P. B. Gajendra Gadkar: A Profile

It is said that some are born great; some are made great and upon some greatness is thrust. To these springs of greatness I would add, some attain greatness by pursuing the ideal of greatness Gajendragadkar belonged to the last category.  I first came into contact with Gajendragadkar when I was reading for my matriculation examination. My father S. V. Ursekar who knew Gajendragadkar well for a long time took me to his residence in Bhimrao Wadi, Thakurdwar, and Bombay At that time also Gajendragadkar was a distinguished member of the Appellate side bar of the Bombay High Court. He asked me as to when I was to appear for examination. I told him the date. With a winning smile he advised me "young man take it that your examination is exactly one month prior to the official date and prepare yourself in advance, so that you will be in a position to face the challenge confidently. I did accept his advice and acted upon it this shows his systematic method of working in all walks of life. He worked on his briefs systematically in advance. He never believed in burning the midnight oil and in struggling with his brief on the date of hearing by the Court. He used to be always prepared for the hour of trial. Hence he had no occasion to be apologitic on the ground of unpreparedness.  After getting my Law Degree I decided to practise on the Appellate Side of the Bombay High Court. My father wanted me to become a Judge and hence he inducted me as a junior in the chamber of Gajendragadkar. He had worked from almost all the Districts of the old Bombay State and hence the area of legal application was enormous. It was a treat to listen to the conferences he had with the instructing Advocates.  He told me once that at one time he was at the cross-roads of his career. He had just started his practice at the Bombay High Court and was waiting keenly for the briefs. Being fed up by initial idleness he applied to a college in Baroda for a lecturership in English. He had passed his M. A. in the First Class with English and Sanskrit. While he was awaiting the result of this application Mr. Rajguru, the doyen of the Poona Bar gave him a brief and a fee of about Rs. 80/-This proved to be a turning point and he decided to stick to the career of a lawyer and politely declined the Baroda lecturership. This turn of events paved the way for anoutstanding career as an Advocate and a Judge. Gajendragadkar was very dedicated to the profession and did not accept a law professorship or the Editorship of the Law Report.  He soon made a great mark as an out-standing persuasive Advocate. He was very quick in the grasp and had profound know-ledge of Law. He had a Mecaulean memory indeed, but he never flagged in Industry. He.believed in hard work.  On a Friday which was then the exclusive admission day I remember that he used to have about two dozens matters for admission. There was no confusion or losing of temper in the Court. He presented the facts skillfully, so as to culminate into the point of law which he was to develop. Along with him there was another giant Mr. J. C. Shah working out numerous briefs and arguing them with thoroughness.  Gajendragadkar appeared in a number of important cases including the famous Dharwar Bank case, which brought him laurels as an Advocate. He was at his best when arguing a case with little substance. The weaker the case the stronger was his advocacy. I remember once he was arguing a matter before Mr. Justice Maclean. There was nothing in the Appeal but the learned Judge was listening to the Advocate with a twinkle of admiration in his eyes.  After retirement of Chief Justice Sir John Beaumont Sir Leonard Stone succeeded him. The new Chief Justice, it seemed, was not so familiar with the Indian Civil Procedure. Initially a number of second Appeals of Gajendragadkar were placed before Justice Stone. Gajendragadkar used to open Section 100 of the Civil Procedure Code and to expound the Implications of the section in-cluding what was a question of law, a question of fact and a mixed question of fact and law. Then he used to argue the Appeal in hand. This happened for a number of days in the beginning. At 2 p.m. when Gajendragadkar used to come back to the Bar room for a cup of tea he used to remark in a lighter vein that he had just returned after taking his Law Class.  As an Advocate Gajendragadkar commanded respect of the Bench and Bar alike. He never kept a car as an Advocate and used to travel by number 8 Tram Car from Opera House to Flora Fountain. In the evening he used to travel on the upper deck of the Tram and he used to purchase tickets for all the members of the Bar who happened to be on the top deck. He treated the junior members of the Bar with a sympathetic understanding.  The culmination of his career as an Advocate came when he was elevated to the Bench of the Bombay High Court on 6th March, 1945. He was an eminent member of the Bench from 1945 to 1957 when he was promoted to the Supreme Court of India. Gajendragadkar was alert on the Bench and disposed of the matters before him expeditiously. On a number of occasions he used to sit in a Division Bench with Chief Justice M. C. Chagla, and that was regarded as a unique bench of two master minds, quick and questioning, careful and conscientious, just and equitable.  Gajendragadkar was a Judge of the Supreme Court from 1957 till Feb. 1964 when he was elevated to be the Chief Justice of India. He was the sixth Chief Justice. He laid down the reins of his high office in 1966.  Gajendragadkar's Judgments are marked with lucid exposition of Law, a clear statement of facts, a closely reasoned arguments and broad equitable approach with an eye on social justice. He was a master of Eng-lish expression.  I propose to consider Gajendragadkar's contribution as a Judge under three heads:  Hindu Law Labour Jurisprudence Constitutional Law. Hindu Law Gajendragadkar came from an orthodox family of Sanskrit scholars. He was himself a great Sanskrit scholar. He was president of the Social Reform Conference on two occasions and was keenly interested in the reform of the Hindu Law by relaxation of its rigid rules so as to answer the felt neces-sities of times. He was a progressive thinker and believed firmly in the codification of the Hindu Law as it would ensure uniformity, clarity and simplicity. He is an illustrious example of what Cordoze calls the philosophy of a Judge swaying his opinions.  In Sardar Purandare's case ILR (1946) Bom 375 : (AIR 1946 Bom 377) from Poona the question for determination before Gajendragadkar, J. at the Bombay High Court was the validity of an admitted sagotra marriage. Under the Hindu Dharmashastra a sagotra marriage is void, if the bride and the bridegroom belonged to the same gotra. The learned Judge with all his keenness of reform had to hold the said marriage to be invalid. It is a case of exemplary judicial restraint. However Gajendragadkar with his progressive outlook and reformist vision recommended to the Government to pass a legislation validating sagotra marriage. Probably as a result of this judicial observation the Bombay Government passed an enactment validating sagotra marriages in 1948. For the rest of India Sagotra marriages became legal only after passing of the Hindu Marriage Act 1955. Thus Gajendragadkar was instrumental in bringing about a great reform in the Hindu Marriage Law after getting it released from the grip of orthodoxy.  Another important pronouncement of Chief Justice Gajendragadkar is in the case of Yagnta Pursh Dasji v. Muldas (AIR 1966 SC 1119). The question was as to whether the followers of the cult of Swaminarayan were Hindus or not as some members of the cult contended that they were not Hindus. In a very learned Judgment which takes stock of the views of great scholars, Chief Justice Gajendragadkar laid down the criteria to determine as to who is a Hindu. Piecemeal enactments of the Hindu Code are silent on this point and they speak only as to the persons to whom the enactment apply. The Supreme Court accepted the definition of a Hindu as given in Sanskrit by Lokmanya Tilak and held that one who be-lieves in the authority of the Vedas, one who believes in the multiplicity of pathways to attain god-hood and one who believes in having an infinite choice of Gods to worship is a Hindu. Thus this judgment is a fundamental contribution to the basic question of the Hindu Law. Gajendragadkar was a staunch supporter of the Hindu Code. His lectures on the Hindu Code Bill delivered under the auspices of the Karnataka Univer-sity, in 1952 are highly illuminating.  Labour Jurisprudence As a Judge of the Supreme Court Gajen-dragadkar had to consider a number of cases involving interpretation of the labour laws. He showed a fundamental grasp of the pro-blem involved and has made a lasting con-tribution to the labour jurisprudence.  In 1961 out of 90 judgments of labour law, Gajendragadkar wrote as many as 30. While in 1964 out of 48 judgments Gajendragadkar had authored as many as 30.  In the case of Bidi, Bidi Leaves and Tobacco Merchants Association v. State of Bombay, (1961) 2 Lab LJ 663, at page 670 : (AIR 1962 SC 486) he has observed that an Award made in the industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen...... Such an award may alter the terms of employment if it is thought fit and necessary to do so". In this passage the learned Judge has succinctly expressed the core of labour legislation. He has emphasized that the plea of freedom of contract has little scope in labour jurisprudence and that it is open to the Court dealing with industrial adjudication to create new obligations on the employer in the interest of social justice. He has also urged that social justice is the desideratum of industrial adjudication. He has also pointed out a third basic essential that the ultimate objective of industrial adjudication is to ensure harmony in the relationship of the employer and the employee. His judgments conform to this trinity of principles which may be said to contain the basic framework of labour jurisprudence.  The traditional doctrine of freedom of contract must yield to the higher claims of social justice. Therefore Industrial adjudication does not recognise the employer's right to employ labour on terms below the level of minimum basic wage. This no doubt is an interference with the employer's right to hire labour; but social justice requires that the right should be controlled. Similarly, the right to dismiss an employee is also controlled subject to well recognised limits in order to guarantee security of tenure to industrial employees. Rai Bahadur Diwan Badri Das v. Industrial Tribunal, (1962) 2 Lab LJ 366: (AIR 1963 SC 630).  The view of the Supreme Court that the right of freedom of contract must surrender to the needs of social justice threw open the door for abundant industrial litigation, so as to use the industrial adjudication to snatch advantages to the industrial workers. This doctrine sprang from Gajendragadkar's firm faith that socioeconomic justice is one of the sacrosanct objectives of the Constitution. He believed that social justice is higher than legal justice. It was through the unorthodox approach to problems of the industrial worker that Gajendragadkar made far-reaching pronouncements in the field of labour jurisprudence. He firmly held the opinion that the Court was an equal partner along with the legislature in bringing about a new social order through a dynamic role. He gave full effect to the doctrine of Social Engineering advocated by Dean Rosco Pound.  It is on this philosophical footing that we can appreciate Gajendragadkar's role in the field of labour jurisprudence. One of the basic questions in industrial adjudication is to determine as to what is an industry. Unless a trade, business or undertaking is with in the fold of an Industry the employees can-not hope for getting the benefits of Industrial adjudication.  In the leading case State of Bombay v. Hospital Mazdoor Sabha of the J. J. Group of Hospitals (AIR 1960 SC 610) the question was whether the J. J. Group of Hospitals was an Industry or not. Justice Gajendragadkar in his judgment held that it was an industry. In his opinion if all words used are given their widest meaning all services and all callings would come within the purview of the definition. In that case even services rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition of an industry as given in the Industrial Disputes Act. He laid down that the following criteria should be applied to determine whether a trade etc. is an industry or not viz. it should be an activity systematically or habitually under-taken for the production or distribution of goods or for the rendering of material services to the community with the help of the employees. It need not result in the earning of profit.  Ten years thereafter the trend of the Supreme Court underwent a change and a restricted meaning was given to the word industry by Chief Justice Hidaytullah. In the case of Management of Safdarjang Hospital v. R. S. Sethi (AIR 1970 SC 1407) it was held that the hospitals which were attached to research and teaching institutes were not industries. Thus the later case can be dis-tinguished from a case of hospitals per se and hospitals which are appendages of a training and research institution.  However in the zeal of bringing an undertaking within the ambit of' an industry Gajendragadkar did not forget to clarify that the activities of the government which were regal or sovereign were outside the definition of industry as the sovereign activities are those which have been held to be primary and inalienable functions of a government. In the case of University of Delhi v. Ram-nath, (1961) 2 Lab LJ 335 : (AIR 1963 SC 1873) Gajendragadkar held that University is not an industry as it imparts education which could not be described as a trading activity. In the case of National Union of Commercial Employees v. Meher, (1961) 1 Lab LJ 241 : (AIR 1962 SC 1080) Gajendragadkac ruled that a Solicitor's firm is not an industry as there is no nexus between the work done by the employees of the Solicitor to the advice given by the attorney.  It must be pointed out that in spite of his sympathy for the Industrial Workers Gajendragadkar did not swerve from the vow of judicial restraint and tried to hold the balance between the employer and employees. He believed that the objective of industrial ad-judication is to assure harmonious and peaceful relationship between the employers and employees. That is why while determining the case of payment of bonus he voted against payment of excessive bonus and observed that it may spoil the good relation-ship between the employer and employees. In the case of Burmah Shell v.Their Workers, (1961) 2 Lab LJ 124 at p. 128 (SC) the learned Justice cautiously observed that care must also be taken to see that bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it created industrial discontent and the possible emergence of a privileged class. This guarded approach of Gajendragadkar shows his foresight and a balanced approach to the explosive problem of interrelationship between the employers and industrial workers. He suggested appointment of the bonus commission for determining the interrelationship between actual wages and living wages as he felt a lacuna in that behalf.  Accordingly the Bonus Commission was appointed in December 1961 and the recommendations made by Gajendragadkar are partly embodied in the Bonus Act. Like living wages and Bonus the question of security of service is also vitally relevant to the welfare of the industrial workers. Under the ordinary law the master has an unfettered right to remove the servant but under the Industrial Jurisprudence this right of the employer is controlled by reasonable restrictions. In this behalf Gajendragadkar has observed that "the doctrine of absolute freedom of contract has thus yielded to the higher claims for social justice........ the right to dismiss an employee is also controlled subject to well recognised limits in order to guarantee security of tenure to industrial employee". (Rai Bahadur Dewan Badri Das v. Industrial Tribunal, (1962) 2 Lab LI 366 at p, 370) : (AIR 1963 SC 630).  Another important question in industrial adjudication is the right of the dismissed worker to be reinstated. In the case of Assam Oil Co. Ltd. v. Its Workmen, (1960) 1 Lab LI 587 : (AIR 1960 SC 1264) one Miss Scott, an employee of the Assam Oil Co. applied to the Tribunal for reinstatement. The management was dissatisfied with her work. Her conduct was alleged to be insolent; she was guilty of insubordination and had joined the Union. In this case Gajendragadkar upheld her removal and observed that "there may be cases where it would not be expedient to follow the normal rule and direct reinstatement. This case is clearly an illustration of the Judge's approach of judicial restraint and reflects the awareness of the Supreme Court to maintain harmonious relationship between the employer and employee.  It will be seen that Gajendragadkar has been very circumspect about the decisions in the field of industrial disputes and tried to hold the balance evenly between the parties. His approach is pragmatic. The following observation of his is a key to his approach to industrial disputes. In the case of Hari-nagar Cane Farm v. State of Bihar, (1963) 1 Lab LJ 692-695 : (AIR 1964 SC 903) he observed with great insight that 'industrial adjudication should refrain from enunciating any general principles or adopting any doctrinaire considerations. It is desirable that industrial adjudication should deal with problems as and when they arise and confine its decisions to the points which strictly arise on the pleadings between the parties.'  Constitutional Law Gajendragadkar's approach to constitu-tional law apart from his judgments can be also gathered from the Tagore Law Lectures delivered by him on the Indian Parliament and the Fundamental Rights in 1972.  He was the sixth Chief Justice of the Supreme Court for less than two years, though he was on the bench of the Supreme Court for about seven years from 1957 to 1964. During his tenure he had to determine a number of leading questions involving inter-pretation of the Constitution.  Gajendragadkar looked upon the Constitu-tion as an instrument of social change, geared to the goal of attaining the noble objectives enshrined in its preamble, and not a mere document of theory. His approach can be summed up in three basic principles.  Law is the King of Kings and we are under the rule of law. The dynamic role of Law and Judiciary. Mutual relationship of understanding between the Executive, Legislature and Judiciary. He was a deep student of Hindu Philo-sophy and always quoted the Upanishada that 'Law is the King of Kings and everyone is subordinate to it'. He has observed that the "true constitutional position in our country is that the Constitution is the fundamental law of the country. After amending the Constitution the Parliament function under the amended Constitution". In another context Gajendragadkar observed that Constitution is the Law of Laws and is the paramount law of the land. As the Constitution was an instrument of social change it ought to be flexible. In Golaknath's case it was held that Parliament has no power to amend the chapter on Fundamental Rights. However in order to wriggle out of the con-stitutional impasse in Sajjansingh's case Gajendragadkar suggested that Part III con-taining the Fundamental Rights should be included in Article 368, so as to empower the Parliament to amend even the chapter on Fundamental Rights. He suggested a national debate on this controversial problem.  Apart from the Rule of Law he believed in the dynamic role of Law. He says Law is a flexible instrument of social order. The purpose of Rule of Law is:  To project the Fundamental rights of the individual and To establish social justice, so that an individual citizen can attain his legitimate aspirations and dignity of man may be assured. In order to ensure this role of Law he believed that Law cannot stand still and it must answer the felt necessities of the time, and for this purpose you must not fight shy of amending the Constitution as and when necessity arises. On the main issue of the amendment of Constitution by the Parliament Gajendragad-kar suggested that law must play a Dynamic Role and so also the judiciary in interpreting the Constitution so as to facilitate the attainment of Socio-economic justice. Socio-economic justice is a composite concept. According to Gajendragadkar the socio-economic justice is a comprehensive concept and it includes political justice, social justice as well as economic justice. Thus it is the totality of justice.  What is justice? Justice means equality before the Law but the idea of equality alone is inadequate to answer the requirements of a just society. According to Roscoe Pound a maximum satisfaction of human wants or expectations is the essence of justice. It was William Frankena who observed while describing a just society that a just society must "provide equally the conditions under which its members can by their own efforts (alone or in voluntary associations) achieve the best lives of which they are capable". The Planning Commission of India laid down that the objectives of Indian Society must be "to provide the masses of the Indian people the opportunity to lead a good life and to offer an equal opportunity to every Citizen" (Third Five Year Plan (1962). Gajendragadkar had the same objective in view when he talked of attainment of Socio-economic justice through the Rule of Law. His judgments are directed to that end. Thus Gajendragadkar believed in creating and sustaining a welfare state for the good of the people so that they may belong to the just Society.  For attaining the paramount objective of Socio-economic justice Gajendragadkar also insisted on the mutual co-operative relationship between executive, legislature and judiciary. He believed that any confrontation between the limbs of the Government is 'bound to impede the progress in the attainment of the objective of the Constitution. In the case of U. P. Legislature Gajendragadkar had to determine the powers and privileges of the U. P. Legislature qua the judiciary. It is a brilliant farreaching judgment from the point of view of ths alleged confrontation between the legislature and the judiciary.  An important judgment of the constitutional Law given by Gajendragadkar is about the application of the doctrine of res judicata to constitutional remedies. In the case of Daryao v. United Provinces, (1962) 1 SCR 574 : (AIR 1961 SC 1457) he held that no writ petition can lie to the Supreme Court under Article 32 if the High Court had already dismissed a writ petition under Articles 226, 227. This view was based on the principle that operation of the Rule of law is a part of the Rule of Law.  A case of vital importance to international Law came to be decided by Gajendragadkar in the Beru Bari case. Beru Bari, a patch of land, fell within West Bengal. In 1952 Pakistan claimed that land to belong to it contending that it was in East Bengal and hence demanded the cessation of the said territory to itself. Advisory opinion of the Supreme Court was sought by the President of India and Gajendragadkar wrote a very illuminating judgment displaying his legal talent and thorough knowledge of international law.  On reading the judgments of Gajendragadkar I am inclined to conclude that according to him the basic frame-work of the Constitution consists of the following basic features:  the Rule of Law Law postulating respect for individual freedom and liberty Shaping a just society through the instrument of Law and Hannonizational construction of part 3 of the Constitution and Mutual relationship of understanding between the Executive, the Legislature and the Judiciary. Gajendragadkar had a high regard for Pandit Nehru's vision and concurred with his view that "There is no permanence in Constitution. It has to be flexible". It seems both of them derived inspiration from the observation of the Great Jefferson that "we may consider each generation as a dis-tinct nation with a right by the will of the majority, to bind themselves but none to bind the succeeding generations more than the inhabitants of another country."  Gajendragadkar was a great devotee of Democracy, of which freedom of expression and thought is one of the basic pillars. Therefore he held that a minute of dissent has a place of honour everywhere because tolerance is the hall-mark of democracy.  He was not only an able advocate, an eminent Judge but was a social reformer and a great scholar. In his Tagore Law Lectures delivered in the Calcutta University in 1972, on the Indian Parliament and Fundamental Rights he has expressed his deep faith in democracy and the common man. Says he, "it is my earnest desire to educate the common citizen of the country in the basic postulate of this democratic process. According to him tolerance is the hall-mark of democracy and so also liberty and freedom of the individual. He regarded Law as a dynamic instrument of bringing about a new social order enlivened by equality flowering into freedom.  In fine Gajendragadkar was a man who has left an indelible mark on the sands of time.

Author Name: H. S. Ursekar