Remembrance: The Enduring Legacy of Justice Bhagwati

by Vijay Kumar

Justice P.N. Bhagwati, whose first death anniversary falls on June 15, 2018, was one of the most trail-blazing judges of the Supreme Court. His first landmark judgment was rendered in the Royappa case,1 in which he introduced the concept of arbitrariness in the text of Article 14, and thereby liberated the equality clause, which was, to borrow his own language, ‘cribbed, cabined and confined within the narrow and doctrinaire limit of classification’.

After the liberating judgment of Royappa, Justice Bhagwati was part of the majority, which had handed down the most infamous judgment rendered by the Supreme Court in habeas corpus case2 during the frightening time of the Emergency. The majority of four judges, including Justice Bhagwati, held that the very right to move to the court stood suspended during the subsistence of the Emergency. No judgment of the Supreme Court was subjected to so much vitriolic attack as the habeas corpus judgment was.

Confronted with trenchant criticism, Justice Bhagwati showed extraordinary judicial sensitivity and took recourse to emancipatory potential and liberating power of interpretive hermeneutics and, thus, refurbished his own credential and image of the Supreme Court, which had suffered immensely on account of the habeas corpus judgment, by importing the requirement of due process in the text of Article 21, which effectively meant that procedure for deprivation of life must be just and fair and reasonable in the celebrated Maneka Gandhi case.3 Thereafter, the procedural due process was converted into substantive due process, when Justice Bhagwati struck down erstwhile Section 303 of the IPC mandating for mandatory imposition of death sentence, in the event of commission of offence of murder while serving life imprisonment in the Mithu case.4

The most enduring legacy of Justice Bhagwati is the inauguration, and eventual institutionalisation of Public Interest litigation. Bhagwati also inaugurated a new constitutional hermeneutics by reading the social aspirations embodied in Part IV of the Constitution into the text of Article 21. By converting social aspirations of Part IV into social rights under Article 21, Justice Bhagwati, transformed “the Supreme Court of India”, in the language of Prof Upendra Baxi, into “Supreme Court for Indians”. It was Justice Bhagwati, who read dignity in life guaranteed under Article 21 in Francis Coralie Mullin.5 This judgment provided jurisprudential afflatus to the future generations of judges, when the Constitution Benches of the Supreme Court, on the cusp of right to dignity as a facet of right to life, held recently in Justice Puttuswamy and Common Cause that right to privacy and right to die with dignity are part of right to life guaranteed under Article 21 of the Constitution.

Justice Bhagwati also proved to be the most activist judge in widening the concept of ‘State’ under Article 12 of the Constitution. Another great contribution of Justice Bhagwati towards evolution and entrenchment of constitutio-nalism was his powerful dissent in the State of Rajasthan (Dissolution case) wherein he held that judicial review was available against the imposition of President’s Rule under Article 356 of the Constitution. It is this dissent which became the intelligence of the future day and persuaded the majority in the historic S.R. Bomai judgment that the majority in the dissolution case was in error. The numerous path-breaking judgments handed down by Justice Bhagwati bear the stamp of extra-ordinary judicial creativity and craftsmanship.

Like all great men, Justice Bhagwati contained a multitude of contradictions. Apart from notorious habeas corpus judgment, his majority judgment in the first judges’ case ended up by inflicting fatal wound on the independence of the judiciary. On the one hand, Justice Bhagwati, throughout his career, expanded the frontier of judicial review but, on the other, went with the majority in habeas corpus to hold that the very right to approach the court was taken away during the Emergency. However, the judgments which represent the flip side of Justice Bhagwati were undone shortly and thus the same was a flea bite compared to his other judgments through which his legacy will illuminate and endure for generations to come.

Footnotes

1. 1974(4) SCC 3

2. 1976 (2) SCC 521

3. 1978(1) SCC 248

4. 1983 (2) SCC 277

5. 1981 (1) SCC 608

The author is an Advocate of the Supreme Court.