A lesson from the short-lived Federal Court

Articles of Faith

Who was the first Chief Justice of India? Google will throw up the name of Justice H J Kania. This is both correct and incorrect. Justice Kania was indeed the first CJI of independent India, but the first person to hold the title of ‘Chief Justice of India’ was Justice Maurice Gwyer. An English lawyer, he was appointed to head the Federal Court of India, a court set up in 1937 under the Government of India Act, 1935, and which was wound up and replaced by the Supreme Court of India in 1950.

The Federal Court (FC) neither had the powers of the Supreme Court (SC) nor the long history of the High Courts, and is not as well-known either. In its 13-year existence, it heard and decided less than 140 cases -- a relatively insignificant number when compared to even High Courts in those days. Consequently, it is not a court studied very much (beyond scholars George H Gadbois and Rohit De). Which is a shame, because this is a court which delivered some of the most impactful judgements that created the framework for federalism and protecting civil liberties in India. On civil liberties, one of the most important cases that it decided was probably Keshav Talpade v King Emperor in 1943.

When the Quit India movement began in 1942, at the height of WWII, the colonial government in India cracked down hard. Tens of thousands were detained under the Defence of India Rules (made by the government under the Defence of India Act) as being threats to the British government. One of these was Keshav Talpade, who then challenged his detention by the police in the Bombay HC. The HC rejected his case. He went up to the FC, where his lawyer argued that the Defence of India Act was contrary to the Government of India Act, 1935, and that the Central Legislature did not have power to pass this law.

The FC rejected this claim, but then did something quite unexpected -- it raised a new point of law that even Talpade’s lawyer had not realised: the Defence of India Rules under which Talpade had been detained was contrary to the Defence of India Act itself. This was based on a close reading of the Defence of India Act and the Rules, and the Federal Court declared that Talpade be released. The colonial government, shocked that it had lost this case in court, had to scramble to change the Rules and bring them in line with the legislation so that the detentions could continue. Talpade never enjoyed the fruits of this remarkable order.

However, take a moment to appreciate what happened here -- a court appointed by the British authorities in India, headed by a British lawyer, had, at the time of Britain’s greatest external peril and a serious internal challenge to its rule in India, held the colonial British authorities accountable to every word of the law that had been passed!

Incredibly, the FC did this at a time when India did not have any bill of rights as we do today in the Fundamental Rights part of the Constitution.

As scholar Rohit De has pointed out, this decision of the FC compares favourably not just to the SC’s later record on civil liberties, but also British courts during WWII. In Liversidge v Anderson, the House of Lords held, by a majority of 4-1, that during war, the government had the power to detain anyone for any reason for any length of time and courts cannot intervene. Likewise, the Supreme Court in ADM Jabalpur v Shiv Kant Shukla, held that during an Emergency, the government could detain anyone for any reason without judicial remedy. Yet, there was a court that, during a time of both war and civil unrest, was willing to go the extra mile in holding the executive accountable to the law.

Gwyer’s judgement in the Talpade case tells us that the rule of law is not something that can be discarded during a crisis. Courts can and should hold the executive to account even in the most difficult circumstances. It’s a lesson that the Supreme Court has yet to learn from the Federal Court.