VIVIAN BOSE

Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.

-Socrates

 

There are few people who leave a mark on history and fewer still who help shape it, Vivian Bose did both. He has often been regarded as one of the best judges by many legal luminaries and Justice Rohinton Nariman recently described him as one of the best judges ever.[1]

 

In Benjamin Franklin’s words, either write something worth reading or do things something worth writing, Vivian Bose changed the course of Indian constitutional law history writing judgments worth reading laying down principles of law worth writing upon.

 

It is significant that even though, to begin with, in A.K. Gopalan[2] , the Supreme Court construed the meaning of word ‘law’ in Article 21 narrowly, however, the requirement of fairness for constitutional validity entrenched by decisions in Royappa[3] and Maneka Gandhi[4] has its foundation in the dissenting opinion of Vivian Bose J. in Anwar Ali’s case[5]. Vivian Bose J dissented as under:

 

98.     … The question with which I charge myself is, can fair-minded, reasonable unbiassed and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.” (Emphasis Supplied)

 

Vivian Bose was born in Ahmedabad, Gujarat, on June 9, 1891 to Lalit Mohan Bose, an engineer employed by government and posted in Ahmedabad when Vivian Bose was born. He was grandson to Sir Bipin Krishna Bose, a lawyer and a prominent figure in the Nagpur and Central Provinces civic, educational, cultural, and political scenes. Bose was the first Christian and the only Eurasian to serve on the Supreme Court of India. He married an American, whose father, Dr. John R. Mott, won the Nobel Peace Prize in 1946. Having an Indian father, an English mother, and an American wife, Vivian Bose jokingly described himself as a ‘mongrel’. On January 9, 1936, when he was forty-four, Bose was appointed one of the original members of the newly created Nagpur High Court and after thirteen years as an associate judge he became chief justice on February 20, 1949. When he was nearly sixty, on the threshold of retirement and fifteen years of service on the Nagpur Bench, one of the most senior high court judges in the nation, Chief Justice Kania invited him to become a member of the Supreme Court of India. Bose was sworn on March 5, 1951 becoming the final member of the original bench. Although he reached retirement age on June 9, 1956 the next year he was asked by Chief Justice S.R. Das to return under the terms of Article 128. This second installment of Bose’s tenure on the Supreme Court began on September 9, 1957 and continued until September 39, 1958. He died on November 29, 1983 at age ninety-two.[6]

In interpreting the Constitution, Justice Bose considered the basic elements of its language, history, tradition, precedents in other jurisdiction in the context of its purpose in our Constitution and its consequences. That is why his contribution is so seminally important to the unfolding of our constitutional principles.[7]

 

Constitutional interpretation is different from ordinary interpretation of statues, as the great John Marshall, C.J. put it, it is a Constitution that we are expounding.[8] Vivian Bose J in his dissenting opinion in Anwar Ali’s case[9] expounded his constitutional philosophy[10] as under:

83.     … It is therefore impossible to apply rules of abstract equality to conditions which predicate inequality from the start; and yet the words have meaning though in my judgment their true content is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progressive people. …

  1. … The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision was given ad hoc on the facts of that particular case. It is true the judges who thus contributed to its growth were not importing personal predilections into the result and merely stated what was the law applicable to that particular case. But though they did not purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which, though they existed in fact and left a vague awareness in man’s minds, nevertheless were neither clearly definable, nor even necessarily identifiable, until crystallised into concrete existence by a judicial decision; nor indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered now from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static form by hide-bound rules and arbitrarily applied standards or tests.
  2. I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide-bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?

  1. What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiassed views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, ‘law’ as used in Article 14 does not mean the “legal precepts which are actually recognised and applied in the tribunals of a given time and place” but “the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise them.” (Dean Pound in 34 Harvard Law Review 449 at 452).” (Emphasis Supplied)

 

In Ram Singh v. State of Delhi[11]  Vivian Bose, J., in minority in upholding the torch of liberty held as under:

“22.     … in every case it is the rights which are fundamental, not the limitations; and it is the duty of this Court and of all courts in the land to guard and defend these rights, zealously. It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms.” (Emphasis Supplied)

 

In S. Krishnan v. State of Madras[12], in minority again, Vivian Bose J. held:

43.     … It is our duty to ensure that the right and the guarantee are not rendered illusory and meaningless. Therefore, wherever there is scope for difference of opinion on a matter of interpretation in this behalf, the interpretation which favours the subject must always be used because the right has been conferred upon him and it is the right which has been made fundamental, not the fetters and limitations with which it may be circumscribed by legislative action.” (Emphasis Supplied)

 

In S. Krishnan case[13] Bose, J. relied on the preamble in his minority opinion which itself was far reaching and radical in terms of jurisprudence for the times as the Supreme Court in Berubari Union (1), In re,[14] and in Golak Nath v. State of Punjab,[15] held that the Preamble is not a part of the Constitution till that view was overturned in Kesavananda Bharati v. Union of India[16].

 

Justice Vivian Bose through his dissents created the foundational blocks of our constitutional jurisprudence and introduced the concept of due process much before Maneka Gandhi case.[17] Whereas in Bidi Supply Co. v. Union of India[18] delivering a concurring opinion Bose J. held that the Constitution was not for the exclusive benefit of Governments and States or for lawyers, politicians, officials and those highly placed but also for the common man, for the poor and the humble, for those who have businesses at stake, for the butcher, the baker and the candlestick maker. In Bidi Supply case[19] Bose, J. gave a very dynamic interpretation of Article 14 by holding as under:

16.     … Article 14 sets out, … an attitude of mind, a way of life, rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of something that exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else; one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different.” (Emphasis Supplied)

 

Justice Vivian Bose was a man far ahead of his times and played a part in the development of Indian constitutional law.

 

[1]        https://timesofindia.indiatimes.com/city/nagpur/Justices-Bose-Hidyatullah-among-top-five-of-all-time/articleshow/54384558.cms

 

[2]        A.K. Gopalan v. State of Madras, (1950) SCR 88 (India): AIR 1950 SC 27 (India).

 

[3]        E.P. Royappa v. State of T.N., (1974) 4 SCC 3 (India).

 

[4]        Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).

 

[5]        State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 (India): AIR 1952 SC 75 (India).

 

[6]        For further reading see George Harold Gadbois (Jr.), Judges of the Supreme Court of India, 1950-1989, 34-37 (1st ed. 2011).

[7]        Justice A.K. Ganguly, Justice Vivian Bose: A Pilgrim in Quest of Constitutional Values, (2011) 6 SCC J-49 (India).

 

[8]        McCulloch v. Maryland, 4 L Ed 579 : 17 US (4 Wheat) 316 (1819)] , L Ed p. 601 : US at p. 407 (1819).

 

[9]        Supra note 5.

 

[10]       Justice Bose was ahead of his times and it was much later that his constitutional wisdom resulted in the doctrine of basic structure and resulted in the modern Indian constitutional law.

[11]       AIR 1951 SC 270 (India).

 

[12]       AIR 1951 SC 301 (India): (1951) 2 SCR 621 (India).

[13]       Supra note 12.

[14]       AIR 1960 SC 845 (India).

 

[15]       AIR 1967 SC 1643 (India).

 

[16]       (1973) 4 SCC 225 (India).

[17]       Supra note 4.

 

[18]       AIR 1956 SC 479 (India).

[19]       Supra note 18.