Source :- Book Name : Battles At The Bar / By:- K. L. Gauba ( pages 168 to 179 )

The 'New Magna Carta' Case

( Page No. 168 )

BEFORE the middle of 1941, the regime of Sir Douglas Young as Chief Justice of the Lahore High Court had reached its noonday zenith. The sun goes no higher than its zenith, noon is followed by afternoon, and then night. Would it be so with the "Magna Carta" era of the Lahore High Court?

Vast estates had disappeared; eminent personages had bitten the dust of humiliation ; whispers were loudest and fear rampant.

Near at hand, Lala Harkishenla's properties and estates hand been sold, and he himself had died a pauper's, if a hero's end. My brothers, Jeevanlal, had completed a period of parole generously granted by the Punjab Government, despite the opposition from the High Court, but was struggling for a living.

By the middle of 1941 my fortunes too had fallen to their lowest level. Although I had fought for nearly two years to keep off insolvency proceedings ( started by the Special Official Receiver ) by every conceivable device that ingenuity could invent, the end could not be put off indefinitely, and with Special Benches and Special Judges appointed over and over again by the Chief Justice to settle the controversies that were raised, the case came to an end at last with the dismissal of an appeal against the order of adjudication.

And with this, I had nothing left in the world to lose, except the liberty to drive a Baby Austin which by this time had also lost its hood and its seats. Insolvency brought to an end what little professional practice remained. And so while down on the boards, as it were for the count, it came in a flash ; " it cannot be worse than this ; what about a few unorthodox punches for the middle-weight champion of England ? "

And thus "New Magna Carta " came to be written. It was written in the summer of 1941. The price to be paid was never in any doubt. But I had survived the judgments of Douglas Young and his Judges; would be and they survive my indictment ?


( Page No. 169 )

And when things like 'New Magna Carta' are being written it is essential that the writing and publication be shrouded in secrecy, otherwise, it is likely that plans may be intercepted at an inconvenient stage and never be completed or effective. And so even the family was unaware that the paterfamilias was at work on a new book. Chapters were completed in the very early hours of the morning, and, the manuscripts and typed copies were promptly scattered in various places; only the author could bring all together when complete. Printing was equally a problem, but an enterprising and patriotic printer agreed to lend his services, provided his name was not disclosed and the printed sheets were promptly removed from his press.

It was not until December 1941 that the atom bomb was ready for detonation.

Meantime, however, as things have a way of leaking out, it had leaked out that I was busy writing a book. As some of the things I have written, have caused some sensation, it one, which, of course, is only partially true. And so the rumours that I was busy with my per again raised curiosity in various quarters, but nowhere more than within the cloistered precincts of His Majesty's High Court of Judicature at Lahore.

All property of an insolvent vests in the Official Receiver, and so, apparently acting in the assumption that even the brain of an insolvent belongs to his creditors, the Special Official Receiver ( Khwaja Nazir Ahmed ) applied to the High Court that he understood "that Mr. Gauba has written a book" and " Mr. Gauba's books are best sellers in the market", he would like to see the book that had been written, with a view to financing its publication.

The petition of the Special Official Receiver was placed before Mr. Justice Monroe on December 2, 1941.
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( Page No. 170)

Ramlal Anand appeared for the Special Official Receiver. The gist of the proceedings were thus reported in the press : ( (1) Civil & Military Gazette, Dec. 3, 1941.)

Mr. Ramlal Anand: Mr. Gauba has written a new book which the Liquidator is anxious to see. It is requested that Mr. Gauba be directed to show him the manuscript.

Mr. Gauba: Although I have reasons to oppose the application I have no desire to stand in the way of the Special Official Receiver having all the information he seeks.

Mr. Justice Monroe : What is the nature of the book ?

Mr. Gauba : It is in the nature of a complaint to the Government of India about certain affairs.

Mr. Justice Monroe: Will the book have any commercial value if published under your name ?

Mr, Gauba : I do not know. But if something happens to me, it might have considerable commercial value.

Mr. Justice Monroe; Have you any objection to the Special Official Receiver looking at it ?

Mr. Gauba : None at all, if so ordered.

The Court, accordingly, directed the author to give the information sought and to show the Receiver the manuscript of the proposed book, and adjourned the hearing of the petition to enable compliance with the order.

On December 18, the matter again came up before mr. Justice Monroe. "Mr. Ramlal Anand and the Receiver informed the Court that Mr. Gauba having carried out fully the undertaking given by him, and having surrendered the manuscript of the book which he was writing, there was no need to proceed against him any further. His Lordship ordered the application to be filed". ( (2) Tribune, Dec. 19, 1941.)

A few days later, however, nobody was more surprised than two gentlemen ( Mr. Justice Monroe and Ramlal Anand ) when, at a Garden-party, they were apprised by members of the Press that " Mr. Gauba's new book about the High Court has been circulated'. One of them even brandished a copy proudly ! His Lordship immediately left the party, but Anand stayed on to express his chagrin that they had once again been fooled by Gauba.

The echoes of the "Khwaja Case" had not yet died down and the High Court was still the gossip of the Province. Even in Delhi the affairs of the Lahore High Court was the general topic of conversation, in official and non-official circles. Sir Douglas Young decided to spend Christmas in the Imperial Capital to settle some of the growing doubts in circles that meant a great deal to him in his official position.
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(Page No. 171 )

With the manuscript of "New Magna Carta" safely lodged in the High Court safe, he went to Delhi with an easy mind, that there would be little to disturb the festive occasion. But this very festive occasion, and the general holidays provided the most suitable opportunity, and lent the much needed cover to the final activities connected with the release of the book. The book was not offered for sale and could not be (officially) had of the booksellers, but many recipients of copies overnight became black-marketeers, for few books have ever had so ready and urgent a demand, fancy prices being paid for copies, and even for the privilege of reading one.

** ** ** **

The book consisted of 15 chapters, covering various aspects of Sir Douglas Young's career as Chief Justice of the Lahore High Court, beginning with his appointment in 1934 and his reply to the addresses of welcome ( "Words Most Excellent" ) and the inspiration from "Magna Carta", and ending with the state of affairs in the High Court in 1941 ( " The Chief Justice and their Lordships" ). It referred, among other matters, tot he "The New Justice ", "Lalla & Co. " , "Magna Carta in Practice ", "A Professor finds the Back Door", "Midnight Orders", "The Battle for the Bharat", "Rescuing a Receiver ", "A Begum in Contempt", and "Commission in Advance."

Prefaced to the above was a covering note and petition to His Majesty:

" To,

The King's Most Excellent Majesty (Through His Excellency the governor-general )

This Record

Of the administration of the High Court of Judicature at Lahore, under the aegis of the Hon'ble Sir John Douglas Young, Chief Justice,

Is Humbly Addressed

That His Majesty may be pleased to refer the matters herein detailed for enquiry and such action as they may propose,

To

Their Lordships of the Judicial Committee of the Privy Council under proviso (b) to sub-section two of section two hundred and twenty of the Government of India Act, 1935."

In the course of the Petition to His Majesty it was urged: "Justice needs no embellishments to commend her to the attention and respect of mankind. She is fairest, natural and unaffected. Her motives must be above reproach, her inclinations impartial,


(Page No. 172)

her conduct proper. She must not merely look well; it is of greater import that no man should be able to point a finger at her. She must ever be above suspicion. If she adopts any other standards, her name is not 'Justice'; she is an imposter.

This memorandum is not a bolt out of the blue of the writer's imagination, nor is it the first indication that all has not been well in the Lahore High Court since Sir Douglas Young took charge as Chief Justice. For many years there have been indications that the flow of the pure waters from the founts of justice was being disturbed by muddy currents below the surface. Sir Douglas Young has refused to listen to the voice of friendly criticism or reason.

Much as the High Court is entitled to respect and esteem, it is so much more a duty to reveal those aspects and affairs, which tend in any manner to degrade the honour and prestige to which the High Court is entitled, so that Your Majesty and those in authority may know the truth and compel a change.

Of all forms of excess or oppression, the judicial species is the worst, for it has the semblance of legality without the candour of executive need or dictatorial authority. Excess or oppression by an inferior court is open to correction and remedy, but such transgression by a superior court strikes at the very foundations of that confidence upon which the edifice of Justice stands. No words and no intriguing formulae declared to justify illegal or high-handed acts can carry the conviction, or the authority, that justice is being dispensed and law conscientiously interpreted.

While all the chapters of history do not make good reading, generally speaking, it can be said that if there has been anything that entitled the British race to a pride above its contemporaries, it has been the high standard set and maintained by those charged with the administration of justice. These traditions have been well maintained in this country. If the conclusions to be deduced from the facts set out in this memorandum are correct, Sir Douglas Young has not only been responsible for the deterioration of the prestige of the Court, the destinies of which were entrusted to him but he has sadly lowered the traditions for which the British Empire in India had many good reasons to be justly proud .

This memorandum is not concerned with Sir Douglas Young's private life at all, upon the maxim that every man is entitled to live his own life. This memorandum is entirely limited to the public acts and utterances of the Chief Justice. It covers the activities of the departments set up by him and of which he has remained the head.

Receiverships, liquidations, fabulous commissions, seizure of companies and estates, forced sales, Special Benches for special cases, contempt's of court, scouting and a fatuous anti-corruption drive, accordingly, figure largely in the pages that follow.
                                                                                                                                                                                   
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(Page No. 173 )

The bitter controversy with his own colleagues on the Bench over the reappointment of a man, whose activities had become the scandal of the Province, and his own conduct in the now famous Khwaja Nazir Ahmed Case, have done much to bring to the surface what was suspected and only whispered about in recent years. But the matter is still far from settled. The Chief Justice who in 1935 and 1936, never had any hesitation in resorting to the police and handing over to them persons, whom he regarded as transgressors against the law, in 1941 has been prepared to do anything and everything within his power to hamper the police investigating the affairs and transactions, of one, who, admittedly, has enjoyed all the privileges of a royal favourite .

The Chief Justice on August 28, 1941, while holidaying at Manali, wired to the District Magistrate of Lahore to stay all police investigation and to direct the police to return the books and documents to the accused Khwaja Nazir Ahmed. He passed orders that the application for stay be placed again before him personally, at Lahore three days later, where he intended to return expressly for the purpose of dealing with the matter, in spite of the fact that there were two Vacation Judges already functioning at Lahore. The ground on which he asked the District Magistrate to return the memorandum was that they were 'needed in the High Court', which was false. He came to Lahore, interrupting his vacation to hear the case, then suddenly changed his mind and went to Simla to press for the reappointment of Khwaja Nazir Ahmed as Special Official Receiver. Having failed, he appointed a Special Bench to hear the petitions arising out of the reports to the police. One of the Judges selected to serve on this Bench was a close relation. This Bench from first to last never concealed the fact that they were not so much concerned with Khwaja Nazir Ahmed as with what they described as protecting the High Court.

'Mr. Justice Blacker: But in this case, Mr. Gauba, the High Court is not essaying to protect the Khwaja. In fact, we are trying to protect the High Court.' (Civil & Military Gazette, Oct. 15, 1941, P. 3, col. 3. )

If Sir Douglas Young has acted judicially and bona fide in giving sanctions and approvals to Khwaja Nazir Ahmed's palpably dishonest transactions how did the High Court call for protection? What objection could there be to the police investigating the affairs of a dishonest receiver? Is there no Magistrate or Sessions Judges in the entire Province good or honest enough to take a judicial view of the Special official Receiver's acts? And if Khwaja Nazir Ahmed and his gang went to jail, how would the reputation of Sir. Douglas Young be affected, except that the Chief Justice may be sympathised with for having put so much misplaced trust in them? On the other hand, so long as Sir Douglas Young stands in the way of the ordinary processes of the law and the due course of justice, it will unfortunately be suspected that he affords


(Page No. 174 )

them the protection of his high office, not because the dignity of the High Court is concerned, for the dignity of the Court would be better served without such men, but because he is himself one of them.

Early in the present year there were unmistakable signs that all was not running smoothly within the precincts of the Lahore High Court, which bore signs of the depression; even departments, usually the centre of exhilarate activity bore an air of anxiety. Groups in the Bar Library sat about in busy gossip. It was no secret that the Chief Justice was boycotted by the majority of his colleagues.

For years there have been decisions, orders and events the like of which cannot be traced in the archives of any other High Court; things have been whispered that may or may not be true, but which neither reflect credit or enhance the prestige of the Supreme Court of the Province .

It is surprising that a cleavage between the Chief Justice and his colleagues has not occurred earlier, but Judges are patient men and most patient with their own colleagues.

This memorandum is not concerned with whispers, it is based upon the judicial and executive archives of the High Court, the records of judicial proceedings, interpolations in the Legislature and on information from sources deemed reliable. Astounding as the facts may appear, truth is often stranger than fiction and never more so than when concerned with the administration of justice. 'Justice' in the words of their Lordships of the Privy Council 'is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.' The time has come when your Majesty and those in authority should have a picture of the now well-debated phases of the administration of the present Chief Justice of the High Court of Judicature at Lahore, in their collective and unfortunate reality. That some Judges of the Lahore High Court have sent up notes upon some of the matters covered in this memorandum is a mere coincidence.

The facts set forth in the memorandum invite the Chief Justice to a calm and deliberate answer, if there be one. He may give a short angry reply. It is not be the allegations in this memorandum, but by his reply will he be judged.

This record is, accordingly, tendered to your Majesty in the fervent hope that you will direct that such enquiry be made and such action taken as will restore to the High Court of Judicature at Lahore its lost prestige and honour."
                                                                                                                                                                           
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(Page No. 175)

The Petition was dispatched to the King's Most Excellent Majesty through the Governor-General, on the 28th of December 1941. And, as soon as this was done there was little to keep back the document from others to whom it was proposed to send it. Some members of the Press, the Governor and Ministers of the Punjab, the Executive Councilors of the government of India, the Chief Justice and certain judges of various High Courts, the Lord Chancellor, and members of the House of Commons and the House of Lords, and prominent members of the Legislative Assembly, the Council of State and some other persons for whom the writer and some personal regard .

Overnight, the matter became a public sensation. After the proceedings in the Khwaja Case much of the subject matter was already public, but here was the whole thing in documentary from, embellished with some of the things that could not be said at the hearing, but which people still wanted to know. The narrative was garnished with epigram and spice, and aromas that come an empty stomach and a vivid imagination.

The Punjab Government took immediate steps to proscribe the book, not because it was untrue, but because it brought the administration of British Justice into disrepute. The order had little effect except to make the book more sought after than ever. There were some amusing incidents. I was forewarned of the order from the very department from where it was being issued, and, unofficially given three days to put in safe hiding any spare copies of book which I may have. When the police came to make a search, they too seemed quite satisfied at finding only two copies! They were also most gratified when my wife acceded to their request to be permitted to sit in the drawing room and to read through the book before leaving:

" Thanks, Madam, we will never get another chance," they said.

I received many requests for copies. Even after the book was proscribed, I was inundated with requests, as everybody thought I would produce one if I could and this of course was true. I was very happy to comply with some of these requests but from none perhaps more readily than that one from Mr. Justice Monir, who had just been promoted Judge thanks to the Khwaja Case! I did not know he would later sit on the Bench constituted to try me for contempt of Court!


( Page No. 176 to 177 )

It was not until February 2, that Sir Douglas Young decided to take proceedings for Contempt. He sent a short note to the Office:

" Re: K. L. Gauba.

Issue notice for Contempt of Court for 16th Feb.

J. D. Y. "

On 7th February, I was served with the following notice:

" In the High Court of Judicature at Lahore

Criminal Original Side,

Case No. 2 of 1942.

In the matter of the Contempt of Courts Act XII of 1926, and in the matter of Mr. K. L. Gauba, Barrister-at-law, Lahore. Notice to

K. L. Gauba,

Barrister-at-law, Lahore.

Whereas you Mr. K. L. Gauba have committed gross contempt of court by having written and published a book called the 'New Magna Carta' containing allegations which are calculated to scandalize the Courts of Sir Douglas Young, Chief Justice, and Mr. Justice Monroe, Judge, High Court of Judicature at Lahore ; you are called upon to appear in person in the High Court of Judicature at Lahore at 10 a. m. on Monday, the 16th February 1942, to show cause why you should not be committed or otherwise dealt with according to law for Contempt of Court.

Herein fail not under pain of arrest without bail and the penalties proved by law.

Given under my hand and seal of the High court of Judicature at Lahore, this 4th day of February 1942.

( Sd. ) G. C. Evenette
Deputy Registrar."
                                                                                                                                                       
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( Page No. 178 to 179 )

Charges;

(1) " The Hon'ble Sir Charles Beaumont, Chief Justice of Bombay, to prove the letter addressed to him from the Lahore High Court, in 1940, relating to the criminal case instituted at Bombay against Khwaja Nazir Ahmed and the conversation at Bombay between him and the Deputy Registrar, Lahore High Court, and others ( referred to in Chapter 10 ). ( 'Rescuing a Receiver'. )

(2) "The Hon'ble Mr. Justice Monroe, Judge, High Court, Lahore, to prove generally the several facts alleged in which his Lordship is referred to."

(3) "The Hon'ble Mr. Justice Monroe, Judge, High Court, Lahore, to prove generally the several facts alleged in which his Lordship is referred to. "

(4) "The Hon'ble Mr. Justice Abdul Rashid, Judge, High Court, Lahore, to prove the letter addressed to him by the Hon'ble the Chief Justice, in which it is stated that his Lordship is now in bad company, and to establish the reasons for the boycott of the Chief Justice by certain Judges of the High Court, as also to prove the threat of a libel action if their Lordships submitted a memorandum to the Government disapproving of the re-appointment of Khwaja Nazir Ahmed, Special Official Receiver (referred to in Chapter 14 )." (" The Chief Justice & their Lordships." )

(5) "Sir N. N. Sirkar, Advocate, Delhi, to prove the advice tendered as Law member to Sir Douglas Young in June 1936 regarding the scheme to run the Bharat Insurance Company Limited and other companies ( referred to in Chapter 6 ). ( "The Battle for the Bharat.")

(6) "Mr. B. R. Puri, Advocate, Lahore, to prove the speech made by Sir Douglas Young at a Banquet given in his honour on May the 25th, 1934, in which his Lordship deprecated the practice of manoeuvring cases to certain Judge for certain ends ( referred to in Chapter 2 ).

(7) "Mr. Mehr Chand Mahajan, President, Lahore High Court Bar Association, to prove that Mr. Justice Monroe was not a party to the alleged Division Bench, on March 25, 1936, at which certain applications of the Bharat Insurance Company were disposed of ( referred to in Chapter 6 )."

(8) "Mr. Jagn Nath Aggarwal, Advocate, High Court, to prove the conversation with the Hon'ble the Chief Justice in or about the month of April 1936, regarding threat to wind up the Bharat Insurance Company, if certain directors were not replaced; as also the speech made by the Hon'ble the Chief Justice on May 7, 1934, in which his Lordship referred to Magna Carta with approval, and other matters."

(9) "Mr. Khwaja Nazir Ahmed to prove generally the facts alleged in the various chapters against him."

(10) "Mr. J. L. Gauba, to prove generally the facts regarding Battle for the Bharat Insurance Company."

(11) "Mr. N. K. Khanna, formerly prop. Of Stiffle's Restaurant and Mr. B. L. Disney, Supt. Liq. Branch, to prove the facts regarding the seizure of the premises known as 'Stiffle's Restaurant' at about midnight on the 29th April 1940, under the orders of the Hon'ble Mr. Justice Monroe and the refusal to furnish the copies of the said order on the ground that they were confidential and administrative (referred to in Chapter-8 )." ("Midnight Orders."

(12) "L. Parshotam Lal Sondhi, Manager, Tribune Press, Lahore, to prove facts regarding the ex parte seizure of the Tribune Press Premises by Khwaja Nazir Ahmed under the orders of the Hon'ble the Chief Justice on or about March 27, 1936 ( referred to in Chapter-8)." ("A Professor finds the Back Door.")

(13) "Mr. D. A. Ryan, I. C. S., formerly Registrar of the Lahore High Court, to prove orders of the Hon'ble the Chief Justice regarding Sedition and Defence of India Cases not to be placed before certain Judges and as to appeals from the orders of Monroe J. and special transfers and benches for special cases constituted from time to time by the Hon'ble the Chief Justice (referred to in Chapters-5 and 13 )."

(14) "Begum Fazal Elahi, Model Town, to prove generally the facts alleged in Chapter 12," ("A Begum in Contempt." )
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