By Justice (Retd) Yatindra Singh

Lawyers and judges may not achieve their full potential if they confine themselves to reports and writings in India and no Bar can develop if seniors don’t pitch in.

It is illustrated with an incident during the Emergency – an advice from Satish Chandra Khare, (1911 – December 1, 1980) a stalwart of the Allahabad High Court Bar.

I began my legal career in 1973 in Banda, where my grandfather Keshav Chandra Singh Chaudhary practised. He was no more but two of my uncles Yogendra and Gyanendra Kumar Singh Chaudhary were still practising.

After a year at Banda and a year at Kanpur with Barrister Narendrajit Singh, I shifted to the Allahabad High Court; only to find my father arrested under Defence of India Rules (DIR) and when bail was granted to him, detained under Maintenance of Internal Security Act (MISA). One of my uncles at Banda was also detained.

Emergency was a difficult and challenging time, not only for our family but for the nation as well. I being a sufferer, knew the problems of the detenu and started doing their cases free of cost. I got plenty of them. The incident happened during this period, sometimes in 1976, when I was arguing one such case. But before I tell you about it, a brief sketch of S.C. Khare (1911 – 01.12.1980).

Satish Chandra Khare – A brief life sketch

S.C. Khare passed Intermediate from Government Inter College, Allahabad (1931). He took his graduate degree in Science (1933), Masters in Botany (1935) and law (1938) – all from the University of Allahabad in flying colours. He started his practice in the District Court Allahabad and shifted to the High Court in 1953 and got himself enrolled by the Registrar of the High Court on 21.01.1953. He made his mark and rose to prominence with Dr Ram Manohar Lohia case (AIR 1955 Allahabad 93).

Dr Lohia was arrested and prosecuted under section 3 of U.P. Special Powers Act, 1932 for making two speeches in favour of farmer’s agitation against hike in irrigation cess. A habeas corpus petition was filed questioning the validity of the section and for his release. SC Khare had science background: language was not his forte. Yet, he opened his submission after great deliberations (as narrated by those, who were present in the court), “An archaic, rusted, and obsolete law in the armoury of the State has been applied to stifle the most fundamental of all freedoms – the freedom of speech.”

He was opposed by the then Advocate General Kanhaiya Lal Mishra, the best lawyer in the country at that time, with unmatched oratory. When he rose to defend the state action, he began, “If the law applied is archaic, rusted, and obsolete, then this court is archaic, the legal system is rusted and the reports are obsolete that so readily invoked by my worthy friend.”
But his advocacy could not save Section 3. It was held to be violative of Article 19 (1)(a) and the habeas corpus was allowed. The judgement was upheld in AIR 1960 SC 633.

There were many stalwarts, when I entered the Allahabad Bar in July 1975 but he was the most brilliant one. I never had the good fortune to assist or to oppose S.C. Khare in any case but many of my colleagues had that privilege. They shared with me his two qualities that endeared him to the juniors:

He always praised the juniors on their drafting before the client. However, when the clients left, he would point out the shortcoming, normally often in unparliamentary language. Nevertheless, it left the clients impressed with the juniors and criticism improved their drafting;

If a client ever came to him for the second time, he would not hand him over to a junior in his chamber but always asked the client to get that junior, who had brought that client on the earlier occasion. This ensured that the juniors never lost their clients.

He was an early riser. He would leave his chamber by 8 pm, though his junior continued to work late into the night. He would get up at around 3.30 am to prepare the cases for that day and often called assisting counsel around 5 am. He would normally note down the time of preparing the notes; perhaps to leave a message to the future generation that this is the best time to prepare the case. This is the what other great lawyers also do.

V.B. Singh, a senior advocate of the Allahabad High Court and former Advocate General, in an article titled, Snippets From The Past in ‘Gavel And Pen’ – the sesquicentennial commemorative volume has mentioned about an incident, when he had gone to consult Nani Palkhiwala. He writes, “To my amazement, we were given an appointment [By Nani Palkhiwala] at 5 am. … [When we reached there], it was surprising to see Palkhiwala was already giving dictation in another case, and other clients were in conference with him.”

S.C. Khare trained his juniors well: two of his juniors (Justice K.N. Singh and Justice V.N. Khare) retired as Chief Justices of India; five others as High Court judges; one of his juniors, N.C. Upadhayaya became Advocate General of UP in 1980s. Justice K.N. Singh in his tribute to him in Post Centenary Silver Jubilee Celebration commemorative volume-1 writes,

“The Constitution opened up fresh avenues of litigation arising from the expanding horizon of Judicial Review of executive action … Sri Khare … acquired a complete mastery over the constitutional law …and reigned supreme as a great constitutional lawyer. … It was a usual sight to find [Sri Khare] awake browsing through the files and books and exploring the labyrinths of law till late in the night and often in the early hours of dawn. … The beauty … and brevity [of his submission] … left his opponents amazed and astounded.”
Now, let’s talk about the incident.

The Incident

Basically, there were two kinds of litigation in connection with the Emergency: firstly, it was for release of the detenu; and secondly was for their salary, or subsistence allowance, or better treatment in jail. These petitions were vehemently opposed by the eminent counsel for the State. S.N. Kacker, the Advocate General, when emergency was imposed: He later resigned, as Chief Minister H.N. Bahuguna resigned. It turned out a boon for him, he was appointed Solicitor General of India after the Emergency.

Raja Ram Agarwal (father of Justice RK Agarwal Retd. Judge Supreme Court): He became Advocate general when Kacker resigned.

BD Agrawal, the chief standing counsel: He was appointed as additional judge of the Allahabad High Court after Emergency but resigned because of seniority dispute with Justice V.K. Khanna.

The jail manual provided three categories namely ‘A’, ‘B’ and ‘C’ of imprisonment: category ‘A’ being the best and ‘C’ being the worst. The detenu were highly educated, income tax payee, respectable people from different walks of life. All of them were entitled to category-A. But there were too many of them. The Government was unable to provide category-A to them.

To overcome the difficulty, the State Government amended the rules giving sole discretion to the District Magistrate to determine the category of the detenu. They were placed in the worst category ‘C’. I filed the the petition challenging the vires of the amended rule as well as for giving them category-A.

The case was being argued before the bench of Justice Yashodanandan and Justice B.N. Sapru in present court number 35. I was pressing a point that the State government is a delegate, it cannot further delegate its power to the District Magistate on the legal maxim ‘delegatus non potest delegare’. It was being opposed by the Advocate General Raja Ram Agarwal, assisted by the Chief Standing Counsel BD Agarwal. Their joint opposition was formidable. I was not making any headway.

The court knew of the grave injustice to the detenu but was not able to find legal basis to grant relief. After some arguments, the case was adjourned for further preparation. My father V.K.S. Chaudhary was detained under MISA and I was at a loss to find a solution.

S.C. Khare was also in court, listening to the arguments. When I came out of the court, I found him standing in the corridor. He called me over and said that he did not appear in these cases for personal reasons. He blamed himself for the injustice and misery. He had appeared for Indira Gandhi, the then Prime Minister, in the election petition. It was after she lost that the Emergency was imposed and people were detained. He told me that the case had one other good point that I should pursue; I should meet him next day morning at 6 am at his residence, where his office was; and he would properly explain the point.

The next day, I found him sitting outside his office basking in the sun with a report. He asked me read Padfields Vs Minister of Agriculture [1968] 1 All ER 694; 1968 AC 997 (the Padfield case): a case about exercise of discretionary power. I must confess, I had not read this case. But it was an important one and I should have read or at least known.

England was divided into 11 regions of milk producers, with different prices for milk. They were fixed considering the cost of transporting milk from the producers to the consumers. The prices could be changed on the recommendation of a committee appointed under the Agricultural Marketing Act 1958. Milk producers of the South East Region claimed that they should get more milk subsidies to reflect growing transport costs. But the Minister concerned had refused to exercise discretion to appoint the committee. Milk producers filed a case for direction to appoint one.
The Court of Appeal, by a majority of two to one, held that the minister’s discretion could not be challenged. The House of Lords reversed the decision and held that:
The minister’s discretion to refuse an investigation was subject to judicial review;
The discretion is conferred to promote the policy and objects of an enactment. It should not be exercised to thwart or run counter to its policy or objects;
The discretion has to be exercised on the relevant considerations. It cannot be exercised arbitrarily and its wrong use is subject to judicial scrutiny;
In case, the relevant considerations are not specifically indicated then the court should cull them out from different provision of the enactment.

Khare explained that the relevant considerations in my case were: the status of the detenu in society; income tax paid by them; their educational qualification; and why were they arrested – they had not committed any crime, they were political prisoners. His suggestion was to pursue this line.

I argued on the lines suggested by him and cited the Padfield case. The court was impressed by my knowledge of administrative and British law, imparted a day before by SC Khare. Needless to add, despite strong objection by the combined team of the Advocate General and the Chief Standing counsel, relief was granted.

S.C. Khare not only gave me the first lesson in administrative law but also taught me how to develop myself. When I informed him that I was reading AIR Supreme Court and Allahabad Law Journal to keep myself abreast with law, he told me that it was not sufficient; I should read also read the reports of the courts world over as well as established law journals: the secret of the lawyers and judges finding innovative ideas.

We used to get All England Law reports and US Supreme Court Lawyers Edition. But I wasn’t reading them. It was on his advice that I started reading them as well. We were not subscribing to the Harvard Law Review or Quarterly Law Review but High Court was. Some of my colleagues were sons of High Court Judges. With their help, I got access to them as well.

I used to read every case and article word by word till I became a judge. Then, due to shortage of time, I limited myself to head-notes, summary and reading them in full only if it interested me. This led to, what I am today.

Conclusion
In my career of last 50 years, I realised that most of the times, great and innovative ideas attributed to many, are not their original ideas but are often borrowed or copied from others: they have merely practised or used them consistently. This is the reason that great lawyers, great judges always take out time to read law reports form other countries as well as established journals – to get their clues/ ideas.
The lesson is that if one wishes to go further in the legal field, do read the literature from the world over. And seniors may not hold their cards close to their chest; they should disclose them to the juniors. They are the future of their Bar.

-Justice Yatindra Singh is a former Chief Justice of Chhattisgarh High Court. He has served as Additional Advocate General of Uttar Pradesh. He has authored two books, Cyberlaws & A Lawyer’s World and Childhood Dreams.