Bande Mataram

The High Court Miracles

20-August-1907

The situation in Bengal is one of a very peculiar kind and of extraordinary interest. There is a deep and widespread unrest in the country; a movement has commenced which the bureaucracy holds to be fraught with serious danger certainly to the British monopoly of commercial exploitation, possibly to the supremacy of British officialdom. In order to save these threatened citadels the bureaucrats in the Punjab and Eastern Bengal have embarked on a policy of thorough-going repression in which the practically unlimited and arbitrary power of an autocratic executive is backed up and confirmed by a zealous judiciary. The union of these two forces is essential to the success of the bureaucratic plan of campaign: for the strength of the bureaucratic position lies in the fact that all the powers of legislation and administration are centred unreservedly and without limitation in its hands. It controls the men by whom the law and the executive administration are carried out, for it not only exercises all the patronage of both services, but wields immense disciplinary powers. It can appoint and favour such men as are likely to do its will and it can punish with substantial marks of its displeasure those who disregard its interests or do

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not act according to its expectations. In an hour of crisis like the present when there is a powerful movement undisguisedly directed against the continued supremacy of the present ruling community in all its aspects, this concentration of all powers against the insurgence of the subject people is of the most vital importance. The executive must have a free hand to deal with the opposition of the demos without being hampered by inconvenient and trammelling considerations of legal procedure and the narrow limits of legality. But in a fight with an acute and intelligent people, a nation of born lawyers, this is only possible on condition that the judiciary are willing to support and confirm the actions of the executive unhesitatingly and without a qualm. These conditions have been secured in East Bengal and still more completely in the Punjab. But there is one weak point, the Achilles' heel in the otherwise invulnerable constitution of the bureaucracy, and that is the High Court of Bengal. The oldest and most venerable institution of British rule, with the most honourable traditions of integrity and independence maintained by a series of judges learned in the law, trained to the love of justice and equity and a calm judicial habit of mind, the High Court had become a thing cherished and valued, a refuge to the oppressed, a guarantee of eventual relief against executive vagaries. It had therefore attracted an almost superstitious reverence and was the chief moral asset of British rule. But the inevitable tendency of bureaucratic rule when threatened by the increasing self-assertion of the people, began eventually to affect the High Court. It is true that the High Court is independent of the executive authorities, but it is under the control of the Chief Justice, and by the simple device of securing a Chief Justice of weak personality and multiplying civilian judges of the right kind the institution can easily be converted into a source of strength to the bureaucracy instead of a source of weakness. Since the beginning of the reactionary policy which followed the Viceroyalty of Lord Ripon, this has been the increasing tendency of the High Court and the trust and reverence of the people has decreased proportionately, and the hold of British rule on their imaginations has decreased with it.

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We have always held that British justice as between Indians and Europeans or in cases in which the bureaucracy was judge, jury and accuser, must obviously and inevitably be a farce unless and until human nature ceases to have any resemblance to its present self. Neither had we any of that enthusiastic admiration for British law and its administration which was not so very long ago the fashion among Indians of the educated class. On the contrary we were compelled to regard its procedure as costly, dilatory and often calculated to defeat justice, its penal system repressive and its punishments savage and barbarous with the cold civilised brutality of a half-baked incomplete civilisation. Our respect for the High Court was tempered by a perception of the ease with which it could be captured by the bureaucracy for its own ends. We have therefore always decried the old moribund belief in the excellence of the British courts and the tendency to run to them for protection in all cases of oppression and injustice. Have the recent transactions in the High Court proved us wrong? They have certainly proved that there are still Judges Indian and English who can rise above the depressing atmosphere and lowered traditions of this once venerated institution and equal the distinguished record of those strong fearless Judges who have now become a memory, almost a legend of the past. There has been nothing like the series of important decisions given in a few days by Justices Mitter and Fletcher since the seven Bishops were acquitted. The bold opposition of the sense of justice and respect for law to the interests of an irritated and determined government in a time of great political unrest and disturbance, is an episode which history will love to record. But is it more than an episode? We apprehend it is the last flaring up of the old fire previous to extinction. The executive will surely take care not to repeat the error by which a fearless, just and religious Hindu lawyer has been placed on the Criminal Bench side by side with a young barrister Judge fresh from England and still full of the uncorrupted moral temper natural in a free country. The bureaucracy has blundered in its management of the High Court, but the power to utilize it is still in its hands and will no doubt be better handled in the near future than in the past. Let

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us not be unduly elated by the victory in the High Court: great as it has been, its causes are transient and its tenure insecure.