1.
RAMKISHORE CHOUDHURY
LIFE AND WORK OF THE HON JUSTICE P N BHAGWATI
INTRODUCTORY CHAPTER
BY THE HON JUSTICE MICHAEL KIRBY AC CMG[*]
With judges, lawyers and many others around the world, I honour the life and achievements of Justice P N Bhagwati. For me he has been a guide, a mentor and an inspiration.
GUIDE
I first met Justice Bhagwati in late 1984 when he was visiting Australia. I had then recently assumed office as President of the New South Wales Court of Appeal. A case had recently been argued concerning the right to demand from an official, acting under statutory power, reasons for a decision made in the exercise of that power, adverse to the applicant. In Australia, it was already clear law that a judicial officer was obliged to give such reasons[1]. However, save for instances where an Act of Parliament had so provided, the obligation at common law in respect of administrative officials was still in doubt.
In discussing this problem with me, in the way judges frequently do, Justice Bhagwati mentioned two of his own decisions in the Supreme Court of India. They were Siemens Engineering and Manufacturing Co of India Ltd v Union of India[2] and Maneka Gandhiv Union of India[3]. Encouraged by our conversation, I read the decisions. They provided guidance for me on the direction that the common law was taking. I cited them in my reasons in the case in hand[4]. One of my colleagues in the Court of Appeal supported my approach; but the other dissented. The case was taken on appeal to the High Court of Australia. This was a decade before my appointment to that Court in 1996.
In Public Service Board of NSW v Osmond[5], the High Court of Australia reversed my ruling. The Court distinguished the Indian cases for perceived reasons of constitutional consideration. The common law of Australiareverted to its traditional state: no right to reasons. But to me, as for Justice Bhagwati, it was contrary to basic legal principle that a donee of statutory power, entrusted by Parliament with making decisions affecting individuals in society, should act like a tyrant or despot without giving, or necessarily having, good reasons for the action.
My encounter with Justice Bhagwati taught me that, in the judicial world, there are great judges of other lands who look deeply into the fundamental principles and purposes of the law. They adjust old rules so as to adapt them to new, contemporary times and values. Thereafter, I commonly looked to the case law of the Supreme Court of India - apex court of the largest democracy in the Commonwealth of Nations, indeed the world. In the judicial writings of Justice Bhagwati and of other judges I frequently found guidance in expressing the basic principles of law in my own country which shares much in common with the law of India[6].
MENTOR
Four years later, in 1988, I took part in a meeting in Bangalore which was chaired by Justice Bhagwati. The meeting was to prove highly influential. It resulted in the formulation of the Bangalore Principles on the Domestic Application of International Human Rights Norms[7]. The only non-Commonwealth judge at the meeting was Ruth Bader Ginsburg, then a Judge of the District of Columbia Circuit of the Federal Court of Appeals in the United States of America. Like me, she was later elevated to the highest court in her country. As in my own case, I believe that the experience in Bangalore proved an epiphany[8].
The fundamental principle espoused under Justice Bhagwati's leadership in Bangalore was simple. If the language of the Constitution was unclear; if the words of a statute were ambiguous; or if the common law was obscure and in need of development, resort might be had by a judge faced with these dilemmas to any relevant principles of international human rights law. In this way, by a gradual process, those basic principles of humanity would be given effect by municipal judges. In effect, those judges would exercise international jurisdiction and render their decisions (so far as appropriate) conformable to the basic principles of the international law of human rights.
When I returned to Australia and expressed these views, they were at first regarded by some as heretical[9]. For some judges (especially in constitutional decision-making) they are still so[10]. However, gradually in Australia, recourse to universal human rights norms has become more common both in the general law[11] and, as a contextual factor, in constitutional elaboration[12].
Justice Bhagwati's influence in this respect has spread throughout the Commonwealth of Nations, indeed the wider world. It demonstrates the power of an individual human mind, by persuasion and example, to influence the course of legal history in countries far from one's own.
INSPIRATION
Upon laying down the judicial robe, it might have been expected that Justice Bhagwati would perform occasional honorific services in India and exchange New Year greetings with his friends overseas. Such was not, however, to be the case. In judicial retirement, he assumed, with unflagging energy,a wide range of activities in national and international bodies. These and his engaging personality have made him an inspiration to judges and lawyers throughout the world, including myself.
On four occasions Justice Bhagwati has been elected to membership of the United Nations Human Rights Committee. His most recent re-election was in September 2006. He has served as Chairman and Vice-Chairman of the Committee which considers communications from persons alleging that states parties to the International Covenant on Civil and Political Rights have not complied with their obligations under that Covenant. A state party found in default is expected to brings its law and practice into compliance with the views expressed by the Committee.
In addition to this important post, Justice Bhagwati has served for twenty-seven years on the Committee of Experts of the International Labor Organisation; as Regional Advisor for the Asia-Pacific Region to the United Nations High Commissioner for Human Rights; as a participant in countless international missions concerned with peace and human rights in troubled countries. This volume will indicate the variety, importance and depth of the activities in which he has been engaged.
In discharging these obligations, Justice Bhagwati has been an inspiration because he has taught a vital lesson to lawyers and judges of the present age. It is that, however important our national and sub-national jurisdictions may be, they must now be viewed in the context of international law - specifically the international law of human rights. His energy is legendary. But so is his idealism and full-heartedness.
How did it happen that a boy, born in December 1921 at the height of the British Raj in India, should grow to maturity in a somewhat conservative profession of law yet never lose his empathy for the disadvantaged, the vulnerable, the down-trodden? Why, when so many other lawyers were content with the status quo or desiring personal wealth, was P N Bhagwati engaged constantly with the cause of law and justice for those in need? How was it that this child of legal India became a strategist for public interest litigation to make law truly meaningful to the poor and disadvantaged? What gifts were given to him by his parents, his community, his family, his times and life's experience that made him empathise with the disadvantages in law of women, of indigenous peoples, of children in bonded labour, of refugees, of homosexuals, prisoners, of people of different races and religions, the illiterate and not just in India but far beyond?
Fundamentally, P N Bhagwati could empathise with these and others who are disadvantaged because he shared with them their humanity. He felt empathy for their fate and confident in their fundamental goodness. He lives out the ideas of those who struggled for freedom, independence and human dignity in India and other lands.
If ever there was living symbol of the principle "equal justice under law" it can be found in the life of P N Bhagwati. Being human, he has no doubt erred from time to time, as we all have. Being a lawyer, he has no doubt sometimes felt obliged to give effect to laws with which he fundamentally disagreed. That is inherent in the rule of law. But being the guide, mentor and inspiration that he is, he has brought hope to many and a special example to judges and lawyers everywhere. As a Justice of the High Court of Australia and as a judicial brother, I am proud to be associated with this volume on his life and work.
High Court of Australia Michael Kirby
Canberra
18 March 2008
1.
RAMKISHORE CHOUDHURY
LIFE AND WORK OF JUSTICE P N BHAGWATI
INTRODUCTORY CHAPTER
BY THE HON JUSTICE MICHAEL KIRBY AC CMG
[*]Justice of the High Court of Australia. Laureate of the UNESCO Prize for Human Rights Education; one-time President of the International Commission of Jurists.
[1]Pettitt v Dunkely [1971] 1 NSWLR 376 at 388.
[2]AIR1976 SC 1785.
[3]AIR 1978 SC 597.
[4]Osmond v Public Service Board of NSW [1984] 3 NSWLR 447 (CA).
[5](1986) 159 CLR 656.
[6]M D Kirby, "Constitutional Law: Indian and Australian Analogues" in V Iyer (ed) Constitutional Perspectives (Essays in Honour and Memory of H M Seervai), Universal, 2001, 166; M D Kirby, "Centenary of H M Seervai – Doyen of Indian constitutional law – an Australian appreciation" (2007) 27 Legal Studies 361.
[7]"The Bangalore Principles on the Domestic Application of International Human Rights Norms" (1988) 14 Commonwealth Law Bulletin 1196.
[8]See eg, Michael Kirby, "International Law - The Impact on National Constitutions" (7th Grotius Lecture, 2005) 21 American University International Law Review 327 (2006).
[9]See eg Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 (CA) at 290-3 per Powell JA.
[10]Al-Kateb v Godwin (2004) 219 CLR 562 at 589 [62] per McHugh J; cf at 617 [152]. Contrast Roach v Australian Electoral Commission (2007) 81 ALJR 1830 at 1864-1865 [181] per Heydon J; see also 1836-1837 [16] per Gleeson CJ, 1852 [100]-[101] per Gummow, Kirby and Crennan JJ.
[11]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42.
[12]Roach (2007) 81 ALJR 1830 at 1852 [100]-[101].