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ABSTRACT
In this paper, I show that the central courtroom of the Bombay High Court has been conserved as a site that memorializes the Court’s institutional history. The Court’s institutional history refers to the history as remembered and recollected by the judges, lawyers, court staff and different persons associated with the Court. The legal history of the Court identifies the law as documented in judgements, rules and regulations. The conflict between the institutional and legal histories of the Court is brought to the forefront in the case of the sedition trial of Tilak in the central courtroom of the Bombay High Court.
Acknowledgments
This paper was made possible with the useful comments and guidance of Professor Peter Goodrich, Dr Pratiksha Baxi and Dr Tarunabh Khaitan, to whom I remain ever grateful. For their assistance at different stages of this article, I thank Professor Ratna Kapur, Dr Mitra Sharafi, Dr Sudhir Krishnaswamy and Dr Swethaa Ballakrishnen. I am also thankful to the anonymous reviewers who helped with their valuable suggestions. The research was possible with the support of the Centre for the Study of Law and Governance, Jawaharlal Nehru University, the Columbia Law School Library, Columbia University, New York and the court staff of the Bombay High Court.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 MP Jain, Outlines of Indian Legal and Constitutional History (LexisNexis Butterworths Wadhwa 2012).
2 The Editorial Committee, The Madras High Court: 1862–1962: Centenary Volume (The Associated Printers 1962).
3 The sepoy (Indian soldier) mutiny of 1857 is often considered as the first war for India’s independence. The mutiny eventually led to the dissolution of the East India Company.
4 ‘History: High Court of Bombay’ (The High Court of Bombay) <http://bombayhighcourt.nic.in/history.php> accessed 2 July 2016.
5 DV Tahmankar, Lokamanya Tilak: Father of Indian Unrest and Maker of Modern India (John Murray (Publishers) Ltd 1956).
6 Publications Division, Trial of Tilak (Ministry of Information and Broadcasting, Government of India 1986).
7 Ram Gopal, Lokmanya Tilak: A Biography (Asia Publishing House 1965).
8 Tahmankar (n 5).
9 Emperor v Bal Gangadhar Tilak (1917) 19 Bom LR 211 (Bombay High Court).
10 ‘Historical Cases’ (High Court of Bombay) <http://bombayhighcourt.nic.in/libweb/historicalcases/cases/Second_Tilak_Trial_-1909.html> accessed 5 July 2016.
11 Indian Penal Code 1860, s 124-A reads as follows (the text has been revised post-independence to refer to the government and law of India):
Sedition: Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity;
Explanation 2 – Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section;
Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
12 Queen-Empress v Bal Gangadhar Tilak & Keshav Mahadev Bal (1897) ILR 22 Bom 112 (Bombay High Court) 145.
13 ibid 152.
14 Tahmankar (n 5).
15 Emperor v Bal Gangadhar Tilak (1908) 10 Bom LR 848 (Bombay High Court) 903.
16 Emperor v Bal Gangadhar Tilak (1917) (n 9).
17 Austin Sarat and Thomas R Kearns, ‘Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduction’ in Austin Sarat and Thomas R Kearns (eds), History, Memory, and the Law (The University of Michigan Press 2002) 2.
18 Gopal (n 7).
19 Elizabeth Kolsky, Colonial Justice in British India (Cambridge University Press 2010). See also, Bernard S Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton University Press 1996); Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (Cambridge University Press 2014) ch 5; and Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Oxford University Press 2000).
20 MC Chagla, Roses in December: An Autobiography (Bharatiya Vidya Bhavan 1974).
21 PB Vachha, Famous Judges, Lawyers and Cases of Bombay: A Judicial History of Bombay during the British Period (NM Tripathi 1962) 269.
22 ‘Historical Cases of Bombay High Court’ (Bombay High Court Judges’ Library) <http://bombayhighcourt.nic.in/libweb/historicalcases/Historical_Cases_Of_Bombay_High_Court.html> accessed 3 February 2018.
23 Sarat and Kearns (n 17) 12.
24 ‘Historical Cases’ (n 10).
25 Jinnah was a lawyer, politician and the leader of the All India Muslim League in pre-independence India. He was the founder of Pakistan and the first Governor-General of the newly formed state after partition.
26 Chagla (n 20).
27 ibid 13.
28 ibid 26.
29 ibid 15.
30 ibid.
31 Vachha (n 21).
32 The Court has created a well guided tour to visit the Court supplemented with an informative visitor’s brochure. This information about the Constitutional Court is largely from the copy of the brochure that I have from the year 2014.
33 Judith Resnik and Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press 2011).
34 As noted by Sarat and Kearns (n 17).
35 ibid 2.
36 Rahul Mehrotra and Sharada Dwivedi, The Bombay High Court: The Story of the Building, 1878–2003 (Eminence Designs Pvt Ltd 2004).
37 As of August 2015.
38 Sir John Peter Grant was a British colonial administrator and Lieutenant-Governor of Bengal.
39 Sir Charles Sargent was Chief Justice of the Bombay High Court from 1882 till 1895.
40 Sir Norman Cranstoun Macleod was Chief Justice of the Bombay High Court from 1919 till 1926.
41 Act No 2 of 1974.
42 It is largely believed that jury trial was abolished in the case of KM Nanavati v The State of Maharashtra 1962 AIR 605 (Supreme Court of India). While the Supreme Court of India passed judgement recommending abolition of the jury trial in this case in 1962, the revised Criminal Procedure Code was only enacted in 1973. Therefore, there was a gap of eleven years during which trial by jury continued in different parts of India, in different forms. Jury trial and its practice at that time was inconsistent across India: See, James Jaffe, ‘The Tortured Life and Mysterious Death of Trial by Jury in India’ (Center for South Asia, University of Wisconsin-Madison) <http://southasia.wisc.edu/podcast/the-tortured-life-and-mysterious-death-of-trial-by-jury-in-india-james-jaffe/> accessed 24 April 2016. Further, there was an ongoing discussion on whether the jury system was working in the Indian context leading to the Fourteenth Report of the Law Commission on Reform of Judicial Administration 1958, chaired by the first attorney general of India MC Setalvad, which also recommended the abolition of trial by jury: See, James A Jaffe, ‘Custom, Identity, and the Jury in India, 1800–1832’ (2014) 57 The Historical Journal 131; Jaffe, ‘The Tortured Life and Mysterious Death of Trial by Jury in India’ (n 42). Therefore, jury trial for criminal cases came to an end in India with the enactment of the Criminal Procedure Code 1973.
43 Act No XV of 1865.
44 Sharafi (n 19).
45 In July 2014, when the Parsi divorce court sat for its proceedings in the central courtroom, I was granted permission to observe the same.
46 For a detailed account on the Parsi Chief Matrimonial Court see Sharafi (n 19).
47 The central courtroom of the Bombay High Court is used for several events and ceremonies during the course of the year. I have listed only a few to present an idea as to what these events and/or ceremonies could be.
48 This is as narrated by the court staff. It is possible that some judges of the High Court opposed this proposal as the use of the central courtroom has been a contentious issue. This was evident from my conversations with different judges in the High Court, where they chose not to answer questions related to the use of the central courtroom, terming it as a controversial issue.
49 This reason has been disputed by some staff of the High Court wherein they state that courtroom number 52 has always been used as the Chief Justice’s court because it has the biggest judge’s chamber attached to it.
50 The Preamble to the Constitution of India reads as follows:
We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; And to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation; In our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.
51 See ‘Historical Cases’ (n 10).
52 A recording of the re-enactment of the trial of Tilak is available at Bombay Bar Association, ‘Enactment of Lok Manya Bal Gangadhar’s Trial’ (19 November 2016) <https://www.youtube.com/watch?v=RtMr1bdRYVA> accessed 1 December 2016.
53 Justice Davar was a judge of the Bombay High Court from 1906 to 1916.
54 The portraits in the Bombay High Court comprise mainly of former judges of the Bombay High Court, both Indian and British.
55 Queen-Empress v Bal Gangadhar Tilak & Keshav Mahadev Bal (n 12).
56 This account is based on newspaper reports: See Hindustan Times Correspondent, ‘Take down photos of judges who convicted freedom fighters: Plea’ Hindustan Times (10 August 2010) <http://www.hindustantimes.com/mumbai/take-down-photos-of-judges-who-convicted-freedom-fighters-plea/story-eKNFNBFXeWtto2Sr20bBQI.html> accessed 3 February 2017; Shibu Thomas, ‘PIL seeks removal of statues of British judges from courts’ The Times of India (Mumbai, 10 August 2010) 7.
57 Thomas (n 56).
58 ibid.
59 Hindustan Times Correspondent (n 56).
60 Press Trust of India, ‘PIL urges removal of portrait of judge who sentenced Tilak’ DNA India (Mumbai, 17 August 2012)
<http://www.dnaindia.com/mumbai/report-pil-urges-removal-of-portrait-of-judge-who-sentenced-tilak-1729243> accessed 3 February 2017; Philip Varghese, ‘Remove Justice Davar’s Portrait, Urges PIL’ Afternoon: Despatch & Courier (Mumbai, 18 August 2012) <http://www.afternoondc.in/epaper/Default.aspx?date=8/18/2012> 5, accessed 22 February 2018.
61 Varghese (n 60).
62 Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History (1774–1950) (Oxford University Press 2009).
63 ibid 218.
64 Singha (n 19) xi.
65 Kolsky (n 19).
66 This is unlike the experience of courts in the West as has been documented in Resnik and Curtis (n 33). Also see, Piyel Haldar, ‘In and Out of Court: On Topographies of Law and the Architecture of Court Buildings (A Study of the Supreme Court of the State of Israel)’ (1994) 7 International Journal for the Semiotics of Law 185; Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge 2011).