Justice R.S. Pathak — A Centenary Tribute

Justice R.S. Pathak, the 18th Chief Justice of India was a gentleman Judge, amongst the youngest to be appointed a Judge in post-Independence India and amongst the longest serving. He was the second youngest with the second longest tenure — 26 years, 8 months on the Bench; the youngest was Justice Murtaza Fazl Ali with a tenure of 27 years, 4 months. This November 25 marks Justice Pathak’s birth centenary. It is appropriate that we remember him, recall and celebrate his life and work and pay tribute to his revered memory.

The son of Gopal Swarup (G.S.) Pathak, himself an illustrious lawyer who appeared for one side or the other in the first fifteen years of the Supreme Court and was subsequently Governor of Mysore and Vice-President of India, and son-in-law of an Army General, he was related by blood or marriage to some of the most distinguished families of Uttar Pradesh. Raghunandan Swarup Pathak was born on Tuesday, 25-11-1924 at Bareilly where his father had started his law practice. Soon thereafter, in 1928 G.S. Pathak shifted to Allahabad, the ancient city of Prayagraj now known again by the same name; and Raghunandan Swarup was for all purposes an Allahabad boy — Allahabad, an intellectual and cultural hub, has been considered as the Oxford of the East. He had his education at St. Joseph’s High School, Allahabad and Ewing Christian College, Allahabad. A brilliant student he was the topper in both ICSE and ISC, then known as Senior Cambridge. He graduated in Science, Physics and Mathematics were his subjects, and then secured a Master’s Degree in Political Science before pursuing law. In all these he did splendidly well. He was always particular to do law and become a lawyer, but he was keenly interested in equal measure in Physical Sciences as also Political Science. That interest continued lifelong. Even after retirement he would be studying Astronomy and kept himself abreast with the developments in the scientific world. All this reminds us of another remarkable person — a kindred spirit — Sir Shah Sulaiman paying tribute to whom Justice Pathak wrote: In him, the three driving forces of civilisation — Law, Science and Education — found a remarkable meeting place.

I have heard it from him that as he continued his pursuit of studying various disciplines, at one stage his father advised and urged him that if he was keen to be a lawyer and practise law, he should soon finish his law course and join the Bar. Obtaining the LLB degree from the Allahabad University which was one of the most prestigious in the field, R.S. Pathak enrolled as an Advocate and started the general practice of law on 8-11-1948 joining the chambers of his father where a sound and solid foundation was laid. The father was a prosperous lawyer with lucrative practice, having also served as an Acting Judge of the High Court for six months in 1945 and then returned to the Bar heeding the advice of Sir Tej Bahadur Sapru that the senior Pathak’s legal talent and integrity were more appropriate to and needed at the Bar. However, the father insisted that the son should come up the hard way: the family car was not at his disposal and he had to travel from the office to the court and from one court to another on a bicycle in the sweltering heat of Allahabad. That hardens you and strengthens your character. His practice was wide and varied and spread in different courts and covered different areas of law — civil, constitutional, taxation — direct and indirect, company and labour. He had a lot of work in Direct Taxation.

He built up a large practice and a reputation as a sound and painstaking lawyer and an effective advocate. He soon caught the attention of Justice Orby Howell Mootham who was Chief Justice of the Allahabad High Court between 1955 and 1961 (the last English Chief Justice of Allahabad) and Pathak became his protégé. Mootham was the third last British judge to serve in India, the other two being Justice Donald James Falshaw who was Chief Justice of the Punjab High Court till 1966 and Justice William Browne who served in Allahabad High Court till 1972. Incidentally it may be mentioned that Browne had married the daughter of Sir Hari Singh Gour, the eminent jurist and lawyer from Nagpur; and it was said to be a remarkable marriage. Mootham went home to England every summer vacation. On the eve of one vacation he asked Pathak what he would like to have from England and the young lawyer jocularly mentioned an English car. The Judge did have it brought from England by steamer. Mootham proposed to make Pathak a High Court Judge, but he was considered too young then and it happened only after Mootham’s retirement. Mootham lived to the grand old age of 94 and passed away in England in 1995. Justice Pathak called on him shortly before his death.

R.S. Pathak was appointed as an Additional Judge of the Allahabad High Court on 1-10-1962 and a permanent Judge on 23-7-1963. On 18-3-1972 he was appointed Chief Justice of the Himachal Pradesh High Court at Shimla. He was elevated as a Judge of the Supreme Court on 20-2-1978, and on 21-12-1986 he took office as Chief Justice of India succeeding Justice P.N. Bhagwati who retired. Justice Pathak demitted that office on 18-6-1989 consequent upon his election as a Judge of the International Court of Justice at Hague following a vacancy that arose due to the demise of India’s nominee there — Dr Nagendra Singh.

Post retirement, R.S. Pathak was the head of Inquiry Committee looking into matters relating to Volcker Committee Report¹ which was regarding the alleged Indian Links in the UN Oil-for-Food Programme. He was the Co-President, Court of Arbitration for Sport ad hoc Division, 1996 (Atlanta) and 2000 (Sydney) Olympic Games and the Winter Olympic Games (Nagano-1998). For the 1998 Commonwealth Games in Kuala Lumpur, he was the President of the Court of Arbitration. He was also the President of the Court of Arbitration for the Winter Olympic Games to be held at Salt Lake City in the USA. He also had a close relationship with the Shivalik and Himalayan region during his tenure as the Chief Justice at Shimla. He was also a Member of the IUCN Commission on Environmental Law.

These are some bare details of his life and career. But they do not fully reveal the man and his qualities of head and heart which he did not wear on his sleeve. He was well grounded in legal theory and was sound as a lawyer and as a Judge. His knowledge of the law was profound. He was meticulous in all that he did. Commitment to his work and loyalty to all those who were associated with him were his hallmarks. His humanity was conspicuous and he had an empathy which enabled him to grasp the problems of the world.

Justice Pathak was every inch a Judge cast in the traditional mould who believed that Judges must keep away from the media and should not be prone to publicity. He mentioned this to me: Soon after he was sworn in as Chief Justice of India, hordes of media persons, both print and electronic, approached him an wanted him to speak to them, particularly about his plans and priorities as the Chief Justice of India (CJI). He declined reminding them that a Judge or Chief Justice should be seen and heard only in the courtroom. Despite his refusal, some of the media persons who claimed friendship with his son landed up at his residence hoping that they might be able to persuade the Chief Justice to appear before the camera and say a few words. They were disappointed. Justice Pathak offered them a cup of coffee but refused to say anything reiterating the position to which he was committed that whatever he had to say would be said in the first court.

It may not be amiss to say that following the tumultuous period of the Indian judiciary preceding his chief justiceship, he brought relative peace and stability to our judicial system, especially the Supreme Court. One of his greatest contributions was that he brought some real talent to the Supreme Court Bench. Fali Nariman mentions in his autobiography: “Chief Justice Pathak took his role of recommending names to the Supreme Court Bench very seriously. On his frequent travels to various cities, he would assess the work and worth of individual Judges who were reputed to be bright and competent for appointment to the highest court.” Soon after taking over as CJI, Justice Pathak went round the country in the summer vacation of 1987 to gather details, know and understand about Judges for elevation to the Supreme Court. He held extensive discussions with the leaders of the Bar, among others, to find out who truly deserved to be elevated. The exercise was not futile; he was able to get persons like L.M. Sharma, M.N. Venkatachaliah, S. Ranganathan in the first instance and thereafter, A.M. Ahmadi, N.D. Ojha, J.S. Verma, among others. Pathak was amongst the few, or perhaps the only, Chief Justice to have undertaken such an exercise. There was quality-value addition to the Court. It is important that there should not only be sufficient number of Judges, but that you have good Judges, and, of course, great ones if you get them. Great Judges are indeed rare.

Justice Pathak was in the Supreme Court as a Judge and later as the Chief Justice during a turbulent time in its history — a period of great and rapid transition, when the Court was coming out of its “darkest days” during the emergency, as Seervai put it and endeavouring to come into its own as a sentinel on the qui vive and a bastion of people’s rights and liberties and forging new tools of legal control of Government. In one sense he was a bridge between the old and the new, conserving the good in the past and the traditions and liberalising and innovating techniques and procedures. He assumed office as Chief Justice of India following the tenures of two titans — Chandrachud and Bhagwati, JJ. But Pathak was not found wanting in any manner. He steered the ship of the Court with finesse. He did not take an extreme position in any matter. He generally adopted the middle path. It is important that such an attitude is laudable, those who follow the middle path do commendable work in eliminating friction and finding a way out of an impasse. He always attempted to strike a balance. He was alive to the fact that even the cause of reform is best served by a sense of studied moderation. One hears all that echoed in his judgments. As a Judge and as Chief Justice he was party to and authored some of the very memorable judgments of the Supreme Court that helped translate constitutional phrase into reality, upheld constitutional values and rights and enforced constitutional limitations. His judgments were marked by profundity of thought, facility of ideas and felicity of expression. Reference may be made to some of them:

In Union of India v. Raghubir Singh², he enunciated,

10. … like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for readjustment in a changing society, a readjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that “the life of the law has not been logic it has been experience”,³ and again when he declared in another study⁴] that “the law is forever adopting new principles from life at one end”, and “sloughing off” old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined.⁵

12. The universe of problems presented for judicial choice-making at the growing points of the law is an expanding universe. … many occasions for new options arise by the mere fact that no generation looks out on the world from quite the same vantage-point as its predecessor, nor for that matter with the same perception. A different vantage-point or a different quality of perception often reveals the need for choice-making….

13. Not infrequently, in the nature of things there is a gravity-heavy inclination to follow the groove set by precedential law. Yet a sensitive judicial conscience often persuades the mind to search for a different set of norms more responsive to the changed social context. The dilemma before the Judge poses the task of finding a new equilibrium, prompted not seldom by the desire to reconcile opposing mobilities…. Whatever the degree of success in resolving the dilemma, the Court would do well to ensure that although the new legal norm chosen in response to the changed social climate represents a departure from the previously ruling norm, it must, nevertheless, carry within it the same principle of certainty, clarity and stability.

14.… In a developing society such as India the law does not assume its true function when it follows a groove chased amidst a context which has long since crumbled. … The social forces which demand attention in the cauldron of change from which a new society is emerging appear to call for new perceptions and new perspectives. … The acceptance of the principle that the Supreme Court was not bound by its earlier judgments and possessed the freedom to overrule them when it thought fit to do so to keep pace with the needs of changing times ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society.

15. The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest court overturn its own pronouncements.

Then again in Bandhua Mukti Morcha v. Union of India⁶, he stated with great perceptiveness,

54. … The fundamental conception of the Court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges undermines its very existence and endangers its proper and effective functioning.

55. In public interest litigation, the role of the Court is more assertive than in traditional actions, it is creative rather than passive and it assumes a more positive attitude in determining facts.

56. … The nature of the litigation sometimes involves the continued intervention of the Court over a period of time, and the organising of the litigation to a satisfactory conclusion calls for judicial statesmanship, a close understanding of constitutional and legal values in the context of contemporary social forces, and a judicious mix of restraint and activism determined by the dictates of existing realities. Importantly, at the same time, the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers, and avoid trespassing into political territory which under the Constitution has been appropriated to other organs of the State.”

61. Where the Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within the social order, few critics will find fault with it so long as it confines itself to the scope of its legitimate authority. But there is always the possibility, in public interest litigation, of succumbing to the temptation of crossing into territory which properly pertains to the legislature or to the Executive Government. For in most cases the jurisdiction of the Court is invoked when a default occurs in executive administration, and sometimes where a void in community life remains unfilled by legislative action. The resulting public grievance finds expression through social action groups, which consider the Court an appropriate forum for removing the deficiencies…

62. In the process of correcting executive error or removing legislative omission the Court can so easily find itself involved in policy-making of a quality and to a degree characteristic of political authority and indeed run the risk of being mistaken for one. An excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions. The Judge, conceived in the true classical mould, is an impartial arbiter, beyond and above political bias and prejudice, functioning silently in accordance with the Constitution and his judicial conscience. Thus, does he maintain the legitimacy of the institution he serves and honour the trust which his office has reposed in him.

65. An activist court, spearheading the movement for the development and extension of the citizen’s constitutional rights, for the protection of individual liberty and for the strengthening of the socioeconomic fabric in compliance with declared constitutional objectives, will need to move with a degree of judicial circumspection. In the centre of a social order changing with dynamic pace, the Court needs to balance the authority of the past with the urges of the future.… In that task the Court must ever be conscious that if its contribution to the jurisprudential ethos of society is to advance our constitutional objectives, it must function in accord with only those principles which enter into the composition of judicial action and give to it its essential quality.

66. … Both certainty of substance and certainty of direction are indispensable requirements in the development of the law, and invest it with the credibility which commands public confidence in its legitimacy.

Justice Pathak’s court was characterised by great dignity and decorum, unfailing courtesy and patience. In his court good law was well administered. Everyone got a full and fair hearing. His judgments were a blend of good law and good literature and covered a wide spectrum of subjects revealing his familiarity with fundamental principles of law and jurisprudence. He was not wedded to any “ism”, he was devoted to constitutionalism and pragmatism which devotion made for judicial statesmanship. While he was solicitous of the rights and liberties of the people and the need to rein in Government and to imbue all State action with constitutionalism, he did not proceed on a distrust of other wings of Government. He was careful in maintaining the right balance among the different wings. As much as he was aware of the need and significance of judicial activism, he was conscious of its inherent limitations in the promotion of a welfare State. His judicial outlook and philosophy help to build a discourse about the judicial process and the role of a Judge, a discourse that is jurisprudentially and theoretically robust. A study of Justice Pathak’s life and work would demonstrate judicial moderation evidenced by a careful and judicious evaluation and balancing of competing claims and conflicting interests and the intensity and diversity which marked the scripting of his judgments. He was mindful of the fact that it is in the institutional division of powers and work and accommodation that that the nation will progress on constitutional lines. He was also conscious that the attitude of judicial humility and restraint is not an abdication of the judicial function, but is a due observance of its limits. He rightly observed, “As new areas open before the Court with modern developments in jurisprudence, in a world more sensitive to human rights as well as the impact of technological progress, the Court will become increasingly conscious of its expanding jurisdiction. That is inevitable. But its responsibilities are correspondingly great, and perhaps never greater than now. And we must remember that there is no higher court to correct our errors, and that we wear the mantle of infallibility only because our decisions are final. That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles.”

Striking a personal note, I had the privilege of knowing Justice R.S. Pathak even before I finished the law course and enrolled as an advocate. Our association began with a letter I wrote to him — “a bread and butter note” and that correspondence was kept up even when he was in the world court and till his passing. He would always promptly respond. He made touching enquiries about my success and welfare. I had also occasions to meet him both in Delhi and when he visited Bangalore. Those were all delightful experiences. On one occasion when I was just a couple of years old at the Bar, I had dropped in casually at 5, Krishna Menon Marg, the official residence of the CJI, it was a courtesy call to pay my respects. The Chief Justice was in some meeting and so I could not see him. His personal staff were kind enough to note the telephone number of my relative’s home where I was staying. Those were times much before mobile phones were even dreamt of. To my utter and very pleasant surprise, the next day I got a call from the CJI’s home office that I could call on him that evening. I did visit him and we spent some time together talking of law and other things. All that brings out more of his personality: his greatness, generosity of heart and magnanimity of spirit.

Both as a Judge and a man, he was uniformly gracious. He was a genuine human being, truly aristocratic in the noblest sense of the term. He was noted for his liberality of thought and catholicity of approach. It may be said that he moved through life carrying his offices and achievements with unassumed ease. “He was the acme of honour and the pink of courtesy.” Justice Pathak answered the final summons of his maker at the age of 83 on 17-11-2007 . The world of law and humankind were diminished by the loss. It will not be easy to see the likes of him.