Chief Justice Mr. T. M. M. Ismail : A Man Who Declined Supreme Court Justiceship

In modern Bharat, Bhakthi runs with Shakthi but betrays instantly, the deity falls. Today, howevor, we meet to venerate values. For, Ismail is a symbol of cultural synthesis nurtured in nationalism, sense of justice compounded of legal erudition and quick conclusion and a blend of courage and conscience, Although, like other mortals, he too was alleged to be judicially impatient and marginally arrogant, unlike other mortals, he once refused the blandishment of a higher judicial office and resisted what struck him as a blow to his dignity dressed as a transfer from Madras, In a dubious land of one Mahatma and million midgets, sacrifice of office is sublime and circus to secure loaves and fishes is the rule of life. Now, having resigned, he is what truly he is — Thiru M. M. Ismail whom God had made and none but He can unmake. Today's function is not the common encomium to one beyond terrestrial portals nor the unctuous praise for material laurels, which is the way of the world. Here I am to uncover the portrait a great person made up of powerless power, spiritual worldliness and noble pride freckled with vanities and frailties which spare few and remind you of the distance between the human end the divine. Such, in brief, is the deeper meaning of this meeting in LYMA precincts. Thiru Ismail, uniquely soaked in the timeless wisdom of Tamil classics and eloquently discoursing on Hindu epics, is not a casual coincidence) nor welcome freak but the harmonisation of humanism higher than the labels of religions and babels of leadership. Be you marxist or godist, socio-spiritual dialectics reaches the Vast, creative forces shape, by evolutionary design, not by sporadic events, the course of the human future, individual and societal, Ismail is not a chance but a choice, not an accident but an instrument, The human ascent and divine descent are governed by a higher taw we myopically miss.  Can you guess how we — poor me and Thiru Ismail — met first? I was with Kanchi Sankaracharya, For me — socialist by conviction and a member of the first Commuist Cabinet in Kerala — to seek light from Kanchi Swamiji about Here and Hereafter there must be the drive of an inner impulse transcending the total materialism, which is fashionably masked as scientific rationalism — but runs away from those profound challenges of Reality which baffle sensory perception and demand cosmic vision, For me Einstein is valid Science without religion is lame; religion without science is blind. I go further : religion is religion only if it is the science of the spirit.  As I sat in Sankaracharya's presence, someone came in to announce that Justice Ismail had arrived. When I came out I saw the eclectic gentleman who had always mystified me as a living legend devoutly rooted in the Holy Kuran and learnedly fertilised by Kambar's Raman, born into the Great Prophlet Islam and bred in Thiruvalluvar's Thirukural. He is Indian synthesis at its cultural best, more than mechanical Hindu-Muslim unity which breaks daily, but actual integrated garment of two great faiths, more than political slogannering and periodical hortations but the fundamental identity of both Islam and Hinduism as the Mahatma envisioned. The other day, at Trichur, I presided over a public reception to the Kanchi Swamigal and declared that I was a Muslim and Christian because I Was a Hindu, Who but a subtle sophist, cunning casinst or fanatical cultist can claim that the Upanishad, Vedanta and the divinised oneness of Creation of the Hindu, the Universal Human Brotherhood translated into the finer experience of the Mussalman and the revolutionary law of love thy neighbour — as thyself commanded by Jesus Christ are not the same? To be a true Hindu is to be I a good muslim and conscientious Christian and this is the quintessence of the Religion of Man which, freed from cults and conflicts, suppression of thought, repression of personality and exploitation of society with the tools of godism, is the affirmation of Truth where all religions and anti-religions meet. M. M. Ismail was a disciple of Gandhi, not in professional khadi haberdashery but in personal convictions and cleanliness, not in the mystic squints habitual on October 2nd but in nationalism against communalism, spiritual know-how stanching communal blood-shedding. We want a million such humanists, not as quotations from books but as personifications of the Naokhali pilgrim. This needs tremendous courage, courage in one's bosom and philosophy of catholicity in one's blood stream. Many million Ismails alone can make India secular. To be securely secular you must be spiritual and you can never be really spiritual without being secular provided you appreciate the meaning of meanings in the perspective of our human heritage. The symbiosis of values, secular and spiritual, is also our constitutional culture. What a pity the communal pathology to Which Indian public life is so pervasive a prey that everyone is suspect — even judges. Caste, sect and regional life-style are terribly popular even among godmen and justice-men and not only is caste the largest party, sometimes the judiciary itself is functionally guilty of those very vices for which the politician is condemned as the sole villain. Equal justice is a casualty when justices act on the administrative side and I have often wondered whether more orders of courts exercising powers administratively would not be struck down as communally oblique or otherwise discriminatory than those of ministers and high executives, if only an ombudsman were to invigilate into the 'cloistered' doing of our judicial brethren. Luckily, the contamination is yet very limited and judges, by and large," are still virtuous; Integrity and independence, compassion and courage of conviction, freedom from prejudice and fearless justice depend on the soul of man, not the robe he wears. Here, both by oath of office and truth of life, is Justice Ismail who combines in himself a muslim divine and Hindu savant and commands the admiration of those who kneel before Ram and Rahim and pray to Allah and Ishwara. Are we not a sick society which, even in the judicial sector, has crypto-communal covertly nepotistic professionals? Let us expose them and demand a patriotic corps, judicial and other, which is not pseudo-secular but, in every cell, militant with social justice. Such a cadre and culture, especially for the judiciary, is so necessary if the high expectations of justice are not to sink as fallen frustrations.  M.M. Ismail was a brilliant student in mathematics and law, is a scholar in literature, Tamil and English, and an orator in both the languages. He was a nationalist and educationist and made an indelible mark in the field of religious plurality even at the international level. His repertory of attainments reminds me of Frankfurter's famous statement statement.1  "A judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet. The last demand upon him — to make some forecast of the consequences of his action — is perhaps the heaviest. To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of the imagiation. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop. These judges must have something of the creative artist in them; they must have antennae registering feeling and judgment beyond logical, let alone quantitative, proof." How many who sit on the High Benches can fill the bill?  There are judges and judges. Ismail used to go out to conferences, national arid international, literary and religious. To appear on the radio or television was not allergy to him although these extra-judicial doings are anathematic for the orthodox wigs and gowns. Chief Justice Warren's2 words must be remembered:  "Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem : how to apply to ever-changing conditions in never changing principles of freedom."  You never can be a great judge if you are not a good man. You never can do justice if you keep aloof from humanity. Rabindranath's song3 of life is a lesson for judges too :  "Leave this chanting and singing and telling of beads! Whom dost thou worship in this lonely dark corner of a temple with doors all shut? Open thin eyes and see thy God is not before thee!  He is there where the tiller is tilling the hard ground and where the pathmaker is breaking stones. He is with them in sun and in shower, and his garment is covered with dust. Put off thy holy mantle and even like him come down on the dusty soil!"  Had not Justice Ismail produced a report on Jail torture, prison tears and cowardly alibis because for him not official versions and fear of consequences but humanism and freedom behind bars were the commands of conscience. Pachydermic Judges, insensitive to fellow-beings' sufferings are, perhaps, learned acrobats of law but heartless artists of elite justice. Are they themselves ultra, vires of the Constitution's Premble? My purpose is not to be polemical now but to press for a people-oriented, character-based stainless steel justice instrument without playing sub rosa politics, communal tactics, legal injustice and administrative in-fighting, not to speak of the incompetence, the unconcern, the arrogance and the technology of judicial futurology, Thiru Justice Ismail brings to my mind a throng of thoughts relevant to every facet I have touched upon.  Justice Ismail was not a judicial astronaut and his resignation of office in the final chapter of judgeship is proof of an independence which is a contrast to the calculating independence of hundreds of fake martyrs and publicity merchants.  I make no comments on the power to transfer judges, the mechanism for this process and the tears shed by the bench and the bar to barricade the judiciary from the Executive. There are transfers and transfers; transfers with cheers and transfers with tears, transfers which are stepping stones and transfers which are stepping downs — some deserved, some vindictive. Anyway, the Constitution provides for it in many countries. There is some double talk in the current 'lachrymal' exercise and none in the country batted a sympathetic eye-lid when painful transfers of the subordinate judiciary were and are perpetrated by High Courts themselves. The 'Judicature' includes those poor creature too, although in the supersonic altitudes of the highest court their sorrows are not heard and top lawyers, when little people alone are affected, are deaf and dumb. The lesser judiciary who really need more protection, belong to the community of disabled persons whose independence is menaced daily by High Court Judges, local landlords and hardships, economic and occupational. Reading perpetual submissions and tireless encores in the Supreme Court about judicial independence without focus on the judicial and executive authorities involved, and exhilerated by the competing heroics from the robes and the silks I suspect astigmatism about judicial independence. May be, it is good to remember Dr. Johnson who once remarked : "When a butcher says his heart bleeds for his country there is no uneasy feeling in his bosom". My point is that while this constitutional question is of moment and portent, there is some limit to length of argument even in great cases and large benches and learned counsel, in a country of overcrowded dockets. Forensic orality unlimited is a reflection on the ability of the court to grasp and listless length of repetitive submissions before a forbidding plurality of judges is a luxury this country cannot afford, what with astronomical arrears, and none so poor as to shed a tear for the little man's causes. The war of words from the bar and the prodigal numbers on the benches show that business management is no concern of the nation's justicing apparatus. Where is more verbal wastage — in court or in Parliament? The High Courts also imitate the Supreme Court in this loquacious art.  Multiplying the number of Judges without pruning the judicial process will only prove Parkinson's laws, not pare down the case-load. This nation's judicial business will soon go bankrupt if sensible streamlining of court process and a fresh approach to competency of personnel were not brought about. The Australian Law Reform Commission's recent issue (Reform July 1981) quotes Shakespeare. 4  Polonius : What do you read, my lord?  Hamlet : Words, words, words,  We need a Planning Commission with Business Management experts to save our paper-logged courts and legislatures from the air crash of words, all words and nothing but words, coupled with judicial patience, infinite patience and institutional patience. The climax or anti-climax comes when conclusions are pronounced but reasons in the womb, are delivered more than ten months after! I know the flood of cases makes the judges desperate, even if they be geniuses but the answer is not what is now going on. Look at the High Courts — your own. Can't we maximise judicial energy and minimise court clock waste through new time and motion study? Let not the bench and the bar together make the judiciary a democratic irrelevance. Did we get inspiration for this distortion from the legislators?  Thiru Justice Ismail released himself from the forensic battle for judicial independence by keeping himself out of the arena with dignity, mindless of the prospects. Judicial Independence is made of sterner stuff than the Executive (or even inside bosses) can pressurise. And pusillanimity haunts a Judge even if the Executive's hands are off. Many will agree that the peril to free Justice is not wholly environmental. A prejudiced man is not a free man even as an ignorant or career-hungry man is unfree. Gandhi was free, while Indians were slaves, because his body gave little purchase over his soul. Ismail and others of his ilk can be independent only if they don't care to carpenter their furniture to please others, judicial, executive, political or lawyerly. Prospects and popularity claim a price and judges must defy criticism if they are to do justice without fear or favours, affection or ill-will. If you play to the gallery or placate a lobby, even if it be of the bench or bar, Treasury Bench or Opposition, you sell your soul. A Judge must be democratic, not autocratic, receptive to lawyers' outspoken criticism but resistant to an overbearing bar. Independence is not arrogance any more than cowardice is not discipline. Judicial despotism, like executive authoritarianism, is anathematic to a democratic order. Every judge must recall the words of Oliver Cromwell 5 — and Judge Learned Hand wanted them to be written on Court portals :  "My brethren, I beseech you, in the bowels of Christ, think it possible that you may be mistaken."  I have heard some say that Justice 1smail rudely cut short argument, read papers at home and was impartially impatient. It is embarassing to pass judgment without full facts, although such adventures are common in politics. Should a Judge study the papers before the case is opened? Should a Judge permit argumentum ad libitem by unnatural extension of audi alteram partem? Should lawyers be brief, to-the-point and luminously limited in citations or unfold aggressive orality, punctuated by erudite case-law or -ignorant prolixity, and prove Oscar Wilde 6 who wrote :  "Moderation is a fatal thing. Nothing succeeds like excess".  Justice Ismail would not have agreed with Lord Hewart7 who admonished :  "The business of a judge is to hold his tongue until the last possible moment, and to try to be as wise as he is paid to look."  The real role of a Judge must be the subject of a national debate. I ask for an activist, not an umpire, a promoter of justice, not an observer of forms. He must get at the truth, not dally with rules of proof. Parties are not gladiators in a ring but suitors for justice. Two quotes, one American, 8 the other Australian, 9 bring out my point :  "Today, instead of fighting with legal weapons, we use legal argument, Where combatants formerly met face to face, they now have surrogates — attorneys — who fight for them. The Judge acts as referee, theoretically, protecting the contenders against foul blows. The jury decides which 'side' fought the better fight. But fight it is and the object is to win, not necessarily to reveal the truth."  "While the system might suit the practitioners, it disturbs a great number of people the Courts are supposed to serve.......The present Court environment reflecting as it does 18th and 19th century attitudes does not seem appropriate for these disputes, (SMH 7 April 1981, 6)".  I am with Lord Devline that the Judge cannot be passive and watch the 'adversary' drama, He may be adversarial plus inquisitorial but must ensure equal access and actual truth. Was Justice Ismail doing that or calling the bluff of wasteful lullaby? My own view is set out in Easwara Iyer's case, AIR 1980 SC 808 at pp. 817 and 818 :  "The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted hearings in open court. Those responsible might think more of changing them. In civil cases a written argument supplemented by a short oral discussion, would some times save a great deal of time.  The judicial process is in crisis not because there is a flood of cases flowing into the courts. In a developing country with an awakened people and democratic rights, it is inevitable that the litigative Ganga may swell in its stream, but as Justice Warren Burger wrote :  In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the supermarket age we are trying to operate the courts with cracker-barrel corner grocer methods and equipment-vintage 1900. We have to introduce management techniques and sensitive skills in the administration of justice if its present pathological conditions are to receive therapeutic attention. The rule regarding the disposal of review petitions by circulatory conference, supplemented by oral hearing in appropriate cases, is one small step in the right direction. Indeed, by modernising our procedures we are furthering social justice for which the litigant community is waiting."  Surely, Judges should not be arrogant on the bench since humility in hearing best serves justice. But to confuse between easy popularity by over-indulgence and disciplined brevity by firm insistence on relevance is to fail in one's duty. Judges must be humane but stern, compassionate but creative and a terror for those who trade in untruth and profit by dubious devices, Justice Ismail, perhaps, did not purchase popularity and paid the price. Every cause claims a martyr. Maybe, he was unaware that he over-did and overawed and unwittingly rode the high horse. Others smile where a frown is needed, play down to the weaknesses of the bar and earn the bonus of goodwill. The Bench and the Bar are partners, not in the administration of injustice delivered as legal justice but in service of the people through social justice. A lawyer who abets frivolous cases, argues casually, bullies, bores or, with unprepared briefs, browbeats, is as much a menace to justice as a judge who hardly does home-work, gets petulant to cover up and sacrifies justice to uphold authority. A systematic over-haul is needed now and here and Justice Ismail, free from judicial bondage, can give the lead.  Let me conclude, A portrait is chemistry plus artistry projecting personality. This profile of Ismail will tell us of a man who declined Supreme Court Justiceship and resigned High Court Chief Justiceship. The instant strength to surrender one's strength without bitterness and fickleness is unusual in a generation with a genius for genuflexion and for a class willing to stoop to conquer. A finer fibre fashioned by deeper culture is not ready to buy even in the judicial market.  A great Judge is one who, in triumph and tragedy never forsakes justice. A great person is one who practises (in Churchillian prose) : 10  "In war : resolution  In defeat : defiance  In victory : Magnanimity  In peace : goodwill"  I am an admirer of Justice Ismail for this dignified indifference, although I may be his critic in some facets, I pay tribute to him. May he strive to do non-curial service to the people and lift them in cultural values beyond our myopic vision.  "An Intelligence so sublime Moves behind the scene The Artist of the Universe Painting Relativity."

Author Name: Hon'ble Justice V. R. Krishna Iyer