Rohinton F. Nariman - Discordant Notes: The Voice Of Dissent In The Last Court Of Resort Volume 2

In his book Laughing at the Gods: Great Judges and How They Made the Common Law, Professor Allan Hutchinson speaks of judicial greatness as follows:

Great judges seek to make a critical accommodation

It is in this sense that the outstanding dissenters of the Supreme Court of India deserve the appellation great. Four judges stand view is accepted in preference to that of the majority. Each of the dissents authored by these learned judges (and not those in which they join another judges dissenting opinion) are analysed in this chapter.

However, before dealing with the dissents of these four judges, it is important, at this juncture, to pay a tribute to a fearless Indian judgeJustice Syed Mahmoodwho had to pay the price for his dissenting judgments in the colonial climate of the Victorian era, in that he was forced to resign as a high court judge because of the ego of his English chief justice, who refused to tolerate any disagreement with his views by the only native on the bench.

In 1882, Justice Syed Mahmood became an officiating judge of the high court at Allahabad at the age of thirty-two. The only other justices ego, which did not permit a dissenting view. This is how Justice Mahmood put it in his famous reply:

So far as l can judge, it seems to have left an impression upon his mind that I have not adequate respect and veneration for his knowledge of law and jurisprudence; for otherwise (as he probably thinks) l would almost always agree with him as often as his other colleagues, the Puisne

He ended his letter stating that the office of

Among the many dissents given by this great and fearless judge, three stand out not only for the thoroughness with which they were prepared but also for the fearless language in which they were delivered.

In Queen-Empress v. Ramzan (1885), in that case amounted to an offence under Section 296 of the Indian Penal Code, 1860, which reads as follows:

296. Disturbing religious assembly.Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

A masjid was used by a sect of Muslims called the Hanafis, according to whose tenets the word mn should be spoken in a low tone of voice. While the Hanafis were at prayer in a mosque, a member of another sect entered the masjid, and, in the course of the prayer, called out the word loudly. For this act he was convicted of voluntarily disturbing an assembly engaged in religious worship under Section 296. A majority of four learned judges, including Chief Justice Petheram, ordered the case to be retried, keeping in mind the three questions that were set out by the learned chief justice. Mahmood, J. differed. After going into the meaning of the word mn in some detail, and the practice of different orthodox groups of Muslims in uttering the word, the learned judge held:

A mosque once so consecrated cannot in any case revert to the founder, and every Muhammadan has the legal right to enter it, and perform devotions according to his own tenets so long as the form of worship is in accord with the recognized rules of Muhammadan Ecclesiastical Law. The defendants therefore were fully justified by law in entering the mosque in question and in joining the congregation,

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In the present case I have already said enough to show that whilst the Hanafis, who evidently form the majority of the congregation of this mosque, prefer to say mn in a low voice, there is nothing in their tenets which would vitiate

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I am of the opinion that the evidence in the case does not prove that the accused uttered the word mn aloud with the intention of disturbing the rest of the congregation, though after the occurrence of the 22 August 1884, they might have known that the prosecutor and his friends would

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At the hearing of the case before the Full Bench, the learned Public Prosecutor laid considerable stress upon the argument that to justify a conviction under s. 296, Indian Penal Code, it is of no consequence whether the act which causes the disturbance is in itself lawful or unlawful, that the mere fact of the disturbance being caused to the religious assembly is sufficient to constitute the offence, specially as the accused in this case had reason to believe that saying the word mn might be objectionable to the prosecutor and his party, and might cause breach of the peace. I am unable to accept this view of the law, for to use the words of Field, J., in Beatty v. Gillbanks (1), it amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition. Not only do I hold that s. 79 of the Code furnishes a full answer to the argument; but that such a principle would place the minority at the mercy of the majority, and would, in a case like this, deprive them of the right of worship which the law distinctly confers upon them. Indeed if such a view were adopted, it would open the door for wrongful prosecution of innocent persons, who in the exercise of their lawful rights of worship resort to mosques for devotion. Such indeed may be the case here, because there is enough in the evidence for the defence to raise a suspicion that the saying of min aloud has been made a pretext for the prosecution with the object of preventing the accused from resorting to the mosque for worship, and thus to debar them from asking the prosecutor to render accounts of the disbursement of the income of the property belonging to the mosque, of which he states himself to be the mutawalli or superintendent. The witnesses for the defence, who are themselves Hanafis, have solemnly deposed that they do not object to min being pronounced aloud in prayers, and their statements deserve weight, being in perfect accord with the doctrines of Imam Abu Hanifa himself.

Having taken this view of the case, I regret I am unable to concur in the order of re-trial passed by the learned Chief Justice and my learned brethren, and I would return the case to the referring Bench with a negative answer to the question referred.

In Queen-Empress v. Pohpi (1891), Mahmood, J. referred to the two basic rules of natural justice as follows:

I take it to be the unshaken doctrine of human jurisprudence as distinguished from local jurisprudence, that whenever there are quarrels between two parties and those quarrels have to be decided, those quarrels cannot go before a person who is a party to them or in in any way personally interested therein. The maxim,