Mahesh Kapoor was also particularly interested in another writ petition, one brought forward by those who had actually ruled their own states under the British, who had signed instruments of accession to the Indian Union after Independence and been granted certain guarantees in the Constitution. One such was the bestial Raja of Marh, whom Mahesh Kapoor would have been only too happy to dispossess completely. Although the state of Marh proper fell in Madhya Bharat, the Raja’s ancestors had also been granted land in Purva Pradesh—or Protected Provinces as it was called at the time. His lands in P.P. fell into the category of crown grants, but it was one of the contentions of the Raja’s lawyers that his privy purse from the government had been set lower than it otherwise would have been in view of the income that his estates in P.P. were expected to bring in perpetuity. These lands had been allowed to the Raja as personal, rather than State, property, and (they contended) were guaranteed by two articles of the Constitution. One unambiguously declared that the government would pay due regard to any assurances given under the covenants of merger with respect to the personal rights, privileges and dignities of the ex-rulers; and another stated that disputes arising out of such covenants and similar instruments were not justiciable in the courts.
The government lawyers, on the other hand, had insisted in their affidavits that ‘personal rights, privileges and dignities’ did not include personal property; with regard to personal property the ex-rulers had the status and guarantees of any other citizen. And they too contended that the matter—as they saw it—was not justiciable.
If Mahesh Kapoor had had his way, he would have taken over not only the Raja’s personal lands in Purva Pradesh but whatever had been allowed to him as personal land in Madhya Bharat as well—and all his urban property in Brahmpur besides—including the site of the Shiva Temple, which was now under a new spurt of construction on account of the approaching festival of the Pul Mela. This was, alas, not possible; had it been, it would have curbed the Raja’s wretched mischief. It would have been a very unwelcome thought to Mahesh Kapoor that this desire of his was in essence not very different from that of the Home Minister L.N. Agarwal when he attempted to take over Baitar House.
The Nawab of Baitar noticed Mahesh Kapoor as he came into court a little into the afternoon session; though they sat on different sides of the aisle, they acknowledged each other with an unspoken salutation.
The Nawab Sahib’s heart was full. He had listened with enormous pride and happiness to his son’s speech. He could not help thinking once more how Firoz had inherited so many of the finer features of his mother. And she too had sometimes been most nervous when she was most forceful. The attentiveness of the judges to the young man’s arguments was savoured even more by his father than by himself for he was too busy parrying their questions to allow himself the pleasure of enjoying them.
Even his senior could not have done better, thought the Nawab Sahib. He wondered what the next day’s report in the Brahmpur Chronicle would carry of Firoz’s arguments. He even somewhat whimsically imagined the great Cicero appearing in the Brahmpur High Court and commending his son’s advocacy.
But will it do much good in the end?—this thought struck him again and again in the middle of his happiness. When a government is determined to get its way it usually does so by one means or another. And history is against our class. He looked over to where the Raja and Rajkumar of Marh were sitting. I suppose that if it were merely our class it would not matter, he continued to himself. But it is everyone else besides. He found his thoughts turning not only to his retainers and dependants but to the musicians he used to listen to in his own youth, the poets he used to patronize, and to Saeeda Bai.
And he looked at Firoz with renewed concern.
11.6
Daily the crowds in court lessened until finally hardly anyone other than the press, the lawyers, and a few of the litigants could be seen.
Whether the Nawab Sahib and his class had or did not have history on their side, whether the Law propelled Society or Society the Law, whether the patronage of poetry counter-balanced the torments of the tenantry, such questions of great pitch and moment lay outside the immediate business of the five men in whose hands rested the fate of this case. Their concerns were concentrated on Articles 14, 31(2), and 31(4) of the Constitution of India, and they were grilling the amiable Mr Shastri about his view of these articles and of the statute under challenge.
The Chief Justice was looking through his copy of the Constitution, and scanning for the fourth time the words of Articles 14 and 31.
The other judges (Mr Justice Maheshwari excepted) had been asking some questions of the Advocate-General which the Chief Justice had been following with only half an ear. The Raja of Marh, who seemed to enjoy the atmosphere of the courtroom, was listening with no ear at all. He was present in court, but once more not conscious of the fact. His son, the Rajkumar, did not dare to nudge him awake when he slumped forward.
The questions from the bench spread over the entire field of the immediate argument.
‘Mr Advocate-General, what is your response to the argument of Mr Bannerji that the purpose of the Zamindari Act is not a public purpose but the policy of the political party which for the time being is holding office in the state?’
‘Could you attempt, Mr Advocate-General, to reconcile these various American authorities? I mean, on the question of public purpose rather than the equal protection of the laws.’
‘Mr Advocate-General, are you seriously asking us to believe that “notwithstanding anything in this Constitution” are the controlling words of Article 31 Clause 4 and that any act under the aegis of that article is therefore unchallengable under Article 14 or any other article of that Constitution? Surely it only protects the act from challenge on grounds contained in Article 31 Clause 2.’
‘Mr Advocate-General, what about Yick Wo versus Hopkins with respect to Article 14? Or the passage in Willis approved by Justice Fazl Ali in a recent Supreme Court decision as being a correct exposition of the principles underlying Article 14?—“The guarantee of the equal protection of the laws means the protection of equal laws.” And so on. Learned counsel for the applicants made much of that, and I do not see how you can counter their contention.’
Several reporters and even lawyers in the courtroom had the strong sense that the case was beginning to go against the government.
The Advocate-General appeared unconscious of this. He continued, unexcitedly, to weigh his words, even his syllables, with such care that he emitted them at only about a third of the rate of G.N. Bannerji.
His answer to the first question was: ‘Di-rec-tive Prin-ci-ples, my Lords.’ There was a long pause, and then he listed the relevant articles one by one. This was followed by a shorter pause, then the statement: ‘Thus your Lordships see it is in Con-sti-tu-tion itself and not party policy merely.’
To the question about reconciling the various American authorities, he merely smiled and said: ‘No, my Lords.’ It was not for him to attempt to reconcile the irreconcilable, especially since it was not he who was leaning on the American cases for support. Indeed, had not even Dr Cooley said he was ‘somewhat at sea’ when attempting to determine the meaning of ‘public purpose’ in the light of conflicting judicial decisions? But why mention that? ‘No, my Lords’ was enough.
Non-geographically speaking, the Chief Justice had been somewhat on the sidelines during the last few minutes. Now he too entered the fray. Having looked once more at the crucial articles and having doodled a fish on the pad in front of him, he cocked his head to one side and said:
‘Now, Mr Advocate-General, I understand that the state contends that the two payments, the flat-scale compensation and the wealth-based, sliding-scale rehabilitation grant, are of an entirely different nature. One is compensation, the other not. Thus they cannot be lumped together, and it cannot be said that the compensation is on a graduated or sliding scale, and it cannot therefore be called discriminatory or unequal against la
rge landlords.’
‘Yes, my Lord.’
The Chief Justice waited in vain for elaboration. After a pause he continued:
‘And it is further argued by the state that the two payments are different because, for example, different sections of the Zamindari Act relate to these two payments; because there are different officers in charge of their disbursement—Rehabilitation Grant Officers and Compensation Officers and so on.’
‘Yes, my Lord.’
‘Mr Bannerji’s contention for the applicants, on the other hand, was that this distinction is mere sleight of hand, especially since the compensation funds are only about a third of the rehabilitation funds.’
‘No, my Lord.’
‘No?’
‘Not sleight of hand, my Lord.’
‘And he says,’ continued the Chief Justice, ‘that since the distinction was not mentioned in the legislative debates until a late stage, it was introduced by the government after the adverse Patna High Court judgement as a way of fraudulently getting around the constitutional protections.’
‘The act is act, my Lord. Debates are debates.’
‘And what about the preamble to the act, Mr Advocate-General, which makes no mention of rehabilitation as an objective of the legislation?’
‘O-ver-sight, my Lord. The act is act.’
The Chief Justice leaned his head on his other arm. ‘Now suppose we were to accept your—that is, the state’s—contention that the so-called compensation is all there is by way of real compensation under Article 31 Clause 2, how would you then describe the so-called rehabilitation grant?’
‘Ex-gratia payment, my Lord, which state may freely make to anyone in any way it chooses.’
The Chief Justice now leaned his head on both his hands, and examined his prey.
‘Would the protection from judicial challenge that Article 32 Clause 4 provides to compensation extend to ex-gratia payments as well? Could the unequal terms—the sliding scale—of this ex-gratia payment not still be challenged under Article 14, which provides for the protection of equal laws?’
Firoz, who had been listening to the argument with the utmost attentiveness, looked at G.N. Bannerji. This was precisely the point he had been veering towards in the conference that evening. The distinguished lawyer had taken off his spectacles and was polishing them very slowly. Finally, he stopped polishing them altogether, and stood completely still, looking—like everyone else in court—at the Advocate-General.
There was silence for a good fifteen seconds.
‘Challenge to ex-gratia payment, my Lord?’ said Mr Shastri, appearing genially shocked.
‘Well,’ continued the Chief Justice, frowning, ‘it works on a sliding scale to the detriment of the larger zamindars. The smallest ones get ten times the computation based on rent and the largest ones get only one and a half times the computation. Different multiples, ergo unequal treatment, ergo unfair discrimination.’
‘My Lords,’ protested Mr Shastri, ‘ex-gratia payment confers no legal rights. It is pri-vi-lege conferred by the state. Therefore, it is not open to question on ground of un-fair dis-cri-mi-na-tion.’ But the Advocate-General was not smiling quite as broadly. This had become almost a one-to-one cross-examination. The other judges did not interpose any questions.
‘Now, Mr Advocate-General, in America it has been held by their Supreme Court that their fourteenth amendment—to which our Article 14 happens to correspond in language and spirit—applies not only to liabilities imposed but to privileges conferred as well. So would that not apply to ex-gratia payments?’
‘My Lords, American Constitution is short, so gaps are filled by in-ter-pre-ta-tion. Ours is long, so the need is less here.’
The Chief Justice smiled. He looked rather wily now: an old, wise, bald tortoise. The Advocate-General paused. But this time he knew he would have to put forth a less unconvincing and general argument. The two fourteens were too alike. He said:
‘My Lords, in India Article 31 Clause 4 protects the act from any challenge whatsoever under the Constitution.’
‘Mr Advocate-General, I heard your answer to the query of Mr Justice Bailey on that point. But if this bench does not find that argument convincing and at the same time comes to the conclusion that ex-gratia payments must satisfy the guarantees of Article 14, where does the state stand?’
The Advocate-General said nothing for a while. If self-defeating candour were enjoined on lawyers, his answer would have had to be: ‘State does not stand, my Lord, it falls.’ Instead he said: ‘State would have to consider its position, my Lord.’
‘I think the state would do well to consider its position in the light of this possible line of reasoning.’
The tension in court had become so palpable that some of it must have communicated itself into the dreams of the Raja of Marh. He woke up violently. He was in the grip of a paroxysm of anxiety. He stood up and stepped forward into the aisle. He had behaved well during the argument of his own writ petition. Now, when things seemed to be going dangerously for the state on a point that did not refer specifically to him but would have covered him safely as well, he grew desperately agitated.
‘It is not right,’ he said.
The Chief Justice leaned forward.
‘It is not right. We too love our country. Who are they? Who are they? The land—’ he expostulated.
The courtroom reacted with shock and amazement. The Rajkumar stood up and took a tentative step towards his father. His father shoved him aside.
The Chief Justice said, rather slowly: ‘Your Highness, I cannot hear you.’
The Raja of Marh did not believe this for one instant. ‘I will speak louder, Sir,’ he announced.
The Chief Justice repeated: ‘I cannot hear you, Your Highness. If you have something to say, kindly say it through your counsel. And please be seated in the third row. The first two rows are reserved for the Bar.’
‘No, Sir! My land is at stake! My life is at stake!’ He glared belligerently upwards, as if he were about to charge the bench.
The Chief Justice looked at his colleagues to either side of him and said to the Court Reader and the ushers in Hindi:
‘Remove that man.’
The ushers looked stunned. They had not imagined they would ever have to lay hands on Majesty.
In English, the Chief Justice said to the Reader: ‘Call the watch and ward staff.’ To the counsel of the Raja of Marh, he said: ‘Control your client. Tell him not to test the forbearance of this court. If your client does not leave the court immediately I will commit him for contempt.’
The five magnificent ushers, the Court Reader, and several counsel for the applicants apologetically but bodily moved the Raja of Marh, still spluttering, from Courtroom Number One before he could do further damage to himself, his case, or the dignity of the court. The Rajkumar of Marh, red with shame, followed slowly. He turned around at the door. Every eye in court was following the spasmodic progress of his father. Firoz too was looking at him in contemptuous disbelief. The Rajkumar lowered his eyes and followed his father into the corridor.
11.7
A few days after he had suffered this indignity, the Raja of Marh, feather-turbaned and diamond-buttoned, together with a glittering retinue of retainers, performed a progress to the Pul Mela.
His Highness started out in the morning from the site of the Shiva Temple at Chowk (where he offered obeisance), advanced through the old town of Brahmpur, and arrived at the top of the great earthen ramp which led gently down from the mud cliffs to the sands on the south bank of the Ganga. Every few steps a crier announced the Raja’s presence, and rose petals were flung into the air to his greater glory. It was idiotic.
However, it was of a piece with the Raja’s conception of himself and his place in the world. He was cross with the world, and especially with the Brahmpur Chronicle, which had dwelt lovingly on his ejaculations in and his ejection from the Chief Justice’s court. The case had continued for four or five more days
before being closed (the judgement was reserved for a later date), and on each day the Brahmpur Chronicle had found some occasion to hearken back to the Raja of Marh’s unseemly exit.
The procession halted at the top of the ramp under the shade of the great pipal tree, and the Raja looked down. Below him, as far as the eye could see, lay an ocean of tents—khaki, haze-enveloped—spread out along the sands. Instead of the single pontoon bridge across the Ganga there were at present five bridges of boats, effectively cutting off all downriver traffic. But large flotillas of little boats were still plying across the river in order to ferry pilgrims to particularly auspicious bathing spots along sand spits on either side—or simply to provide a swifter and more enjoyable means of crossing the river than facing the crush of people on the improvised and grossly overcrowded bridges.
The grand ramp too was crowded with pilgrims from all over India, many of whom had just arrived by special trains that had been laid on for the Pul Mela traffic. For a few minutes, however, the Raja’s retainers forced the crowd back sufficiently to give their master a regal and leisurely view of the scene.
The Raja gazed with reverence at the great brown river, the beautiful and placid Ganga. Its level was still low, and the sands broad. It was mid-June. The monsoons had not yet broken in Brahmpur, and the snow-melt had not yet swollen the river much. In two days it would be the grand bathing day of Ganga Dussehra (when, by popular tradition, the Ganga rose one step along the bathing ghats of Banaras), and four days after that would come the second grand bathing day of the full moon. It was thanks to the grace of Lord Shiva, who had broken the river’s fall from heaven by allowing it to flow through his hair that the Ganga had not flooded the earth. It was to Lord Shiva that the Raja was raising the Chandrachur Temple. Tears came to the Raja’s eyes as he looked at the holy river and contemplated the virtue of his actions.