Home | Mailbox
 

V. L. Ethiraj,
Barrister - at - law

IN RE THE MADRAS HIGH COURT

“The great legacy that the British have left us, a legacy of which even the Mahatma, the Father of the Nation, was always proud, happen to be judicial institutions. It should be the first and foremost duty of every Indian to respect and follow the old judicial traditions in word and spirit and it is only by so doing that these institutions continued by the present Indian Constitution can be protected and preserved.” So wrote the erudite legal scholar and well-known professor of Constitutional Law, N. Arunachalam in his brilliant essay on Judicial Institutions, in the sadly out of print legal history classic ‘A Century Completed’ (1862-1962), by the successful lawyer and multifaceted personality V. C. Gopalratnam.

The roots of the legal system in India date back to December 31, 1600, when Queen Elizabeth I gave a Royal Charter to ‘Governor and Company of Merchants of London Trading to the East Indies’ (more familiarly known as the East India Company). This Royal Charter gave the Governor and the Company the power to make laws, orders, ordinances, constitutions and establish courts that might be necessary for the right and proper governance of the Company. Over the years it also gave powers to saddle offenders with punishment by imprisonment, fines, and even whipping in some cases. James I renewed the Charter in 1609 giving more powers to the Company. When Oliver Cromwell took control of the United Kingdom, he granted many Charters between 1649 and 1660 but there is no evidence of such available today. Either they have been lost or suppressed after the Restoration of Monarchy in England in 1660.

With the Restoration, Charles II became the rightful occupant of the English throne and he gave his Charter in 1661. This Charter gave the Company sweeping powers under which a Council was formed to try cases, civil, criminal, and others according to the English law. In 1683 another Charter came into force, which is of considerable importance because it established “a Court of Judicature” (the first time the expression was used) consisting of a person knowledgeable in the civil laws, and two merchants of the Company to help him. In 1687 came the East India Company Charter, which gave power to the Company to establish the Corporation of Madras with a Mayor. Later a Mayor's Court was established with a Recorder, which had limited powers. This later gave way to the Supreme Court of Judicature established in Madras in September 1801 and Sir Thomas Strange who functioned as the Recorder became Chief Justice.

One of the most memorable personalities of the early legal history of Madras, Sir Thomas Strange was born in Aberdeen, Scotland, on November 30, 1756. The son of Sir Robert Strange, he was educated at Westminster School and then at Christ Church, Oxford, after which he became a Barrister of Lincoln's Inn in 1785. On resigning as Chief Justice of Nova Scotia and President of the Council, he came to Madras as Recorder where he set up its judicial system. In 1798 Strange was knighted, and in 1800, he was elevated as the first Chief Justice of the Supreme Court of Madras. In 1804, he went to Calcutta where he ‘commanded a volunteer battalion and quelled a mutiny’. In 1817, Strange resigned as Chief Justice and moved back to England. In 1825, he wrote his pioneering work, ‘Elements of Hindu Law’. He passed away in England in 1841.

A man of extraordinary brilliance, his is one of the earliest books in English on Hindu Law. Not familiar with Sanskrit he sought the help of several Brahmin pundits while at Madras and wrote the book later in his homeland. An excellent portrait of Sir Thomas Strange adorned the walls of the Madras Literary Society library on College Road in Nungambakkam for many years. This rare work vanished a few years ago and no one knows where it is today. Sad indeed….

A series of changes took place over the years, and when Queen Victoria took over Rule of India after the 1857 Sepoy Mutiny, the British Parliament passed ‘The Indian High Courts Act of 1861’ establishing High Courts at the three Presidency Towns of Bombay, Calcutta, and Madras.

During various periods in the early legal history there was a ‘Sadr Adalat’, three chief courts of appeal from courts administering Hindu and Islamic Law for different types of cases. Those were 1) Sadr Diwani Adalat: The chief civil court of appeal from courts administering Hindu and Islamic Law. 2) Sadr Faujdari Adalat: Until 1862 the chief criminal court of appeal in the Madras and Bombay Presidencies from courts administering Hindu and Islamic Law. 3) Sadr Nizamat Adalat: Until 1862, the chief criminal court of appeal in the Bengal Presidency from courts administering Hindu and Islamic Law. These were amalgamated in 1862 with the Supreme Courts to form the High Courts at the three Presidency Towns.

The Sadr Courts of Madras were situated in a spacious mansion in the Alwarpet area at the western end of Luz Church Road known as ‘Sudr Gardens’. It still exists on Kasturi Ranga Road of today which was the residence of Mr. Justice Basheer Ahmed Sayeed, former judge of the Madras High Court.

According to inimitable chronicler V. C. Gopalratnam, there was a tree on Mowbray’s Road near the Luz Church Road junction in Alwarpet, which was used to hang prisoners sentenced to death. Known as ‘the Hanging Tree’ more than a fistful of blood-curdling tales began to circulate around it scaring away folks from visiting the area after sundown!

Brahmin priests from the nearby Chenna Kesava and Chenna Malleeswara temples would come to the court with ‘Holy Water’ and ‘tulasi’ leaves for solemnization of parties and witnesses giving evidence in Court. That was the period when even parties to a case had to solemnly declare that they were not filing false cases or claims!

The current High Court Buildings, architecturally considered the best in this part of the world, were inaugurated with due pomp and circumstance on July 12, 1892 by the then Governor of Madras, Baron Wenlock. A large gathering of High Court judges, British Barristers, ‘native vakils’, officials, and several other dignitaries of the city attended the grand function. The then Chief Justice of Madras Sir Arthur Collins received the Governor, along with other judges of the High Court, including the lone Indian, the venerable Mr. Justice (later Sir) T. Muthuswami Iyer, and Advocate- General, J. H. Spring Branson, with a 12-gun salute.

A procession of high officials of the Government of Madras and religious heads of the Christian community passed through the stately edifice and the British National Anthem was played. It was indeed a historic and memorable event. Photography had not yet developed in India and regretfully there is no photographic documentation of the
memorable event.

In the early decades of the Madras bar there were three classes. The Barristers, ‘vakils’, and attorneys or solicitors. The third class was essentially ‘chamber lawyers’ who did not appear in court and conduct cases. They formed firms, most of them being British, and some of them built up a vast clientele and prospered. Some of the famed firms included ‘King and Partridge’, and ‘Short, Bewes’. In later decades, such legal firms were Indianised or changed hands. In Bombay and Calcutta the system of solicitors took roots and continues to this day but for some reason, it did not happen in Madras.

In the early years, barristers did not take kindly to the presence of the local vakils and even looked down upon them. It was professional jealousy with an element of racism thrown in. In the beginning there were restrictions on local vakils appearing in cases on the Original Side of the Madras High Court. During the period and even after many decades, Indian lawyers suffered from many restrictions and minus points stacked against them. They were not permitted to appear on the Original Side, which heard cases originating within the city limits and had several different divisions like Civil, Criminal, Matrimonial, Probate and Testamentary, Insolvency, Maritime and others.

While a British barrister covered his hair with a wig, the Indian vakil had to compulsorily wear a turban, whether he had a tuft or a western style ‘crop’. The traditional and orthodox style of ‘veshti’-wearing vakil was not allowed to wear slippers and had to move around in court barefoot. This prohibition was nothing short of the arrogance and prejudice practised in the British-dominated legal profession during those days.

Even when the great Sir T. Muthuswami Iyer, as judge sat in his ornate ceremonial chair, he was barefooted. The legendary Barrister Eardley Norton who had observed it wrote in his memoirs. “…. When Mr. Justice Muthuswami Iyer was in the process of mentally analysing the case before him and coming to a decision, his big toe and other toes of his feet would keep rubbing against each other. When toe- rubbing ritual stopped it was the signal that the judge had taken a decision and was all set to deliver his judgement”! Some of the successful vakils in the traditional costume wore shoes and socks, which looked rather odd in that style of dress!

Understandably there was much clamor among the vakils and a ‘protest movement ' surfaced among them which soon led to the abolition of such racist practices. However, some of the senior Indian vakils, especially senior Brahmins followed the practice of being ‘barefoot lawyers’ well into the ’50s.

To the surprise and shock of the common person, no Indian vakil could appear in the Insolvency Division cases of the Original Side. Only Barristers instructed by a solicitor had the privilege. This was because most cases heard were of commercial nature in which one of the parties could be a Britisher or a business he owned. Such men did not wish to be facing the eventuality of being cross-examined by a ‘black or brown vakil’!

This prohibition exploded in the sensational Insolvency Court hearing about the notorious Arbuthnot Bank Fraud Case (1907). As a spin- off Sir George Arbuthnot was sought to be declared an insolvent and the matter came up for hearing in due course. One of the legal legends of Madras and one of the founding fathers of what is known as ‘the Mylapore Culture’, V. Krishnaswamy Iyer appeared for an Association, the creditor. Objection was raised that as a vakil he had no ‘locus standi’ to appear in the Insolvency Court. Like in a scene from a movie, Krishnaswamy Iyer astonished the court by removing his black gown and informing the Court that he was appearing in person as creditor! This dramatic event is considered as one of the most important happenings in the history of the city, which led to the founding of the famous Indian Bank. Well, that’s another story!

In the beginning British barristers dominated the legal practice in the High Court and the stars of the profession included John D. Mayne, P. O’Sullivan, Spring Branson, Eardly Norton, Robert and Willy Grant, and much later during the first half of the 20th century, the other legal legend of the Madras High Court, Nugent Grant. (He would play a significant role in the personal life of Ethiraj).

The leading vakil lights of the early years were Raja T. Rama Rao, P. Anandacharlu, and Sir V. Bhashyam Ayyangar, S. Subramania Iyer, A. Ramachandra Iyer, R. Balaji Rao and some others.

While many a British barrister enjoyed a big slice of the cake of the Madras High Court, there were Indian Barristers who went to England and returned home duly qualified, but they did not enjoy much success. Only a very few achieved it, like Dr. S. Swaminathan. Another of them, an outstandingly successful Indian barrister of the Madras High Court, a legend in his lifetime who created legal history and left behind indelible footprints on the sands of time, was Vellore Lakshmanaswamy Ethiraj…

************

<<Back
To be continued......
[Top]
     
   
canada goose outlet canada goose outlet canada goose outlet
canada goose outlet canada goose outlet canada goose outlet