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Remembering Justice P N Bhagwati

Geetanjoy Sahu ( teaches at the Tata Institute of Social Sciences, Mumbai.

Justice P N Bhagwati’s efforts to address the rights of prisoners, bonded labour, child labour, conditions of inmates of various asylums, the right of the poor to education, shelter and other essential amenities, and protecting and improving the environment with an additional emphasis on social justice continue to influence the legal minds of the country.

Justice P N Bhagwati—the former Chief Justice of India who died on 15 June 2017—was one of the leading jurists of India and the longest serving judges of the Supreme Court from 1973–86. He along with Justice V R Krishna Iyer introduced the public interest litigation (PIL) to help the poor and marginalised sections of the society, and expanded its application to embrace social and environmental justice questions. Justice Bhagwati was a great reader and had an excellent command over international laws and principles. He commanded attention from his fellow judges, and gained credibility from his clear thinking and grasp of detail and facts. He always preferred to write his own judgment and rarely dictated.

Born in Gujarat in 1921 as the son of the former Justice Natwarlal H Bhagwati of the Supreme Court, Justice Bhagwati graduated as a mathematician from Elphinstone College, Mumbai. Later, he completed his degree in law from the Government Law College, Mumbai. He started practising at the High Court of Bombay in 1948. He became a judge of the Gujarat High Court in 1960 and then became the Chief Justice of Gujarat in 1967. He was elevated to the Supreme Court as a judge in 1973, and subsequently, became the Chief Justice of India from 12 July 1985 to 20 December 1986.

Committed Judiciary

His tenure at the Supreme Court from 1973–86 was a crucial phase in the political and jurisprudence history of India. By the early 1970s, the establishment’s view of the judiciary was clear as the Court struck down a series of legislations of Prime Minister Indira Gandhi which include: bank nationalisation, abolition of privy purses, supersession of judges, Indira Gandhi’s election case, Kesavananda battle, etc. There was a feeling pressing upon the Court that its actions were being watched by the regime and there were hints that judicial power might be curbed in the days to come (Baxi 1980). Judges were given the impression by the establishment to choose between the philosophy of the ruling political party and philosophy of the Constitution. Judges supporting the decision of the establishment were rewarded and those who challenged were transferred or not promoted (Austin 1999: 328–47). This was the phase of committed judiciary.

Like many other judges, Justice Bhagwati also got caught between these two clear ideological positions as a young judge. The major challenge came to him when he was asked to be a part of the most controversial A D M Jabalpur v Shivkant Shukla (1976) case, popularly known as the habeas corpus case during the Emergency period. In this case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the Court as it struck at the very heart of the fundamental rights. Justice H R Khanna, incidentally, was the only judge on that bench, who dissented with the majority view arguing that the Constitution did not permit the right to life and liberty to be subject to any executive decree. This cost him the job of the Chief Justice of India and also an example of what I discussed earlier that it was the phase of committed judiciary.

In an interview, however, Justice Bhagwati expressed his regret to be part of ADM Jabalpur case’s majority judgment and said:

I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge. I was handling this type of litigation for the first time. But it was an act of weakness on my part. (Chhibber 2011)

He wanted to correct this mistake and made sure that his future judgments reflected the conscience of the Constitution.

The change of political regime in 1978 brought new hope for the judiciary. The Janata Party alliance government restored the lost glory of Indian judiciary during Emergency by reversing the transfers of judges. The judges also realised that whenever they opposed establishment policies they had to pay the penalty in the form of supersession of judges and constitutional amendments. When they supported establishment policies as they did during Emergency, they were criticised by public. In the changing political environment, the Court sought a revival of the pre-eminent position it had lost during the Emergency. A new judicial culture emerged during this period, the chief innovator of which was Justice Bhagwati. He played a significant role in the post-Emergency period to uphold the principle of social justice, constitutional propriety and human rights.

Emphasis on Due Process of Law

The Court delivered a historical judgment under the leadership of Justice Bhagwati in Maneka Gandhi v Union of India (1978). The case related to the issue of passport to Maneka Gandhi. The Court held that

the confiscation of Maneka Gandhi’s passport is violative of Article 14 of the Constitution since it doesn’t provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm to the word ‘procedure’ as mentioned in the clause, and the present procedure performed was the worst possible one.

The judgment pronounced by Justice Bhagwati held that the procedure established by law in Article 21 must satisfy the test of just, fair and reasonable in Article 14. Similarly, in Hussainara Khatoon v State of Bihar (1979), the Court under his leadership passed the landmark judgment regarding free legal aid to undertrials. An alarmingly large number of men and women, including children, were behind bars for years awaiting trial in the court of law because they were too poor to afford bail and the courts had no time to try them. Some of whom had been imprisoned as undertrials for terms longer than they would have been sentenced to, had they been convicted. The Court while dealing with the cases of undertrials who had suffered long incarceration held that the procedure under which a person may be deprived of his life or liberty should be “reasonable, fair and just.” Free legal services to the poor and the needy is an essential element of any “reasonable, fair and just” procedure. A prisoner who is to seek his/her liberation through the court’s process should have legal services available to him/her. This laid the foundation for future prisoner reforms in the country.

Liberalisation of Locus Standi Principle

Realising the complexities of justice system, cost of litigation, and the difficulties poor people face to access the court, Justice Bhagwati along with Justice V R Krishna Iyer liberalised the principle of locus standi and allowed third party to represent victims so that they are not deprived of justice. In several judgments, he held that where any right of a person is infringed or he/she has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public-spirited individual or any organisation can file an action on his/her behalf to ask the court to intervene to see that the human rights of poor people are restored. For example, in the case of S P Gupta v President of India and Others (1982), Justice Bhagwati observed that

where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the high court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.

He further encouraged civil society groups and public spirited persons to write letters or send postcards to the court explaining the illegality or injustice that people face in the society and treated them as writ petitions. This made a huge impact as far as access to justice system was concerned, and subsequently, became one of the major legal instruments for millions of people to avail justice.

Environmental Justice

Realising the trade-off between development and environment on the one hand, and the linkage between livelihood of people and environment on the other, Justice Bhagwati emphasised to integrate development, environment and human rights through his various judgments. In a number of cases he emphasised that the right to life includes the right to live in a healthy environment, and thereby, expanded the meaning of Article 21. A pioneer who recognised the futility of trading off the needs of people and the environment against each other, he realised that both had to be protected simultaneously. In this respect, he was one of the first judges to talk about what became known as sustainable development. For example, in the M C Mehta v Union of India (1987) (Oleum Gas Case) the Court, in view of the complex matter (health of people, workers’ livelihood and development), confessed that it was a difficult situation as the tilting of balance either way might entail serious consequences, and with a considerable hesitation, the Court reached the conclusion that the caustic chlorine plant be allowed to be restarted subject to a long list of conditions.

The Court further held that,

we cannot possibly adopt a policy of not having any chemical or other hazardous industry merely because they pose hazard or risk to the community. Industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary measures for locating such industries in a manner which would pose least risk or danger to the community and maximising safety requirements in such industries.

However, the Court ordered the management to deposit a sum of`20,00,000 by way of compensation in respect of the claims made by the gas victims. The management was also asked to give a bond guarantee of`15,00,000. In this case, the Court also emphasised the principle of absolute liability in the matter of injuries, on account of the use of hazardous substances.

He also introduced a series of innovative ideas to address environmental injustice question in India. Some of these include: recognising the right to a healthy environment as part of the fundamental right to life; directing polluters to follow environmental norms and regulations; ordering implementing agencies to discharge their constitutional duties in terms of protecting and improving the environment; determining the quantum of compensation for people affected by pollution; taking suo motu action against polluters; entertaining petitions on behalf of parties and inanimate objects (such as nature and wildlife, which cannot file litigation themselves) affected by pollution; appointing expert committees for inputs; making spot visits to assess the magnitude of environmental problems at the ground level, and encouraging petitioners and lawyers to draw the attention of the Court to environmental problems through setting up cash awards (Sahu 2014). These innovative ideas initiated by Justice Bhagwati to resolve environmental disputes have almost entirely dominated the environmental jurisprudence process for the last three decades.

Social Justice

Justice Bhagwati played an important role in directing the Indian state to fulfil its welfare goals and implement the Directive Principles of State Policies (DPSPs). For example, in the Bandhua Mukti Morcha v Union of India (1979) (Rights of Bonded Labour) case, the Court held that if any citizen brings before the court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the state government, which is, under our constitutional scheme, charged with the mission of bringing about a new socio-economic order where there will be social and economic justice for every one and equality of status and opportunity for all, would welcome an inquiry by the Court. Similarly, in Francis Coralie Mullin v Union Territory of Delhi (1981), the Supreme Court held that

the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.

He emphasised that the Fundamental Rights and Directive Principles of State Policies are complementary to each other and one is not subordinated to other.

These and a host of other landmark judgments under Justice Bhagwati’s leadership contributed immensely to Indian jurisprudence. His philosophy of justice was to ensure that people are not deprived of it due to complex administration and legal procedures. His efforts to address the rights of prisoners, bonded labour, child labour, conditions of inmates of various asylums, the right of the poor to education, shelter and other essential amenities, protecting and improving environment with an additional emphasis on social justice continue to influence the legal minds of the country till date.


Austin, Granville (1999): Working a Democratic Constitution: A History of the Indian Experience, New Delhi: Oxford University Press.

Baxi, Upendra (1980): The Indian Supreme Court and Politics, Lucknow: Eastern Book Company.

Chhibber, Maneesh (2011): “35 Years Later, a Former Chief Justice of India Pleads Guilty,” Indian Express, 16 September.

Sahu, Geetanjoy (2014): Environmental Jurisprudence and the Indian Supreme Court: Litigation, Interpretation and Implementation, New Delhi: Orient BlackSwan Publication.

Cases Cited

Bandhua Mukti Morcha v Union of India (1984): AIR, SC, p 802 (Rights of Bonded Labour).

Francis Coralie Mullin v Union Territory of Delhi (1981): 1, SCC, p 608.

Hussainara Khatoon v State of Bihar (1979): AIR, SC, p 1369.

Maneka Gandhi v Union of India (1978): AIR, SC, 597, p 48.

M C Mehta v Union of India (Oleum Gas Case) (1987): AIR, SC, p 1086.

S P Gupta v President of India and Others (1982): AIR, SC, p 149.

Updated On : 28th Jul, 2017


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