Indian Political Science Association

Federal Judiciary in India: A Historical Retrospect

Author(s): K. P. Misra
Source: The Indian Journal of Political Science, Vol. 25, No. 3/4, CONFERENCE NUMBER
FOR XXVI INDIAN POLITICAL SCIENCE CONFERENCE 1964: ANNAMALAINAGAR
(JULY—SEPTEMBER—DECEMBER, 1964), pp. 157-170
Published by: Indian Political Science Association
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 Federal Judícíarq in India
A Historical Retrospect
K. P. Misra

Reader in Political Science .

Rajasthan University , Jaipur .

Introductory
A study of the pre-independence period of our country would reveal that many
of the political and constitutional institutions were established largely owing to the
persistent demand of the nationalist opinion. For obvious reasons, Indians during
that period, demanded that with a view to establishing self-government in the
country, needed institutions should be established and the British control over them
should be reduced to the minimum. The story of the creation of federal
judiciary was no exception to this rule.

Statutory link between India and the Privy Council in England had begun
through the provisions made under the Regulating Act, 17732 As in the case of the
other parts of the British Empire, the Privy Council was made the highest courl
of India also.

There were several reasons for considering the judicial system as it had evolved
during the British rule of the first hundred and fifty years or so, particularly at the top,
as unsatisfactory. There were no doubt certain evils or defects in the way Indian
appeals were being disposed of by the Privy Council. But perhaps the main factor
was the distinct advance which the country had made in the course of the freedom
struggle soon after the first world war. The country had reached a stage when
advance on previous lines appeared impossible. The fact that this was realised even
by the British was evident from the declaration made by the Secretary of State for
India, Mr. Montagu in August 1917 in the House of Commons, a declaration
which Sir Ernest Barker rightly characterised as Magna Carta of India.

As a part of the general progress that the country had made in her political
thinking, the views regarding the need for some kind of highest judicial body for
India, free from the control of the Privy Council, had also caught the imagination of
some of the Indian leaders. Thus speaking in the Central Legislative Assembly,
Sir Hari Singh Gour had said that " the self-respect of India demands the establish-
ment of such a court. With the establishment of the Supreme Court, Swaraj would
come nearer ; without it Swaraj would be an illusion." 2

1. For the principles and organisation of the judicial system under the British rule, see Cowellt
Courts and Legislative Authorities in India .
2. Legislative Assembly Debates , (1925) Volume V. pp. 1165.
20a

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 158

Evils of the Existing Judicial system

There were a number of evils in the then existing system of appeals from the
High Courts to the Judicial Committee of the Privy Council. The unsatisfactory
disposal of Indian appeals by it, particularly in cases where questions of Hindu and
Muslim laws were involved, caused much resentment in India.

The English judges who mainly constituted the Judicial Committee of the Privy
Council did not have satisfactory grasp of the fundamentals of the two systems-Hindu
and Muslim. The right of these two major communities to regulate their lives and
property by their own laws was recognised by an enactment of the Imperial Parlia-
ment in 1781. 8 The courts in India and the Judicial Committee of the Privy Council
were, therefore, under the obligation to keep this provision in their mind while decid-
ing cases in the sphere. But for an English judge who knew nothing of Arabic and
Sanskrit and who had no knowledge and experience of the social practices and tradi-
tions of the two communities, it was very difficult to ascertain the precise rules of the
two systems.

In the sphere of personal laws of the Hindus, the English judges used to depend
upon the English translations of Sanskrit books which did not really represent the
prevalent customs and usages, largely because they did not take into account the
customary law. The result of this state of affairs was that, at times ,the principles
enunciated by the English judges were quite contrary to the laws and practices the
of the Hindus.4 Even Englishmen realised the dificulties. For instancee, Sir W. C.
Pethram criticised several judgments which had been decided by the Judicial
Committee on the groundthat they were erroneous. 5

Almost similar was the situation in relation to Muslim Law. In a case the
Judicial Committee held that under Muslim Law, a perpetual family settlement
expressly made as Waqf was the ultimate gift to the poor. # This decision created
such an awkward position that the Government had to enact a law known as the
Mussal-man Waqf Validating Act, 1913 in order " to remove disabilities and great
hardship " which had been created by such decisions. 7
3. The Act of 1781 (21 Geo. ni C 70). This Act is also known as the Act of Settlement 1781.
4. For example, in a judgment delivered on March 11, 1899 by Sir Richard Couch, the Judicial
Committee decided that a Hindu governed by the Mitakshara School, who had a son living at
the time and who is in possession of an impartible ancestral Raj or Zamindari, could give
by will the ancestral family estate away from the family to a stranger. See Sunderlingaswami
Kamaya Naik v. Ramaswami Kamaya Naik, 1891 IA, 55.
For a discussion how this judgment did not represent the correct law of the Hindus see
Featheram, W. C. " English Judges and Hindu Law " Law Quarterly Review (1900) pp. 77-87.
5. He wrote a series of three papers in the Law Quarterly Review, Volume 14, pp. 394 ; Vol. 15,
pp. 173, Volume 16, pp. 77, under the title " English Judges and Hindu Law."
6. See the decision in Abdul Fata Md. Ishak and others v. Russoway Dhur Choudhury and others
22 I.A. pp. 76.
7. See the Statement of Objects and other details in Gazette of India, 1911, pt. V,pp. 107.

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 159

With a view to meeting this situation, some slender efforts were made. In 1833 a
system of appointing two paid assessors who had been Indian or colonial judges, was
introduced. Later on in 1871 this policy was abandoned in favour of making the
Indian experts members of the Committee. This device also could not improve
the situation to any appreciable extent because Indian Judges were not favourably
inclined "at an advanced stage of their life to stay in England for a number of
years." 8 "It was also suggested that the English judges of the Privy Council be
invited to come to India in order to make themselves familiar with the two systems of
law but even this was found to be " unpromising." 9 The height of dissastisfaction
in India can be gauged from the fact that almost every writer and commentator, on
the then existing constitutional and political problems, spotlighted this problem.
Sir Tej wrote : " During the last ten years (i.e., since 1916) dissatisfaction
has been growing in this country with the manner in which certain questions
of personal law

speaking in the Central Legislative Assembly not on

demned severely the unsatisfactory way of disposal of
and Muslim laws by the Judicial Committee of the
you find in the Privy Council, for which I have gr
hesitation in saying that the Privy Council, has, o
murdered Hindu Law and slaughtered Muhammad

In those days a number of High Courts, some Ch

Commissioners, Courts were functioning in the v
were delivering, more often than not, conflicting
stances, some superior court was needed, which co
harmony in conflicting judicial decisions. This need
and writers. It was rightly argued that " In any count
of High Courts in existence, for different provinces,
necessary for the purpose of settling conflicts bet
and securing uniformity of laws." 12 Sir Tej also st
differences of judicial opinion among various High Cou

The problems of delay in the disposal of cases an

added further to the difficulties. An attempt wa
quicken the disposal of cases by shortening the p
least two to three years in getting a case decided by
was provided in sections 109 and 110 of the Code

8. See Sapru, Sir T. B., The Indian Constitution, 1926, pp. 14

9. Ibid.
10. Ibid. p. ql45.
11. Legislative Assembly Debates, (1925) Volume V. pp. 117
12. Aiyer, Sir P. S. S. Indian Constitutional Problems, (1928) p
13. Sapru op. cit., pp. 147.

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 160

fo the value of Rs. 10,000 or more and involving either a substantial question of
law or those in which the judgment of the court was not concurrent, could go to the
Privy Council. It happened very often that in a majority of cases the real value of
the claim in a High Court was, perhaps, below Rs. 10,000. It was calculated that
the cost of an appeal to the Privy Council was beyond the claim even. According
to a calculation of Sir Hari Singh Gour in a claim of about Rs. 10,000, Rs, 4,000
were required by the High Court as a deposit by way of security for payment to
the respondent, in case of his ill-success, Rs. 2,000 were required for the printing of
papers, about Rs. 4,000 for the counsel in England and about Rs. 2,000 as the cost of
the Solicitor here. Consequently, the minimum expenditure of an appeal was in
the neighbourhood of Rs. 12,000. l4The expenses of an appeal to the Privy Council,
therefore, were " prohibitive." Early efforts of Gour.

Early efforts of Goar.

Because of these reasons the necessity for an all-India judicial tribunal, though
not a federal court as such, was felt in this country as early as in 1921 when Sir
Hari Singh Gour battled a resolution in the Central Legislative Assembly on March
26, 1921 urging the immediate establishment of a " court of ultimate appeal for the
whole of India." 1 6

In our country, it is Sir Hari Singh Gour whose tireless efforts brought this
Issue to the forefront but it was a hard nut to crack. The text of his resolution ran as
follows :

" This Assembly recommends to the Governor-General to be so pleased as to

take early steps to establish a Court of Ultimate Appeal in India for the trial of civil
appeals now determined by the Privy Council in England, as the court of final
appeal against convictions of serious offences occasioning the failure of justice." 18A

He argued that the " illustrious reformer " could not include such a provision
in the Government of India Act, 1919 owing to hurry. He said that the resolution
was simply " to add one more necessary chapter to the Government of India Act,
1919 » jjje reasons which he put forward for the early establishment of the
court were :

14. Legislative Assembly Debates, (1921) Volume I, pp. 1108.

IS. Even before that year in 1916, the then Lord Chancellor of England, Lord Haldane
tributed an article to a legal journal which was widely circulated and discussed in this cou
He had suggested that the establishment of a Privy Council in India was a necessity
little later , in 1921, Lord Birkenhead, Lord Chancellor of England, also wrote an article
the Times, in which he had pointed out the inadequacies of the then existing judicial sy
and suggested that the Privy Council be strengthened by appointing some more Indian J
and jurists. These articles showed that not only Indians but Englishmen as well, felt the
ssity and desirability of improving the Judicial structure of India. Mentioned in Ibid.
15 A. Ibid.

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 161

Firstly, it was ordinarily difficult for Indian litigants to bear the heavy financial
burden of taking their cases to a distant place like England.

Secondly, it caused much delay for an appeal to go to England.

Thirdly, the unsatisfactory disposal of Indian appeals by the Judicial Committee

of the Privy Council. 16

Sir Gour's resolution was opposed neither by the Government of India nor by
the members of the Assembly. The general opinion of the House was favourable.
Some members supported the move quite enthusiastically. For example, Mr. Norton
said : " I heartily welcome this proposed improvement in our judicial system as it
stands now

further manifestation of the assertion of that nation

these Reforms (1919) to foster and encourage."

A prolonged discussion on the resolution did not

ment took a somewhat reasonable attitude. The then Law Member of the Govern-
ment of India, Sir Tej Bahadur Sapru, moved an amendment to the effect that
the public and the legal opinion be ascertained on the resolution and the establish-
ment of the desired court be postponed till then. Sir Gour accepted the amend-
ment moved by the Government with the remarks : " I, therefore, request the
Hon'ble Member to treat this as an extra-urgent motion and send it round to the
local Governments, the High Courts and other dignitaries whom he wishes to
consult so that our plans may be ready and mature before the next autumn and hope,
by the next Simla session when we meet, the Hon'ble Law Member will come forth
with beaming smiles and say, " Your Supreme Court is ready and you may now
enter it." 19 Mr. Norton's words were more reasonable and full of hope when he
said : " I hope that after the Hon'ble Law Member shall have made his research-
es, both here and elsewhere, there will be a sufficient consensus of opinion that the
view now put forward is the right and proper one to follow." 2 0

The Government of India, as a response to this resolution, circulated the pro-

posals, and opinions were collected on them. Next year in November, Sir Gour
tabled the same resolution again in the Assembly whereupon Sir William Vincent,
the then Home Member of the Government of India, informed him that the Govern-
ment had come to no decision and wanted time because the opinions had been received
rather late and were under consideration by the Government. For about two years

16. Ibid .
17. Legislative Assembly Debates, 1921 Volume I pp. 1614.
18. Ibid .
19. Ibid.
20. Ibid,
21

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 162

öfter this, there was no further move in the matter and the Government of India
took no step in this direction. Sir Gour again questioned the Government of India
regarding their decision on the subject. This time the Government stated their
considered view on the subject. On behalf of the Government of India, Sir Malcolm
Hailey stated that they were unable to implement the principles laid down in Sir
Gour's resolution. Three arguments were given in support of the Government's
conclusions :

Firstly, there being no agreement among the leaders of the Indian public opinion
and officials, the creation of such an institution might lead to unforeseen hardships.

Secondly, India did not possess sufficient men of suitable legal acumen needed
for ap allrlndia judicial tribunal.

Finally, the establishment of such a court would mean heavy expenditure on

the part of the Government of India for which they were not prepared.

Xfebate in :tbe Assembly

Sir Gour was not disheartened and on February 17, 1925 he once more moved,
for . the consideration of the Assembly, a resolution in which he had made certain
improvements over his original resolution in order to make it more expressive and
definite in language. Hie resolution said :

" This Assembly recommends to the Governor-General-in-Council to take early

steps to bring into existence a Supreme Court in India for ( inter alia) the disposal of
civil suits now disposed of by the Judicial Committee of the Privy Council and for
the disposal of appeals in serious criminal cases " 21

The General Assembly discussed the issue this time in some detail. In the
debate almost each and every aspect of the question was thoroughly examined.
Eminent men like Pt. Motilal Nehru and Mr. Jinnah evinced keen interest in the
proposition. Sir Gour, apart from stressing the importance of his resolution,
answered all the objections raised by Sir Malcolm Hailey in which he had shown the
Government of India's inability to accept the proposal with regard to the establish-
ment of a Supreme Court. In his support Sir Gour cited a long list of bodies,
consisting of High Courts, private and public associations and other legal and judicial
authorities, that had favoured an early establishment of such an institution. 22 The

21. Legislative Assembly Debates, (1925) Volume V, pp. 1163.

22. Some of them are the following :
(/) The Government of Madras and 5 out of 7 judges of the Madras High Court.
(tí) The Governments of the United Provinces, the Punjab, the N.W.F.P. and the Central
Provinces.
(wQ The High Court of Bihar and Orissa.

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 163

scrutiny of this list reveals that not only leaders of public opinion but certain
governmental-authorities also agreed with the principle contained in Sir Gour's
resolution. Some opinions were very clear and forceful. An opinion of the Karachi
Chamber of Commerce may be quoted : " The present method of appeal to the
Privy Council involves long delays and heavy expenses. The suggestion of an ulti-
mate Court of appeal in India would be in a better position to deal with cases which
are affected by the personal law of Indians and not in anyway an inferior position to
deal with cases of general nature. Making India self-contained in its judicial institu-
tions, the court would give great sentimental satisfaction as also material benefit to
Indian people. 23

Among those who opposed the motion were Colonel Sir Henry Stanyan and
Pt. Motilal Nehru. The grounds on which these two gentlemen opposed the resolu-
tion were not the same. Sir Stanyan, apart from raising the two objections of cost
and personnel already raised by Sir Malcolm Hailey, also said that the establish-
ment of the Supreme Court in India would lower the prestige of the High Courts of
different provinces. He pointed out that India was not on equal footing with the
Dominions like Canada, Australia or South Africa because she did not have a
responsible Government. In Pt. Motilal's opinion the resolution of Sir Gour was
" a bit premature " and that Sir Gour was trying " to water the top of the tree
instead of its roots." He maintained that responsible Federal Government and
separation of powers were the pre-requisites for the establishment of the Supreme
Court in India. These arguments were not very convincing because as Mr. Jinnah
said : " If that principle is going to guide us in every proposal that comes before us>
that we are not to do this and not to do that, till Swaraj is attained, I think we had
better close up this Assembly ." 24

By perusing the Debates of the Assembly it becomes clear that the problem of
getting suitable legal brains was stressed by a number of speakers. The Bar Associa-
tion of Calcutta had also expressed a similar view. It said : " We are not in favour
of the creation of the suggested court as we consider that it would be impossible to
obtain the services of a full complement of judges at all equal in attainment and
ability to the members of the Judicial Committee." 2 5

But the doubt was almost baseless because very few were required for the pur-
pose and it would not have been difficult to get them in a country like India. The

(/v) The Chamber of Commerce, Bombay.

(v) The Marwari Association, Calcutta.
(vi) The British Indian Association, Lucknow.
(vii) Mr. Abdur Rahman, in-charge Law and Justice, Bengal (We get this list from the Debates
of the Assembly).
23. Legislative Assembly Debate, (1925), Volume V, pp. 1163.
24. Legislative Assembly Debates, 1925, Volume V pp. 1176.
25. Ibid at pp. 1171.

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 i 64

opinion wäs expressed by Mr. Jinnah and other Indian leaders that "if ánd wheú
the Supreme Court comes into existence, we shall find plenty of indigenous talent
English and Indian, to discharge with intellectual credit the grave and varied,
functions of an accomplished court of final jurisdiction." 26

Later, the efforts of Dr. Gour were renewed by Mr. Bhagat Ram Puri in the
Central Legislative Assembly after a few years. In 1932 he moved a resolution in the
Assembly to the effect that a Supreme Court should be established in India. The
Government of India adopted an attitude of neutrality and as a result of it the resolu-
tion was passed by the Central Legislative Assembly. Thus at long last the people
could get a demand passed through the legislature of the country at a time when an
effort was being made to reconstruct the political system of the country.

Congress attitude
. The opinion of the Indian National Congress also favoured the improvement
in this regard. In proposals concerning reforms in India, the need of such an institu-
tion was always emphasised. As early as in 1924, Mahatma Gandhi in his Presi-
dential Address to the 39th Session of the Indian National Congress, held at Belgaum,
made an important observation on this problem. He suggested 12 points for the
consideration of the proposed All-Parties Conference which was to be held soon
after. In his third point he remarked that " the final court of appeal should not be
in London but in Delhi." 27 In 1928, a conference of the representatives of all the
political parties of the country was held to draw up a constitution acceptable to all
the parties under the chairmanship of Dr. M. A. Ansari. In order to determine the
principles of the constitution of India, the conference had appointed a Committee
under the chairmanship of Pt. Motilal Nehru. In a report in which a draft constitu-
tion for the country was incorporated, this point was not overlooked and a provision
to have a Supreme Court in India was included. 28

Federal Phase

This stage constituted the first phase of the demand for an all-India judicial
tribunal. From this time onward the approach to this problem became different to a
considerable extent. In the Round Table Conference, held in London, the federal
idea in a clear-cut and modern form was expounded by the British Indian delegates
and agreed to by His Highness the Maharaja of Bikaner on behalf of the delegates
from the Indian States. In its second session in 1931, the Round Table Conference
discussed in detail the problem of establishing a Federal Court. It was under Head
8 that this subject was discussed and the unanimity of opinion could be seen by
going through the proceedings of the Conference.

26. Ibid ; 1921 Volume I, pp. 1613.

27. For the text of the Address, see Congress Presidential Addresses , Madras. 1934, pp. 743.
28. See Art, 46 of the draft, All Parties Conference, 1928, pp. 112.

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 Iti

A few days before the discussion in the Conference, Lord Sankey, the Chairman,
circulated a memorandum. In its first paragraph the position regarding such a
court was explained. The importance and need of the Federal Court cannot be
better explained than by quoting Lord Sankey's own words, which according to Sir
Mohd. Shafi were uttered with "characteristic lucidity and precision." He said :

" In a constitution created by a Federation of a number of separate political

units and providing for the distribution of powers between a central Legislature
and Executive on the one hand and the Legislatures and Executives of the Federal
Units on the other, a Federal Court appears to be an essential element. Such
a court is needed to interpret Federal Laws and compel obedience to them and
more particularly to interpret the Federal Constitution itself. The determina-
tion of the respective spheres of the Federal, Provincial and State authorities,
whether legislative or executive, will be most conveniently entrusted to a tribunal
independent of the central, provincial and State Governments and it would, in
any event, be required, in order to prevent the mischief which might otherwise
arise, if the various High Courts and State Courts interpreted the constitution in
different senses and this made the law uncertain and ambiguous." 29

Besides these observations when the discussion on the subject began in the Round
Table Conference, opinion was so unanimous about the establishment of the Federal
Court that Lord Sankey did not place this point for discussion. He went forward
after saying that " the necessity of the Federal Court

The examination of the debates on the Federal Court in the Conference reveals
that there was no difference for opinion regarding the need for an all-India Court.
Most of the speakers did not say even a single word about its importance because
every one realised its importance very well. The points of difference however were
with regard to its composition, jurisdiction, the number of judges, the seat and
various other members.

Federal Court Vrs. Supreme Court

A controversial question with which the Round Table Conference was confronted,
was whether there should be a Federal Court or a Supreme Court. The delegates
from British India were anxious to empower the Federal Court with wider jurisdic-
tion. They wanted the court to sit in two divisions : the first deciding cases connect-
ed with federal matters and the second, entertaining appeals from the High Courts
of the Provinces of India. A majority of the delegates from Indian states did not
agree with the view and expressed the opinion that the two courts be kept distinct

29. Appendix III. Indian Round Table Conference , Volume 2, pp. 1310.
30. Indian Round Table Conference , Volume 1 pp. 597.

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 166

and separate. There were others who held a contrary view and agreed with the
view expressed by the representatives of British India. 31

The idea of having a separate Supreme Court was held undesirable from a
number of standpoints by a section of the delegates from British India. They were
of the opinion that even if the Supreme Court was given a very narrow criminal
jurisdiction, it would require a much larger number of Judges in a country where
judicial talent was not adequately available. It would also mean greater expendi-
ture, which a poor country like India could ill-afford. They were also not oblivious
of certain advantages of having the Privy Council as the highest court for India,
because ultimately it would have led to the end of the Privy Council's jurisdiction.
All these arguments were genuine and it was difficult to give a fitting reply to them.
Protagonists of a separate Supreme Court did not have a " clear-cut, decisive and
workable proposal".32 The Government expressed their views unambiguously. They
were not averse to the idea of having a separate Supreme Court, but at the same
time they were not inclined to bring the Court at once into existence. They preferred
to leave the matter open and give the Indian legislature power to establish the court
through an enactment, if necessary. The attitude of the Government disarmed the
protagonists of the Supreme Court because " The champions of the plan had built up
an imposing edifice by claiming that there was an insistent demand by the Indian
people for such a body." 33

The controversy raged nearly for two years and the issue was not decided till
the publication of the Government proposals in the White Paper of March 1933. In
this document the British Government, in accordance with their already expressed
view, made provisions for the Supreme Court of Appeal for British India in Civil
cases and in Criminal cases where a death-sentence had been passed. It proposed to
empower the Federal Legislature of India to establish the Supreme Court if necessary
through a resolution to this effect.

The Joint Select Committee of Parliament rejected the Government proposals as

laid down in the White Paper and expressed the view that the establishment of two
31. See Ibid.
Majority view was expressed by Rt. Hon'ble Sir Akbar Hydari, the spokesman of the Nizam's
Government. In the third session of the Round Table Conference he stated that " It was
essential that the Federal Court should be a separate and distinct entity. A Federal Court
was a constitutional necessity, a Supreme Court was not a matter of immediate importance
and in any case, was the concern of British India alone. To visualise two divisions of the
same court, one Federal and the other Supreme, was to confuse the issue. A Federal Court
was essential and would be required to be manned by judges of outstanding integrity with a
knowledge of constitutional law customarily associated with all India interest and free from
local prejudices. Without doubt, the question of establishing a Supreme Court was merely
a question of supplementing the judicial system of British India."
32. Khan, Sir Shafat Ahmad, Indian Federation, pp. 234.
33 Ibid.

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 167

distinct all-India Courts would unavoidably lead to overlapping of jurisdiction.

They were of the opinion that in a good number of cases it would not be easy to
decide if a constitutional point was involved. The suggestion to have a court of
Criminal Appeal for British India, which was considered by the Second Round Table
Conference, also did not find favour with them. They, however, agreed on the
question of establishing a Federal Court in India. The Joint Committee observed ;
" A Federal Court is an essential element in a federal constitution. It is at once the
interpreter and the guardian of the constitution and a Tribunal for the determination
of disputes between the constituent units of the Federation. The establishment of
a Federal Court is a part of the White Paper scheme and we approve generally the
proposals with regard to it. 34 In the end when the Government of India Bill was
drafted, the view taken by the Joint Parliamentary Committee, as incorporated in their
Report, was considered to be reasonable and sound and therefore, included in the Bill.
Though the reaction of the Indian public opinion was not unanimous the proposals
were generally welcomed. Thus the controversy which had aroused considerable
excitement at that time came to an end. The Committee also suggested certain import-
ant changes in so far as the original and appellate jurisdictions of the Federal Court
were concerned. For instance, the Government had proposed to confine the original
Jurisdiction of the court to the interpretation of the Constitution Act only but the
Joint Select Committee widened the scope by adding that it should include not merely
the interpretation of the Constitution Act but also of Federal Laws.

Passage of the Government of India Bill

The two Houses of British Parliament, while considering the Government of

India Bill, did not take much interest in the discussion, particularly in so far as the
provisions regarding the Federal Court were concerned. The House of Commons
debated on certain aspects of the Court but the perusal of the proceedings indicates
that most of the amendments tabled by the members were withdrawn, and certain
minor amendments were rejected. With the exception of section 213 which dealt
with the advisory opinions of the court, the House of Lords passed all sections from
198 to 218 without discussing practically any point. In section 213 of the Act,
subsection 2 was added at the instance of Marquess of Zetland, by the Lords which
made an important alteration in the original provisions.

Establishment of the Federal Court

After the enactment of the Government of India Act, all the portions of the Act
did not at once come into operation. For the Federal Court of India, the relevant
Ordersrin-Council were issued on December 18, 1936 which provided that the Federal
Court would function from October 1, 1937. Accordingly, the Federal Court of
Tnrlia was inaugurated in the Princes' Chambers, New Delhi in the presence of a very

34. Joint Parliamentary Committee Report, Volume I, para 322.

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 16S

distinguished gathering.®* The oath of allegiance was administered to the Chief

Justice and the Judges of the Federal Court by the Viceroy. Sir Maurice Gwyer
was the first Chief Justice and Sir Shah Sulaiman and Mr. M. R. Jayakar, the first
Judges, The Chief Justice had been the King's Proctor and Treasury Solicitor and
the first Parliamentary Counsel to the Treasury. He also had the credit of editing
five successive editions of Anson's Law and Custom of the Constitution. He, as
Sir Sapru said, was a " scholar and writer on constitutional law," one " who has
been behind the scenes and seen the constitution grow from an early stage " and one
" who brought with him the traditions of the English Bar and Bench." Sir Sulaiman
was an experienced Chief Justice of a High Court. His name was a " house-hold
word " and his appointment to the Federal Court was taken for granted. Mr.
Jayakar also had a " distinguished career both as lawyer and legislator." In brief,
the Federal Court was manned by reputed and distinguished men of the legal field
and their appointment was very well-received in the country.

Inauguration of the Court

The establishment of the Federal Court was an historic event in the development
of the Judicial system in this country. It was really " dilficult to over-rate " the
importance of the change introduced by its establishment. Messages of good-will
were received from Lord Hailsham, the then Lord Chancellor of England, and the
Chief Justice of Australia and Canada. The Lord Chancellor considered the esta-
blishment of the Court as " an event of great significance in the development of the
jurisprudence."3 6 The Chief Justice of Australia, Sir John Latham, on the other hand,
expected that " the court will introduce a new element in the jurisprudence of one of
the oldest and greatest civilisations of the world." 3 7 The Law Quarterly Review
hailed the creation of the court and called it an "inheritor of a precious heritage." 88

Indian feeling was expressed by Sir Brojendra Mitter, who, while welcoming
the inception of the court said : " In this change lie elements of unity and co-ordina-
tion which are calculated to wield India into a nation and accelerate her constitu.

35. On December 6, 1937 the Chief Justice and Judges took their seats at 11 a.m. They were
accompanied on the Bench by Hon'ble Sir Harold Derbyshire, Chief Justice of Bengal, the
Hon'ble Sir Douglas Young, Chief Justice of the Punjab, the Hon'ble Sir John Thomas,
Chief Justice of Allahabad, the Hon'ble Mr. Godfrey Davis, Judicial Commissioner of Sind
and the Hon'ble Mr. J. Almond, Judicial Commissioner of the N. W. F. P. There were also
present the Advocate General of India, Sir Brojendra Mitter, the Advocates-General of
Bengal, Assam, Madras, the United Provinces, the Punjab, Bihar, Central Provinces and
Berar, Sind, the Government Advocates of Allahabad, Oudh, the Rt. Hon'ble Sir Tej
Bahadur Sapru, Sir Syed Wazir Hassan and the members of the Bar of the various High
Courts, etc., (From the proceedings of the inauguration of the Federal Court). (1939) F.Ç.R. 2,
36. (1939) F.C.R. pp. 2.
37. Ibid.
38. See 54 L.O.R. P. 183.

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 i 69

tional development." He further observed : " My Lords, the Constitution Act,

seeking as it does, to distribute the totality of the powers of government, is an instru-
ment of bewildering complexity. Its adjustments and its checks and balances are
extremely delicate

define the provision of the Constitution Act and as

it will be for you to declare the validity of the statutes
India on the one hand, and, on the other, to define t
the executive. The manner in which you will interpr
determine the constitutional development of the c
hoped that, " you will be inspired by an enlightened
win the confidence of the people and make a co
Government." 39

Guiding Principles of Chief Justice Gwyer

Sir Maurice Gwyer, Chief Justice of India, speak

the people of this country to adhere to and live upto the

(1) " Independent of governments and parties and un

es of politics, its primary duty is to interpret the
a peaceful and rational solution of difference."

(2) " I hope no canons of interpretaion which we

the free evolution of those constitutional usages a
indeed the law provides no sanction but in which
given , the political genius of a people can find its
expression ."

(3) " The Federal Court will declare and interpret the law

formal or barren legalism

that those political foices and currents, whic

constitution, have free play within the limits
under the colour of interpretation , alter or am
left to other authorities."

(4) " We hold that the rights of the individuals should be treated with no less
consideration than the rights of the States and that they are entitled to
protection from tyranny, whether great or petty and under whatsoever
form of government arising."

(5) "

flow of politics and political theories, the vic

39. (1939) F.C.R. pp. 4-5.

22

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 Í70

the restless and eager questioning and the intellectual ferments of each
successive generation, a court sympathetic to all but allied to none may
play in the buidling up of a nation, by proclaiming and cherishing those
things which lie at the root of all civilisation

The Federal Court functioned for over twelve years

of the Republic under the new constitution, it was replaced
India, which bore the profound impact of its predecesso

40. Ibid. pp. 1-9.

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