T H E E C O N O M I C W E E K L Y A p r i l 23 1960

On the Case of the State Against Kawas Maneckshaw Nanavati

THE case of Commander Nana­vati has the three elements of

a classical t ragedy: the hubr is , the predicament and the nemesis-—the pr ide and the pageantry round an eminent naval officer; the sordid affair that blighted his career and the inexorable course of justice that of necessity has to he b l ind to the personal codes of vengeance. The judgment of the H i g h Court on the reference has raised questions of considerable legal importance re­garding the nature and the scope of a reference against the verdict of a misdirected j u r y on which the Sup-reme Court w i l l have to lay down the law.

Rut in their anxiety to aid the unfortunate officer four eminences have introduced a pol i t ica l issue in the midd le of the j u d i c i a l process. A fiat suspending the sentence of the H i g h Cour t and rendering its w r i t infructuous was issued by Gov­ernor Sr i Prakasa on advice f rom Delhi which was tendered, i t was explained, because eight good men and true, and an eminent surgeon had accepted the version of the ac­cused (Sh r i Asoke Sen's explanation in London) and because of a naval convention which has not yet been proper ly ascertained ( S h r i Nehru 's speech to press reporters) and be­cause the accused was a very i m ­portant officer (the s t i l l unretracted par i of Shri Kr i shna Menon's inter­view w i t h Max L e r n e r ) . I t is only fa i r to add that the four dist inguish­ed persons concerned are barristers by t r a in ing .

J U R Y ' S V E R D I C T REVERSED

Kawas Maneckshaw Nanavat i was charged w i t h the murder of Prem Bhagwandas Ahuja on 27 th A p r i l 1959 at Bombay. The case of the prosecution was that Nanavat i had deliberately shot A h u j a who was his wife's paramour. The defence pu t forward the alternative version that the finger on the t r igger of the re­volver was undoubtedly that of Nanavati but that the revolver was used not of Nanavati 's vo l i t i on but had gone off in course of a struggle for the possession of the revolver. By a verdict of eight to one the j u r y found Nanavati not gu i l ty of murder

or of culpable homicide. The Pr in­cipal Judge presiding over the t r i a l disagreed w i t h the verdict of the j u r y and thought it necessary for the ends of justice to submit the case to the High Court under Sec­t ion 307 of the Cr imina l Procedure Code.

The scope of a reference under Section 307 is normally restricted to an interference w i t h the verdict of the j u r y only if the decision of the j u r y is found to be perverse in the sense of being unreasonable, manifestly wrong and against the weight of evidence. An accused in Bombay has a r ight to be t r ied by his peers ( ba r r i ng exceptionally complicated tr ials) and the Judges of the H i g h Court do not interfere w i t h the verdict of the j u ry because they migh t come to a different con­clusion. The Government Pleader. Shr i Chandrachud, appearing for the State advanced the ingenious argument that no sanctity attaches to the verdict of a misdirected ju ry and that such a verdict could not control the deliberations of the H i g h Court . Once this proposi t ion was accepted and once inf i rmit ies in the charge to the j u r y were established the Court assessed the entire evidence anew. That i t found Nanavati gu i l ty of the highest offence was no surprise since this was preeminently a case in which a layman and a t rained legal m i n d would honestly come to different conclusions re­gard ing the cu lpabi l i ty of Nanavati .

S E N T E N C E S U S P E N D E D

The concurr ing judgments of the Div i s ion Bench of the H i g h Court consisting of Mr Justice Shelat and Mr Justice Naik were delivered f rom March 8 to the forenoon of March 1 1 . The normal sentence for murder is the capital punishment. But in this case the lesser alternative of l i fe imprisonment was awarded. No appl icat ion was made on behalf of Nanavat i at the terminat ion of the judgment for the suspension of the sentence pending an appeal to the Supreme Court, On March 11 the hearing of the appl icat ion for leave to appeal to the Supreme Court under Ar t i c l e 134 of the Constitu­t ion on the ground that the case involved a substantial question of

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law was deferred by three days. And the H igh Court in its normal course issued a W r i t to the Pr inc ipa l Judge. Sessions Court, Bombay, for the issue of a warrant.

The chronology is of some signi­ficance. On the evening of Thurs­day, March 10. when the judgment of the Court was yet to be fully-delivered, the Prime Minister was approached to intercede on behalf of Nanavati or at any rate to advise suspension of the sentence which had not been finally pronounced. Pre­sumably, this approach to the Prime Minister was after a futi le request to the Chief Minister of Bombay who would be constitutionally res-ponsihle to the Governor. At this t ime, the Governor was fou r ing the Sabarkantha Distr ict . It speaks volumes for the haste of the exe­cutive and l i t t le for its wisdom that wi th in a matter of hours, without proper deliberations and consulta­tions, the Governor passed his order under Ar t i c l e 161 of the Constitu­t ion of India of b r ing "pleased to suspend the sentence" against Com­mander Nanavati " u n t i l the appeal intended to be filed by h im in the Supreme Court against" his sentence is disposed of and subject, mean­while, to the condit ion that he shall be detained in naval custody in ' I N S K u n j a l i ' . "

F U L L B E N C H U P H O L D S GOVERNOR

A copy of the Governor's order (and may it be presumed that it was signed when served!; was flourished before the Police Inspector who went to serve the warrant is­sued in pursuance of the wr i t of the H i g h Court . The Division Bench which on March 14 rejected Nana­vati's applicat ion for special leave to appeal (and two views are cer­tainly possible on this rejection) regarded the situation created by the executive intercession as "un­usual and unprecedented" and refer­red the matter to a f u l l Bench of the High Court . The narrow issue before the Ful l Bench of five judges was whether the impediment in the way of the execution of writ of the Court was a legal one. The Fu l l Bench held that Article 161 covering its if d id the field of mercy should

Ashok H Desai

T H E E C O N O M I C W E E K L Y A p r i l 23, 1960

be l i be ra l ly construed. T w o of the learned judges felt that the condi­tion of naval custody imposed by the Governor w h i c h was an in tegra l par t of the order and could not be serv­ed was beyond the competence of the Governor and therefore, the whole order was bad. However , in view of the o p i n i o n of the i r brother judges, this doubt was not pressed to the point of dissent and the whole order was held to be w i t h i n the com-petence of the Governor.

But that surely was never the ma in cause for disquiet at the executive interference while the j u d i c i a l pro-ress was not exhausted. The power of the executive to pardon, suspend or remi t sentences is a necessary a t t r ibute o f sovereignty. In Eng land it is regarded as an act of grace, a Royal prerogative, though i t is exer-rised only on the advice of the Home Secretary. A r t i c l e I I o f the A m e r i ­can Const i tut ion gives the power to the President to grant pardon that can absolve f r o m even c r i m i n a l con­tempt of a court of law, the only l i m i t to i t being that i t cannot be pleaded in bar of impeachment. In its very nature the power of the head of the executive to pardon must be of the widest ampl i tude . The j u d i c i a l process is a result of a long and c iv i l i sed t r ad i t i on . But l ike a l l human inst i tu t ions i t shares the i n f i r ­m i t y o f f a l l i b i l i t y . Even i n B r i t a i n , cases of mistaken iden t i ty l i k e of Beck or of deliberate frame-up l ike that of Oscar Slater are not un­known . A judge cannot take in to account facts and circumstances out­side the record of a casa. In t r y i n g to establish common norms, l aw is sometimes harsh and judges them­selves often commend cases as be­ing suitable for executive grace.

W H A T I S C O N S T I T U T I O N A L ?

That an act of the executive of such interference is s t r ic t ly w i t h i n the compass of the law of the Con-st i tu t ion is ha rd ly its redeeming fea­ture. The fundamental law of the land—the Const i tut ion — is couched in wide terms and has to be supple­mented by healthy conventions. Strict and legalistic in terpre ta t ion can sustain the most impruden t act of the executive "which may outrage the " t rad i t ions of c i v i l i t y " that have to govern the po l i t i ca l frame-work in a democracy. Enab l ing acts of wide lat i tude do not render dic­tator's f ia ts " l e g a l " and tota l i tar ian actions "cons t i tu t iona l" in this sense. Ul t imate ly the pr inc ip les of the Con­st i tut ion are po l i t i ca l p r inc ip les .

"Uncons t i tu t iona l " in a democracy means not just i l legal bu t also con­t r a ry to the t radi t ions and conven­tions of the Const i tut ion.

The ru le of law is a part of the accepted theory of democracy. It means the absolute supremacy or predominance of regular law as op­posed to the influence of a rb i t r a ry power. I t excludes the existence of arbitrariness, of unchecked preroga­tives and even of very wide discre­t ionary author i ty on the par t of the government. The ru l e of law also connotes equali ty before law or the equal subjection of all classes of citizens to the o rd ina ry law of the l and administered by the o rd ina ry law courts. The p r inc ip l e of the rule of law has been attempted to be formulated in our Const i tut ion, as in Ar t ic les 14, 20, 21 and 22. Bu t even in common parlance we dis t inguish between the letter and the s p i r i t of the Const i tut ion. In the u l t imate analysis, the p r inc ip le cannot be a matter of the words of a statute; it has to be a v igi lant regard for the t radi t ions of the Con­s t i tu t ion .

I N D I S P E N S A B I L I T Y N O G R O U N D

Equa l ly distressing, w i t h the dis­regard for the rule of law that is evident in the act ion of the Gover­nor , is the precipi ta te manner of its execution. Different excuses have been put f o r w a r d by the persons concerned; a l l of them feeble and unconvincing . Shr i Asoke Sen talk­ed of the decision of the j u r y and the evidence of Dr Baliga hold ing in l i t t l e esteem the verdict of a D i v i ­sion Bench of H i g h Court . Sh r i Nehru vaguely talked of a naval ru le , There is no such naval rule. There cannot be a naval convention which can penalise a gal lant officer who is found not g u i l t y by the Supreme Court and who would be presumed always to have been innocent. If there is such a convention it is h igh time it was jet t isonned. Shri Menon's apologia related to the im­portance of Nanavat i . The Govern­ment has never interceded when equ­ally eminent citizens are in the same danger. The Government has not interceded when o rd ina ry naval rat­ings are in the same posi t ion. It is h igh t ime the Government recognised that indispensabi l i ty to the armed forces, even if such be the case, is no basis fo r interference w i th the due process of law.

Accord ing to the P r ime Minis ter , his suggestion was for suspension of the sentence for a few days. The

curious manner in wh ich the sugges­t ion was communicated and the haste to c i rcumvent the order of H i g h Court before i t was pronounced presumably led to the confusion or error which widened the scope of the o r ig ina l suggestion. The Pr ime Minis ter referred to the suggestion as being only an advice. The P r ime Minis ter evidently does not know his power and the influence in his ad­visory capacity.

C L U M S Y I N T E R C E S S I O N

The case of Nanavati is pre-emi­nently a case in which after an ad­verse decision of the Supreme Court , the President might be just i f ied in showing mercy, after some stage of the sentence. The tragedy of the matter is that those who wanted to help Nanavati (who is described by-Mr Justice Shelat as "a man of courage and honour " ) have dragged the matter into the p o l i t i c a l arena. Poli t icians should leave the j u d i c i a l f ield severely alone. The i r clumsy intercession has forced Nanavat i to f ight the battle on fronts on which he was unprepared wh ich is always a disaster in any strategy. It has made his per i l more dangerous for no fault of his own . It has created a most unhealthy precedent and dis­closed scant respect on the par t of the executive of the j u d i c i a l pro­cess. One wishes that barristers, when they venture in to poli t ics, do not shed their sense of the majesty and the supremacy of law w i t h their wigs, bands and gowns.

Bhilai Steel's F irs t L a k h Tons ON A p r i l 11 the first one lakh tons

of steel was produced by Bhi la i Steel Works . Steel product ion at B h i l a i commenced on October 12. 1959 when the first open hearth furnace for steel making started operation. Two more open hearth furnaces have since been commis­sioned, the second on December 17, 1959 and the t h i r d on M a r c h 22. 1960.

Each furnace is capable of pro­ducing 500 tons of steel d a i l y . B h i l a i w i l l have six such furnaces for product ion of one m i l l i o n tons of steel annua l ly . The remaining three furnaces are under construction and w i l l be completed this year .

Up to now about 55,000 tons of steel bi l le ts and slabs have been despatched In re-rolling mills in the country .

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April 23, 1960 T H E E C O N O M I C W E E K L Y

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