitated the immortal
declaration of Sir Phirozeshaw Mehta when he became a Congress leader that he was an Indian first and a Parsi
afterwards.’ Payne (1940: 116).
50. Letter dated 2 February 1886, Beaman to Tyabji, Badruddin Tyabji Papers (Reel 1), National Archives of India.
51. Letter dated 29 November 1885, Jardine to Tyabji, Badruddin Tyabji Papers (Reel 2), National Archives of India.
52. Letter dated 10 January 1905, Jenkins to Tyabji, Badruddin Tyabji Papers (Reel 2), National Archives of India.
53. Letter dated 30 August 1899, Jenkins to Tyabji, Badruddin Tyabji Papers (Reel 2), National Archives of India.
54. Badruddin Tyabji Papers (Reel 1), National Archives of India.
55. Letter dated 3 November 1895, Farran to Tyabji, Badruddin Tyabji Papers (Reel 1), National Archives of India.
56. ‘Public References: The High Court’ (1898).
57. Letter dated 26 October 1898, E. Farran to B. Tyabji, Badruddin Tyabji Papers (Microfilm Reel No. 1), National Archives
of India.
58. ‘Speech by Sir Basil Scott CJ at a farewell bench and bar dinner to Sir Frank Beaman’, 11 October 1918, B.G. Kher Papers,
Nehru Memorial Museum and Library.
59. Letter dated 20 October 1945, Broomfield to Chagla, M.C. Chagla Papers, Nehru Memorial Library and Museum.
60. Letter dated 24 June 1948, Beaumont to Chagla, M.C. Chagla Papers, Nehru Memorial Museum and Library.
61. See, M.R. Jayakar Papers (Reel 19), National Archives of India.
62. Data were not available for three out of twenty-nine Indian judges, that is, 10.3 per cent of the total population. For an
explanation of the term ‘service class’, see, Potter 1986: 58–9.
63. This is consistent with Duman’s finding that in the nineteenth century, the sons of lawyers did not have a dominant position
at the Indian Bar. Duman (1983a: 132).
64. Of the four judges whose fathers were teachers, one (Kania) married the daughter of a prominent lawyer.
65. Only one judge each had a father working for a private company or one who was a landlord.
66. The ‘martial’ races in the Bombay Presidency were the Maratha and Kunbi castes, which were not well represented in
western education. See, Gumperz (1965: 205).
67. This is the name he went by according to the Bombay University Calendar.
68. For example, there were many father-son duos where one served as a puisne judge and the other as an acting judge. These
were the Tyabjis (the father, Badruddin, was a puisne judge, while the son, Faiz, was an acting judge), Davars (the father,
Dinsha, was a puisne judge, while the son, Jehangir, was an acting judge), and Coyajees (the father, Hormazdyar, was an
acting judge, while the son, Nariosang, was a puisne judge). Similarly, the Somjee brothers also served as judges of the
court, though one (Mahomedally) was a puisne judge, and the other (Kasambhoy) was an acting judge. This phenomenon
was not restricted to Indian judges alone. A British Civilian judge of the court, Claudius James Erskine, was the grandson
of Sir James Mackintosh, one of the Recorders of Bombay. ‘Births, Deaths, Marriages, and Obituaries’ (1893). Two sets
of brothers—the Melvills (Maxwell and Francis Dawes) and Kemps (Sir Norman Wright and Sir Kenneth McIntyre),
each served as judges of the Bombay High Court—again, the first was a puisne judge while the other was an acting judge
respectively. Two permanent judges of the court (James Gibbs and Charles Kemball) were cousins, [See, British Library,
James Gibbs to Viceroy Ripon, letter dated 26 February 1883, Ripon Papers, Add Ms 43611] while two permanent judges
of the High Court—Batty and Batchelor—were related by marriage: the former was the father-in-law of the latter [See,
British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/4].
Interestingly, the Somjee brothers had remarkably identical academic careers. Both got their B.A. degrees in 1912
from Elphinstone College in Bombay, in the second class. Next, they each got their M.A. degrees from Elphinstone
College in 1914, with a pass grade. Finally, they got their LL.B. degrees in 1915 (Kasambhoy) and 1916 (Mahomedally),
both in the second division, before getting called to the Bar in England, both at the Middle Temple.
69. Data were not available for four out of fifty-four British judges, that is, 7 per cent of the population.
70. HCA/D63/A5, ‘Reminiscences Early Days’, p. 30.
71. Henry Hebbert’s father was a Haberdasher/Warehouseman, and Henry Newton’s father was a Wharfinger. Both judges
were members of the Indian Civil Service.
72. Duman points out that between 1850–75, 29 per cent of the English judges had fathers who were merchants, and 8 per cent
had fathers who were landowners. Only 54 per cent at that time had fathers who were professionals. Duman (1982: 55).
See further, Duman (1983b: 154).
73. Seventeen British judges were first sons while twenty-four were younger sons. Data were not available for thirteen British
judges, that is, I did not know whether thirteen British judges were first sons or younger sons.
74. For example, consider the family history of one Civilian acting judge on the Bombay High Court, Charles Kincaid.
Kincaid’s grandfather’s first son joined the family firm, while his second son (that is, Kincaid’s father) sought out a career
in India. Kincaid (1934: 3).
75. The Indian Civil Service was the bureaucracy that ran British India. For more, see, Chapter 5.
76. See, for example, Ratcliffe (1923: 13).
77. Chief Justice Sir Basil Scott, who was the son of Henry Scott, a merchant in Bombay.
78. See further, Duman (1983a: 132).
79. Macleod (1945a: 401). Macleod was referring to J.D. Inverarity. See, Sharafi (2012: 260). When Inverarity came to
Bombay in 1870, he was well connected too. A prominent Bombay lawyer, Sebastian Stewart Dickinson, was ‘a friend of
[the] family’. The Chief Justice of Bombay at the time, Sir Michael Westropp, was the cousin of Inverarity’s godmother,
and as a result, Westropp ‘took an interest in [him] and was a very staunch friend’. In fact, before Inverarity even
completed a year in Bombay, Westropp appointed him to the post of Examiner of the Insolvent Court. Inverarity 1912: 2–
6).
80. Macleod (1945a: 403). Other British judges also had connections in the legal profession in Bombay. Though Chief Justice
Basil Scott’s father was a merchant in Bombay, he was probably benefited in his career by the fact that he was the
nephew of the Advocate General of Bombay, Basil Lang. Macleod, ibid., p. 406.
81. Interested British lawyers could also write a formal letter to the Secretary of State requesting that their names be put on a
list of potential judicial candidates for India. See, Terrell (1979: 31). That is also how Sir William Jones became a judge
in the Supreme Court of Calcutta in the eighteenth century. See, Ibbetson (1998).
82. M.R. Jayakar, who studied at Elphinstone High School, for example, had to take one language in addition to English and
Marathi, his mother-tongue. The options were Persian or Sanskrit. Jayakar opted for Sanskrit. Jayakar (1958: 12).
83. In his autobiography, M.R. Jayakar, for example, mentioned a ‘Marathi course of five years’ which he attended before his
English education at Elphinstone High School. Jayakar, ibid., p. 12. One such Indian-language school was the Ayrton
School, unique for being the first Anglo-vernacular school in Bombay city. Wacha (1920: 746).
84. In the nineteenth century, pre-university education typically consisted of three levels: the vernacular level, consisting of
four primary standards in a vernacular medium; the Anglo-vernacular level, consisting of three middle standards where
English was introduced to students; and the English level, consisting of four high school standards where English was the
medium of instruction, leading up to the matriculation examination. Students at that time were said to matriculate in
standard seven, but standard seven was really standard eleven, because it did not count the first four primary vernacular
standards. Gumperz (1965: 102).
85. Luhrmann (1996: 113). The statistic is from the year 1901. About 25 per cent of the Parsi community spoke English at the
time.
86. The judge was Badruddin Tyabji, who studied at the Newbury High Park College in England, at the age of sixteen, after
spending some time at Elphinstone High School. Bombay Law Journal, vol. 2 (1924–5: 212–18). It appears that education
was not the primary motivation for Tyabji’s sojourn overseas at this time. He went abroad in order to get medical
treatment for his eye—a problem which plagued him throughout his life.
87. Jayakar (1958: 13); Conlon (1977: 115). At least in the nineteenth century, students writing the matriculation examination
were tested in the following subjects: English, an elective language (including Sanskrit, Persian, and Latin), Mathematics,
History, Geography, and the Natural Sciences. See, Indu Prakash, 23 November 1891.
88. Nine judges studied at Elphinstone High School, and seven studied at other high schools in Bombay. The remaining Indian
judges studied at high schools outside Bombay. Data were available for all of the twenty-nine Indian judges.
89. Mountstuart Elphinstone. Mountstuart Elphinstone was the Governor of Bombay between 1819–27. He should not be
confused with John Elphinstone, the Governor of Bombay at the time of Bombay University’s incorporation, and, by
consequence, the first Chancellor of Bombay University. John Elphinstone was the Governor of Bombay between 1853–
9.
90. ‘Elphinstone High School: A Retrospect’ (1925). Between 1840–56, the school was called the ‘Elphinstone Native
Institution’ (or ‘Elphinstone Institution’, for short). ‘Elphinstone High School: A Retrospect’, ibid. It was called an
‘institution’ because it combined both a school and a college. Wacha (1920: 654). Between 1840–56, the college and
school were combined. In 1864, the school was renamed ‘Elphinstone High School’. ‘Elphinstone High School: A
Retrospect’ (1925). See further, The Gazetteer of Bombay City and Island (1977: 129–33).
91. Jayakar (1958: 12).
92. Tyabji (1952: 60); Metcalfe (1994: 40).
93. See, Conlon (1977: 121, n 15).
94. Metcalfe (1994: 36).
95. HCA/D63/A1/D, letter dated 7 April 1917, from Norman Macleod to his son, Torquil.
96. HCA/D63/A1/D, letter dated 23 September 1920, from Norman Macleod to his son, Torquil.
97. These were Justices Haridas, Ranade, Chandavarkar, and Rajadhyaksha.
98. See further, Gumperz (1965: 129, 170–1).
99. K.C. Sen.
100. As a member of the Bombay Legislative Council, Chimanlal Setalvad brought this to light in 1894. The government would
withdraw its grants-in-aid from such schools. See, Indu Prakash, 1 October 1894.
101. Gumperz 1965: 111–34).
102. Conlon (1977: 115).
103. Data were not available for five out of fifty-four British judges, that is, 9 per cent of the total population.
104. Ann Stoler describes the strategies adopted by colonial authorities in the Dutch Indies to preserve the Europeanness of
Dutch children who were being raised in the colonies, to protect them from what the authorities perceived to be
corrupting influences like native maid servants who were hired to raise them, or even the native mothers of mixed-blood
children. Stoler 2002: 112–39).
105. This figure is likely to be slightly lower because data were not available for five out of fifty-four judges, that is, 9 per cent of
the total population of British judges, and it is intuitive (and empirically true) that those who did not go to fancy high
schools also did not find it worthwhile to mention their high school information in their biographical write-up. It is
possible, though highly unlikely, that some of these five judges went to high schools in British India, but in that event, the
fact that their educational details are not available to us probably suggests that those judges were embarrassed about their
educational affiliations in British India and that they might consequently have concealed them.
106. Unlike the United States, in England, ‘public schools’ are non-state, elite schools. The following schools were counted in
this book as elite public schools: Winchester, Eton, St. Paul’s, Shrewsbury, Westminster, Merchant Taylors’, Rugby,
Harrow, Charterhouse. See, ‘Public School’, Encyclopædia Britannica Online Academic Edition,
http://www.britannica.com/EBchecked/topic/482497/public-school (accessed 16 May 2013).
107. Duman (1982: 41). Duman says that over one-third of the judges who served on English courts between 1727–1875 studied
at elite public schools, a figure that compares with the British judges of the Bombay High Court. However, Duman did
not have information for 27 per cent of this population. Further, Duman’s study does not take us beyond 1875, where the
patterns probably changed. As Duman himself points out, a far higher proportion of judges studied at elite public schools
in the twentieth century.
108. Those who did not get a B.A. at Bombay University either went to the United Kingdom to study, or got an undergraduate
degree at another university in India. Two Indian judges of the Bombay High Court never got a university degree. These
were Justices Badruddin Tyabji and Dinsha Davar. In Tyabji’s case, this was an accident of fate. Tyabji had passed the
Matriculation examination at London University, but his academic career was cut short on account of his failing health.
His eyes were weak and he was medically advised to go back to India. His eyes would be a constant problem for him
throughout his career. Tyabji (1952: 21). It was considered to be important for lawyers to have a ‘sound general culture or
liberal education’. Chandavarkar (1910: 2). University data were available for all twenty-nine Indian judges.
109. This was by virtue of the Act of Incorporation (Act. No. XXII of 1857) passed by the Legislative Council of India, which
received the assent of the Governor General of India on 18 July 1857. Subsequently, the Indian Universities Act (Act No.
VIII of 1904), passed by the Council of the Governor General of India, modified this statute. See, University of Bombay:
The Calendar for the Year 1908–1909 (1908).
110. Tucker (1977: 30).
111. Tucker, ibid., p. 30; Gumperz (1965: 196). Gumperz guessed that an Indian’s association with the British government as an
employee made it more likely that he would insert his child into the English education system. Ibid., p. 208.
112. Tucker, ibid., p. 195. In 1892, the ruler of a native state wrote an article in which he said that the landed aristocracy in India
was decaying and being replaced by ‘a host of pleaders, money-lenders, pensioned servants of Government and other land
grabbers’. ‘The Decay of the Landed Aristocracy in India’ (1892). The Indu Prakash, the mouthpiece of the new middle
class, criticized him, saying that the ‘cultured and intelligent’ middle class was the ‘mainstay of the empire’ in qualities of
‘head and heart’ and in point of ‘morality and honour’, as distinguished from the landed aristocracy which was the
‘degenerated section’ of India. ‘The Decay of the Landed Aristocracy in India’ (1892).
113. In fact, it was only in 1913 that the first Indian judge who studied at a college other than Elphinstone College was appointed
a permanent judge of the Bombay High Court. The judge was Lallubhai Shah. See, P.B. Vachha, Note dated 3 June 1965,
in the Bhulabhai Desai Papers, National Archives of India. Shah had studied at the Gujarat College. This does not include
Justices Badruddin Tyabji and Dinsha Davar, who do not appear to have graduated from any college.
114. Elphinstone College charged an annual fee of Rs 101. St. Xavier’s College charged Rs 84, and Wilson College charged Rs
51. Conlon (1977: 121, n 15).
115. See, The Gazetteer of Bombay City and Island (1977: 134–6).
116. Wilson College was founded by Christian missionaries of the Free Church of Scotland. It was initially called the ‘Free
General Assembly’s Institution’, but after 1885, it was renamed Wilson College, after Dr John Wilson, one of the best-
known Christian missionaries who worked in western India. Wilson College was for relatively poorer students. St.
Xavier’s College was run by Roman Catholic missionaries of the Jesuit order. Elphinstone College and Xavier’s College
were for relatively affluent students. Gumperz (1965: 122, 215). See further, The Gazetteer of Bombay City and Island
(1977: 133–4).
117. Deccan College emerged out of the ‘dakshina’ fund, a fund that was originally started by the Maratha Peshwa government in
western India, and was continued by the British government in India. Gumperz (1965: 112). The ‘dakshina’ fund was also
used to pay ‘Dakshina Fellows’, Indian students drawn from among the ranks of top graduating students at Bombay
University, who taught entry-level university courses. Justice M.G. Ranade was one of the first Dakshina Fellows.
Gumperz, ibid., pp. 379–81.
118. There was, for example, Gujarat College, which was run by the government, or Samaldas College, which was one of the
three colleges in the native states which were affiliated to Bombay University in the nineteenth century. See, Gumperz,
ibid., pp. 112–17. For more on Samaldas College, see, Guha (2013: 32). The other two were Rajaram College in
Kolhapur, and Baroda College.
119. Rajaram College.
120. Conlon (1977: 120).
121. However, a preference for the Arts over the Sciences was not specific only to the legal profession. Misra (1961: 294).
122. For example, N.S. Lokur picked Physics and Chemistry as his elective subjects for his B.A. program, which he studied in
addition to Sanskrit.
123. Gumperz (1965: 163).
124. In 1908, a candidate could only matriculate into Bombay University at the age of sixteen or later. Thereafter, a candidate had
to keep two terms at a recognized college in order to qualify to sit for the Previous Examination. After passing the
Previous Examination, a candidate had to keep two more terms at a recognized college in order to qualify to sit for the
Intermediate Examination. Finally, the candidate would have to keep four more terms, after passing the Intermediate
Examination, in order to qualify to sit for the B.A. final examination. An academic year was divided into two terms at
Bombay University. See, University of Bombay: The Calendar for the Year 1908–1909 (1908).
125. Even candidates interested in the Bachelor of Science program at Bombay University had to write the Previous
Examination. In 1908, candidates at the Previous Examination were examined in the following subjects: English, a
Classical Language (options included Sanskrit, Persian, Greek, Latin, Hebrew, and French), Mathematics, and History.
University of Bombay: The Calendar for the Year 1908–1909, ibid., p. 65.
126. In 1908, candidates at the Intermediate Examination for the degree of Bachelor of Arts were examined in the following
subjects: English, a Classical Language, Mathematics and Physics, and Deductive Logic. University of Bombay: The
Calendar for the Year 1908–1909, ibid., p. 70.
127. In 1908, candidates at the Examination for the degree of Bachelor of Arts were examined in the following subjects: English
(with composition), a Classical Language, History and Political Economy, and any one of the following subjects:
Language and Literature, Logic and Moral Philosophy, Mathematics, Chemistry and Physics, Natural Science, History.
University of Bombay: The Calendar for the Year 1908–1909, ibid., p. 72. See further, Gumperz (1965: 319). The
‘Previous’ and ‘Intermediate’ examinations were introduced in 1880, and they replaced a single examination called the
First Examination in Arts.
128. Chandavarkar (1911a: 229).
129. They probably picked Latin at the university level because they had studied Latin in high school too. For example,
Chandavarkar had studied Latin at high school in Bombay for some time. Chandavarkar (1955: 11). However,
Chandavarkar eventually studied Sanskrit at university.
130. ‘Prize Distribution at St. Xavier’s College’ (1891).
131. Ranade (1900: 342).
132. Telang (1916: 282).
133. Chandavarkar (1911a: 229).
134. Gumperz (1965: 126).
135. For graduating M.A. students at Bombay, this meant wearing a black silk or stuff gown, as the Oxford M.A.s would wear.
136. Students prepared for the entrance examination by spending time at a ‘London crammer’s’, and the best known one was
Wren’s. Dewey (1993: 6). For example, in his memoirs, Justice Maurice Hayward wrote that he took a course at Wren’s
in the autumn of 1885. See, British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/1.
137. This continued to be true for some time, even after independence. See, Ashok Desai, ‘Interview with myLaw.net’,
http://www.youtube.com/watch?v=pRbm1w5vxCw, (accessed 22 August 2013).
138. However, within Cambridge University, judges did not have a preference for any particular college.
139. The Student’s Handbook to the University and Colleges of Oxford (1891: 240).
140. Chagla (1974: 24). Interestingly, though Chagla eventually spoke fondly of his Oxford experience in his autobiography, as a
representative of a society of Indian students at Oxford, the ‘Oxford Indian Majlis’, Chagla gave evidence before a
committee constituted in the 1920s to look into the condition of Indian students at Oxford, where he complained that
Indian students felt racially discriminated against and secluded at Oxford, and that there were ‘notoriously unsatisfactory
relations’ between the ‘English and Indian students of this University’. British Library, India Office Records, Q/10/4/3.
141. Jayakar was the grandson of Vasudev Jagannath Kirtikar, the Government Pleader of Bombay between 1892–1906, who had
also served as an acting judge of the Bombay High Court in 1902 during the temporary absence of Justice Chandavarkar.
‘Rao Bahadur Kirtikar: Memoir of His Life’ (1911); ‘Bombay “Government Gazette”’ (1902); Jayakar (1958: 145);
Setalvad (1946: 17).
142. The master of Balliol College at the time was Benjamin Jowett. Interestingly, Jowett went through great lengths in order to
enable Cornelia Sorabji to sit for the B.C.L. examinations at Oxford, which made her the first woman to have done so.
Mossman (2004: 71).
143. Colleges at English universities like Oxford had an informal quota for Indian students, because admitting too many Indian
students was considered to result in a loss of ‘caste’ for the college. Visram (2002: 92).
144. Jayakar (1958: 39). The barrister was Mark L. Romer.
145. Subsequently, it seems that Indian students would have to seek admission to universities in the United Kingdom through the
intervention of the High Commissioner for India in London, though this process was considered to be even more
cumbersome. Jayakar, ibid., p. 38.
146. Useem and Useem (1955: 2–3).
147. A judge who went abroad both to join the Indian Civil Service and to become a barrister is counted as an Indian Civil
Service judge. This is because such judges usually never practised law at the Bar.
148. Ussem and Ussem (1955: 4–5).
149. Ussem and Ussem, ibid., p. 3.
150. Ussem and Ussem, ibid., p. 34.
151. However, the absence of a law degree did not necessarily signify a lack of a legal education at the university level. Arts
programs at universities were also capable of offering legal education at the time. For example, at Oxford, it was possible
to choose Jurisprudence as one’s subject in the Second Public Examination (colloquially called the ‘greats’ examination)
for the B.A., though this did not provide professional training. Student’s Handbook to the University and Colleges of
Oxford (1891: 146). At Cambridge University, a student could pursue an honours program in law at the undergraduate
level—called the ‘Law Tripos’ program. See, Humphry (1877). Doing well in the Law Tripos at Cambridge enabled a
student to get an LL.B. degree in addition to the B.A. Humphry, ibid., p. 17. At Bombay University, students could pick
‘Roman History, General Jurisprudence and Roman Law’, though not English law, as their subject for the B.A. For many
years, students at Bombay University could also pursue the first year of the LL.B. program concurrently with their B.A.
program. The examination for the Indian Civil Service also had a legal component in it.
152. Gumperz (1965: 248).
153. In 1892, the fee for the matriculation, B.A. final, and first year LL.B. examinations was Rs 10 each. The fee for the LL.B.
final examination was Rs 20. See, ‘The Bombay University Finance’ (1892). University fees were constantly revised. For
example, in 1893, the LL.B. final fee was raised to Rs 50. ‘Candidates for LL.B. Examination’ (1893).
154. For some reason, Nanabhai Haridas got his B.L. degree at Madras University.
155. Gandhi was a mediocre student. See, Guha (2013: 26–30).
156. Included in this figure is Justice Sajba Rangnekar who stood in the second class in his B.A. and LL.B. examinations at
Bombay University, but who stood at the top of his class while getting called to the Bar in England, winning a certificate
of honour for his performance, and missing out on being recommended for a studentship of a hundred guineas on account
of his age. Council of Legal Education Calendar (1930–3: 168).
157. Data were not available for two out of twenty-nine judges, that is, 7 per cent of the total population.
158. Future judges of the Bombay High Court Mirza Ali Akbar Khan and Kshitis Chandra Sen got this scholarship. Oddly, Khan
got a second class in his B.A. examination, though the Government of India scholarship was often awarded to those who
go the highest marks in the examination. See, Mossman (2004: 68). Khan initially planned on studying in England with
intent to write the Indian Civil Service examination, but he eventually applied to the government to be able to study for
the Law Tripos, intending to prepare for a career at the Bar instead. British Library, India Office Records, L/PJ/6/641,
File 1486. Interestingly, the scholarship was not available for women. Government of India scholarships were established
in 1868. Visram (2002: 86).
159. Davar (1911: 7).
160. Chagla 1974: 27–8). Likewise, several decades before Chagla, a future Viceroy of India, George Curzon, was disappointed
with his performance at Oxford, where he only secured a second class in the ‘greats’ examination, but he was consoled by
his friends who told him that grades did not matter much. Gilmour (1994: 33).
161. HCA/D63/A5, ‘Reminiscences Early Days’, pp. 20–1.
162. Ibid., p. 22.
163. Two of Chagla’s colleagues on the Bench, who were both Oxbridge graduates, Justices Rajadhyaksha and Bavdekar, placed
in the first class in their respective programs. When Cornelia Sorabji, the first woman to sit for the B.C.L. examinations at
Oxford, stood in the third class, she wrote to her benefactor, ‘I do not attempt to conceal the fact that I have intensely
disappointed myself’. Mossman (2004: 71).
164. Kaikini 1911: 212–13).
165. H.J. Kania, who had an LL.M. from Bombay University.
166. See, Census of India, 1931, vol. 1, Part II. See further, Rustomjee (1932–33). The men tended to be far more literate than the
women. Less than 3 per cent of the women in British India, at that time, were literate. See further, Mossman (2004: 63).
167. Gumperz (1965: 314). Gumperz attributes this to inadequate teaching techniques, the use of English as a medium of
instruction, and a policy of focusing attention only on the better students.
168. Gumperz, ibid.
169. Between 2008–13, the pass rate at the New York State Bar Examination for all candidates was between 62–69 per cent. See,
New York Bar Exam, http://www.nybarexam.org/ExamStats/NYBarExamPassRates2008_2013.pdf (accessed 21 March
2014).
170. Conlon (1977: 116).
171. Even within Oxford and Cambridge, British judges did not have a preference for any particular college.
172. Duman 1982: 42–4).
173. Swanepoel 2010: 67–8).
174. Once Haileybury College was closed down, entry into the Indian Civil Service became competitive. Until then, members of
the service were nominated by the East India Company’s directors, and were expected to pass examinations at
Haileybury. O’Malley (1931: 242). Interested candidates petitioned the East India Company for admission to Haileybury,
and needed a director of the Company to nominate them to the college. For an example of one such petition, filed by
Robert Hill Pinhey, later a Bombay High Court judge, see, British Library, India Office Records, J/1/77/55-64.
175. See, Hambling (2006).
176. See, Potter (1986: 116). The period of probation was usually one year for British probationers, and two years for Indian
probationers. Probationers got 300 pounds a year if they were British, and 350 pounds a year if they were Indian. Hunt
and Harrison (1980: 9–20).
177. See, Kincaid (1934: 9). See further, British Library, India Office Records, L/PJ/6/314, File 217 (containing a request from
an Indian Civilian, Govind Madgaonkar, later a judge of the Bombay High Court, for his 75 pound allowance after
completing the second periodical examination).
178. Markby was a reader in Indian law at Oxford between 1878–1900, and he supervised probationers in the Indian Civil
Service. See, Watkin (2004). See further, Indu Prakash, 8 January 1894; Mossman (2004: 63).
179. Thus, in 1890, an Indian Civilian, future Bombay High Court judge Govind Madgaonkar, requested that he be permitted to
transfer from Oxford University to London University, where he would more easily be able to take horse riding lessons.
180. An acting judge of the Bombay High Court, Charles Kincaid, spent his time as a probationer at Balliol College, Oxford,
studying Marathi in preparation for his service in Bombay. Kincaid (1934: 22). Syed Ali Bilgrami taught Marathi at
Cambridge. Visram (2002: 87). Another Civilian judge, Sir Maurice Henry Weston Hayward, wrote in his memoirs that,
‘[t]he course for probationers consisted of study of the vernacular languages of their particular Presidencies, the
geography and history of India and the criminal and civil laws together with Hindu and Mahomedan laws having force in
India’. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/1.
181. Potter (1986: 102–3).
182. Data regarding academic honours were typically only available for those who went to Oxford or Cambridge Universities, or
to Haileybury College, or those who won awards at the Inns of Court, that is, thirty-five out of fifty-four judges. Indian
Civil Service probationers were not counted in this number, since they presumably did not have to give the same kind of
examinations as degree candidates.
183. These were J.P. Green, C.F. Farran, and A.B. Marten. Council of Legal Education Calendar (1930–3).
184. British Library, Sir Maurice Henry Weston Hayward Papers, D839/5.
185. British judges were appointed at a mean age of 45.5 years (median: 45 years), while Indians were appointed at a mean age of
47.7 years (median: 48). Data were not available for two British judges.
186. Arnold (1986: 88).
187. For example, a ‘senior’ judge gets to preside over a Division Bench. Further, until 1927, when a disagreement arose in a
bench of two judges in a case, the view of the senior judge was required to prevail. See, Setalvad (1940).
188. One Civilian judge explained the distinction between an Advocate General and a Legal Remembrancer in his memoirs: ‘The
Advocate General and the Solicitor to Government were responsible for all civil and criminal litigation in which
government was concerned in the town and island of Bombay known as the Presidency Proper. The Legal Remembrancer
was responsible for civil litigation and criminal cases of an important nature in the rest of the Bombay Presidency known
as the Mofussil. He was also to give opinions on any legal question referred to him by the various Departments of the
Secretariat. He also had to draft all Bills to be presented to the Bombay Legislative Council and attend the meetings in
support of the member in charge of a Bill.’ British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/4.
189. It is hard to gather how successful Indian lawyers were prior to their elevation to the Bench. There was no system of
conferring distinctions on lawyers in British India comparable to the ‘Queen’s Counsel’ in Britain or the ‘Senior
Advocate’ of the modern-day Indian legal profession. Further, except for the Appellate Side post of Government Pleader
(which some Indian judges held prior to their elevation), most Original Side posts like Advocate General were closed to
Indians until the last decades of the British Raj. We will see in Chapter 4, however, that Indian lawyers were usually very
successful at the Bar prior to their elevation to the Bench.
190. This is probably another reason why Pherozeshah Mehta was not appointed to the Bench—his practice was confined mostly
to the rural districts.
191. Both were Chief Justices of the Bombay High Court—Mathew Sausse, and John Beaumont. Leonard Stone was designated
as such after he retired from the Bombay High Court.
192. In 1905, one commentator wrote: “Mr. Couch could not, it seems, do very well at the Bar, otherwise he would not have
accepted the Recordership of Bedford which was offered him in 1858.” Dey (1905: 96–7). Additionally, he had no
university degree and a scholastic career which was ‘anything but noteworthy’. Couch’s lack of success in the United
Kingdom did not necessarily mean that he was incompetent—it could have meant that he lacked the family connections
necessary in order to become a successful lawyer in the United Kingdom. Likewise, Lawrence Jenkins ‘had little practice’
at the Chancery Bar in the metropole, when he first came to India as a judge of the Calcutta High Court. Strangman 1931:
40–1). Jenkins, however, came to the Bombay High Court from a puisne judgeship on the Calcutta High Court.
193. Terrell (1979: 99). Terrell refused to recommend his name for a knighthood.
194. Both representations were made in 1913, by retired Bombay High Court judges William Henry Crowe and Louis Pitman
Russell. The official gazette had recently carried a notification that retired judges of the Provincial Court of Canada could
seek permission to continue to use the title ‘Honourable’ after retirement. Both the retired Bombay judges argued that
they should be allowed to use the title ‘Honourable’ too. Crowe pointed out that he had not been ‘fortunate enough’ to
earn a ‘special mark of…approbation’ like a knighthood after retirement, and so he wished to continue to use his Bombay
title. Crowe added that it was ‘a hardship that men who have held with credit the dignified office of a Judge of the High
Court should on retirement forfeit all claims to any public recognition of the service rendered in that office’. Secretary of
State Montagu refused both their requests, and said that the position of Indian and Canadian judges was not analogous.
British Library, India Office Records, L/PJ/6/1248, File 2280; L/PJ/6/1249, File 2439.
195. The judge was Norman Wright Kemp. British Library, India Office Records, L/PS/15/68, File H272/1929.
196. The judges were: Kemp, Ranade, Wassoodew, Lokur, and Rangnekar. Unlike the others who went to the mofussils,
Rangnekar served as Chief Presidency Magistrate in Bombay, the first Indian to permanently hold this post. Two judges
were drawn from administrative posts in Bombay: Macleod and Kajiji.
197. The three judges who came to Bombay directly from other colonies were Charles Sargent (Chief Justice, Supreme Court of
the Ionian Islands), John Scott (Vice President, International Court of Appeal in Egypt), and John Blagden (Judge,
Rangoon High Court—Rangoon was no longer a part of British India after the Government of India Act, 1935).
198. For more on the Parsi community during the British Raj, see, Luhrmann (1996).
199. I was unable to clearly identify the caste of two of the twenty Hindu judges (Tendolkar and Dixit), that is, 10 per cent of the
total population. However, I consider it highly likely that these judges did not belong to the ‘depressed castes’.
200. For Justice Chandavarkar’s relationship with his caste, see, Conlon (1977).
201. Misra (1961: 158).
202. Misra, ibid., p. 307.
203. Gumperz (1965: 252).
204. Two judges were Khojas and two were Bohras, while I was unable to ascertain the sub-sect of Islam that one judge belonged
to (Mirza Ali Akbar Khan).
205. Biographies seldom mention whether a judge was English, Irish, Scottish, or Welsh, but there were clues which helped me
compile these data. A person’s place of birth, the school he went to, or the place his father’s name was associated with,
was used as evidence of the person’s affiliation to that place. There were other clues as well—for example, speeches
made at events organized by the Scottish Orphanage in Bombay gave me clues about whether some judges were Scottish
or not. Using this methodology, I was able to guess the geographic origins of thirty-five British judges (that is, 64 per cent
of the total population of British judges). The results of the study were that 17 per cent of the British judges were Scottish,
14 per cent were Irish, and one judge (3 per cent) was Welsh.
206. The Irish Chief Justices were: Sir Mathew Richard Sausse, Sir Michael Roberts Westropp, and Sir Charles Farran. The
Scottish Chief Justices were: Sir Norman Cranstoun Macleod and Sir Basil Scott. The Welsh Chief Justice was Sir
Lawrence Jenkins.
207. Sir Mathew Richard Sausse.
208. This bears no reference to prominent British lawyers who came to India for a case and then went back. For example, around
1875, the British barrister William Ballantine came to India to represent the native prince of Baroda in a trial. He was paid
Rs 1,00,000 for his work on that case—more money in a single case than the highly-paid Chief Justice of Bengal earned
in a year. See, Ballantine 1882: 440–92); Vachha (1962: 252–6). Lawyers like Ballantine, however, always returned to
Britain, as carrying out a law practice in India would have been considered inferior to their status.
209. Duman (1983a: 138).
210. McLaren (2011: 47).
211. Swanepoel (2010: 36–60).
212. Terrell (1979). Terrell eventually came to India as the Chief Justice of the High Court at Patna.
213. ‘Sir Michael Westropp’ (1882). However, it seems that he faced a dry spell in Bombay for some time too, before his career
took off. See, Wacha (1920: 720).
214. Strangman (1931: 34).
215. Strangman, ibid., pp. 40–1.
216. Joseph Arnould to Alfred Domett, letter dated 10 December 1863, British Library, Add MS 45560.
217. ‘Mr. Justice Anstey’ (18 October 1865). See further, Inverarity (1912: 18).
218. ‘Mr. Justice Anstey’ (24 October 1865).
219. ‘Mr. Justice Anstey’ (December 1865).
220. ‘Article No. 9’ (1886).
221. Inverarity (1912: 18).
222. Setalvad (1946: 9).
223. He got an attorney friend of his from Madras to enrol in Bombay. Setalvad, ibid., p. 9.
224. ‘Monument to Mr. Anstey’ (1901).
225. Towers of Silence Case – 1874, Website of the Bombay High Court,
http://bombayhighcourt.nic.in/libweb/historicalcases/cases/Towers_Of_Silence_Case_-_1874.html (accessed 14 July
2013); Vachha (1962: xi).
226. See, Hechter (1999: 234–63); Colley (2003: 128–30); Hobsbawm (1987: 71); Blum 2011: 251–2).
227. Kenneth Ballhatchet has argued that the British were constantly worried that a lower class of Europeans—soldiers and
prostitutes—would bring disrepute to the members of the ruling white race in British India by their immoral behaviour,
and undermine the structure of power and authority which was grounded on an image that the ruling white race in India
was unapproachable, incorruptible, alien, and socially distant. Ballhatchet (1980). Some of this fear also possibly
extended to British lawyers at the colonial Bars. For example, the noted Madras lawyer, Eardley Norton, who moved to
the colonial Madras Bar on account of an ‘urgent need of money’, eventually created a minor scandal there because he
had a mistress. ‘Mr. Eardley Norton’ (1931). Norton studied at Rugby and Oxford. Ballhatchet (1980: 155). Yet, it was a
need of money which drove him to India. At the same time, British lawyers at the colonial Bars were not like other unruly
Europeans—brawling soldiers and licentious prostitutes. Instead, the fear that incompetent British lawyers were
infiltrating the colonial Bars might possibly have reflected an insecurity burgeoning within the high classes in Britain, that
the colonies gave their middle-ranking classes the ability to break free of their middling class position and rise up the
social ladder. In other words, middle-ranking British lawyers who infiltrated the colonial Bars were like East India
Company officers a century before who returned to England as ‘nabobs’—they had violated the social order in Britain by
using a colony to leapfrog across class boundaries.
228. David Cannadine has argued that the British Empire was about class as much as it was about race. Cannadine (2001). Often,
Britons saw Indian native princes as superior to white Britons in the colonies who were ‘failed professionals in the law
and the church and the military’. Cannadine, ibid., p. 125. Supporting Cannadine’s argument, this chapter suggests that
the idea of colonial ‘difference’ was more complicated than the binary colonizer-colonized dichotomy with which it is
often associated.
Chapter 4 The Judicial Culture of the Court

1. Similar studies have been carried out of state Supreme Courts in the United States See, for example, Kagan et al. (1977–
8a); Kagan et al. (1977–8b); Friedman et al. (1980–1); Wheeler et al. (1987–8). In India, Nick Robinson has carried out a
study of Constitution Benches of the Supreme Court of India. Robinson et al. (2011). The present author has also carried
out a similar study of speech cases decided by the Supreme Court of India. Chandrachud (2012a). For a somewhat similar
study of a trial court in a town in East Germany, see, Markovits (2002).
2. See, for example, Vachha (1962).
3. See, for example, Sharafi (2009).
4. The Bombay High Court was an important, politically visible court in British India, as a consequence of which all its
decisions were likely to have had a certain aura of importance about them. However, this chapter will reveal that there
were routine cases at the court as well.
5. For much of the colonial era, the ‘Indian Law Reports’ were the most authoritative law reports in India. The Indian Law
Reports were officially published by the government. The Indian Law Reports Act, 1875, section 3, said that courts were
not required to hear, cite, or treat as authoritative the reports of any case other than a report published under the authority
of the Government of India. The Bombay High Court used to officially prepare a head-note and summary of arguments
for cases, which were then included in the law reports. See, National Archives of India, Home Department, Judicial
Branch, April 1898, No. 1–13. Private law reports also emerged in time, including the All India Reporter which was
widely used later on.
6. The law reports I used were the Bombay High Court Reports for the year 1865, the Indian Decisions (New Series)
(Bombay), for the years 1885 and 1905, and the All India Reporter (Bombay), for the years 1925 and 1945.
7. For example, the law report for the year 1905 contained cases for the years 1904, 1905, and 1906, but it contained a
majority of cases decided in 1905 itself. By contrast, the law report for the year 1945 contained a majority of cases
decided in 1944.
8. However, non-political cases could end up being reported in the press too. For example, the case of Raghunath Damodar v.
Janardan Gopal, Indian Law Reports 15 Bombay 599, involving the excommunication of a person from a caste, was
reported in the Indu Prakash in 1891. ‘An Important Decision of the Bombay High Court’(1891). In that decade, cases
reported in newspapers were rarely political in the sense that they did not involve the government as a litigant. Yet, some
of these cases, involving questions of tradition and change, were considered important.
9. Candri Bawoo v. Emperor, AIR 1925 Bom 131.
10. See, Mody (vol. 1, 1921: 57).
11. An interesting example of this type of case was Kedari v. Atmarambhat, (1866) 3 Bombay High Court AC 11. Some
simpleton farmers mortgaged their land to moneylenders on oppressive terms. The mortgagors defaulted, and the
mortgagee sued. The court set aside the terms of the mortgage, calling it ‘inequitable, fraudulent, and grossly oppressive’.
12. A typical example of this type of case was Gujjar v. Karadgi, AIR 1925 Bom 363. In that case, a man called Narsidas had
four children: one son (Ramdas), and three daughters (Radhabai, Ratnabai, and Poonabai). Narsidas died, and his son
Ramdas was adopted by Narsidas’s first cousin. When Ramdas died, his wife (Plaintiff 1) and daughter (Plaintiff 2) sued
Narsidas’s granddaughters from Radhabai and Ratnabai (Defendants 2, 3, 4, 5, and 6). The question at issue was whether
Ramdas’s heirs lost their inheritance rights from their husband/father when he was adopted by his uncle. A bench of the
court (consisting of Justices Macleod and Crump) held that when Ramdas was adopted, he was treated, according to a
legal fiction, to have died, and so his property belonged to his heirs. In short, the plaintiffs won.
13. In 1893, the Indu Prakash lamented to its readers: ‘It seems of late there have been good many cases of theft and robbery in
Bombay. Cheating too is not behind hand. Still more murder cases are cropping up. We wonder what this is all owing to.’
‘The Third Criminal Session’ (1893).
14. Of course, this could also have been interpreted to mean that law reporters were becoming more selective as the years went
by, but we also know that the court’s docket did not substantially increase over the years.
15. It must therefore be emphasized that the results presented in this chapter rely on a very small sample of cases filed before
the Bombay High Court in the colonial era. However, it is likely that many cases which were filed in the Bombay High
Court did not result in a judgment being delivered, for example, if the case was withdrawn by the plaintiff, or settled by
parties, etc. I decided to use law reports for the purposes of this chapter because they appeared to me to be the best
available source of data on the cases decided by the Bombay High Court.
16. It was sometimes said that judges decided to have their judgments reported even if the point of law involved was not all that
important, in order to inflate their own importance on the court.
17. Sometimes, the identity of all the litigants involved in a case was not readily ascertainable. In such cases, only the identities
of the main litigants on either side of the case were counted in the data collection process. For example, if a law report
contained a judgment with the cause title: Mr X and Others v. Ms Y and Another, the identity of X and Y was
ascertainable (based on their names), so it was recorded in the data collection process, but the identities of the ‘others’ on
the plaintiff’s side, and the ‘another’ on the defendant’s side, was unascertainable (since their names were often not set
out in the head-note of the law report or judgment), and were therefore left out in the data collection process. However,
often, it was thought likely that the ‘others’ and ‘another’ belonged to the same ethnic category as the lead plaintiff or
defendant. In the hypothetical above, for example, it was likely that the ‘another’ on the defendant’s side belonged to the
same community as his/her co-defendant, Ms Y.
18. The remaining cases had parties like corporations, unincorporated associations, court officers, etc.
19. Rose Fernandez v. Joseph Gonsalvez, AIR 1925 Bom 97.
20. Bhikubai v. Hariba, AIR 1925 Bom 153.
21. This does not include criminal cases, where the government was a litigant in the form of the prosecution.
22. It is not clear why this happened.
23. See, Robinson et al. (2011).
24. The leading Appellate Side lawyers were: in 1885: Manekshah Jehangirshah Talyarkhan, G.N. Nadkarni, Pandurang
Bhalibhadra, G.R. Kirloskar, M.C. Apte, Shantaram Narayen, and G.K. Parekh; in 1905: H.C. Coyajee, L.A. Shah, V.J.
Kirtikar, and G.S. Rao; in 1925: G.N. Thakor, H.C. Coyajee, H.V. Divatia; in 1945: P.B. Gajendragadkar, B.G. Thakor,
J.C. Shah.
25. In 1865, the Advocate General used the title ‘Honourable,’ which he did not use in subsequent decades, which suggests
either that the title ‘Honourable’ was stripped from the post of Advocate General at some point, or that the title
“Honourable” was wrongly used by the Advocate General (or the law report) in 1865.
26. As discussed in Chapter 1, it is perhaps for this reason that the word ‘Advocate’ is found in ‘Advocate General’ (since only
‘Advocates’ appeared on the Original Side), while the word ‘Pleader’ is found in ‘Government Pleader’ (since ‘Pleaders’
only appeared on the Appellate Side).
27. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/5.
28. A famous (probably apocryphal) Bombay story recalls how Desai was given a valuable lesson in advocacy by J.D.
Inverarity, the leader of the Bar. See, Khambata (2012: 142); Ferreira (1962: 130).
30. The leading Original Side lawyers were: in 1865: L.H. Bayley (later a High Court judge), Mc Culloch, Howard, Green, and
Pigot; in 1885: Inverarity, Latham, and Macpherson; in 1905: Raikes, Inverarity, Davar, and Lowndes; in 1925: B.J.
Desai, Kanga, Coltman, and Campbell; in 1945: Kanga, M.C. Setalvad, and G.N. Joshi. By 1945, the nature of the legal
profession had also changed in other ways in Bombay. For example, there was some level of substantive specialization in
the legal profession. Thus, for example, Sir Jamshedji Kanga, the former Advocate General of Bombay, was briefed in
nearly every tax case, by the assessee, against the government. In these cases, the Advocate General, M.C. Setalvad,
almost always appeared on the other side, with G.N. Joshi. Though he was reputed to be a stellar Advocate, Kanga’s
status as former Advocate General probably made him an attractive candidate for assessees who were battling the
government.
31. Another such partnership was the firm of Payne, Gilbert, and Sayani.
32. They included: Payne & Co.; Little & Co.; Craigie, Lynch and Owen; and Crawford, Brown & Co.
33. Unfortunately, the All India Reporter did not provide information about the solicitors who appeared in reported cases, as a
result of which no information on solicitors was available for 1925 and 1945. However, one might surmise that British
solicitors firms largely died out (or got Indianized) in Bombay by that time. Interestingly, the All India Reporter did not
record lawyers’ arguments in court either, something which the Indian Decisions (Bombay) used to report, modelled on
English law reports. In fact, older law reports like the Indian Decisions (Bombay) also used to record questions put by
judges to lawyers during the course of arguments, and lawyers’ responses to those questions. Today, lawyers’ arguments
are not reported in the law reports in India at all.
34. They were: Little, Smith, Frere; and Nicholson, Tobin, and Raughton.
35. The case was: Jairam Narronji v. Kuverbai and Others, (1885) Indian Decisions (Bombay) 326.
36. The case was: Dosibai v. Ishwardas Jagjiwandas and Another, (1885) Indian Decisions (Bombay) 376.
37. The case was: A.M. Roberts v. A.D. Shanks, AIR 1925 Bom 360.
38. The case was: Mabel Head v. Miss Kathleen Head and Another, AIR 1945 Bom 43.
39. Krishnabhat v. Emperor, (1885) Indian Decisions (Bombay) 600.
40. Secretary of State v. Manilal Harivallavdas, AIR 1925 Bom 278.
41. It is perhaps for this reason that a biographical sketch of Davar, written in 1939, said that ‘[t]he junior Indian Bar owe
[Davar] a debt of gratitude for the manner in which he fought for the equality of rights of Indian and European Barristers
practising in the Bombay High Court for it was he who was responsible for the eradication of all the distinctions that had
existed between these two groups’. Darukhanwala (1939: 149–50). The writer was referring to Davar’s time practising as
a lawyer at the Bombay High Court. The fact that Davar was one of the first Indian lawyers to have risen to the front rank
of the Original Side probably had something to do with his image of having worked to eradicate distinctions between
European and Indian lawyers.
42. Motilal v. Govindram, (1905) Indian Decisions (Bombay) 459. Such praise was not always forthcoming. I spotted it on two
other occasions. In Ganpati v. Secretary of State, AIR 1925 Bom 44, 49, Chief Justice Macleod praised the two Indian
lawyers appearing in the case: ‘I should like to add that we are very much indebted to Mr. Kelkar for having argued the
case for the plaintiff in the way he has done in spite of the case as originally set up by the plaintiff. We are also indebted
to Mr. Coyajee for the way in which he argued the case for Government.’ In another case [Atmaram v. Vaman, AIR 1925
Bom 210, 227], acting judge D.F. Mulla concluded his dissent by praising the lawyers: ‘Before concluding this judgment
I feel I ought to say that the case was argued with remarkable ability by the learned pleaders on both sides. Indeed, it
could not have been argued better.’
43. Sir Dinsha Manockji Petit and Others v. Sir Jamsetji Jeejeebhoy and Others, 11 Bombay Law Reporter 85 (1909). See
further, Sharafi (2006).
44. Kanga (1940: 363).
45. West (1894: 111). Telang had written a translation of the Hindu religious text, the Bhagvad Gita. Telang (1882). An Indian
jurist, Sir Brojendra Mitter, wrote as Law Member of the Government of India, that the ‘greatest achievement’ of Indian
High Court judges was ‘naturally…in the realm of the personal laws of the Indians’. Indian Judges (1932: vi).
46. Ratilal v. Motilal, AIR 1925 Bom 380, 380.
47. See, further, Chandavarkar (1910: 17). Chandavarkar told students of the Government Law School that an English District
Judge in a case had upheld the decision of a lower court judge on a point of Hindu Law, because the lower court judge
was a Hindu.
48. Setalvad (1946: 36–7). The bench in that case consisted of Sargent, Bayley, Candy, and Telang.
49. In the Supreme Court of India, a bench of five judges is called a ‘Constitution Bench’. However, in the High Court of
Bombay, at least during the colonial era, a bench of three or more judges (including benches of five judges) were called
‘Full’ benches. For example, in Keshav Gokhale v. Emperor, AIR 1945 Bom 212, a bench of five judges of the court was
convened to hear the case. Chief Justice Stone called this bench a ‘full bench’.
50. Some cases, though, were also ‘first appeals,’ meaning that the High Court was the first appellate authority to hear the case.
51. By contrast, only 32 per cent of the court’s Original Side cases were decided by a bench which had at least one Civilian
judge on it, and only 31 per cent of the court’s Original Side cases were decided by a bench which had at least one
Pleader judge on it.
52. By contrast, only 54 per cent of the court’s Appellate Side cases were decided by a bench which had at least one barrister
judge on it, and only 20 per cent of the court’s Appellate Side cases were decided by a bench which had at least one
Pleader judge on it.
53. By contrast, only 26 per cent of the court’s criminal cases were decided by a bench which had at least one barrister judge on
it, and only 30.1 per cent of the court’s criminal cases were decided by a bench which had at least one Pleader judge on it.
54. See, Sharafi (2007b: 173).
55. For more on seniority, see, Chandrachud (2012c).
56. This is corroborated by at least one judge, Justice Maurice Hayward, who wrote in his memoirs that Chief Justice Basil
Scott assigned the opinion writing responsibility to him in one case. British Library, Sir Maurice Henry Weston Hayward
Papers, Mss Eur D839/6. Judgments of the court usually had an author. A very small proportion of the court’s judgments
were written as per curiam opinions, where the judge writing the opinion was not identified. Approximately 31 per cent of
the court’s decisions in 1865 were per curiam decisions, though this proportion fell to 6 per cent in 1885, 1 per cent in
1905, before rising marginally to 12 per cent in 1925. In 1945, there were no per curiam opinions reported in the All India
Reporter.
57. Clause 36, Amended Letters Patent of the Bombay High Court, 28 December 1865. After 1927, the decision of the majority
would prevail, and if the judges were equally divided, the question dividing the judges would have to be referred to other
judges on the court.
58. In re: C.P. Fox, (1885) Indian Decisions (Bom) 502.
59. Setalvad’s memoirs suggest that Haridas and Wedderburn did this often. Setalvad (1946: 25–6).
60. Ibid.
61. Indian judges were used in Original Side, Appellate Side, and criminal cases, in roughly equal proportions. In other words,
Indian judges were not restricted to any particular jurisdictional division of the court.
62. See, Chandrachud (2012a: 251–2).
63. If a concurring opinion was written on a Division Bench, it was still easy to identify as the concurring opinion (and not the
majority opinion). The concurring judge usually expressed agreement with the majority judge, and said that he was
adding a few words of his own to the judgment. Since the concurring judge usually agreed with the outcome of the case,
concurring opinions were rarely veiled dissents.
64. When Leonard Stone was appointed Chief Justice over Kania’s head [see, Chapter 5], for example, the Indian Bar was upset
because Kania’s seniority had been ignored—something which would not have been a concern if the notion of seniority
itself was losing importance.
65. See, Chandrachud (2012c).
66. The Financial Association of India and China Limited v. Pranjivandas Harjivandas and Another.
67. In re: Pestanji Cursetji Shroff, (1864–6) 2 Bombay High Court Reports 42.
68. The publishing specifications of law reports did not remain standard over the years. In 1865, the Bombay High Court
reports had approximately 456 words to a page. In 1885 and 1905, the Indian Decisions (New Series) (Bombay) had
approximately 636 words and 689 words per page, respectively. In 1925 and 1945, the All India Reporter (Bombay) had
approximately 741 words and 960 words per page respectively. The mean number of pages in each year was as follows:
(1) Original Side: 1865: 5 pages, 1885: 4.9 pages, 1905: 4.6 pages, 1925: 3.1 pages, 1945: 5.3 pages; (2) Appellate Side:
1865: 2.1 pages, 1885: 1.6 pages, 1905: 2.4 pages, 1925: 2.9 pages, 1945: 3.3 pages; (3) Criminal cases: 1865: 1.2 pages,
1885: 1.6 pages, 1905: 3.9 pages, 1925: 2 pages, 1945: 3.6 pages.
69. The length of opinions was likely to have been slightly more, because law reports back then used to edit out certain portions
of judgments which the reporter considered redundant. For example, in a case reported in the 1905 volume of the Indian
Decisions (Bombay), the judgment began with the following editorial note: ‘[His Lordship, after discussing at length the
evidence, as to the alleged fictitious advances, proceeded as follows:- ]’. Since the law reports summarized the facts of the
case (often, these summaries were prepared by court officials themselves), the facts set out in the judgment of the court
were often edited out. Further, details which the reporter considered unnecessary were also omitted from judgments. In its
1925 volume, for example, the All India Reporter (Bombay) cut off a judgment at the end with the following line: ‘[The
further portions of his Lordship’s judgment are not material to our report. In the end, the appeal was dismissed.]’ This
continued in the 1945 volume of the All India Reporter (Bombay), where a judgment ended: ‘(The rest of the judgment is
not material to this report.)’ It is rare to see this type of editing in the law reports today, where a judge’s summary of the
facts, for example, is considered far more authoritative than the summary of facts in the head-note of a law report.
However, this kind of editing by law reports back then was unlikely to have substantially diminished the length of an
opinion. For example, in the case of Sir Dinsha Manockji Petit and Others v. Sir Jamsetji Jeejeebhoy and Others, 11
Bombay Law Reporter 85 (1909), though the original judgments in the case were 121 pages long, even the edited law
report versions of the judgments were eighty-four pages long. Though this was a substantial reduction, it is not like a 120-
page judgment became a twenty-page judgment on account of the law reporter’s editing. Further, since any judgment,
throughout the British Raj, stood an equal chance of being edited by the law reporter, data on the rise in opinion length set
out in this chapter are reasonably reliable.
70. New Citizens Bank of India v. Asian Assurance Co. Ltd., AIR 1945 Bom 149, 151.
71. The reason usually was that the issues raised in the case were important, or that the judge wanted justice to be done to all of
the lawyers’ arguments and the majority opinion might not have dealt with all arguments.
72. Tajubai v. Sub-collector, 5 Bombay High Court Reports 132; Jethalal Hurlochand v. Government of Bombay, (1905)
Indian Decisions (Bombay) 289; Atmaram v. Vaman, AIR 1925 Bom 210. Interestingly, in the second case, the dissent
was written by the acting Chief Justice of the court, Lallubhai Shah, and acting judge, D.F. Mulla.
73. See, Robinson et al. (2011).
74. John Over v. I.J. Sopher, AIR 1925 Bom 231, 239.
75. Reg v. Devsanvat bin Shivramsanvat.
76. Reg v. Bhaskar Kharkar.
77. In re Rakhmaji, (1885) Indian Decisions (Bom) 374, 375.
78. Their attitude of superiority towards lower courts comes into perspective when one considers some of the irregular things
that lower court judges did. For example, in one case reported by the Indu Prakash to its readers in 1894, a lower court
judge, Unwin, vindictively went after a litigant, Govind Mangba Shenvi, telling his pleader: ‘I believe, I have been sent
by Providence to this district to work the ruin of your client. I shall move the whole earth to bring the man to grief.’ ‘A
Tale of Judicial Persecution’ (1894).
79. See, Kagan et al. (1977–1978b: 130).
80. Ardeshir v. Dadabhoy, AIR 1945 Bom 395, 398.
81. In re: All India Groundnut Syndicate, AIR 1945 Bom 497.
82. When a judge quoted from another judgment, and the quotation contained references to other judgments, the latter
judgments were not counted as having been cited in the judge’s decision unless he specifically referred to them later on.
For example, imagine that in a judgment written in a case (‘Judgment 1’), the judge quoted a paragraph from another
judgment (‘Judgment 2’), which paragraph contained a reference to two other judgments (‘Judgments 3 and 4’). Though
Judgment 2 was counted as having been cited in Judgment 1, Judgments 3 and 4 were not counted as having been cited in
Judgment 1 unless the judge writing Judgment 1 specifically referred to or discussed those judgments later on in his
judgment.
83. Whateley v. Palanji Pestanji, (1866) 3 Bombay High Court Reports 137.
84. In re: Liquidators of the New Fleming Spinning and Weaving Company Limited, (1885) Indian Decisions (Bombay) 248,
262.
85. Cecil Cole v. Nanalal Dave, AIR 1925 Bom 18, 20.
86. Framji v. Framji, (1905) Indian Decisions (Bombay) 610, 616.
87. Emperor v. Rampratap Magniram, (1905) Indian Decisions (Bombay) 272.
88. Panama Refining Co. v. Ryan, 293 US 388 (1935).
89. Haveliram Shetty v. Maharaja of Morvi, AIR 1945 Bom 88, 107.
90. The Indian constitution back then was the Government of India Act, 1935.
91. See, Robinson et al. (2011: 30).
92. Ardeshir v. Dadabhoy, AIR 1945 Bom 395, 398.
93. For a list of Hindu Law treatises used in the early twentieth century, see, Chandavarkar (1910: 11–12).
94. Hirji Laxmidas v. Francis Fernandez, AIR 1945 Bom 351, 352.
95. Bai Hansa v. Abdulla Mustafa, (1905) Indian Decisions (Bombay) 484, 486.
Chapter 5 The Structural Peculiarities of a Colonial Judiciary

1. Terrell (1979: 14).
2. Likewise, the Chief Justice was the most important person in the colony after the Governor in the British colonies of Kenya
and Tanganyika. Swanepoel (2010: 71–2).
3. See, The India List and India Office List; The India Office and Burma Office List.
5. The official was Maxwell Melvill, a former High Court judge who was serving on Governor James Fergusson’s Executive
Council. Melvill wrote to Fergusson in around 1884 that Chief Justice Michael Westropp, ‘who could not bear to be
overruled,’ used to, ‘where there was a question in which he was interested,’ ‘select Judges to sit with him, who he was
sure would agree with him’. Melvill added, ‘[t]his was hardly right: but if a Chief Justice chooses to do it, there is nothing
to prevent him for the law gives him the power to settle all the sittings of the Judges’. Melvill to Fergusson, letter dated 23
June 1884, British Library, Sir James Fergusson Papers, E214/14.
6. This power was said to have been particularly abused by one British Chief Justice of the Lahore High Court in British India,
Sir Douglas Young. Mahajan (1963: 88–9).
7. See, Sinha (1985: 35); Hidayatullah (1981: 131); Mahajan (1963: 104–5); Gajendragadkar (1983: 65). However, the Chief
Justice did not have ‘primacy’ in the matter of judicial appointments—often, the government appointed their own
candidate over his wishes. For example, though Chief Justice Beaumont wanted Ganpat Rajadhyaksha to be appointed in
a Civilian vacancy on the Bombay High Court, Eric Weston was appointed by the government instead, over Beaumont’s
opposition. Chagla (1974: 133).
8. See, ‘Mr. Justice S.S. Patkar’ (1933).
9. For example, the Chief Justice of the High Court at Patna had to attend to letters from young people requesting
employment, and letters from litigants complaining of the mishandling of their cases. Terrell (1979: 44). The Chief Justice
of the Bombay High Court did things like appoint young lawyers to professorships at the Government Law School. See,
Chagla (1974: 65–6). Chief Justices in other British colonies had similar responsibilities. See, Swanepoel (2010: 92). The
Chief Justice also appointed officers of the High Court. Clause 6, Letters Patent of the High Court, dated 26 June 1862;
Clause 8, Amended Letters Patent of the High Court, dated 28 December 1865.
10. See, Beaman (1926–7).
11. While all judges of the Supreme Court of Bombay would be customarily knighted with their appointments, in the Crown era
it was only the Chief Justice of the Bombay High Court who earned an ex-officio knighthood. Ordinarily, a High Court
judge would be knighted after eight years on the Bench. Chagla (2011: 61).
12. Duman (1983a: 137). Interestingly, however, the salary was not enough for Thomas Hull Terrell, a London barrister who
was offered the post of Chief Justice on the High Court of Bombay in the 1860s. Terrell had a wife, a mistress, and
several children, who could not be sustained on the salary of a Bombay High Court Chief Justice. Terrell (1979: 29).
13. See, Chapter 1.
14. See, Terrell (1979: 99).
15. McLaren (2011: 30). McLaren says that this was done because British barristers were thought to be less subject to local
interests than the local lawyers of the colonies. This explanation is unsatisfactory in Bombay, where many Chief Justices
were picked from among the ranks of barristers practising at the local Bar.
16. McLaren, ibid.
17. Buckee (1972: 68).
18. They were Sausse, Couch, Westropp, Marten, Sargent, Farran, and Macleod.
19. They were Beaumont and Stone.
20. Kershaw was the only judge who fell under this category.
21. Jenkins was the only Chief Justice who fell under this category. The data collected for the purpose of this book do not
enable me to determine whether a person had to be a ‘senior’ puisne judge on another High Court in India or not.
22. Scott was the only judge who fell under this category.
23. After all, it was more likely for a political friend of the British government or the Secretary of State, who was sought to be
rewarded with a Chief Justiceship on an Indian High Court, to be located in Britain and not in the colonies. Further, we
have seen in Chapter 1 that when the Secretary of State appointed a judge to the Bombay High Court on considerations of
patronage over merit, the local press in Bombay strongly protested. This happened when Arthur Strachey, scion of the
influential Strachey family, was appointed to the court before Badruddin Tyabji. The fact that the local press rarely
protested the appointment of a Bombay High Court Chief Justice suggests that the Secretary of State did not staff the
Chief Justiceship of the Bombay High Court on considerations of patronage.
24. See, Chandrachud (2012b); Chandrachud (2012c). Likewise, in the 1880s, Chief Justice Westropp wrote to Bombay
Governor James Fergusson that neither Westropp nor his predecessor had ‘acted on the seniority principle’ in ‘advising
government on the subject of promotions to the High Court’. Accordingly, Westropp advised the Governor to appoint
Herbert Birdwood to the High Court, because Birdwood was ‘more competent than any civil servant in the judicial
branch, who stands above him in the list’. Westropp to Fergusson, British Library, Sir James Fergusson Papers, E214/20.
Similarly, in 1904, the Secretary of State wrote to the Governor of Bombay that judges were not going to be selected to
the High Court merely on the basis of seniority: ‘His Majesty has an absolute discretion to appoint to the High Court any
person who is legally qualified for a judgeship therein, and it is most important to maintain and to emphasize the principle
that he will select, not the person who may appear to be indicated for the post by seniority or by reason of the
appointments which he has already held, but the person who, upon a consideration of all the circumstances, appears to be
best qualified and most likely to add to the strength of the Court.’ British Library, India Office Records, L/PJ/6/671, File
599.
25. The following Indian Civil Service judges were superseded by puisne Bombay High Court judges: Westropp superseded
Henry Newton; Farran superseded Herbert Birdwood, John Jardine, Henry Parsons, and Edward Candy; Macleod
superseded Joseph Heaton. In addition, the following barrister-judges were superseded by puisne Bombay High Court
judges: Couch superseded Joseph Arnould (though Arnould was said to have turned down an offer to be Chief Justice of
the High Court [Prior (2004)]; Farran superseded Bayley. Vachha says that Bayley resigned that year because of the
supersession. Vachha also says that Bayley was superseded because he was ‘apparently not in the good books of
Government’ [Vachha (1962: 73)], though it is possible that his supersession had to do with his age—he was
approximately sixty-eight years old when he resigned in 1895—eight years older than the age at which judges would
retire in the twentieth century. However, we have also seen that the government did not think of Bayley very highly
during the Ilbert Bill controversy. Further, Marten superseded a Pleader judge, Lallubhai Shah.
26. Tyabji (1952: 348). However, this had never happened in Bombay. Tyabji was the first Indian barrister judge, and
consequently, the first Indian formally considered eligible to hold the post of Chief Justice. The only Chief Justices who
were brought from outside the Bombay High Court until then (Kershaw, Jenkins) had not superseded Tyabji.
27. Tyabji, ibid.
28. Tyabji, ibid. One might speculate that meeting with the Secretary of State on this issue might have been one of the main
reasons that Tyabji chose to go to England instead of relocating to a hill-station for a few months.
29. Tendolkar (1928–9: 77). Apparently, this view was accepted by the Secretary of State after Shah’s death, in 1927. See,
Vachha (1962: 44). However, I was unable to find Shah’s memorial or the Secretary of State’s response in the India
Office Records at the British Library.
30. ‘An Eminent Judge’ (1926).
31. See, Kincaid (1934: 13). Harte Davies had written a book entitled ‘India in 1982,’ which predicted that the British would
leave India in 1982. Kincaid commented, in the 1930s, ‘as things are now going—it is certain to come long before’.
32. Kania would later go on to become the first Chief Justice of the Supreme Court of independent India.
33. On Beaumont’s ‘anti-India’ bias, see, Munshi (1963: 32); Setalvad (1971: 49). But see, Chagla (2011: 132–3, 144);
Gajendragadkar (1983: 59). Interestingly, at around the same time as Beaumont, the British Chief Justice of the Lahore
High Court, Sir Douglas Young, was becoming increasingly unpopular amongst Indian lawyers and judges. Amongst
other things, Young caved under the pressure of the Punjab government and stopped acquitting those charged with
murder. He also went so far as to order that all sedition cases would be heard by British judges only, a decision which was
revoked when all the Indian judges threatened to resign. Mahajan (1963: 89).
34. Setalvad (1971: 68–9); Setalvad (1946: 59).
35. Setalvad (1971: 56); Munshi (1963: 40).
36. British Library, India Office Records, L/PO/8/75.
37. British Library, India Office Records, L/PO/8/75. In a telegram dated 22 December 1942, the Viceroy reminded the
Secretary of State that Beaumont’s term had been extended for a year from 8 June 1942, ‘as no one suitable could be
found to succeed him’.
38. See, Beaumont (1946: 14). See further, ‘Sir John Beaumont’ (1943).
39. ‘N.P. Engineer is dead’ (1970). Setalvad had resigned his post in solidarity with the Congress governments which also
resigned when British India was forced to join the Second World War without their consent. His post was then offered to
C.K. Daphtary, who indicated to Beaumont that he sympathized with the nationalist cause. For this reason, Daphtary was
not made Advocate General either. Taraporevala (2010: 48–9).
40. ‘N.P. Engineer is dead’ (1970).
41. Setalvad (1946: 80–1).
42. Chagla (2011: 132–3).
43. The government spent quite a bit of time in finding a successor for Beaumont, and much weight was given to Beaumont’s
opinions on the question. The government was considering appointing any one of four barristers from England to the
Chief Justiceship of the Bombay High Court: (1) D.L. Jenkins, K.C., (2), Leonard Stone, (3) Montague Gedge, and (4)
Montgomery White. Also under consideration were two puisne High Court judges in India—Braund (Allahabad) and
Gentle (Madras). The Lahore High Court Chief Justice, Arthur Trevor Harries, was also considered a good choice, but his
transfer from Lahore was considered impracticable. Beaumont shot down Montague, in a passage which could possibly
be interpreted as anti-Semitic: ‘He will have to preside over a Court in which nearly all the judges are 10 years older than
himself, and if he is really inexperienced the fact will soon appear. Moreover, he is a Jew and they are a racial lot. There
are many in Bombay, mostly in business and not of the highest class socially, possibility of trouble there….I do not feel a
bit happy about Montagu…’ Additionally, a retiring barrister judge of the Bombay High Court, C.P. Blackwell, made it
known that he was interested in being appointed to the Chief Justiceship of the court. Blackwell would have required an
extension in office for him to be appointed Chief Justice. Beaumont’s negative opinion of Blackwell was influential.
Beaumont wrote of Blackwell, ‘He does not quite pull his weight and there is no reason why he should not carry out his
undertaking to retire’. British Library, India Office Records, L/PO/8/75.
44. Stone (1962: 28).
45. See, Chandrachud (2012b). However, other High Courts in colonial India did have Indian Chief Justices. Sir Shadi Lal was
the first Indian to occupy the post of High Court Chief Justice—in 1920, he became the Chief Justice of the Lahore High
Court. ‘Sir Shadi Lal’s Legal Career’ (1945); Website of the Lahore High Court,
http://www.lhc.gov.pk/judges/former_chief_justices.php, (accessed 10 February 2013). Sir Shah Muhammad Sulaiman
was the first Indian Chief Justice of the Allahabad High Court, appointed in 1932. Pathak (undated). Sir Syed Fazl Ali
was the first Indian Chief Justice of the Patna High Court, appointed in 1943. See, Website of the High Court of
Judicature at Patna, http://patnahighcourt.bih.nic.in/retdcj.htm (accessed 10 February 2013).
46. It was not only the colonial judiciary where Europeans were meant to serve in supervising positions. This was also true, for
example, of the Madras constabulary. David Arnold argued that this was because of ‘a fundamental distrust of Indians
and a low view of their abilities and character’. Arnold (1985: 5).
47. Terrell (1979: 71).
48. Terrell, ibid., p. 104.
52. HCA/D63/A1/D, letter dated 8 December 1918, from Norman Macleod to his son, Torquil.
53. HCA/D63/A1/D, letter dated 14 November 1918, from Norman Macleod to his son, Torquil.
54. HCA/D63/A1/D, letter dated 25 April 1919, from Norman Macleod to his son, Torquil.
55. For figures on the Jallianwala Bagh massacre, see, Rumbold (1979: 143).
56. HCA/D63/A1/D, letter dated 11 August 1920, from Norman Macleod to his son, Torquil.
57. HCA/D63/A1/D, letter dated 18 August 1920, from Norman Macleod to his son, Torquil.
58. HCA/D63/A1/j, letter dated 30 November 1940, from Sir Norman Macleod to the editor of ‘The Times’.
59. Dwarkadas (1969: 73).
60. Gajendragadkar (1983: 63–4).
61. Gajendragadkar, ibid., p. 64
62. Gajendragadkar, ibid., p. 62.
63. Nehru (1942: 94).
64. Wolpert (1967: 62).
65. In 1905, Viceroy Curzon divided the province of Bengal into two halves—east and west—a move that was immensely
unpopular. The partition was seen as an attempt to stifle anti-imperialist movements, which had developed more in
Bengal than elsewhere in British India. The partition was eventually undone at the coronation durbar held in Delhi in
1911 for King George V and Queen Mary. See, ‘Partition of Bengal,’ Encyclopaedia Britannica. Encyclopaedia
Britannica Online Academic Edition. Encyclopædia Britannica Inc., 2013. .
http://www.britannica.com.ezproxy.stanford.edu/EBchecked/topic/60754/Partition-of-Bengal (accessed 15 November
2013).
66. See, Wolpert (1967: 33).
67. Morley (1917: 260).
68. Morley, ibid., p. 286.
69. Morley, ibid., p. 303.
70. In addition to the three instances cited above, he came up at Morley, ibid., pp. 270, 276.
71. Wolpert (1967: 63).
72. See, Wolpert, ibid.
73. My thanks to Professor Kate Malleson for this piece of information. See further, Duman (1982: 42). Duman says that the
metropolitan superior judiciary was dominated by Englishmen, as opposed to Irish or Scottish judges.
74. Website of the Bombay High Court, http://bombayhighcourt.nic.in/. We also know that John Philip Green, a nineteenth
century judge of the Bombay High Court, was also a Roman Catholic. ‘Editorial Article No. 3’ (1883).
75. Macleod (1945a: 427).
76. When Chagla became the first Indian Chief Justice of the Bombay High Court, he received a host of very warm,
congratulatory letters. For example, a young Nani Palkhivala, later one of independent India’s best known lawyers, wrote
to Chagla on his appointment to the Chief Justiceship:
My dear Sir, The appointment to be the first permanent Chief Justice of the premier Province of Free India would be an
honour for any man. In your case, however, it can hardly be considered the crowning trophy. Sir Jamshedji told me today
that he considered you, from every point of view, one of the finest and ablest judges he ever came in contact with.
Coming from him, this must bear the weight of testimony rather than appear the voice of panegyrie? Wishing you still
higher honours in the years to come—and may there be many, many happy years.
Letter dated 7 February 1948, Palkhivala to Chagla, M.C. Chagla Papers, Nehru Memorial Museum and Library.
However, one of the letters written to Chagla on his elevation to the post of Chief Justice stood out for how curt it was in
its tone. The letter was written by M.C. Setalvad. Setalvad wrote to Chagla on Chagla’s elevation to the Chief Justiceship,
‘My dear Chagla. My Congratulations. Yours Sincerely, M.C. Setalvad’. Letter dated 19 August 1947, M.C. Setalvad to
Chagla, M.C. Chagla Papers, Nehru Memorial Museum and Library. Earlier, Setalvad had written a longer letter to
Chagla, congratulating him on his appointment to the High Court Bench in 1941. At that time, Setalvad had written to
Chagla, ‘My dear Chagla, My sincere Congratulations. I wish you a long and successful time on the bench. Yours
Sincerely, MC Setalvad’. Letter dated 28 July 1941, M.C. Setalvad to Chagla, M.C. Chagla Papers, Nehru Memorial
Museum and Library. Why was Setalvad’s letter to Chagla now so cold? We have seen that M.C. Setalvad declined an
opportunity to become the first Indian Chief Justice of the Bombay High Court. Had he wanted, Setalvad could have been
in Chagla’s place, earning encomiums as the court’s first Indian Chief Justice. Perhaps this played on Setalvad’s mind
when he wrote Chagla this frosty letter.
77. Gajendragadkar (1983: 81). Chagla wrote of Stone:
There was no obligation, legal or constitutional, on him to relinquish his office. He could have continued as Chief Justice
after independence. As a matter of fact, some English judges did continue to function. Mr. Justice Falshaw, for instance,
was Chief Justice of the Punjab High Court many years after our country became independent. But Sir Leonard Stone,
although not a great lawyer, was a great gentleman, and had a deep instinct for decency and propriety. He told me that it
would not be right in a free India for an Englishman to be at the helm of affairs in a High Court, and it was but right that
an Indian should take his place. [Chagla (2011: 147)]
Chagla’s view is the generally accepted view about British officers in India after independence, namely, that they were
invited to stay on but they chose to leave. David Potter pointed out, however, that this was not the real reason why they
left. They left because Indian politicians did not want them to stay on. Potter (1986: 131–4). That is probably what
happened to Stone.
Interestingly, Chagla’s appointment as Chief Justice of the Bombay High Court resulted in the supersession of K.C.
Sen, a Civilian judge. Before this happened, Sen requested Gajendragadkar to talk to the Chief Minister of Bombay, B.G.
Kher, to make him (that is, Sen) Chief Justice for only six months, after which he would voluntarily retire, though he had
a long tenure ahead of him. Kher said that he was powerless to grant this request. Gajendragadkar (1983: 85).
78. Potter (1986: 131).
79. McLaren (2011).
80. McLaren, ibid.
81. See, National Archives of India, Home Department, Judicial Branch, July 1909, No. 9; National Archives of India, Home
Department, Judicial Branch, July 1914, No. 207–208.
82. The judges of the Bombay High Court in the nineteenth and early twentieth centuries did not formally ‘retire’ from office—
they resigned.
83. ‘Mr. Justice Bayley’ (1895).
84. ‘Death of Sir L.H. Bayley’ (1910).
85. ‘Sir John Scott’ (1904); ‘Death of Sir John Scott’ (1904).
86. For example, Chief Justice Sir Michael Roberts Westropp had to retire because of rheumatic gout. ‘The Late Sir Michael
Westropp’ (1890). Similarly, John Philip Green left Bombay in 1880 because of an illness [‘Sale of Mr. Justice Green’s
Library’ (1882)], and he resigned a year later because he was struck by paralysis. ‘Editorial Article No. 3’ (1883). In such
cases, the judge was said to have ‘retired upon medical certificate’. See, National Archives of India, Home Department,
Judicial Branch, October 1881, No. 245–246 (‘Retirement of Mr. Justice Green of the Bombay High Court’).
87. For example, James Gibbs served as a judge of the Bombay High Court for approximately five years between 1869–74, and
then served as a member of the Council of the Governor of Bombay between 1874–9. Foster (1885: 175); Buckland
(1906: 164).
88. ‘The Retirement of Mr. Justice Pinhey’ (1885). Oddly, the India Office file on Pinhey’s resignation said nothing about this
incident. See, British Library, India Office Records, L/PJ/6/165, File 2195.
89. L.H. Bayley.
90. Jagjivan Javherdas Seth v. Magdum Ali, (1883) Indian Law Reports 7 Bom 487. Pinhey and Bayley also did this
subsequently in the Bai Amrit case. See, ‘Article 14’ (1884); ‘Law and Police’ (1884).
91. The reasons why are unclear. Perhaps the government felt that the predictability of the High Court’s decision-making, and
therefore the rule of law in Bombay itself, was being dealt a dangerous blow by the Pinhey-Bayley decision to ignore the
judgment of a bench of larger strength.
92. Maxwell Melvill.
93. Melvill to Fergusson, letter dated 12 June 1884, British Library, Sir James Fergusson Papers, Mss Eur E214/14. Melvill
subsequently advised the Governor that, ‘the best solution of the Bayley and Pinhey case will be for the Judges to meet
and resolve that the authority of a bench of three Judges convened as a Full Court shall be recognized by all Division
Benches.’ Melvill to Fergusson, letter dated 23 June 1884, British Library, Sir James Fergusson Papers, ibid.
94. Sargent wrote that a Full Bench decision was technically not binding on benches of lower strength, but he added that the
court needed to come up with ‘a more distinct understanding’ regarding Full Bench decisions. Sargent to Fergusson, letter
dated 22 June 1884, British Library, Sir James Fergusson Papers, Mss Eur E214/20.
95. Sargent offered this advice after consulting his colleagues on the Bench. Sargent to Fergusson, ibid.
96. Dadaji v. Rukhmabai, (1885) Indian Law Reports 9 Bom 529. Like most of the judges of the Bombay High Court, Pinhey
had also called for abolishing the distinction between ‘native’ and European magistrates during the Ilbert Bill controversy.
‘The Jurisdiction Bill’ (1883).
97. See, Chandra (1996).
98. See, ‘The Rakhmabai Case’ (1886). Cases like this worried the colonial government. Another such example was the
‘Maharaj Libel Case’ of 1862. One Karsondas Mulji wrote in his newspaper that the hereditary priests (or ‘Maharajas’) of
the Vallabhacharya sect sexually enticed female devotees by posing as incarnations of Lord Krishna. One such priest,
Jagunathjee Maharaj, sued Mulji for defamation. Sir Joseph Arnould of the Bombay High Court held in favour of Mulji.
This case too worried the colonial government. Tucker (1977: 210).
100. See, National Archives of India, Home Department, Judicial Branch, F.29/3/6 (‘Age of retirement of the Hon’ble Sir John
Beaumont, Kt., K.C. Chief Justice of the Bombay High Court’). The text of the undertaking was as follows: ‘With
reference to the proposal to appoint me [blank] of the High Court of Judicature at [blank] I beg to state for official record
that I undertake, as a condition of appointment, to retire from the Bench on attaining the age of sixty years, in accordance
with the terms of the Resolution in Council of India, dated the 25th April 1899, a copy of which has been communicated
to me. I undertake also that I will not, after retirement, practise as a barrister in the High Court to which I am appointed or
to which I may be transferred, or in any of the Courts subordinate thereto.’ British Library, India Office Records,
L/PJ/6/2004, File 2081. After 1935, the undertaking no longer said anything about retiring at sixty, since the new
Government of India Act of that year itself prescribed mandatory retirement at sixty. See, for example, Chief Justice
Leonard Stone’s undertaking in the 1940s, available at British Library, India Office Records, L/PJ/8/104.
Candidates also had to furnish a medical certificate showing that they were fit to serve in office. The medical
certificate of Chief Justice Leonard Stone, issued by the Medical Board in the 1940s, read: ‘We have carefully examined
Mr. J.L. Stone and find that he is physically fit for appointment as the Chief Justice in Bombay in India. Subject to
revaccination.’ British Library, India Office Records, L/PJ/8/104.
101. See, National Archives of India, Home Department, Judicial Branch, June 1903, No. 82–83; British Library, India Office
Records, L/PJ/6/749, File 667. The Viceroy had wanted Civilian judges to retire after thirty-five years of service. The
Secretary of State disagreed, saying that this would create ‘undesirable inequality’ between the Civilian and other judges.
Instead, the Secretary of State proposed that all High Court judges mandatorily retire at the age of sixty.
102. Bombay Law Reporter, 15 (1913: 96). See further, Dixit (1938). This article speaks of G.S. Rao, who retired as a temporary
judge of the Bombay High Court in 1913. The author says that ‘if it were not for the age limit, [Rao] would have been
appointed to a permanent seat on the High Court Bench’.
103. ‘Sir Frank Beaman’ (1928).
104. ‘Ex-Bombay Judge’ (1928).
105. ‘Bombay Govt. Gazette’ (1926).
106. Beaumont (1946: 14). This is despite the fact that the Secretary of State who instituted the ‘sixty years rule’ had expressly
declared, while creating the rule: ‘it should…be understood that no relaxation of the rule is practicable’. British Library,
India Office Records, L/PJ/6/749, File 667.
107. ‘Mr. Justice Aston: Impending Retirement’ (1906).
108. Kincaid (1934: 39). On 16 February 1906, Chief Justice Lawrence Jenkins of the Bombay High Court requested Governor
Lamington to extend Aston’s term in office. This was because the court’s two remaining Civilian judges, Batty and
Batchelor, were going on leave over the summer, and Aston was due to retire in August. That would mean that the court
would have an entirely new set of Civilian judges, and Jenkins wanted at least one experienced Civilian judge on the
court at all times. Jenkins requested Aston’s term to be extended until either Batty or Batchelor returned. See, British
Library, India Office Records, L/PJ/6/749, File 666.
109. Beaumont (1946: 14).
110. Beaumont, ibid. See further, National Archives of India, Home Department, Judicial Branch, F.29/3/6 (‘Age of retirement of
the Hon’ble Sir John Beaumont, Kt., K.C. Chief Justice of the Bombay High Court’).
111. British Library, India Office Records, L/PJ/6/2004, File 2081. A similar concession had already been made in favour of Sir
Lancelot Sanderson when appointed Chief Justice of the Calcutta High Court and Grimwood Mears when appointed
Chief Justice of Allahabad. The rule was ostensibly relaxed on such occasions in the interests of ‘obtaining the best men
for Chief Justiceships in India’.
112. Beaumont (1946: 14).
113. However, Beaumont’s appointment to the Bombay High Court Bench took place prior to the enactment of the Government
of India Act, 1935. According to Beaumont, there was ‘no room for any arrangement’ for judges appointed after 1935, all
of whom had to mandatorily retire at age sixty. Beaumont, ibid.
114. See, Rau (1963: 338–9).
115. Beaumont (1962: 20).
116. This amounted to Rs 12,000 in the nineteenth century. See, National Archives of India, Home Department, Judicial Branch,
January 1886, No. 253–255.
117. National Archives of India, Home Department, Judicial Branch, March 1909, No. 219–223 (Confidential): ‘Proposed
relaxation of the rules relating to the pensions of High Court Judges in favour of the Hon’ble Mr. Justice Davar, a Judge
of the Bombay High Court’.
118. Lawrence Jenkins note dated 24 March 1909. British Library, India Office Records, L/PJ/6/929, File 1194.
119. The case is discussed in the following chapter.
120. The file is available at the National Archives of India, Home Department, Judicial Branch, March 1909, No. 219–223.
121. A ‘despatch’ was an official letter written by one institution in India (for example, the Viceroy in Council) to another (for
example, the Secretary of State in Council). This despatch was dated 11 March 1909.
122. An earlier draft of the letter referred to ‘the special circumstances’ of Davar’s case, though these words were subsequently
removed. See, British Library, India Office Records, L/PJ/6/929, File 1194.
123. National Archives of India, Home Department, Judicial Branch, May 1909, No. 235–37.
124. National Archives of India, Home Department, Judicial Branch, June 1913, No. 223–225. At around this time, there was
‘room for arrangement’ on other Indian High Courts as well. When the Patna High Court was established in 1916, the
term of one judge, Syed Sharfuddin, was extended by two years so that he might serve on the new Patna High Court
instead of his nephew, one Hasan Imam, who, according to a colonial-era judge, ‘was not acceptable to the newly
established Government of Bihar and Orissa as he was said to be much too independent’. Sinha (1985: 34).
125. Section 124(4), Government of India Act, 1915.
126. The resignation was accepted even though one official in the India Office, Arthur Hirtzel, thought that it was not prudent to
do so. In a note dated 6 February 1926, Hirtzel wrote that though accepting Kajiji’s resignation was ‘undoubtedly the line
of least resistance,’ it should not be ‘lightly adopted’. He continued,
it is only 2 or 3 years ago that another serious judicial scandal (in which the Chief Presidency Magistrate was alleged to
have been overheard on the telephone arranging for the receipt of a bribe) in Bombay was avoided by his resignation. He
has since represented himself as a martyr, and Mr. Kajiji will no doubt do the same. But that is a minor evil. The real
question is whether regard for the pure administration of justice does not require that cases of this kind when they occur
should be thoroughly investigated and proved offenders punished or at least exposed.
However, Kajiji had his sympathizers, one of whom was Chimanlal Setalvad. In a letter to Bhulabhai Desai in 1925,
Setalvad wrote to Desai:
It appears that they are determined to pursue him and are apparently trying to move the S. of S. to ask Kajiji to go. This
raises a very important constitutional question about the security and independence of Judges. In England a Judge can be
removed on an address being voted to the Crown by the House of Parliament recommending such removal. This ensures
a safeguard by means of a public discussion….Here if the King is to be moved by the S. of S. who in his turn is moved
by the Executive govt here, to remove a Judge, the independence of a Judge and his security of tenure are discharged and
he is at the mercy of the Executive govt.…Irrespective of all this, in the events of this particular case, however indiscreet
you may say…the act of Kajiji in mixing himself up with Anglo-India, there is nothing established which can bring to
him any moral turpitude. It would be very harsh indeed under the circumstances to visit his indiscretion with the
consequences now threatened. Will you kindly exert yourself in the matter and see H.H. The Aga Khan as will I?....do all
you can to help Kajiji with the S. of S. as well as with the Viceroy who will be there till the third week in July.
Bhulabhai Desai Papers, Nehru Memorial Museum and Library, Setalvad to Desai, 20 June 1925.
127. Judicial Pensions Act, 1959, 8 Eliz. 2, c. 9. The mandatory retirement age for judges under this law was initially seventy-
five, but it was later reduced, in 1993, to seventy. Judicial Pensions and Retirement Act, 1993, c. 8. The last higher court
judge in Britain to not mandatorily retire was Lord Denning, who retired at the age of eighty-three in 1982, after serving
in office for around thirty-eight years. See, ‘Judicial Appointments – Constitution Committee Contents,’
http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27210.htm#note325 (last visited 17 February
2014).
128. See, Clark (2011).
129. This is often said to be true of the codification project in British India. See, for example, Kolsky (2005).
130. Tyabji (1952: 283). See further, National Archives of India, Home Department, Judicial Branch, February 1920, No. 203
(‘Appointment of Indians to certain posts in the Bombay High Court’). However, the Bombay Government used to
inform the Secretary of State who they had appointed as acting judges. See, for example, National Archives of India,
Home Department, Judicial Branch, August 1916, No. 294. However, after 1937, acting appointments were no longer
made by the local government, but by the government of India. National Archives of India, Home Department, Judicial
Branch, F. 29/5/1/36-Judl.
131. Thus, Matthew Starling was appointed to act as a judge of the Bombay High Court in 1901, despite the fact that he was
sixty-three years of age. British Library, India Office Records, L/PJ/6/566, File 651.
132. ‘Mr. Justice Anstey’ (18 October 1865). See further, Chapter 3.
133. ‘Mr. Justice Scott’s Retirement’ (1891).
134. Chandavarkar (1919); ‘Late Sir Basil Scott’ (June 1926); ‘Late Sir Basil Scott’ (May 1926).
135. Macleod (1945a: 427).
136. Megarry (1982).
137. See, Stevens (1999: 378).
138. Chagla (1927–8).
139. Some of these judges would probably have gone on to become puisne judges, but they resigned for better career prospects.
The two most famous examples of such temporary judges were Chimanlal Harilal Setalvad and Jamshedji Behramji
Kanga. Setalvad resigned his post as an additional judge of the Bombay High Court in October 1920, in order to become
a member of the reformed Legislative Assembly of Bombay. ‘Sir C. Setalvad Resigns’ (1923). Kanga resigned as an
additional judge of the Bombay High Court in 1922 to become the first Indian permanent Advocate General of Bombay
when Sir Thomas Strangman retired. ‘Large Gathering at Funeral of J.B. Kanga’ (1969); ‘Advocate-General of Bombay’
(1935). See further, National Archives of India, Home Department, Judicial Branch, Collection A, No. 36–37. This file
contains a letter from the Chief Justice of the Bombay High Court to the Governor of Bombay in Council, dated 29 June
1871, in which the Chief Justice suggested that acting judges should be confirmed in order to encourage lawyers to accept
acting appointments on the Bench.
140. Some of these were additional judges, who resigned for better career prospects. Ibid.
141. Beaman (1926–7). However, Beaman was said to have borne an ‘undying grudge’ against Chief Justice Jenkins for passing
him over. HCA/D63/A/5, Reminiscences of Norman Macleod, p. 64.
142. British Library, India Office Records, L/PJ/6/671, File 599.
143. Gajendragadkar (1983: 62).
144. Gajendragadkar, ibid., p. 62. For archival evidence of Nanavati’s repeated supersessions, see, British Library, India Office
Records, L/PO/8/75. Nanavati was superseded in 1933 by N.J. Wadia, and in 1935 by Macklin. A telegram from the
Governor of Bombay to the Secretary of State, dated 26 February 1935, justified this by saying, ‘Nanavati, who is senior,
is passed over as unsuitable and definitely inferior to Macklin’.
145. ‘Death of Mr. M.H. Starling’ (1903).
146. Macleod (1945a: 425).
147. Tyabji (1952: 283). In fact, after becoming a permanent judge of the Bombay High Court, Tyabji wrote a letter to the
government, arguing that he should be considered senior to Strachey. See, letter dated 27 January 1896, from Tyabji to
Vidal, in the Badruddin Tyabji Papers (Reel 1), National Archives of India. Tyabji’s plea was rejected by the Secretary of
State.
148. Setalvad (1946: 56–7). See further, Kanga (1962: 80). Mancherji Pestonji Khareghat was the first Indian Civilian judge to
get appointed to the High Court. Later, Govind Dinanath Madgaonkar was the first Indian Civilian to become a
permanent judge of the Bombay High Court.
149. When the Chief Justice of the Lahore High Court asked Mehr Chand Mahajan to become a judge, Mahajan recounts, ‘I told
him that I would like to be considered only for a permanent appointment….I was not interested in merely an additional
appointment’. Mahajan (1963: 105).
150. Munshi (1963: 21).
151. See, Report of the All-India Bar Committee (1953: 25). See further, Macleod (1945a: 406).
152. See, for example, Pollock and Mulla (1986); Mulla (1952). Before practising on the Original Side of the Bombay High
Court, Mulla was a senior partner at the firm Mulla & Mulla, which he had founded. See, Setalvad (1971: 33).
153. ‘Sir D.F. Mulla’ (1930).
154. ‘Mr. D.F. Mulla to Act as Advocate General’ (1929). Eventually, Mulla served as a temporary Law Member of the
Viceroy’s Executive Council, and a member of the Judicial Committee of the Privy Council. ‘Sir Dinshah Mulla Dead’
(1934).
155. See, Setalvad (1971: 20). Setalvad says that Chief Justice Macleod appointed leading members of the Bar, including Mulla,
to be additional judges of the Bombay High Court, even though they were not interested in becoming permanent judges.
156. Data were not available for twenty-three of the forty-four acting judges who served on the court. The average age of
appointment for acting judges was 52 years (median: 53). As expected, the Briton age of appointment (mean: 50.75,
median: 48) was lower than the Indian age of appointment (mean: 52.8, median: 54) for acting Judges as well.
157. See, Chapter 3, Table 1.
158. Barristers typically served on the Original Side, while Civilian judges typically, though not always [see, ‘The Late Mr.
James Gibbs’ (1886)] served on the Appellate Side of the High Court. During Company rule in India, barristers served as
judges on the Supreme Court of Bombay, and Civilians served as judges on the Company-run courts in the mofussils.
O’Malley (1931: 62). Therefore, the barrister judge was the embodiment of the Original Side of the High Court, while the
Civilian judge was the embodiment of the court’s Appellate Side.
159. See, Misra (1970: 562); see further, ‘Mr. Justice Pratt: An Appreciation’ (1925).
160. See, ‘Sir R. Broomfield Retiring’ (1942); ‘Former Bombay Judge Dead’ (1957). See further, Jayakar (1958: 594–604).
161. The House of Lords was the final appellate court in England at this time. The Lord High Chancellor—the highest judicial
officer in England—was also the Speaker of the House of Lords and a member of cabinet. See, Stevens (1993: 2); Duman
(1982: 21). However, ‘lay peers’ were prohibited from voting as judges in the House of Lords since 1844. Duman, ibid.,
p. 18. Further, the Lord High Chancellor was not a member of the civil service, and neither were any of the other judges
in the superior courts of England. McLaren points out that judges in England were picked from amongst ‘talented leaders
at the bar with well-established reputations’. McLaren (2011: 13).
162. Duman (1983a: 134).
163. Chagla (1927–8).
164. Karandikar (1928–9).
165. See, Beaumont (1946: 15).
166. In Bombay, Civilians had to attend the Government Law School for one year where they had to take courses in contracts,
evidence, property, and procedure. They also had to visit the law courts. Misra (1970: 194). This was true at least between
1862–6, and it is unclear if this continued thereafter. See, Misra, ibid.; Karwe (1938: 16). See further, Cocks (2014).
167. There were two departmental examinations. Passing the first departmental examination enabled a third class magistrate to
become a second-class magistrate. Passing the second departmental examination enabled a second-class magistrate to
become a first-class magistrate. There were three types of magistrates: third class, second-class, and first-class. A third
class magistrate had the least powers of the three (in terms of the maximum sentence or fine which he could impose), and
the first class magistrate had the most powers of the three. Candy (1911: 463). For example, one Civilian judge, Maurice
Hayward, had to write his first departmental examination ‘in Marathi and the laws of Bombay and India’. British Library,
Sir Maurice Henry Weston Hayward Papers, D839/2.
168. Macleod (1945a: 406).
169. Beaman (1926–7: 10).
170. Ibid.
171. Gajendragadkar (1983: 48–9).
172. Tyabji (1952: 34).
173. Tyabji, ibid.
174. Setalvad (1971: 23). However, Gajendragadkar thought that Barlee made a good judge. Gajendragadkar (1983: 52). ‘Mr.
Justice Barlee in Coroner’s Court’ (1932).
175. Typescript of Hayward’s autobiography, available at British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur
D839/9.
176. Gajendragadkar (1983: 46).
177. Setalvad (1946: 39–40).
178. Tyabji (1952: 34).
179. The cow was probably brought into court for this purpose. It is highly unlikely that the tail of a cow was cut and brought into
court for this purpose, as it would have inflamed religious passions.
180. Kanga (1962: 79).
181. HCA/D63/A/5, Reminiscences of Norman Macleod, p. 64.
182. Kanga (1962: 79). The legislator was Sir Chimanlal Setalvad.
183. ‘Mr. F.C.O. Beaman, C.S., on “India for the Indians” or “India for England”’ (1890).
184. In his autobiography, a retired Chief Justice of the Supreme Court of India, M. Hidayatullah, narrated his experiences with
Frederick Grille, the Civilian Chief Justice of the Nagpur High Court in British India. Hidayatullah (1981: 75). Oddly, a
Civilian had been appointed to the post of Chief Justice there, which Hidayatullah disapproved of. Though Grille was
affable outside the courtroom, ‘in the court he was like a bear with a sore head. Lawyers hated to appear before him and
some even returned briefs.’ Hidayatullah, ibid., p. 74. When Hidayatullah later sat as a judge with Grille, he noticed that
Grille had ‘curious ways’—once storming out of the courtroom petulantly when Hidayatullah refused to sign off on one
of Grille’s orders. Hidayatullah, ibid., p. 136. Likewise, one Civilian judge in Merwara would appear in court at 8 a.m.,
‘lightly dressed in pyjamas,’ and courteously coerce litigants to settle cases by banishing them to the roof of the
courthouse without access to water. Lawrence (1929: 39).
185. This view is supported in the secondary literature as well. Buckee pointed out that Civilian judges formed a ‘pro-government
bloc in court deliberations’. Buckee (1972: 51). To Partha Chatterjee, Civilian judges were ‘a product of the colonial
bureaucracy…reared from youth in its values and prejudices’. Chatterjee (2002: 367).
186. British Library, John Morley Papers, Mss Eur D573/46, Jenkins to Morley, letter dated 14 February 1910.
187. Beaumont (1946: 15).
188. Setalvad (1946: 51). While this may not have been true of all Civilian judges, Chimanlal Setalvad said that this was certainly
true of Aston. Setalvad, ibid. See further, Kincaid (1934: 90–1).
189. Kincaid, ibid., p. 28.
190. Jayakar (1958: 62).
191. Jayakar, ibid., p. 63.
192. See, Indian Biographical Archive. See further, ‘Sir Charles Fawcett’ (1929); ‘Sir Charles Fawcett’ (1952).
193. Typically, a Civilian began his career as an Assistant Collector and Magistrate, and had the option, after five to seven years’
service, to switch to the judicial side of the service. If he picked the judicial side, he would become an Assistant Judge,
and then Senior Assistant Judge. After serving as such for seven to eight years, he would be made a regular judge. Misra
(1970: 195).
194. See, for example, ‘The Separation of Executive and Judicial Functions’ (1937–8); Macleod (1945a: 424). See further,
Bombay Law Journal, 21 (1943: 2); Candy (1905).
195. Kincaid wrote of the Poona judgeship: ‘It is a very attractive post; for not only has the judge his ordinary judicial duties, but
he holds also the diplomatic post of Agent for the Sardar (sic) of the Deccan.’ Kincaid (1934: 101). The ‘Sardars’ of the
Deccan were the princely rulers of the Deccan who had accepted the suzerainty of the British Crown. There were three
classes of sardars, who, like judges, were called first-class, second-class, and third-class sardars. In the nineteenth century,
there were ninety-two permanent sardars in the Deccan—twenty-one first-class sardars, twenty-two second-class sardars,
and forty-nine third-class sardars. ‘The Constituency of Sardars’ (1893). See further, Guha (2013: 18–19). Guha explains
that there were seven categories of Kathiawar rulers. The different categories represented the different levels of authority
a ruler exercised over his subjects. Native states had a British political officer stationed in them—a larger state’s officer
was called a ‘Resident’ while a smaller state’s officer was called a ‘Political Agent’. Gilmour (1994: 183).
196. Before June 1906, a judge holding this post was referred to as ‘Judicial Commissioner and Judge of the Sadar Court in
Sind’. ‘Late Sir Frank Beaman’ (1928).
197. Beaumont (1946). See, ‘The Judicial Line’ (1884); See further, Speech of Chimanlal Setalvad in the Bombay Legislative
Council, 1903, in Proceedings of the Council of the Governor (1904: 75). Setalvad pointed out, ‘it is said that the judicial
branch does not attract the best and most intelligent among the Civilians who prefer the executive branch’.
198. Beaumont (1946).
199. Kincaid (1934: 32). Likewise, Chief Justice Lawrence Jenkins privately wrote to Secretary of State Morley in 1909, that ‘the
inferior men, in some cases the failures’ went to the judicial side of the service. British Library, John Morley Papers, Mss
Eur D573/46, letter dated 3 June 1909, Jenkins to Morley.
200. See, ‘Sir Raymond West’ (1892). This practice was briefly stopped between 1907–19, but resumed thereafter. See, Kanga
(1962: 77–8).
201. A retiring Governor of Bombay, Sir Richard Temple, sent a telegram to Secretary of State Cranbrook, on 12 March 1880, in
which Temple said that a temporary member had to be appointed to the Governor’s Council after his departure. He
recommended that Kemball be appointed to the post: ‘I advise that Your Lordship select officer Kemball of High Court
first in seniority, most suitable, highly recommended. Next after him Maxwell Melvill.’ The Secretary of State responded
by telegram dated 12 March 1880, and said, ‘Glad to accept your recommendation of Kemball. Appoint.’ Kemball was
accordingly temporarily appointed to the Council in March 1880, despite being a High Court judge. Thereafter, Kemball
was appointed temporarily to the Council for a second time, in February 1881. This time, however, there was a new
Secretary of State (Hartington) in office, who objected. British Library, India Office Records, L/PJ/6/41, File 781. ‘The
Bombay High Court has had more to do than any other with important questions between the Crown and the subject,’
wrote the Secretary of State, ‘and it would be very undesirable that an officer should alternatively exercise executive and
judicial functions.’ Kemball had very good relations with the next Governor of Bombay, Sir James Fergusson, as well.
See, for example, Kemball to Fergusson, letter dated 25 April 1884, British Library, Sir James Fergusson Papers, Mss Eur
E214/20.
202. ‘Mr. Herbert Birdwood: News of His Death Confirmed’ (1907); ‘Dinner to the Hon. H.M. Birdwood’ (1897); See further,
Beaman (1925–6: 251).
203. ‘Sir M. Hayward Departs’ (1926). Hayward also served as acting Governor of Bombay for thirty-six hours, after Lloyd
departed and before Wilson arrived. See, British Library, Sir Maurice Henry Weston Hayward Papers, D839/9.
204. ‘A Hundred Years Ago’ (1986); ‘The Late Mr. James Gibbs’ (1886); Foster (1885: 175); Buckland (1906: 164).
205. At an evening of entertainment organized by members of the Pathare Prabhu community to felicitate Ganpat Sadashiv Rao
on his temporary appointment to the Bombay High Court, a hope was expressed that Rao would get an even higher
appointment—a post on the Governor’s Executive Council. ‘Former Bombay Judge Dead’ (1937).
206. See, ‘Should Ex-Judges Practice?’ (1924–5: 352).
207. Melvill to Fergusson, letter dated 23 June 1884, British Library, Sir James Fergusson Papers, Mss Eur E214/14
208. The case was Lakshman Situ’s case. Situ, a private in the armed forces, was accused of committing murder. His defence was
that he had been under the inadvertent influence of a drug (bhang) when the murder was committed. The Sessions Judge
of Ahmedabad, J.W. Walker, sentenced Situ only to a day’s detention, that is, Situ only had to sit in court for the whole
day, until the court rose. Governor Fergusson was unhappy with the decision, and Melvill advised him that ‘the Govt.
Pleader or Public Prosecutor should be directed to make an application to the High Court appealing against the acquittal
on the charge of attempting to commit murder. [This will enable the High Court, as an Appellate Court, to go into the
facts…’ Melvill to Fergusson, letter dated 12 June 1884, British Library, Sir James Fergusson Papers, Mss Eur E214/12.
The strategy succeeded. A bench of Nanabhai Haridas and Raymond West on the Bombay High Court enhanced Situ’s
sentence to seven years’ transportation. See, ‘Article 17’ (1884).
209. See, Bombay Law Journal, 2 (1924-25: 103).
210. For a description of the case, see, Setalvad (1946: 26–8).
211. Arthur Travers Crawford was a prominent Bombay official, from whom the famous ‘Crawford Market’ in south Bombay
got its name. Crawford was investigated for corruption between 1888–9. British Library, India Office Records,
L/PJ/6/262, File 1868. The allegation against him was that he had sold positions of revenue officials called ‘mamlatdars’
(who exercised combined executive and judicial functions in the rural districts), through an Indian intermediary,
Hanmantrao Jagirdar. The mamlatdars who had paid for their positions were promised immunity from prosecution by the
Governor of Bombay, Reay, in order to encourage them to testify against Crawford. However, one person brought a
complaint against the mamlatdars who had admitted to paying bribes for their positions. The District Magistrate
imprisoned the complainant, but Jardine at the Bombay High Court ordered his release. Eventually, the mamlatdars’
immunity was enforced by an Act passed by the Viceroy’s Legislative Council in October 1889. British Library, India
Office Records, L/PJ/6/265, File 2047. However, some of the magistrates (those who, the government felt, were not
victims of Crawford’s corruption) were deprived of their magisterial powers. See, British Library, India Office Records,
L/PJ/6/252, File 848, 891, and 894. Crawford himself was found not guilty by a specially constituted enquiry
commission, but he was removed from the civil service. The episode caused quite a scandal, and questions were even
raised about it in the British Parliament. See, British Library, India Office Records, L/PJ/6/256, Files 1100 & 1101. For a
description of the case, see, Setalvad (1946: 29–34); Wolpert (1962: 40–1). See further, ‘The Judges’ Protest’ (1889);
‘Crawford Case’ (1889).
212. Setalvad, ibid., pp.33–4. That person was Sir Charles Ollivant. Ollivant took H.M. Birdwood’s seat on the Executive
Council of the Governor of Bombay. ‘Death of Sir John Jardine’ (1919).
213. Oddly, the India Office file on Jardine said nothing about this incident. See, British Library, India Office Records,
L/PJ/6/439, File 241.
214. Setalvad (1946).
215. The colonial administration contemplated putting an end to the practice of drawing Civilian judges out to serve on the
Governor’s Council. In the late 1880s, there was a rumour that the Secretary of State was going to prohibit Civilian
judges from serving on the Governor’s Executive Council. Surprisingly, this news was not received well in the ‘native’
press. The Indu Prakash took the editorial view that if the ‘high prize’ of a seat on the Governor’s Executive Council
were reserved only for the revenue side of the Indian Civil Service, then the best talent in the Indian Civil Service would
go only to the revenue side, and stay away from the judicial side of the service. ‘The Bombay High Court Judges and the
Governor’s Council’ (1889). See further, ‘The Judicial Membership of the Council’ (1891). As a consequence, the quality
of Civilian judges would diminish. The Indu Prakash admitted that this consideration had to be balanced against
maintaining the independence of the judiciary, which was arguably compromised by permitting Civilian judges to serve
on the Council. In conclusion, the Indu Prakash argued that if Civilian judges were going to be barred by the Secretary of
the State from being drawn out to serve on the Governor’s Executive Council, then the salary of a member of that Council
ought to be reduced to that of a High Court judge, so that a judgeship on the High Court would be considered to be at the
same level as a post on the Governor’s Executive Council.
216. See, British Library, India Office Records, L/PJ/6/53, File 1564; L/PJ/6/6, File 271; L/PJ/6/37, File 526; L/PJ/6/37, File 595;
L/PJ/6/166, File 2352.
217. See, Tucker (1977: 139–45).
219. The first of these was Catley’s case. Thomas Catley was a railway engine-driver. A railway collision occurred on his watch
in 1885, and one man lost his life. Catley was tried by the white Civilian Deputy Commissioner of Narsingpur, and he
was convicted and sentenced to one month’s simple imprisonment. After serving the sentence, Catley was re-employed
by the railway company, but in an inferior position. A bench of Haridas and Wedderburn, of its own motion, sent for the
records of the proceedings and enhanced the sentence, making it six months’ rigorous imprisonment. Memorials on behalf
of Catley were presented to the Bombay government. The Bombay Government issued a resolution declining to interfere,
but ‘with the assent of Mr Nanabhai Haridas and Sir W. Wedderburn’ the sentence was reduced to simple imprisonment,
on account of the ‘good character’ of the prisoner. See, ‘The Catley Case’ (1885).
Next came Fox’s case. Fox was an assistant engineer in the employ of a railway company. An accident occurred in
1885, and one trolleyman was killed due to Fox’s negligence. Fox was tried by a British Civilian judge, found guilty of
negligence and sentenced to a fine of Rs 50. The railway company continued to employ Fox. The Haridas-Wedderburn
bench sent for the record as a court of revision, of their own volition, and they enhanced the sentence by adding one
month’s simple imprisonment to the fine. Eventually, the Bombay Government issued a resolution remitting the
unexpired portion of the imprisonment.
Finally, there was Marian Amni’s Case. The defendant was an Indian Christian from Madras, who was working as a
servant to a European woman, Mrs Horsley. One day, Amni took his master’s child out for a walk, along with a six-year-
old girl, Annie Mendoz, who was his master’s neighbour’s daughter. The man then ‘outraged’ (committed sexual assault
on) the girl. The Times of India claimed that, ‘[t]here was medical evidence to show that the complete offence had been
committed, and that a loathsome disease from which the prisoner had been suffering was communicated to the child’.
Amni was tried before and sentenced by the British Sessions Judge of Poona to transportation for life. He appealed to the
High Court, and the bench of Haridas and Wedderburn reduced his sentence to ten years’ transportation. See, ‘Law and
Police’ (1885).
Notes maintained by the India Office on these cases are available at the British Library, India Office Records,
L/PJ/6/166, File 2352.
220. British Library, India Office Records (IOR): L/PJ/6/166, File 2352.
221. Ibid.
222. Ibid.
223. Kincaid was one Civilian judge who, simultaneously with his post as a judge in a lower court, served on the Viceroy’s
Legislative Council. Kincaid (1934: 191).
224. See further, Vachha (1962: 210–11). See also, Chapter 1, ‘Customs’.
225. Sargent to Sir James Fergusson, letter dated 2 April 1884, British Library, Sir James Fergusson Papers, E214/20.
226. See, ‘Death of Sir R.C. Mitter’ (1899); ‘Gazette of India Notifications’ (1891); ‘Gazette of India Notifications’ (1890).
Judges like Mitter who were nominated to the Viceroy’s Legislative Council were given a deputation allowance. See, The
India List and India Office List, 1905. Interestingly, unlike Ranade and the other liberal Indian judges of the Bombay
High Court, Mitter opposed Sir Andrew Scoble’s Bill to raise the age of consent, introduced in the Supreme Legislative
Council in the 1890s. Wolpert (1962: 60).
227. FitzGerald (2004).
228. Rumbold (1979: 135–6).
229. See, Jayakar (1958: 277–8). Interestingly, one Indian political leader, Jamnadas Dwarkadas, claimed to have been told by
the Home Member of the Government of India, Sir William Vincent, that the Rowlatt Acts were a conspiracy hatched by
members of the Indian Civil Service. Dwarkadas (1969: 266).
230. See, Candy (1911). See further, Abel (1988: 38); Duman (1983a).
231. The scheme was instituted by the Secretary of State in his Despatch dated 21 February 1913 [which the Bombay
Government publicized in its Resolution No. 3512, dated 13 May 1913], and modified by virtue of the Secretary of
State’s Despatch No. 34, dated 13 February 1914. See, British Library, India Office Records, L/PJ/6/1306, File 1356;
L/PJ/6/1244, File 2147; L/PJ/6/1681, File 3404.
232. Under the scheme, Civilian judges would be advanced a loan in the amount required to be paid for being admitted to one of
the Inns of Court. The loan amount would eventually be deducted from the Civilian’s salary upon his return to India. The
amount would be deducted in twelve equal monthly instalments, or instalments of a third of his monthly salary.
Additionally, Civilians were awarded a bonus of 25 pounds for each ‘first class’ they obtained in any of the four
examinations in Part 1 of the Bar examination, and another bonus of 50 pounds for a ‘first class’ obtained in the final
examination in Part 2. Further, Civilians were also entitled to be paid a bonus of 75 pounds ‘in part refund of any fee
actually paid to a practising Barrister in England for reading in his Chambers’ with a view to getting called to the Bar.
Bonus amounts were not required to be refunded to the government. Civilian judges had to first obtain a ‘certificate of
eligibility’ from their local government. Thus, for example, in 1914, the Bombay Government wrote to the Secretary of
State that it considered the Civilian judge, Robert Stonehouse Broomfield, to be ‘a suitable officer to receive the benefit
of the scheme’. However, there is no evidence to suggest that the Bombay government used this to control the judicial
decisions of Civilian judges. The government usually granted the certificate if the judge satisfied the criteria prescribed
under the scheme. British Library, India Office Records, L/PJ/6/1306. See, Buckee (1972: 51).
233. Buckee, ibid. We have seen that a person had to keep twelve terms at one of the Inns of Court in order to qualify to be a
barrister—a process which lasted about three years. It would have been very hard for a Civilian to take three years off
work in order to keep terms at one of the Inns of Court. Historian Buckee pointed out that the Inns of Court were
therefore persuaded to permit Civilians to keep terms in instalments. That meant that Civilians could take shorter periods
of time off to keep a few terms at a time at the Inns of Court, and still qualify to eventually be barristers.
234. The judges were Robert Stonehouse Broomfield, Douglas Reay Norman, and Kenneth William Barlee. British Library, India
Office Records, L/PJ/6/1306, File 1356; L/PJ/6/1244, File 2147; L/PJ/6/1681, File 3404.
235. However, a Civilian barrister who retired from the service without reaching the High Court could try his hand at practising
law in Bombay after his retirement, keeping his pension. See, Kincaid (1934: 117).
236. This figure might even have been greater had some Civilians not failed in getting called to the Bar at one of the Inns of
Court, despite having attempted to do so. For example, it seems that Sir Maxwell Melvill was admitted to Gray’s Inn on
19 November 1866, but the records suggest that he was never called to the Bar.
237. See further, Cocks (2014).
238. The lawyer was S.R. Tendolkar, who later went on to become a judge of the Bombay High Court. Tendolkar (1928–9); see
further, Nehru (1942: 282–4).
239. The lawyer was the Indian solicitor, Sorabji M. Kanga. Kanga (1940: 362).
240. ‘The Chief Justice and the Bar’ (1877).
241. He wrote in his autobiography: ‘Civil Service judges have a commendable ability to weigh the pros and cons on both sides
dispassionately and rarely projected their personal points of view…in fact, so far as the Bombay High Court is concerned,
the Indian Civil Service has given us some of the most outstanding judges—Fawcett and Broomfield himself, to mention
only two…’. Gajendragadkar (1983: 49).
242. In fact, Chief Justice John Beaumont made the allegation that though separation of powers had been an important plank of
the Congress platform, once the Congress government came to power in Bombay, it retained Civilian judges since it was
keen to control the judiciary. Beaumont (1946: 17).
243. Hashmatrai Khubchand Chainani was the first Civilian to become the Chief Justice of the Bombay High Court, a post to
which he was elevated after independence, in 1958. ‘Justice Chainani Passes Away’ (1965). The Chief Justice of the
Bombay High Court at the time, M.C. Chagla, would have preferred J.C. Shah, a non-Civilian, to be appointed to the
post. Chagla had himself superseded K.C. Sen, a Civilian judge, when he was appointed Chief Justice of the Bombay
High Court. However, when Chagla now requested the government to appoint Shah over Chainani to the post of Chief
Justice, the Chief Minister of Bombay, Y.B. Chavan, told Chagla that the supersession of Chainani would offend the
minority Sindhi community of Bombay. Chagla (1974: 169–70). Civilians became Chief Justices at other High Courts
too. Sir Eric Weston became the Chief Justice of the High Court of Punjab in 1950. See, ‘New Chief Justice of East
Punjab’ (1950). In 1967, a Civilian judge even became the Chief Justice of the Supreme Court of India—as Gadbois
points out, the only Indian Supreme Court Chief Justice without a formal legal education. Gadbois, Jr. (2011: 80–1).
During the colonial era, Civilians on other courts were barred from holding the post of Chief Justice too.
244. K.N. Wanchoo.
245. Setalvad (1962: 52–4).
246. AIR 1967 SC 1643.
247. Dhavan (1977: 408). Dhavan, however, pointed out that the case could not be considered a conflict between lawyer judges
and Civilian judges, because some lawyer judges also accepted the government’s view.
248. Setalvad (1962: 52–4).
249. Gadbois, Jr. (2011: 359).
Chapter 6 Independence of the Judiciary
1. Vachha (1962: 191–2). Though Elphinstone and West disagreed strongly, Elphinstone never actually challenged West to a
duel. What actually happened was that West thought that Elphinstone had challenged him to a duel, while Elphinstone
thought that West had challenged him to a duel. As Elphinstone wrote to West later on: ‘To challenge a Chief Justice is
one of the last things that would have entered into my imagination.’ See, Elphinstone to West, letter dated 6 January 1826,
Sir Edward West Papers, British Library, Mss Eur D888/7.
2. Temple (1896: 66–7). Temple also referred to a member of his council, James Gibbs, a former judge of the Bombay High
Court, as ‘an old companion of mine at Haileybury College’. Temple, ibid., p. 4.
3. Temple, ibid., p. 26.
4. The two exchanged very warm letters, in which Jenkins often spoke about his judicial work. See, British Library, John
Morley Papers, Mss Eur D573/46. For example, in a letter dated 14 July 1909, Jenkins wrote to Morley, ‘I am glad to find
that you have survived the weariness of a double perusal of my judgment in the Midnapur case.’ In another letter dated 15
August 1909, Jenkins wrote to Morley, ‘I am at present engaged on the appeal in the Alipore bomb case: there is much in
it that is instructive not to the judge alone.’
5. Letter dated 9 March 1898, from Heaton to Tyabji, in the Badruddin Tyabji Papers (Reel 2), National Archives of India.
6. HCA/D63/A1/D, letter dated 28 May 1919, from Norman Macleod to his son, Torquil.
7. See, British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/9.
8. Memorial from Chief Justice Leonard Stone to the Secretary of State, dated 15 October 1945. British Library, India Office
Records, L/PJ/7/8436.
9. Badruddin Tyabji Papers (Reel No. 1), National Archives of India.
10. See, for example, letter dated 15 January 1899, from Tyabji to the Viceroy, in the Badruddin Tyabji Papers (Reel 1),
National Archives of India.
11. Letter dated 2 July 1904, in the Badruddin Tyabji Papers (Reel 2), National Archives of India. That is not to say that
influential connections always worked in British India. Around 1907, Dhirajlal Dayabhai Nanavati qualified for the
Indian Civil Service but was assigned to Burma instead of Bombay. Nanavati’s father, Rao Bahadur Dayabhai
Harjivandas, was the Accountant General of Baroda and an influential man. Harjivandas spoke to the British Resident at
Baroda, an ‘old friend’ of his, in order to try to get his son reassigned to Bombay. The Resident conveyed the request to
Curzon Wyllie at the India Office. Wyllie tried to see if Nanavati could be reassigned to Bombay, but other officials in the
India Office denied the request. See, British Library, India Office Records, L/PJ/6/834, File 3794. However, Nanavati was
permitted to report to duty two weeks late so that he could spend some time with his family before going to Burma.
British Library, India Office Records, L/PJ/6/901, File 3928. Eventually, Nanavati worked in Burma for several years
before being transferred to Bombay. The reasons for his eventual transfer to Bombay, however, are unclear.
12. See, Vachha (1962: 199–211).
13. Vachha, ibid., pp. 199–204.
15. Vachha (1962: 210).
16. In this book, the notion of judicial independence should be taken to mean independence from the other branches of
government. There are, of course, many layers of judicial independence. A judiciary which is independent of the other
branches of government cannot entirely be independent of public opinion, and judges who are independent of the
executive government might not be independent of other judges. See, Chandrachud (2010).
17. Washbrook (1981: 714). Rohit De notes that Washbrook’s view is the ‘prevailing consensus’. De (2012). But see,
Washbrook (1993).
18. Dirks (1986).
19. Sharafi (2009). See further, Rogers (1992).
20. De (2012). See further, Buckee (1972). Buckee argues that the High Courts of India typically fought off government
attempts to get them to regulate the legal profession by restricting lawyers’ participation in political movements.
22. During the Supreme Court’s time in Bombay, Crown courts were especially designed to police a corrupt Company
administration. However, once Company rule was dissolved in India, and the British Raj came into existence, courts were
no longer designed to play the same vigilant role as Crown courts were in the East India Company’s time. This point is
rarely emphasized and Grant is often considered to be a part of the Bombay High Court. For example, a subsequent Chief
Justice of the Supreme Court of India, M. Hidayatullah, said in his memoirs, ‘Chief Justice Grant had locked the Bombay
High Court till the orders of the court in a case were implemented by Government’. Hidayatullah (1981: 73). It bears
repeating that Grant had locked the Supreme Court, not the High Court, which worked under different conditions.
23. Grant, a heavily indebted man, was appointed a judge of the Supreme Court of Bombay in 1827. See, Stearn (2004). After
Grant locked the Supreme Court of Bombay down, the Court of Directors of the East India Company presented a petition
to the King in Council, requesting that Grant be removed from office. The Privy Council advised the King in Council not
to remove Grant, but instead to order him to return to England so that the matter could be investigated fully. The Privy
Council’s advice was accepted, and in February 1830, Grant was ordered by the King in Council to return to England to
face an enquiry into his conduct on the Supreme Court of Bombay. Before the order could have been communicated to
him, however, Grant resigned his office and applied for permission to practise law in Calcutta. The Bombay government
exchanged some heated letters with Grant, and contemplated forcibly compelling Grant to ‘repair to England’. However,
Grant’s son presented a petition to the King in Council, and in December 1830, the order recalling Grant to England was
revoked—Grant was permitted to resign and to practise law in Calcutta. See, British Library, India Office Records,
H/542a.
24. See, for example, Reed (1952: 64).
25. On the good behaviour clause, see, Prakash and Smith (2006) (arguing that the ‘good behaviour’ clause does not mandate
removal of judges by impeachment); Redish (2006) (arguing that the Prakash-Smith proposal, of permitting judges to be
removed by means other than impeachment, would undermine judicial independence). On the compensation clause, see,
Pfander (2008) (arguing that the compensation clause had implications besides judicial independence, namely, it brought
about limited jurisdiction for courts). See further, Hamilton (1788); Tucker (1803: 353, 360–1); Kent (vol. 1, 1860: 317–
18); Story (1865:180–5).
26. Prakash and Smith, ibid.; Redish, ibid.
27. For example, Swanepoel argued that judges who moved around a lot in the Empire were less likely to be wedded to the
policies of a local colonial government, and more likely to be independent minded. Swanepoel (2010). Blum
demonstrated that it was a judge’s background which determined his independence of the executive, even absent
conditions of formal security of tenure. Blum (2011).
28. In 1879, the Bombay High Court refused to furnish a report to the India Office. See, British Library, India Office Records,
L/PJ/6/1, File 17.
29. The reports are available at the British Library, India Office Records, V/24/2152 – V/24/2158.
30. See, Ramseyer and Rasmusen (2001: 54–83).
31. Ramseyer and Rasmusen, ibid.
32. Ramseyer and Rasmusen, ibid.
33. Kolsky (2010).
34. The rate of the government’s success before the High Court in appeals against orders of acquittal passed by lower courts
was 43 per cent in 1885, 69 per cent in 1925, 26 per cent in 1935, and 22 per cent in 1945.
35. My sample of ninety-three cases did not contain the proceedings of any trial that was conducted before the Bombay High
Court, though the court’s Original Side criminal trials were reported in the law reports as well. For example, the judgment
in Tilak’s famous second trial, discussed in this chapter, was reported at (1908) 10 Bombay Law Reporter 848. However,
the absence of such cases in my sample probably had something to do with the fact that Original Side criminal trials
conducted in the Bombay High Court represented a very small proportion of cases filed on the Original Side of the court.
For example, in 1909, the Bombay High Court’s Original Side criminal trials represented only about 2 per cent of the
total cases filed on the Original Side of the Bombay High Court. It is for this reason that such cases probably did not
make it into my sample, and not because of any systematic bias in law reporting. Original Side criminal trials which were
appealed before a Division Bench of the court did, however, make it into the sample.
36. Though the proportion of cases reported in the law reports was small, other legal historians before me too have relied
primarily on law reports for examining how the Bombay High Court decided cases. See, for example, Sharafi (2009).
37. On the other hand, twenty-four were decided in favour of the government (that is, 25.8 per cent), while it was hard to tell
whether the outcome of six cases was pro accused or government. In a sense, therefore, this chapter also demonstrates
that it was the ‘have nots’ who came out ahead in criminal cases. See, Wheeler et al. (1987–88). In civil cases, it was hard
to measure who the ‘have’ was and who the ‘have not’ was in a case. If I adopted the criteria used in the Wheeler paper
cited herein, the sample size would have been too small to yield any reliable results.
38. I did not find any evidence to suggest that the ‘public spirited’ Indian judges appointed to the court in the nineteenth
century, and the professional lawyer-judges appointed to the court in the twentieth century—a phenomenon described in
Chapter 2, decided cases differently from one another. One would have guessed that the ‘public spirited’ judges would
have decided cases more politically, while the lawyer-judges would have decided cases more professionally. However,
this was not so. Even the ‘public spirited’ judges thought of law in very doctrinal terms, and decided cases as such.
39. Tajubai v. Sub-Collector, 5 Bombay High Court Reports 132.
40. Haveliram v. Maharaja of Morvi, AIR 1945 Bom 88.
41. Vishnu Gangadhar v. Bombay, AIR 1945 Bom 207.
42. In re: Keshav Gokhale, AIR 1945 Bom 212. This decision stands in marked contrast to the more famous Keshav Talpade
case. In that case, which also arose during the Second World War, a man called Keshav Talpade was arrested, under the
Defence of India Rules, for his suspected involvement with a prohibited political organization. The Bombay High Court
dismissed his petition for habeas corpus. Talpade appealed to the Federal Court of India, and won his case on appeal,
much to the alarm of the Viceroy. However, a bench of the Bombay High Court, consisting of two British judges (one of
whom was a Civilian) and one Indian judge, refused to enforce the Federal Court’s judgment in favour of Talpade. De
(2012). ‘Defence of India & Legislature’ (1943).
44. See, for example, De (2012).
45. On Tilak, see further, Brown (1958).
46. He earned a first class in the BA program, but a second division in the LL.B. program, at Bombay University.
47. See, Wolpert (1962).
48. See, Jayakar (1958: 92–3). Before his 1897 trial, Tilak had been sentenced to imprisonment for four months in a defamation
suit filed by the diwan of Kolhapur state. This had made Tilak quite popular. The suit involved Tilak’s English
newspaper, Mahratta, as opposed to his Marathi newspaper, Kesari, which subsequently got him into trouble on numerous
occasions. Wolpert (1962: 20–1).
49. The proceedings of this trial are available at L/PJ/6/462, file 2291.
50. Sedition Committee Report (1918: 2).
51. Damodar and Balkrishna Chapekar.
52. See, Wolpert (1962: 83–4).
53. Tyabji (1952: 286–7).
54. Tyabji, ibid.
55. Strangman (1931: 7). Sedition Committee Report (1918: 2).
56. Tyabji (1952: 288); Tucker (1977: 286).
57. Setlur and Deshpande (1897: viii).
58. It will be recalled that the ‘Chitpavan Brahmins’ are a sub-category of the Brahmin caste, found primarily in Maharashtra.
59. Consisting of Rs 50,000 and two sureties of Rs 25,000 each. Tyabji (1952: 291).
61. The payer was Dwarkadas Dharamsi, father of Jamnadas Dwarkadas, the political leader. Dwarkadas claimed that by
paying Tilak’s bail amount, his father risked invoking the wrath of the Government of Bombay. Dwarkadas (1969: 29).
62. The jury had five European Christians, one European Jew, two Hindus, and one Parsi. Ibid.
63. The Tilak Case: Magisterial Proceedings (2007: 20). Special juries were convened under rules promulgated by Chief
Justice Michael Westropp. They had European majorities, but ‘native’ communities had minority representation.
64. Ibid. However, Strangman says that Tilak was sentenced to fifteen months’ imprisonment. Strangman (1931: 9).
65. Tilak was ordered to be released, in September 1898, on two conditions: ‘(1) That he will not countenance or take part,
directly or indirectly, in any demonstration in regard to his release, or in regard to his conviction or sentence; and (2) That
he will do nothing by act, speech, or writing to excite disaffection towards the Government.’ Tilak accepted in the
following words:
‘I hereby accept and agree to abide by the above conditions, understanding that by the act, speech, or writing referred to
in the second condition is meant such act, speech, or writing as may be pronounced by a Court of law to constitute an
offence under the Indian Penal Code, and I acknowledge that, should I fail to fulfil those conditions or any portion of
them, the Governor of Bombay in Council may cancel the remission of my punishment, whereupon I may be arrested by
any Police Officer without warrant and remanded to undergo the unexpired portion of my original sentence.’
British Library, India Office Records, L/PJ/6/497, File 2377; L/PJ/6/488, File 1770; L/PJ/6/490, File 1930. See further,
Wolpert (1962: 123).
66. Macleod (1945a: 425).
67. Strangman (1931: 8–9).
68. Farran, Candy, and Strachey.
69. Queen Empress v. Bal Gangadhar Tilak and Keshav Mahadev Bal, (1897–98) Indian Law Reports 21 & 22 Bom 656.
70. Three retired Chief Justices of the Bombay High Court eventually sat on the Privy Council—Sir Richard Couch, Sir
Lawrence Jenkins, and Sir John Beaumont. See, Mehrotra and Dwivedi (2004: 25).
71. Setalvad (1946: 41).
72. See, Sedition Committee Report (1918: 6, 13).
73. Dadaji Bhikaji v. Rukhmabai, (1885) Indian Law Reports 9 Bom 529.
74. See, Chandra (1996). The case was initially heard by Justice Robert Hill Pinhey, who held in favour of Rukhmabai. After a
long litigative battle, the case was eventually settled. See further, Burton (1998).
75. Wolpert (1962: 37).
76. Wolpert, ibid., pp. 45–61.
79. See, Wolpert, ibid., p. 228.
80. Jayakar’s memoirs suggest that an Indian judge might not have been susceptible to the same set of biases as those harboured
by British judges. Jayakar (1958). In the Lahore High Court, the British Chief Justice, Sir Douglas Young, went so far as
to order that all sedition cases would only be tried by British judges—however, this order had to be revoked when all
Indian judges threatened to resign as a group. Mahajan (1963: 89).
81. Jayakar (1958: 98).
82. The perpetrator, Khudiram Bose, had intended to murder an unpopular magistrate by the name of Kingsford. He thought
that the carriage the two European women (Mrs and Miss Kennedy) were in was Kingsford’s. Sedition Committee Report
(1918: 6).
83. Such accidental political murders were not infrequent. The Chapekar brothers accidentally murdered Lieutenant Ayerst,
instead of Commissioner Rand. Dhingra murdered Lieutenant Colonel Sir William H. Curzon-Wyllie in London,
mistaking him for Lord Curzon. Wolpert points out that many of these murders were also quite ironic, given that the
mistaken targets were often sympathetic to Indian nationalists in their outlook. Wolpert (1967: 126).
84. Jayakar (1958: 94).
85. The Tilak Case: Magisterial Proceedings (2007).
86. Wolpert (1967: 224).
87. Instead of hiring Jinnah, who would have preferred to conduct Tilak’s defence in a clinical manner, Tilak decided to
conduct his own defence. Wolpert (1962: 220–1).
88. Jayakar (1958: 97); Setalvad (1946: 78). Tilak was arrested on 24 June 1908. On 12 July he was moved to a ‘spacious’
room in the High Court, otherwise meant for a judge or for jurors to deliberate in, where Tilak could confer with friends
and prepare his defence. The trial commenced the next day, on 13 July and lasted five days. The Crown was represented
by Branson, Inverarity, and Binning, among others. Tilak conducted his own defence, but was assisted by many lawyers,
including Baptista, S.M. Dixit, and M.R. Bodas. ‘The Tilak Trial’ (1908). The author of this article wrote of the Tilak
trial, ‘It is not known who the dissenting Jurors are, but it is presumed that they are the two Parsi gentlemen’.
89. British Library, John Morley Papers, Mss Eur D573/3, Morley to Minto, letter dated 16 July 1908 (emphasis original).
90. Clarke (1927: 223).
91. Jayakar (1958: 97). See further, Dwarkadas (1969: 31). A fine of Rs 1,000 was also imposed, but this was subsequently
remitted by the government. Wolpert (1962: 225).
92. Setalvad (1946: 78).
93. ‘Sir Dinsha Davar’ (1916).
94. On the ‘brotherhood of the Bar’ in colonial India, see, De, (2012).
95. Wolpert (1962: 230).
96. Clarke (1927: 223); British Library, John Morley Papers, Mss Eur D573/16, Viceroy Minto to Secretary of State Lord
Morley, letter dated 29 July 1908. There was general unrest in Bombay during the Tilak trials. An intra-government
telegram dated 5 July 1908, a few days before the Tilak trial, captures this well: ‘On the 20th. June crowd of 5000 or 6000
Hindus assembled near Bombay Police Court in connection with Tilak’s case and, becoming disorderly, were dispersed.
Face of Sub-inspector of Police cut open by stone. Seven arrests made. Crown re-assembled later throwing stones at
Europeans and Police Station. Three soldiers and three gentlemen injured by stone throwers who were mostly Brahmins
and students.’ British Library, India Office Records, L/PJ/6/878, File 2457.
97. Section 124A of the Indian Penal Code provided, at the time, that a person convicted of the offence of sedition had to be
‘punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may
extend to three years, to which fine may be added, or with fine.’
98. Dwarkadas (1969: 31).
99. Second Tilak Trial 1909. ‘My Word!’ (1986). There are numerous versions of the lines Tilak is said to have uttered on that
day.
100. ‘My Word!’ (1986).
101. Wolpert (1967: 183).
102. Morley to Minto, letter dated 18 July 1910, British Library, John Morley Papers, Mss Eur D573/5. Morley said of Davar’s
proposed elevation to the Viceroy’s Council, ‘I fear that Davar would never do, however competent and upright he may
be,—and I am sure that he is both—for the reason that we cannot afford to overlook the impression made by a given
appointment upon the Native mind. What the Indians think of our nominee is as important an element in deciding, as the
qualifications of the nominee himself.’ See further, Wolpert, ibid., p. 183.
103. See, Chapter 5. National Archives of India, Home Department, Judicial Branch, No. 235–37.
104. Clarke (1927: 224–5). Incidentally, the words ‘your lawyers’ in Morley’s letter were a reference to J.D. Inverarity, the
Bombay lawyer known for his excellent memory. Inverarity opined that Tilak’s articles were seditious, which is why a
prosecution was launched. Wolpert (1967: 117). Morley also said something similar to Viceroy Minto [British Library,
John Morley Papers, Mss Eur D573/3, Morley to Minto, letter dated 16 July 1908]:
My breakfast has a dose of bitter in it on this and other days, in the shape of the telegrams about Tilak’s trial in the
morning paper. I have read the two articles; bad enough to warrant a prosecution, if you wanted one on general political
grounds; but not at all so bad as to make a prosecution inevitable, if on general political grounds you would rather have
done without one. Of course, Clarke [the Governor of Bombay] might easily have convinced me that the proceedings
were wise, if he had shown that the state of his presidency made a severe lesson and stern example necessary. But I
gather from his letters that he thinks nothing so ill of his people, and he plainly has not weighed all the ulterior
consequences of every sort. If his people are in an inflammable state, the trial will inflame them still further. If they are
not, he could afford to let Tilak’s shuffling stuff, with all its vicious innuendos and mischievous plausibilities, go bye.
The thing rather afflicts me, as being—if nothing else—too sudden a tack on the course that he seemed (perhaps too
rapidly) to have marked out for himself.
For Viceroy Minto’s views on the matter, see, British Library, John Morley Papers, Mss Eur D573/17, Viceroy Minto to
Secretary of State Morley, letter dated 5 August 1908:
We could not possibly have afforded not to prosecute and I believe the effect of the sentence will be excellent. There is
no doubt whatever as to the part [Tilak] played. He is recognised throughout India as the arch-leader of sedition. There is
ample evidence to prove it. His story is a very different one from that of Lajpat Rai. And we must remember that the
loyal Indian population has been as anxious as Europeans for a resort to a strong enforcement of the law. I have never
advocated exaggerated measures if we can do without them, but it is the plain truth that people here are afraid for their
lives….Our greatest chance of safety for the future lies in our determination to utilise without hesitation the powers we
possess, and any disapproval at home of severe sentences or any evidence of sympathy with political criminals will most
certainly prolong the crisis we are passing through and foster the continuance of the evil we are hoping to destroy.
See further, British Library, John Morley Papers, Mss Eur D573/17, Viceroy Minto to Secretary of State Morley,
letter dated 19 August 1908.
105. British Library, John Morley Papers, Mss Eur D573/46, Morley to Minto, letter dated 16 July 1908.
106. British Library, John Morley Papers, Mss Eur D573/46, Morley to Minto, letter dated 24 July 1908.
107. Scott and Batchelor.
108. In re. Narasinha Chintaman Kelkar, (1897–98) Indian Law Reports 21 & 22 Bom 151.
109. See, Wolpert (1962: 280).
110. These were Batchelor and Shah respectively.
111. Bal Gangadhar Tilak v. Emperor, AIR 1916 Bom 9.
112. Chagla (1962: 37).
113. See, Kamra (2009). In fact, at this time, the Government of India was secretly spying on letters written from abroad and
‘addressed to native officers, non-commissioned officers and men of the native army, imported by steamers arriving in
Bombay, from any country which does not form part of British India or of the British possessions in Africa’. In 1907,
Wedderburn, a former acting judge of the Bombay High Court, complained that his letters to the nationalist leader Gopal
Krishna Gokhale had been tampered with. See, British Library, India Office Records, L/PJ/6/847, File 382.
114. See, ‘Hind Swarajya Case’ (August 1908); ‘Hind Swarajya Case’ (September 1908).
116. ‘Bombay Law Courts’ (1920).
117. These were Marten, Hayward, and Kajiji respectively.
118. In re: Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai, (1920) 22 Bombay Law Reporter 368.
120. See, British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/9.
121. The judges were Norman Macleod and Charles Fawcett respectively.
122. Bombay Law Journal, 2 (1924–25).
123. The judges were Amberson Marten and Charles Kincaid respectively.
124. Bombay Law Journal, 2 (1924–25: 272–7).
125. ‘The Recent Murder Cases’ (1891).
126. Ibid.
127. The magistrate was A.M.T. Jackson, who had convicted one of the Savarkar brothers, and who would later be assassinated.
128. The court ruled on this case under section 56 of Regulation II of 1827.
129. See, British Library, India Office Records, L/PJ/6/962, File 3263.
130. The text of the pledge was as follows: ‘Being conscientiously of the opinion that the Bills known as the Indian Criminal Law
(amendment) Bill I of 1919 and the Criminal Law (emergency powers) Bill II of 1919 are unjust, subversive of the
principles of liberty and justice, and destructive of the elementary rights of individuals on which the safety of the
community as a whole and the State itself is based, we solemnly affirm we shall refuse civilly to obey these Laws and
such other laws as a Committee to be hereafter appointed may think fit, and further affirm that in this struggle we will
faithfully follow truth and refrain from violence to life person or property.’ See, British Library, India Office Records,
L/PJ/6/1614, File 5047.
131. The lawyers were Jivanlal Varajrai Desai, Vallavbhai Jhaverbhai Patel (who later became independent India’s first Home
Minister), both of whom were barristers, and Krishnalal Narsilal Desai, who was a Pleader.
132. The judges were Macleod, Heaton, and Kajiji.
133. Chief Justice Macleod wrote the majority judgment, Heaton wrote a concurring judgment, and Kajiji wrote that he had
‘nothing to add’.
134. Setalvad (1946: 153–4).
135. The Bombay Chronicle was started in 1913 by Sir Pherozeshah Mehta, the Parsi lawyer and moderate Indian political
leader. Though the board of directors of the newspaper was moderate in outlook, its editor, B.G. Horniman, was an
extremist. Dwarkadas (1969: 227).
136. Jayakar (1958: 246–7).
137. Jayakar, ibid., p. 227; Strangman (1931: 112–13).
138. Chagla (2011: 111–12).
139. See, ‘Simon Commission’. Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia
Britannica Inc., 2013. Web. 19 Mar. 2013. http://www.britannica.com/EBchecked/topic/1257275/Simon-Commission,
(accessed 19 March 2013).
140. ‘Sergeant Carter acquitted by High Court’ (1929).
141. Chagla (2011: 111–12).
142. Chagla, ibid., p. 112. The Bombay Law Journal eventually only mildly criticized the court’s decision, in the following
terms: ‘we think the practice of constituting Special Benches to be undesirable from the public point of view and it gives
scope for a considerable amount of just criticism.’ Bombay Law Journal, 6 (1928–9: 516).
143. See, University of Bombay: The Calendar for the Year 1908–1909 (1908: 225).
144. Setalvad (1946: 79–81). The case was referred to as the ‘Tai Maharaj case’. Chandavarkar’s biographer was quick to point
out that it was not Chandavarkar, but his colleague on the bench, Heaton, who accused Tilak of giving false evidence. The
Privy Council then wrongly attributed this accusation to Chandavarkar. Chandavarkar (1955: 75). However, regardless of
who actually made the accusation against Tilak, it is clear that Chandavarkar and Tilak were intellectual rivals.
Chandavarkar was a liberal social reformer who believed in the benevolence of British rule. Tilak was an orthodox
conservative on social issues, who believed that British rule was bad for India.
145. Chirol (1910: 340).
146. See, Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105; Emperor v. Vinayak Damodar Savarkar, (1911) 13
Bom LR 296; ‘The Savarkar Trial: Sentence Passed’, (1911).
147. Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105.
148. Sedition Committee Report (1918: 9).
149. Twenty-seven of the thirty-eight men put on trial in the Nasik Conspiracy case were convicted. Sedition Committee Report,
ibid., p.10.
150. The other two judges on the bench were Chief Justice Basil Scott and Justice Heaton. See, ‘Mr. V.D. Savarkar’ (1929). The
special bench was constituted under the Criminal Laws Amendment Act (XIV of 1908).
151. See, Sedition Committee Report (1918: 8–11). One such target turned out to be A.M.T. Jackson, the magistrate in Nasik
who had convicted his brother.
152. It is hard to argue that the judges in these political cases acquitted the accused because they were thinking politically along
the lines of officials in the metropole, for example, because they wanted to prevent the creation of martyrs, etc. largely
because there is little historical evidence to suggest that they were doing this.
153. Tucker (1977: 285).
154. Tucker, ibid.
157. ‘Untitled Article’ (1895).
158. Wolpert (1967: 62–3).
159. Bombay Law Journal, 12 (1934–5: 43).
160. Beaumont (1962: 24).
161. For example, while serving on the Calcutta High Court, Chief Justice Lawrence Jenkins wrote to Secretary of State Morley
about the ‘political’ cases he was dealing with. In one such letter, he wrote: ‘Time flies, and I scarcely realize that I have
been here at work well over a month; but this no doubt is due to my having been engaged in some very heavy cases of a
political nature, which have given me much anxiety and have so fully engrossed my time that I literally have been
exercising myself in the law day and night.’ Going further, Jenkins wrote: ‘it is complained that in political cases at any
rate it has gone out of fashion to give the prisoner the benefit of the doubt; and this is attributed to the fact that
inexperienced men are put into important judicial posts.’ British Library, John Morley Papers, Mss Eur D573/46, Jenkins
to Morley, letter dated 3 June 1909.
162. See, for example, Toharia (1975); Balasubramaniam (2009); Solomon (2007).
163. Markovits (2002).
164. It cannot be said that the Bombay High Court did not get to decide politically sensitive cases during the colonial period. The
fact that cases like the Tilak case came before the court bears ample testimony to this fact. However, it is true that special
tribunals were set up in British India at times to hear certain cases, though these tribunals were rare, and were often
manned by High Court judges. It is also true that most of the court’s civil cases did not involve the government at all. This
is because none of the constitutions enacted by the British Parliament for British India had a bill of rights, and as such,
colonial courts did not witness serious constitutional confrontations between the government and individuals. It is for this
reason that we saw that the docket of the court contained very few civil cases brought against the government. It was only
after India became independent that its Constitution had a bill of rights, which created an explosion of cases against the
government.
165. Temple (1896: 26).
166. Chainani (1962: 6).
167. See, for example, National Archives of India, Home Department, Judicial Branch, September 1872, No. 114–120. This file
contains correspondence between Chief Justice Westropp of the Bombay High Court and the Governor of Bombay,
regarding a complaint made by the Bombay Chamber of Commerce that the disposal of cases on the Original Side of the
court was slow. Westropp responded to the complaint by saying that his request for an eighth judge on the Original Side
had not been granted, which is why the administration of justice on the Original Side was slow. See further, National
Archives of India, Home Department, Judicial Branch, February 1880, No. 161–163. In this file, Chief Justice Charles
Sargent of the Bombay High Court complained about the new rules regarding privileged leave for judges.
168. National Archives of India, Home Department, Judicial Branch, November 1879, No. 251–258. This was not the first
instance of the Bombay High Court being curt in its dealings with the government. In 1868, Secretary of State Northcote
wrote a private letter to the Viceroy, in which he said, ‘[w]e have much reason to be dissatisfied with the tone taken by
the Judges of the High Court of Bombay towards the Govt.’ British Library, India Office Records, MSS/EUR/F90/29.
169. British Library, John Morley Papers, Mss Eur D573/46, Jenkins to Morley, letter dated 14 July 1909.
170. See, British Library, India Office Records, L/PJ/6/1562, File 290.
171. The lawyer then reportedly responded: ‘We love him, as he has, from an Indian point of view, restored public confidence in
the administration of justice.’ For a more neutral account of Jenkins, see, British Library, Sir Maurice Henry Weston
Hayward Papers, D839/4. Jenkins was described in the following terms: ‘He was a dapper little man and hoped to acquire
fame as an expert on Hindu Law. He was a contrast to his wife the outrageous Lady Jenkins.’
172. However, no additional punitive action was taken against Roberts, because he otherwise enjoyed a good reputation. Roberts
earned a full pension, because he had served in office for the minimum period prescribed.
173. Morley to Minto, letter dated 6 January 1910, British Library, John Morley Papers, Mss Eur D573/5.
174. ‘There was good reason for this distinction’, wrote C.A. Kincaid, a Civilian who later served as an acting judge of the
Bombay High Court. ‘The Chief Justice and judges of Bombay were, for administrative purposes, under the Government
of Bombay; whereas the Chief Justice and judges of Bengal were directly under the Government of India.’ Kincaid (1934:
152).
175. Kincaid, ibid., pp. 155–6.
176. HCA/D63/A1/j, letter dated 5 May 1945, from Sir Sitaram S. Patkar to Norman Macleod.
177. National Archives of India, Home Department, Judicial Branch, F. 999//27-Judl. Macleod also ‘strongly opposed all
reforms’ by the Bombay Government aimed at reducing the Bombay High Court’s establishment in order to save costs.
See, British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/6.
179. See further, Vachha (1962: 206–7).
180. HCA/D63/A1/f, handwritten note written by Sir Norman Macleod on the letter from H.S. Lawrence. However, the Governor
of Bombay, Leslie Wilson, later wrote to Macleod and thanked him for his services. HCA/D63/A1/f, letter dated 17 June
1926.
181. John Beaumont, Chief Justice of the Bombay High Court between 1930–43, initially had ‘some friction with the
Government of Bombay’ in his early days, but he subsequently picked his fights cautiously with the government, upon
the advice of Sir Edward Chamier, the legal adviser to the India Office. Beaumont (1962: 22) later recalled that Chamier
had warned him, ‘that if ever I felt tempted to a fight with Government I must remember that Government had the money,
and I had none, so I should probably be beaten. I bore that advice in mind, and was careful in choosing my ground before
engaging Government.’
182. The memorial was dated 15 October 1945. British Library, India Office Records, L/PJ/7/8436.
183. Could it be that the government was far more cautious and careful about bringing politically sensitive cases to trial, as
against ordinary, routine criminal cases? Perhaps the decision to bring politically sensitive cases to trial was taken by
senior officials who were more concerned about losing face? This could explain why politically sensitive cases were
decided in favour of the government—only those political cases were brought to court where the government’s chances of
winning were strong in the first place. However, though plausible, the evidence suggests that this was unlikely. In his
letters to Secretary of State Morley between 1909–10, Chief Justice Lawrence Jenkins at the Calcutta High Court
lamented how government officials were bringing politically sensitive, sedition cases, to trial indiscriminately. ‘The
practice of former law officers’, he wrote, ‘has been only to advise proceedings for sedition where conviction was certain;
and this I think was a very wise policy. In fact I happen to know that out of 200 cases submitted for the opinion of one
[Advocate General] he only advised proceedings in 12’. Importantly, Jenkins added, ‘How far this policy is maintained
now, I do not know’. British Library, John Morley Papers, Mss Eur D573/46, Jenkins to Morley, letter dated 13 April
1910. On an earlier occasion, Jenkins spoke to Morley about the politically important Midnapur case, where he believed
that prosecutions had been launched indiscriminately: ‘I think it was pity (sic) that the authorities persisted in the original
prosecution, for after I had delivered my [judgment] I learnt from Sinha, that he as Advocate General had advised that the
proceedings against the 3 unfortunates, whom I ultimately acquitted, [should] be dropped as there was no evidence
against them, but he had been overruled by the local officials.’ British Library, John Morley Papers, Mss Eur D573/46,
Jenkins to Morley, letter dated 14 July 1909.
184. In fact, Viceroy Minto was very unhappy with the criminal justice system in India during the Tilak trials. In a private letter
to Secretary of State Morley, Minto wrote: ‘Our criminal procedure, or rather the manner of conducting it, is eminently
unsatisfactory, certainly quite unsuited to the state of affairs with which we have to deal, and which demands a rapid
enforcement of the law. I don’t know that the procedure as laid down is in itself faulty, but the dilatoriness and long-
windedness of the judges is unpardonable. The trial before the Sessions Judge of Khudiram Bose was quite unnecessarily
prolonged, and the judgment of the Calcutta High Court on the appeal filled I don’t know how many columns when it
might under the circumstances have been delivered in a very few words.’ British Library, John Morley Papers, Mss Eur
D573/16, Viceroy Minto to Secretary of State Morley, letter dated 23 July 1908. This ‘dilatoriness and long-windedness’
of judges in political cases might be interpreted as an exercise of judicial independence. Grant, a heavily indebted man,
was appointed a judge of the Supreme Court of Bombay in 1827. See, Stearn (2004). Grant, a heavily indebted man, was
appointed a judge of the Supreme Court of Bombay in 1827. See, Stearn (2004).
Conclusion
1. See, Chapter 5.
2. See, ‘New Chief Justice of East Punjab’ (1950).
3. See, M.C. Chagla Papers, Nehru Memorial Museum and Library.
4. Sen was superseded because he was a member of the Indian Civil Service. By convention (earlier, by law), Civilians were
not entitled to be High Court Chief Justices.
5. Its jurisdiction was abolished by the Abolition of Jurisdiction of Privy Council Act, 1949, and its jurisdiction over courts in
Part B states in India was abolished under Article 374(4) of the Constitution of India.
6. Article 394, Constitution of India.
7. The salaries of High Court judges were reduced in independent India.
8. Section 13, The Constitution (First Amendment) Act, 1951.
9. True, the Indian judges of the High Courts lacked an Indian identity in the sense that they were highly Anglicized, but then
again, so were many of the most prominent leaders of India’s freedom movement.
10. For example, the statue of King Edward VII on horse-back, located in an area of Bombay which was (and still is informally)
called ‘Kala Ghoda’, meaning black horse, was hastily removed in 1965, at a time when statues of British figures in
Bombay were being attacked and mutilated. The statue had been erected and unveiled in the 1870s by the prominent
Jewish Bombay merchant Albert Sassoon, to commemorate the arrival in Bombay of the Prince of Wales, later Edward
VII. The statue now sits in the gardens of the Bhau Daji Lad Museum in Bombay. See, ‘Kala Ghoda, Landmark of
Bombay Goes’ (1965); Aklekar (2013). See further, Temple (1896: 9).
11. Galanter (1972).
12. Galanter, ibid., pp. 61–3.
13. Kolsky (2010).
14. Kolsky, ibid., p. 10.
15. Buckee (1972); Paul (1991).
16. Scholars like David Potter have argued that the structure of the Indian Civil Service remained unchanged because of
political changes which took place in the 1930s and 1940s. See, Potter (1986).
17. Article 372, Constitution of India.
18. See, Article 224(2), Constitution of India.
19. Recall that security of tenure was actually conferred by the Government of India Act, 1935.
20. See, Article 226, Constitution of India.
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Newspaper Articles
‘A Hundred Years Ago’, The Times of India, 9 November 1986, p. 8.
‘A New Magisterial Appointment’, Indu Prakash, 1 June 1891.
‘A Projected Town Hall for Bombay’, Indu Prakash, 1 August 1892.
‘A Protest Against Two Recent Appointments’, Indu Prakash, 1 June 1891.
‘A Shameless Act of Nepotism’, Indu Prakash, 28 October 1895.
‘A Tale of Judicial Persecution’, Indu Prakash, 26 November 1894.
‘A Word in Favour of Mr. Justice Farran’s Appointment’, Indu Prakash, 25 May 1891.
‘Administrative Report of the Bombay Presidency, 1889–90’, Indu Prakash, 12 January 1891.
Advani, Motiram D. ‘To the Editor: Judges’ Salaries’, The Times of India, 5 August 1969, p. 8.
‘Advocate-General of Bombay’, The Times of India, 25 February 1935, p. 10.
Aklekar, Rajendra B. ‘In Search of the Missing Kala Ghoda’, DNA, 3 February 2013.
‘Amending the System of Trial by Jury in India’, Indu Prakash, 14 October 1895.
‘An Eminent Judge’, The Times of India, 17 November 1926, p. 11.
‘An Entertainment to the Hon’ble Mr. Justice Nanabhai Haridas’, Indu Prakash, 16 June 1884.
‘An Important Decision of the Bombay High Court’, Indu Prakash, 11 May 1891.
‘An Unfortunate Appointment’, Indu Prakash, 3 August 1894.
‘Appointment of Natives to Higher Posts’, Indu Prakash, 27 September 1886.
‘Article 12-No Title’, The Times of India, 5 September 1883, p. 6.
‘Article 14’, The Times of India, 10 May 1884, p. 5.
‘Article 17’, The Times of India, 30 August 1884, p. 5.
‘Article No. 4’, The Times of India, 14 September 1865, p. 2.
‘Article No. 9’, The Times of India, 16 June 1886, p. 5.
‘Births, Deaths, Marriages, and Obituaries’, The Leeds Mercury, 16 June 1893, Issue 17222.
‘Bombay “Government Gazette”’, The Times of India, 28 February 1902, p. 5.
‘Bombay Govt. Gazette’, The Times of India, 7 January 1927, p. 5.
‘Bombay Govt. Gazette’, The Times of India, 19 March 1926, p. 3.
‘Bombay Govt. Gazette’, The Times of India, 10 October 1913, p. 11.
‘Bombay High Court: New Judge’, The Times of India, 13 June 1908, p. 9.
‘Bombay Law College Centenary’, The Times of India, 4 September 1960, p. 8.
‘Bombay Law Courts’, The Times of India, 4 March 1920, p. 10.
‘Bombay’s Acting Chief Justice’, The Times of India, 14 August 1947, p. 1.
‘British System of Law’, The Times of India, 14 February 1948, p. 15.
‘Candidates for LL.B. Examination’, Indu Prakash, 19 June 1893.
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Chandavarkar, Sir Narayan. ‘Sir Basil Scott: An Appreciation’, The Times of India, 12 April
1919, p. 9.
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‘Contribution: Free Thoughts’, Indu Prakash, 19 October 1891.
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‘Former Bombay Judge Dead’, The Times of India, 22 December 1937, p. 15.
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‘Law and Police’, The Times of India, 10 May 1884, p. 3.
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‘Mr. Justice B. Tyabji’, The Times of India, 22 August 1906, p. 7.
‘Mr. Justice Badruddin Tyabji’, Indu Prakash, 1 July 1895.
‘Mr. Justice Batty: Retirement from India’, The Times of India, 19 July 1907, p. 7.
‘Mr. Justice Bayley’, The Times of India, 27 June 1895, p. 4.
‘Mr. Justice Nanabhai Haridas and the B.B. and C.I. Railway’, Indu Prakash, 3 July 1885.
‘Mr. Justice Parsons’, The Times of India, 30 April 1900, p. 4.
‘Mr. Justice Patkar’s Gown and Wig’, The Times of India, 15 August 1932, p. 10.
‘Mr. Justice Pratt: An Appreciation’, The Times of India, 17 April 1925, p. 5.
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‘Mr. Justice S.S. Rangnekar’, The Times of India, 13 March 1936, p. 6.
‘Mr. Justice Strachey’, Indu Prakash, 2 December 1895.
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‘My Word!’ The Times of India, 16 June 1986, p. 3.
‘N.P. Engineer is dead’, The Times of India, 13 June 1970, p. 7.
‘New Chief Justice of East Punjab’, The Times of India, 18 January 1950, p. 5.
‘New Judge of Bombay High Court’, The Times of India, 22 December 1926, p. 15.
‘New Prothonotary’, The Times of India, 25 November 1910, p. 8.
‘No Title’, The Times of India, 21 August 1916, p. 10.
‘Petition against Barristers’, The Times of India, 29 June 1935, p. 15.
‘Prize Distribution at St. Xavier’s College’, Indu Prakash, 12 December 1891.
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‘Rao Bahadur Kirtikar: Memoir of His Life’, The Times of India, 22 August 1911, p. 8.
‘Sale of Mr. Justice Green’s Library’, The Times of India, 12 October 1882, p. 3.
‘Sergeant Carter acquitted by High Court’, The Times of India, 20 March 1929, p. 5.
‘Sir Bomanji Wadia Dead’, The Times of India, 18 August 1947, p. 11.
‘Sir C. Setalvad Resigns’, The Times of India, 15 June 1923, p. 7.
‘Sir Charles Fawcett’, The Times of India, 12 March 1952, p. 4.
‘Sir Charles Fawcett’, The Times of India, 15 March 1929, p. 8.
‘Sir D.F. Mulla’, The Times of India, 3 November 1930, p. 10.
‘Sir Dinshah Mulla Dead’, The Times of India, 27 April 1934, p. 9.
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‘Sir Raymond West’, The Times of India, 25 April 1892, p. 6.
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‘The B.B. & C.I. Railway and the Treatment of a Native Judge’, Indu Prakash, 29 June 1885.
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‘The Bench and the Bar on the Criminal Side of the Bombay High Court’, Indu Prakash, 30
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‘The Bombay University Finance’, Indu Prakash, 21 August 1892.
‘The Catley Case’, The Times of India, 14 August 1885, p. 6.
‘The Chief Justice and the Bar’, The Times of India, 5 February 1877, p. 2.
‘The Chief Justiceship of Bengal’, Indu Prakash, 15 February 1886.
‘The Chief Presidency Magistrateship’, Indu Prakash, 23 April 1894.
‘The Constituency of Sardars’, Indu Prakash, 24 April 1893.
‘The Decay of the Landed Aristocracy in India’, Indu Prakash, 6 June 1892.
‘The Evening Party to Mr. Justice Nanabhai Haridas’, The Times of India, 27 June 1884, p. 3.
‘The Fifth Judge of the Bombay Small Causes Court’, Indu Prakash, 3 August 1891.
‘The Government Law School’, Indu Prakash, 25 November 1889.
‘The Government of Bombay in Conflict with Native Public Opinion’, Indu Prakash, 6 July
1891.
‘The High Court Appointment’, The Times of India, 29 October 1895, p. 4.
‘The High Court Judgeship’, Indu Prakash, 7 July 1884.
‘The High Court’, Indu Prakash, 28 July 1884.
‘The Ilbert Bill Opinions: The Bombay Officials’, The Times of India, 10 September 1883, p. 5.
‘The Judges and the Jurisdiction Bill’, The Times of India, 3 September 1883, p. 5.
‘The Judges and the Jurisdiction Bill’, The Times of India, 1 September 1883, p. 5.
‘The Judges and the Jurisdiction Bill’, The Times of India, 31 August 1883, p. 5.
‘The Judges’ Protest’, The Times of India, 22 January 1889, p. 5.
‘The Judicial Line’, Indu Prakash, 15 September 1884.
‘The Judicial Membership of the Council’, Indu Prakash, 31 August 1891.
‘The Jurisdiction Bill’, The Times of India, 30 August 1883, p. 3.
‘The Last Pleaders’ Examinations’, Indu Prakash, 27 April 1891.
‘The Last Subordinate Judge’s and Pleader’s Examination’, Indu Prakash, 12 April 1886.
‘The Late Hon. Mr. Justice Telang C.I.E.’, Indu Prakash, 4 September 1893.
‘The Late Mr. Cumrudin Tyabji’, Indu Prakash, 21 July 1889.
‘The Late Mr. James Gibbs’, The Times of India, 9 November 1886, p. 4.
‘The Late Mr. Justice Nanabhai Haridas’, Indu Prakash, 17 June 1889.
‘The Late Mr. Justice Nanabhai Haridas’, The Times of India, 18 June 1889, p. 5.
‘The Late Ms. Ratanbai Vakil’, Indu Prakash, 7 October 1895.
‘The Late Sir Michael Westropp’, The Times of India, 17 January 1890, p. 5.
‘The Mission House Episode’, Indu Prakash, 30 May 1892.
‘The New Appointment of a High Court Judge’, Indu Prakash, 4 November 1895.
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‘The New Bombay Provincial Service’, Indu Prakash, 9 December 1895.
‘The New Chief Justice of Bengal’, Indu Prakash, 1 March 1886.
‘The New High Court’, The Times of India, 27 January 1879, p. 2.
‘The New Judge’, Indu Prakash, 28 October 1889.
‘The New Judicial Appointments’, Indu Prakash, 15 February 1892.
‘The New Native Judge in the Punjab Chief Court’, Indu Prakash, 21 September 1885.
‘The New Sheriff of Bombay’, Indu Prakash, 9 December 1895.
‘The New Small Causes Courts Act’, Indu Prakash, 14 January 1895.
‘The New Small Causes Courts Act’, Indu Prakash, 13 March 1893.
‘The Pleaders’ Examination’, Indu Prakash, 13 April 1891.
‘The Pleaders’ Examinations’, Indu Prakash, 11 April 1892.
‘The Presidency Association’s Protest Against Mr. Webb’s Appointment’, Indu Prakash, 29
June 1891.
‘The Rakhmabai Case’, Indu Prakash, 5 April 1886.
‘The Recent High Court Appointment’, Indu Prakash, 2 December 1895.
‘The Recent Murder Cases’, Indu Prakash, 28 September 1891.
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‘Untitled Article’, Indu Prakash, 11 February 1895.
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INDEX
acting judges, 35, 219–222, 244 (n139)

additional judges, 35
Advocate General, 30, 105, 126 (n265), 129 (n318, n322), 172 (n188), 180, 198 (n25), 199 (n26)
advocates, 24–27, 31
Age of Consent controversy, 85, 90, 92, 93, 266
Ali, Ameer, 128 (n299)
Ali, Sir Syed Fazl, 236 (n45)
Ambedkar, Dr. B.R., 66 (n235)
Anglo-Indian community, 112 (n10)
Anstey, Thomas, 71, 155–156, 219
Appellate Side, 21–23, 48 (n25), 53 (n112), 97, 98, 179, 180, 185–186, 191–192, 194
Arnould, Joseph, 39, 44, 68 (n255), 88, 135, 234 (n25)
Aston, Henry, 215, 225, 241 (n108)
attire in court, 38–39
Attorneys, 24–25, 28, 31
Bahadurji, D.N., 129 (n318)

Ballantine, William, 174 (n208)
Barlee, Kenneth, 224, 253 (n234)
barristers, 25–26, 28, 30, 32
Batchelor, Justice, 33, 57 (n139), 138, 162 (n68)
Batty, Justice, 162 (n68)
Bavdekar, R.S., 56 (n136), 57 (n139), 170 (n163)
Bayley, L.H., 73, 86, 123 (n210), 126 (n265), 213, 234 (n25), 256
Beaman, F.C.O., 40, 63 (n192), 138, 184, 214, 220, 223–225
Beaumont, John, 39–40, 45, 49 (n46), 56 (n135), 67 (n250), 100, 139, 150, 172 (n191), 208, 210,
215, 221, 225, 233 (n7), 234 (n19), 235 (n33, n37), 236 (n43), 240 (n100), 242 (n113), 253
(n242), 275, 297 (n181)
Besant, Annie, 210
Bhagwati, N.H., 68 (n254)
Bhagwati, P.N., 2
Birdwood, H.M., 68 (n254), 138, 227, 234 (n24, n25)
Blagden, John, 150, 173 (n197), 191
Blum, Binyamin, 16 (n43)
Bombay Chronicle, 272, 294 (n135)
Bombay Law Journal, 273
Bombay Presidency Association, 71, 80, 90
Bombay University, 44, 143–147, 167–168 (n124–127), 169 (n153)
Bombay, 20
Branson, 182
Broomfield, R.S., 138, 223, 224, 252 (n232), 253 (n234)
Buckee, G.F.M., 6, 15 (n31), 67 (n250)
Byculla Club, 53 (n106), 73, 135, 159 (n18, 20), 160 (n27)
Candy, Edward, 45, 68 (n254), 224, 234 (n25)

case disposal, 126–127 (n275, n277)
Celtic Fringe, 154–156
Chagla, M.C., 1–2, 11 (n1, n3), 34–35, 42, 45, 66 (n233), 68 (n254, n266), 100, 104, 137,
138–139, 145, 148, 160–161 (n44), 168 (n140), 190, 194, 212, 220, 238 (n76, n76), 253
(n243), 272–273, 300
Chainani, H.K., 253 (n243)
Chandavarkar, Narayan Ganesh, 14 (n28), 25, 43, 60–61 (n176), 62 (n184, n185, n187), 68
(n254), 76, 91–95, 101, 102, 124 (n225), 148, 165 (n97), 168 (n129), 273–274
Chaubal, Mahadev, 103, 118 (n80)
Chavan, Y.B., 253 (n243)
Chief Justice, 35, 205–212, 236 (n45), 253 (n243), 278–281
Chitty, C.W., 117 (n74)
City Civil Court, 49 (n43)
Clarke, Sir Edward, 119 (n87)
Clarke, Sydenham, 126 (n261), 137, 210
Consultation between Chief Justice and Governor, 32–33
Couch, Richard, 153, 234 (n18, n25), 265
Coyajee, Hormazdyar, 39, 162 (n68)
Coyajee, N.H.C., 69 (n270), 137, 162 (n68)
Crawford, Arthur, 227, 249–250 (n211)
Crowe, William Henry, 173 (n194), 212
Crump, L.C., 150
Curzon, Lord, 94, 119 (n98), 170 (n160), 237 (n65)
Dadabhai, Hormasji, 117 (n76)

Dakshina Fellow, 83
Daphtary, C.K., 236 (n39)
Davar, Dinsha, 45, 63 (n192), 95–96, 105, 125 (n257), 138, 162 (n68), 166 (n108), 181, 183,
184, 200 (n41), 208, 215–218, 267–269, 292 (n102)
Davar, Jehangir, 134, 162 (n68)
Dave, Sir Sundar Lal, 115 (n54)
De, Rohit, 15 (n32)
Deccan College, 167 (n117)
Desai, Bhulabhai, 12 (n17), 181, 199 (n28), 243 (n126)
Dillon, F.W., 26
Disraeli, Benjamin, 71
Divatia, H.V., 183
Dixit, Y.V., 69 (n270), 112 (n6)
Dufferin, Lord, 81, 96
Duman, Daniel, 15 (n31), 16 (n33), 155
Dwarkadas, Jamnadas, 101, 252 (n229)
East India Company, 20, 23, 50 (n53)

Elphinstone College, 41, 43, 143, 166 (n113-114)
Elphinstone High School, 141–142, 164 (n90)
Elphinstone, John, 164 (n89)
Elphinstone, Mountstuart, 164 (n89), 256, 285 (n1)
Engineer, N.P., 208
Erskine, Claudius James, 162 (n68)
executive-judiciary relations, 256–259
Farran, Charles Frederick, 65 (n228), 126 (n265), 138, 172 (n183), 174 (n206), 219, 234 (n18),
234 (n25)
father-son judges, 162 (n68)
Fawcett, Charles, 12 (n19), 226
Federal Court of India, 22
Fergusson, Sir James, 84, 130 (n332), 227, 234 (n24)
Ferreira, C.C., 67 (n246)
first war of Independence, 21
Forbes, Alexander Kinloch, 68 (n254), 112 (n5), 148
Fraas, Mitch, 12 (n19)
Framji Cowasji Institute, 78, 118 (n82)
Frere, Governor Bartle, 88
Furlough, 37, 60 (n174)
Fyzee, A.A.A., 66 (n235)
Gajendragadkar, P.B., 33, 56 (n134), 95, 143, 147, 183, 212, 221, 224
Galanter, Marc, 306
Gandhi, Mahatma, 25–27, 52 (n88), 62 (n186), 69 (n277), 90, 118 (n82), 223, 270–271
Garth, Sir Richard, 72, 113 (n18)
Gazdar, J.J., 120 (n129)
Gharda, N.D., 280
Ghosh, Mun Mohan, 124 (n217)
Gibbs, James, 68 (n254), 73, 115 (n56), 140–141, 162 (n68), 239 (n87), 285 (n2)
Gidumal, Dayaram, 121 (n140)
Gokhale, Gopal Krishna, 25, 85, 266
Gold Mohurs, 40
good behavior, 218–219
Government Law College, 65 (n217, n221). See “Government Law School”.
Government Law School, 41–46, 65–66 (n229), 66 (n232), 66 (n236, n237), 147–148, 223, 246
(n166)
Government Pleader, 30, 54 (n121), 75, 77, 180, 182, 199 (n26)
Governor General, 21
Governor, 21–22, 47 (n4)
Grant, Sir John Peter, 257, 286 (n22), 287 (n23)
Green, John Philip, 60 (n174), 130 (n332), 136, 172 (n183), 238 (n74), 239 (n86)
Grille, Frederick, 247 (n184)
Guha, Ranajit, 7
Gwyer, Maurice, 68 (n254)
Haileybury College, 171 (n174)

Hamilton, Lord George, 87, 214
Haridas, Ghellabhai, 117 (n73)
Haridas, Nanabhai, 42, 44, 54 (n119), 65 (n227), 114 (n46), 115 (n49, n56), 134, 165 (n97), 180,
183, 184, 187, 191, 219, 251 (n219)
Haridas, Nanabhai, 74–77, 112 (n9), 169 (n154), 262
Harris, Lord, 80
Hart, William, 117 (n74)
Hayward, Maurice, 37, 57 (n139), 61 (n177), 61 (n178), 62 (n190), 64 (n200), 160 (n27), 168
(n136), 171 (n180), 201 (n56), 224, 227, 270–271
headdress, 38
Heaton, Sir Joseph John, 68 (n254), 135, 138, 234 (n25)
Hebbert, Henry, 163 (n71)
Hidayatullah, M., 56 (n134), 247 (n184)
High Court building, 22
Horniman, B.G., 210, 272
Ilbert Bill controversy, 72–74, 187

illness, 239 (n86)
Indian Civil Service, 31–32, 150, 152, 207, 222–231, 252 (n232)
Indian High Courts Act, 1862, 22
Indu Prakash, 34, 58 (n144)
Inns of Court, 25–26, 51 (n77)
Inverarity, J.D., 12 (n17), 13 (n21), 98, 135, 155, 159 (n20), 163 (n79), 181
Jain, M.P., 16 (n38)

Jardine, John, 68 (n254), 138, 227, 234 (n25)
Jayakar, M.R., 17 (n57), 29, 33–34, 104–105, 139, 145, 164 (n82, n83), 168 (n141), 225–226,
267
Jeejeebhoy family, 116 (n63)
Jeejeebhoy, Rustomjee Jamshedji, 50–51 (n62), 116 (n63), 118 (n81)
Jeejeebhoy, Sir Jamsetjee, 39
Jeejeebhoy, Sir Jamsetjee, 76, 116 (n63)
Jenkins, Sir Lawrence, 29, 33, 40, 52 (n101), 53 (n109), 135, 138, 145, 150, 153, 155, 174
(n206), 192, 194, 207, 210–211, 220, 224, 225, 229, 234 (n21), 235 (n26), 241 (n108), 248
(n199), 256, 275, 278–279, 285 (n4), 295 (n161), 296 (n171), 297–298 (n183), 305–306
Jinnah, M.A., 160 (n44)
Jones, William, 163 (n81)
Jowett, Benjamin, 169 (n142)
judges’ bungalows, 37
judicial appointments, 32–35, 56 (n134)
jury system, 23, 50 (n50), 265
Justice, Macklin, 145 (n144)
Kahanji Sedition Case, 274–275
Kajiji, A.M., 96, 126 (n259), 173 (n196), 218, 243 (n126)
Kanga, Sir Jamshedji, 2, 29, 62 (n185), 105, 129 (n319, n322), 181, 182, 199 (n30), 244 (n139)
Kania, Harilal, 112 (n6), 170 (n165), 183, 208–209, 235 (n32)
Kashinath, Moroji, 118 (n76)
Kelkar, N.C., 61 (n181), 271
Kemball, Charles, 73, 114 (n46), 162 (n68), 226–227, 248 (n201)
Kemp, brothers, 162 (n68)
Kemp, N.W., 173 (n195), 173 (n196), 273. See “Kemp, brothers”.
Kershaw, Louis, 153, 234 (n20), 235 (n26)
Keshav Talpade Case, 288–289 (n42)
Khan, M.A.A., 170 (n158)
Khare, Waman Sakharam, 271–272
Khareghat, 55 (n126), 221, 245 (n148)
Kher, B.G., 39–40, 239 (n77)
Kincaid, Charles, 29, 40, 56 (n135), 127 (n279), 163 (n74), 171 (n180), 235 (n31), 252 (n223)
Kirtikar, V.J., 120 (n129), 168 (n141)
knighthood, 206, 211, 233 (n11)
Kolsky, Elizabeth, 113 (n26), 260, 307
Lal, Shadi, 236 (n45), 275

Lang, Basil, 163 (n80)
Latham, F.L., 114 (n47), 223
law reports, 178–179, 196 (n5), 202 (n68–69)
Legal education, 41–46
Legal Remembrancer, 172 (n188)
Legislative Council, 21
Letters Patent, 22
Likhovski, Assaf, 6
Lokur, N.S., 49 (n41), 121 (n140), 167 (n122), 173 (n196)
Lumley, Roger, 208
Lytton, Lord, 71–72, 81, 84, 89
Mackintosh, Sir James, 162 (n68)

Macleod, Norman, 27, 34, 37, 39, 40, 49 (n46), 55 (n131), 57–58 (n140), 61 (n178), 64 (n203),
66 (n233), 138, 139, 140, 141, 148, 159 (n20), 173 (n196), 174 (n206), 209–210, 214, 221,
234 (n18), 234 (n25), 256, 265, 272, 280
Madgaonkar, G.D., 144, 171 (n179), 245 (n148)
magistrates, 246 (n167)
Mahajan, M.C., 56 (n134), 245 (n148)
Malabari, Behramji, 85, 115 (n57)
Malabari, Phiroze, 12 (n19)
Markby, William, 150, 171 (n178)
Markovits, Inga, 276
Marten, Amberson, 45, 49 (n46), 61 (n177), 66 (n233), 150, 172 (n183), 177, 192, 214–215, 234
(n18), 235 (n25), 273
Mathurdas, Dhirajlal, 180
Mayor’s Court, 20
McLaren, John, 17 (n48), 155
Mears, Sir Grimwood, 210, 242 (n111)
Mehta, Sir Pherozeshah, 62 (n187), 80–81, 90, 97, 118 (n79), 120 (n128, n129), 136, 160 (n23,
n34), 181
Melvill, F.D., 114 (n46), 162 (n68)
Melvill, Maxwell, 112 (n9), 162 (n68), 227, 232 (n5), 240 (n92, n93), 253 (n236)
Minto, Viceroy, 210–211, 217, 269, 292–293 (n104), 298 (n184)
Mitter, Romesh Chunder, 72, 73, 76, 229, 252 (n226)
Mody, Homi, 102, 118 (n79)
Montagu-Chelmsford Reforms, 21, 129 (n330)
Montagu, Edwin, 106, 135, 173 (n194)
Morley-Minto Reforms, 21
Morley, John, 105, 207, 210–211, 248 (n199), 256, 267, 269, 285 (n4), 292 (n102), 292–293
(n104), 297–298 (n183), 298 (n184)
Moroji, Khanderao, 123 (n207)
Mossman, Mary Jane, 15 (n28)
Mudaliar, Ramaswami, 124 (n217)
Mulla, Sir D.F., 129 (n323), 194, 222
Mundlick, V.N., 54 (n119), 75–76, 115 (n56, n57), 180, 182, 262
Munshi, K.M., 108, 127 (n279), 221
Murphy, S.J., 130 (n336)
mutiny, 21
Mutusawmy, Sir Tiruvarur, 116 (n70)
Nanavati, Justice, 221, 145 (n144), 286 (n11)

Naoroji, Dadabhai, 90
Narayen, Shantaram, 75, 115 (n56), 116 (n62), 116 (n71), 180, 182
National Social Conference, 85
native States, 21–22, 248 (n195)
Nehru, Jawaharlal, 101, 210
Newton, Henry, 163 (n71), 234 (n25)
Norman, Douglas Reay, 253 (n234)
Norton, Eardley, 136, 175 (n227)
number of judges, 49 (n46)
Orient Club, 29, 135

Original Side, 20, 22, 24–25, 29, 38, 48 (n25), 48 (n26), 86, 89, 97, 98, 106, 126 (n275),
179–182, 185–186, 191–192
Palkhivala, Nani, 2, 238 (n76)

Pandit, Sambhoonath, 77, 116 (n68)
Parsons, Henry James, 223, 224, 234 (n25)
Pathare Prabhu, 71
Patkar, S.S., 130 (n336), 182, 273
Paul, J.J., 6, 15 (n31)
Pension, 59 (n164)
Perry, Sir Erskine, 41, 65 (n216)
Pinhey, Robert Hill, 142, 171 (n174), 213–214, 240 (n93)
Pleaders, 24–25, 30–31, 50 (n55)
pleasure, doctrine of, 213–214
police courts, 23, 49 (n42)
Prasad, Rajendra, 26, 66 (n234)
Presidencies, 20, 46 (n4)
Private Walker Case, 271
Privy Council, 22
prohibition, 39–40
Puisne judges, 35
Queen’s counsel system, 222

quota system, 31–32, 95, 124–125 (n248)
racism, 134–139, 154–158, 182–183, 186–187, 190–191

Raikes, 181
Rajadhyaksha, Justice, 165 (n97), 170 (n163), 233 (n7)
Ranade, M.G., 43, 49 (n41), 76, 82–86, 92, 93, 102, 116 (n71), 120 (n129), 121 (n140), 134,
148, 158 (n6), 165 (n97), 167 (n117), 173 (n196), 214, 264, 265–266, 274–275
Rangnekar, S.S., 121 (n140), 130 (n336), 143, 170 (n156), 173 (n196)
Rank and Precedence, 35
Rao, G.S., 248 (n205)
Recorder’s Court, 20
Reid, R.T., 28
retirement age, 214–219
Ripon, Lord, 72, 73, 113 (n18), 160 (n23)
Roberts, Sydney Gordon, 278–279, 297 (n172)
Romer, Mark L., 169 (n144)
Roy, Romaprosad, 116 (n68)
Roychand, Premchand, 119 (n98)
Rukhmabai’s case, 85, 178, 214, 266
Russell, Louis, 12 (n18), 173 (n194), 225
Salaries, 36–38, 103, 126 (n262), 128 (n301), 129 (n321), 206, 233 (n12)
sardars, of the Deccan, 248 (n195)
Sargeant Carter Case, 272–273
Sargent, Charles, 52 (n92), 55–56 (n133), 60 (n174), 67 (n248), 173 (n197), 213–214, 229, 234
(n18), 240 (n94–n95), 278
Satyagraha pledge, 272, 294 (n130)
Satyendranath Tagore, 32
Sausse, Mathew, 172 (n191), 174 (n206, n207), 211, 234 (n18)
Savarkar, G.D., 274
Savarkar, Veer, 263, 274
Scoble, Andrew, 90, 92
Scott, John, 173 (n197), 213, 219
Scott, Sir Basil, 126 (n261), 126 (n265), 138, 159 (n20), 163 (n77, n80), 174 (n206), 192, 211,
219, 229, 234 (n22), 274, 279–280
Secretary of State, 21, 248 (n201), 250 (n215)
security of tenure, 212–219
security of tenure, 35
Seervai, H.M., 2
Sen, K.C., 170 (n158), 239 (n77), 300
Senior advocates system, 222
seniority, 186–187, 205–206, 234 (n24)
separation of powers, 222–231
Setalvad, Chimanlal, 42, 52 (n86), 54 (n112), 100, 103, 119 (n88), 124–125 (n248), 126 (n261),
136–137, 165 (n100), 224, 243 (n126), 244 (n139)
Setalvad, Motilal, 100, 208, 210, 230–231, 236 (n39), 238 (n76)
Sethna, R.D., 63 (n197)
Shah, J.C., 253 (n243)
Shah, Lallubhai Asharam, 96, 126 (n261), 147, 166 (n113), 183, 207, 235 (n25)
Sharafi, Mitra, 6, 8
shoes, 38, 62 (n190)
Shunkershett, Jugunath, 118 (n81)
Sinha, B.P., 51 (n70)
Sinha, Satyendra Prasad, 128 (n297)
sixty years rule, 214–218
Slater, J.S., 58 (n143)
Small Causes Court, 23
Somjee, brothers, 162–163 (n68)
Sorabji, Cornelia, 15 (n28), 44, 67 (n246), 67 (n248), 169 (n142)
Starling, M.H., 221, 244 (n131)
statues, 305–306, 310 (n10)
Stone, Leonard, 2, 11 (n2), 33–34, 56 (n136), 60 (n170), 172 (n191), 190, 208–209, 234 (n19),
238 (n76), 241 (n100), 280–281, 299–300
Strachey, Arthur, 34, 87, 138, 221, 145 (n147), 265
Strangman, Thomas, 137, 160–161 (n44), 265
Sudder Court, 20–21, 23
Sulaiman, Shah Muhammad, 236 (n45)
supersessions, 234 (n25), 145 (n144)
Supreme Court of Bombay, 20, 23
Tai Maharaj Case, 294–295 (n144)

Taraporewala, Vicaji F., 11 (n2)
Tata, M.A., 67 (n247)
Telang, K.T., 42, 65 (n227), 68 (n254), 74, 76, 77–82, 90, 92, 93, 101, 119 (n88), 119 (n92), 120
(n126, n128), 144, 148, 181, 183, 184, 266
Temple, Sir Richard, 12 (n14), 84, 114 (n46), 248 (n201), 256, 277
Tendolkar, Justice, 143, 253 (n238)
Terrell, Courtney, 153, 155, 161 (n47), 209
Terrell, Thomas Hugh, 233 (n12)
Thanawalla, Chhaganlal Lalubhai, 270
Tilak, Bal Gangadhar, 38, 62 (n190), 85, 101, 127 (n288), 216–217, 264–270, 289 (n65), 291
(n88), 291 (n96), 292–293 (n104)
Times of India, 17 (n57)
Tope, T.K., 11 (n2)
travel overseas, 25–26
Tricumdas, Purshottam, 101
Tucker, Justice, 261
Tucker, Richard, 79, 85, 99, 115 (n56), 116 (n67)
Tyabji, Badruddin, 14 (n27), 26, 32, 34, 35, 39, 42, 45, 62 (n185), 63 (n192), 74, 80, 86–91, 97,
102, 103, 113 (n20), 116 (n71), 118 (n84), 120 (n129), 122 (n170), 125 (n250), 134, 137–138,
162 (n68), 164 (n86), 166 (n108), 181, 182, 183, 207, 221, 224, 227, 235 (n26, n28), 145
(n147), 256–257, 264–265
Tyabji, Camruddin, 90, 182
Vacation Judge, 40
Vachha, P.B., 5, 13 (n21)
Vakil, Ratanbai, 67 (n249)
Vakils, 53 (n111, n112)
Vernacular Court, 23
Vicajee, F.R., 181, 182
Viceroy, 21, 47 (n12, n19)
Wadia, B.J., 68 (n254)

Wadia, N.J., 68 (n254), 145 (n144)
Wagle, Bal Mangesh, 27, 136
Warden, Augustus, 142
warrant of precedence, 205–206
Wassoodew, Janardhan, 71, 111 (n1), 112 (n6, n8), 139
Wassoodew, K.B., 49 (n41), 121 (n140), 139, 144, 173 (n196)
Webster, Sir Richard, 119 (n87)
Wedderburn, William, 64 (n206), 96, 187, 228–229, 251 (n219), 262
West, Sir Edward, 256, 285 (n1)
West, Sir Raymont, 68 (n254), 73, 184, 270
Weston, Eric, 233 (n7), 253–254 (n243), 300
Westropp, Michael Roberts, 13 (n21), 57 (n138), 74, 75, 79, 84, 114 (n46), 114 (n47), 126
(n265), 130 (n332), 155, 163 (n79), 174 (n206), 192, 230, 232–233 (n5), 234 (n18, n24, n25),
239 (n86), 256, 278, 296 (n167)
Whitworth, George Clifford, 220
wigs, 38
Wild, Justice, 221
Willingdon Club, 53 (n106), 135
Willingdon, Governor, 256
Wilson College, 166–167 (n116)
Wodehouse, Philip, 114 (n46), 115 (n56)
women lawyers, 44
Yacht Club, 53 (n106), 135, 159 (n17)

Young, Douglas, 233 (n6), 235 (n33)
ABOUT THE AUTHOR
Abhinav Chandrachud practises as an advocate at the Bombay High Court. Dr Chandrachud

graduated from the L.L.M. program at Harvard Law School where he was a Dana Scholar, and
from the JSM and JSD programs at Stanford Law School where he was a Franklin Family
Scholar. In 2008, he graduated from the Government Law College, Mumbai, where he was a
university rank- holder, winning such academic awards as the Hon. Justice D.P. Madon prize in
Constitutional Law, the Ranganath Rao prize for best student, and the Yashwant Dalal prize for
best student. Dr Chandrachud has worked as an associate attorney at Gibson, Dunn & Crutcher,
LLP in Los Angeles and Singapore, and as a Foreign Associate at Fenwick & West, LLP in
Mountain View, California. He is the author of The Informal Constitution: Unwritten Criteria in
Selecting Judges for the Supreme Court of India (OUP) and has written papers and articles in
legal journals as well as leading newspapers, magazines, and periodicals. He is qualified to
practice law in India and in the state of New York, USA. In his free time, he enjoys playing the
guitar. He can be reached at abhinav.chandrachud@gmail.com.

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An Independent, Colonial Judiciary

An Independent, Colonial Judiciary

© Oxford University Press 2015

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First Edition published in 2015

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ePub ISBN-13: 978-0-19-908948-2

Typeset in Minion Pro

(Plates between pp. xvi and 1)

THE LEGAL PROFESSION

HIGH COURT JUDGES

The Rise of the Indian Judge

THE FIRST INDIAN JUDGE

Race, Class, and the Bombay High Court

RACISM AND THE LEGAL PROFESSION OF BOMBAY

British Judges Indian Judges

ETHNICITY AND CLASS

The Judicial Culture of the Court

The Structural Peculiarities of a Colonial Judiciary

In fact, Whitworth subsequently wrote a memorial of complaint to the Secretary of State,

Independence of the Judiciary

THE RELATIONSHIP BETWEEN THE EXECUTIVE AND JUDICIARY

ROUTINE CRIMINAL CASES

The Tilak Trials

Other Important Cases

CHIEF JUSTICES OF THE BOMBAY HIGH COURT, 1862–1947

PUISNE JUDGES OF THE BOMBAY HIGH COURT, 1862–1947

ACTING/ADDITIONAL JUDGES OF THE BOMBAY HIGH COURT, 1862–1947

Chapter 2 The Rise of the Indian Judge

333. Macleod, ibid.

Chapter 3 Race, Class, and the Bombay High Court

Chapter 4 The Judicial Culture of the Court

Chapter 5 The Structural Peculiarities of a Colonial Judiciary

acting judges, 35, 219–222, 244 (n139)

Bahadurji, D.N., 129 (n318)

Candy, Edward, 45, 68 (n254), 224, 234 (n25)

Dadabhai, Hormasji, 117 (n76)

East India Company, 20, 23, 50 (n53)

Haileybury College, 171 (n174)

Ilbert Bill controversy, 72–74, 187

Jain, M.P., 16 (n38)

Lal, Shadi, 236 (n45), 275

Mackintosh, Sir James, 162 (n68)

Nanavati, Justice, 221, 145 (n144), 286 (n11)

Orient Club, 29, 135

Palkhivala, Nani, 2, 238 (n76)

Queen’s counsel system, 222

racism, 134–139, 154–158, 182–183, 186–187, 190–191

Tai Maharaj Case, 294–295 (n144)

Wadia, B.J., 68 (n254)

Yacht Club, 53 (n106), 135, 159 (n17)

Abhinav Chandrachud practises as an advocate at the Bombay High Court. Dr Chandrachud

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