Read this powerful and pungent dissent in the recent Dobbs decision overturning Roe v. Wade from SCOTUS dt..24th June,2922. “The majority’s cavalier approach to overturning this Court’s precedents. Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decided should stay decided unless there is a very good reason for change. It is a doctrine of judicial modesty and humility.
Those qualities are not evident in today’s opinion. The majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs.
Women have relied on the availability of abortion both in structuring their relationships and in planning their lives. The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. Indeed, the Court in Casey already found all of that to be true. Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted.
The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Payne v. Tennessee, 501 U. S. 808, 827 (1991); Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.”
And then one noted this – Chief Justice John Roberts, in office since, 2005 presiding over the ‘Roberts’ Court’ for 17 plus years, is now a pale shadow of the ‘Referee’ he wanted to be. He has lost his authority and sway over his brothers and sisters on The Nine. He tows a solitary furrow. All on his own. Ever since- 3 Donald Trump nominees- Neil Gorsuch, Brett Kavannaugh and Amy Coney Barrett, joined Clarence Thomas and Sam Alito to make a comfortable conservative majority, Stephen Breyer, Sonia Sotomayor and Elena Kagan, the liberals lost their voice. And John Roberts got squeezed in the middle.
Even as one was reading the dissent and its catastrophic consequences,“ K L Gauba’s The New Magna Carta- A Tale of Judicial Tyranny- The curious case of Kwaja Nazir Ahmed, edited by the young and mercurial new kid on the legal block Sharath Chandran, practising Advocate, Madras High Court, got added to one’s library. The attractive coloured cover lured and the Foreword by Justice P N Prakash was a perfect appetiser. And this quote from the Foreword
“ ……what if a judge abuses the power and the authority vested in him? What if he passes orders, knowing or having reason to believe that they are unlawful? What if he becomes partisan and turns his court into a forum of oppression? What if he stifles legitimate criticism of his conduct and reduced the administration of the justice to the ridicule and mistrust of the public? Has the subject no remedy? “
poser from K L Gauba, the Lahore legal luminary, was a perfect fit, from the book in my hand.
“Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law”- ran the Dobbs’ dissent from SCOTUS. This is ‘today’. Chief Justice Sir John Douglas Young and Monroe were from ‘yesterday’. Nothing changes while everything changes as Sharath Chandran says, on the relevance of this book today. And Justice P N Prakash conscientiously concedes what the tyranny of the unelected minority could be if ‘proclivities of individuals’ take over the ‘justice market’ (as Justice Krishna Iyer sarcastically alluded to it)?
A chance encounter and a serious pursuit landed the editor on this proscribed and unpublished work, lying unsung in the Nehru Memorial Museum Library, Delhi. He was unfettered to edit the unpublished work with no copyright concerns. Law & Justice Publishing Co,Delhi have done a good job in packaging the contents. In 226 pages of crisp editing, the book is as racy as they can ever get, in such genre.
Chief Justice Young and Kwaja Nazir Ahmed the chosen Anti Corruption Officer in the Lahore High Court played havoc in tandem, and in irrefutable conspiratorial conduct. Kanhaiya Lal Gauba was a busy Barrister and ‘successful author’. Gauba went hammer and tongs at the ‘tyranny’ from the bench and took names, dates, events and even corrupt money involved and daringly took on the high and mighty. Yes, Gauba and his family suffered hugely, losing properties in targeted insolvency and contempt proceedings. He was unconcerned. Gauba was literally hounded, but he manfully stood up and wrote what he meant to, for posterity,and Sharath Chandran has done well to dig deep for our reading,literate and legal pleasure.
There may be no Douglas Youngs’ among us now. Or so we must believe. But we have his look alikes with crown on the cranium posture and looking down from above. There is far more to this book than the famed all time message of 17th Oct,1944, second world vintage, from the Privy Council- It is “of the utmost importance that the judiciary should not interfere with the police in matters which are within their province into which the law imposes upon them the duty of enquiry”, which unequivocally placed limits to the remit of a court over domain of police in investigation.
Sharath Chandran has done well to quote in Part IV of the work- “Looking Back”- Autobiography of Chief Justice Mehr Mahajan, who was K L Gauba’s contemporary in Lahore High Court. To quell any doubters as to how far Douglas Young & Kwaja Nazir Ahmed went, amok and berserk with their ‘individual proclivities’, and whether the Douglas Young v. K L Gauba’s tango and tangle were true at all.
Sharath Chandran, don’t you worry, the edited work has more than a ‘ring of truth’, in substance. The exchanges in court between Gauba and the Bench make fascinating interludes. Gauba was truly a maverick. The dare-devilry he displayed is stunning. Fearless and ferocious in defence, Gauba was a larger than life character who lived and practised law , like he did, in pre independence India. The book is worth far more than the Rs.395/- price tag it carries.
One truly wonders whether a Gauba can survive beyond a day or two today,in the judicial firmament.
Justice P N Prakash may possibly have zeroed in on the core theme of this long lost unpublished work of K L Gauba.
“Though Mr. Gauba is apt to be characterised as irascible and a rabble rouser,i n him one finds a good example of the fearlessness of an Advocate first set out in the following passage from Munster v. Lamb (QBD) and later by a Full Bench of the Madras High Court in Sullivan v. Norton,
“If any one needs to be free of all fear in the performance of his arduous duty, an advocate is that person”.
But do we really have such a fearless advocate as he? Can one afford to be?
In dog eat dog world of commerce, in law, what we may surely have are advocates fearless in doing what their commerce guides them to, and deem it their privileged/arduous duty to see their clients, eternally pleased, by keeping the court in good humour, and never ever get on the feud side, all the time. That is as Fearless as we can get!
For Fear of Being ‘GAUB’BLED!
(Narasimhan Vijayaraghavan- Author of Constitution it’s Making and Working, OakBridge, 2020/2021-and practising advocate in the Madras High Court)