A.G. Noorani (1930-2024), whose writings this author has been following from his student days, has passed away. Condolence messages have variously described him as a great jurist, constitutionalist, eminent columnist, constitution scholar, man of great integrity and impeccable character, authoritative archival researcher etc. But he was more than a mere public intellectual and true soldier of justice, who though remained single but was indeed wedded to the constitutional values. Similarly to describe him as Muslim intellectual who extensively wrote on issues like Kashmir, Ayodhya and Hyderabad etc. and was critical of V.D. Savarkar and RSS is also an insult to his work. Noorani was equally critical of Pt. Jawaharlal Nehru, Indira Gandhi, Rajeev Gandhi and P.V. Narasimha Rao, Atal Bihari Vajpai etc.
He had written that Indira Gandhi had reduced the Congress party to her praetorian guard. He also criticised the Surajkund resolution of March 27, 1993 which said that the one man, one post principle would not apply to Prime Minister. He repeatedly wrote that Congress’s persistent refusal to abide by its constitution and function democratically is not a domestic affair but a matter of public concern. ‘These vices abound in other political parties adds to the concern’, wrote Noorani. He was critical of British as well as Indian judges when they did not adhere to due process of law.
Noorani admired legal profession and was greatly inspired by Edmund Burke who in his famous speech in the House of Commons on March 22, 1775 had said that the study of law “renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources…they augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze.” Noorani’s long life is a case study of how a true lawyer must inculcate these characteristics in his life, make the mission of his life to speak truth to the power (even during emergency) and never hesitate in calling a spade a spade and oppose all kinds of authoritarianism and undermining of constitutionalism. He rightly believed that law and arbitrary power are at eternal enmity.
Noorani believed that civil liberties cannot survive and flourish just by the high ideals incorporated in the text of the constitution. Civil liberties, just like the constitution itself, rest on national consensus that respects dissent and mandates fair play.
He was indeed a national asset and nation’s conscience keeper. Noorani started his career as an advocate, but his advocacy was not confined to the four corners of court rooms, as he largely argued though his writings in the highest court of the land i.e. the court of his people. He tried to create enlightened citizens who have complete faith in the constitutional values and ideals of due process and fairness.
Noorani did appreciate framers of Indian constitution for their vision of democracy, pluralism, secularism and liberalism. He has consistently written that due to India’s diversities, the framers rightly made the choice of federalism. Any effort to undermine these core values was severally criticised by him. He was pained and shocked to see that over the decades, our governments not only abandoned these great values, but large-scale violations of civil liberties also became a norm.
Though Noorani had great respect for Nehru and considered him a democrat, but he was ruthless in his criticism of Nehru on the issue of suppression of dissent. He was shocked to see that the man who himself had founded the Indian Civil Liberties Union on October 8, 1936, on becoming Prime Minister of independent India would develop such an intolerance for dissent. Noorani criticised Nehru for getting furiously angry with Nirad C. Chaudhuri for writing The Autobiography of Unknown Indian (1951) during his government service in All India Radio. Of course, Nehru was not like his successors and therefore in a note of July 23, 1952, he said that ‘I do not suggest that he should be given notice to depart. But I do think that we require some kind of explanation from him’. Accordingly, poor Chaudhuri was issued three notices. Noorani had sarcastically written that civil liberties were fine; but none had a right to ‘sit in judgment over Nehru’s policies’.
Noorani stood for a fiercely independent judiciary. He blamed Indira Gandhi and even Rajiv Gandhi for undermining the independence of judiciary and for the appointment of committed and few suborn judges. He believed that Article 124 required mandatory consultation with the Chief Justice of India in the appointment of judges. Is it not a fact that even after collegium rulings that had made such consultation mandatory, this consultation in Noorani’s view has proved to be a frail reed
Governments at times do sleep over collegium’s recommendations and cherry pick judges.
Discussing the drafting of consultation provision in the constitution, Noorani criticised even B.R. Ambedkar for blithely telling the constituent assembly on May 24, 1949, that ‘judiciary decides cases in which the government has, if at all, the remotest interest; in fact, no interest at all. The judiciary is engaged in deciding the issues between citizens and very rarely between citizens and the government.’ Subsequent decades proved Ambedkar wrong, and it is a common knowledge today that in 80% cases, government is one of the party.
Noorani was also a great advocate of judicial accountability and had taken up this subject in his books and number of articles. He favoured a standing judicial commission to undertake probes on camera to just ascertain that prima facie a case exists against a judge. If yes, the judge be given an option to resign or face impeachment. Noorani was also a critic of impeachment process. He had criticised adoption of this process that had fallen into disuse even in England with last impeachment taking place in 1806. He criticised P. V. Narasimha Rao’s decision to issue a whip to abstain from voting on the impeachment motion of Justice V. Ramaswami as unconstitutional, since no whip can be issued when Parliament is sitting as jury during impeachment motion to pronounce verdict of guilty or not guilty.
Noorani in his several conversations with this author used to agree with Eugene Ehrlich that ‘there is no guarantee of justice except the personality of the judge.’ Noorani consistently argued in his books on judges’ accountability and in numerable articles that pliable judge earns ruler’s favours not his respect. He also favoured judicial performance evaluation mechanism.
He was unhappy with some contempt of court judgments as well. His writings on judicial appointment, independence and accountability are as relevant today as they were at the time of his writings. He criticised the Supreme Court’s EMS Namboordripad (1970) judgment that found him guilty of contempt for saying that judges ‘were guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor.’ He welcomed the judgment in P. Shiv Shankar (1988) where the apex court rectified its mistake and Union Law Minister was not punished for the strong statement that ‘Supreme Court, composed of the element from the elite class, had their uncontrolled sympathy for the haves i.e. the zamindars and anti-social i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court.’
Noorani also raised the constitutional question — can judges themselves be guilty of contempt of court? He cited the example of Justice P.N. Bhagwati who on November 21, 1986 had said in Bangalore that ‘judges are drawn from the class of well to do lawyers and unwittingly they develop certain biases.’
Noorani was an ardent advocate of freedom of press and was opposed to invocation of criminal defamation against the journalists. He even criticised Nehru government for proposing Ministers and Bureaucrats a summary remedy for criminal libel in respect of their public conduct. Even the British had not enacted such a regressive law. Noorani did appreciate Justice Jeevan Reddy’s observations in Nakkheeran (1994) that a journalist need not prove what he has written is true but that he acted after reasonable verification of facts.
Coming to so called Muslim issues, Noorani has documented in great details the role of the courts in the Babri Masjid case. He considered Supreme Court to be a party in the demolition of the historic mosque on December 6, 1992 which even the 2019 judgment of the five judges admitted as illegal ‘egregious wrong.’ Noorani had argued that permission for karsevaks should not have been given on the mere words of then U.P. Chief Minister Kalyan Singh when ground reports were painting a grim situation. He was equally upset with order of January 19, 1993 in which limited worship at the makeshift temple was not stayed. Noorani was also upset with Kalyan Singh not being punished for the contempt of court for apex court’s own order of November 25, 1991 and Allahabad High Court’s order of July 15, 1992. His thesis was that had the Supreme Court acting on expert report invoked its contempt jurisdiction, the demolition could have been averted.
He was also quite critical of CJI M.N. Venkatachaliah who in Noorani’s view refused to exercise his judicial powers when it had meaning. Solicitor General (SG) Dipankar Gupta’s written statement on November 25, 1992 said that talks between parties have broken down and situation on ground is escalating day-by-day. SG also stated that huge congregation is not to be allowed, machinery and material of construction not be brought, and immediate court orders are needed. Noorani was frustrated with Justice Venkatachaliah who despite telling State government’s counsel K.K. Venugopal that ‘the time for reckoning has now come… we have enough of it’, yet on November 25, 1995, gave ‘a last opportunity’ to the Kalyan Singh government. Attorney General’s Milon Banerjee’s repeated requests that situation was building to a boiling point and that the ‘court must do something today since one or two days may be vital’ was also rejected. Since preparation was not said to be an offence, it is how huge congregation was allowed. Justice Venkatachaliah-led bench eventually did meet on December 6, 1992 to ‘admit that ‘unfortunately, we were not able to assess the magnitude of the problem. Only thing we can now do is to restore ad all the three domes at the earliest.’ In fact, Noorani had documented all the stay orders of this momentous case and they tell quite an interesting story of this litigation.
In his writings on Kashmir, Noorani not only criticised successive governments for diluting Article 370 through over forty Constitutional Orders. In his opinion, Article 370 was freely used not only to amend Indian constitution but also Jammu & Kashmir’s constitution. Even the basic structure of J&K constitution was changed by the invocation of Article 370. This was the context in which this author had written that Kashmiris need not cry on Article 370’s abrogation as in its operational mode, Article 370 was indeed more of Centre’s power rather than State’s autonomy.
He believed that constitutional pacts must be honoured. He also criticised a five judge bench of the Supreme Court in Sampath Prakash (1968) which overruled the Prem Nath judgment (1959) of an earlier five judge bench. Prem Nath had held that Article 370 had finally determined Centre’s relationship with Kashmir and Article 370 can no longer be used after the dissolution of Kashmir’s Constituent Assembly. But Sampath Prakash without even mentioning earlier judgment, though at least one judge Justice Hidayatullah was very much there on both the benches, said that Article 370 can still be used. He, along with Fali Nariman, also criticised the recent abrogation of Article 370 .
Noorani’s well-researched book Political Trials (1775-1947) is a must read for every student of law and politics. In the introduction itself, it was said that next to the battlefields, some of the greatest acts of injustices in the history have taken place in courts of law starting from Socrates’ (393B.C) to Jesus’s trial four centuries later. While the former was punished for not believing in God in whom the city believed , the latter was executed because he had a message from God.
Starting from the Nand Kumar (1775) trial, which Noorani called judicial murder as Nand Kumar was Mughal subject not governed by British laws to the INA trial in Red Fort, the book gives us minute details of 12 political trials. Last Mughal Emperor Bahadur Shah Zafar’s trial in Noorani’s view was a farce as he was tried not by a regular court but by a tribunal which was not even under a court martial. Zafar, being a sovereign and under treaty relationship with East India Company was not a British subject and his surrender to Major William Hudson was made on the condition of sparing his and his wife Zeenat Mahal’s life. Noorani gives details of prosecution’s opening statement that rules of evidence are inapplicable in this case. Ghulam Abbas who was nominated by Zafar as his attorney appeared as prosecution witness. One line judgment gave no reasons for convicting emperor on all the charges.
Noorani was such a critic that he did not spare last Mughal emperor and criticised him for not rising to the occasion and leaving Delhi on the advice of Bakht Khan who had pleaded that the cause is not yet lost and Rohilkhand and Oudh are still intact.
In Bhagat Singh’s trial, Noorani gives details of how inconvenient judge Syed Agha Haider of Lahore High Court was removed from the tribunal halfway through the trial as Haider’s expected dissent would have embarrassed Viceroy Lord Irwin. He was tried by a tribunal which itself was under death sentence and was suspended for six months.
Noorani Saheb is gone but his writings and his commitment to constitutional values would continue to guide us in achieving the much awaited constitutional renaissance that he had dreamt for his beloved country. Rest is peace A.G. Noorani and enjoy the heavenly feast which one is sure must be more delicious than the Mughlai food of our restaurants.
