Saturday, July 04, 2015

IT MEANS WHAT I CHOOSE IT TO MEAN

Charles Lutwidge Dodgson, a shy Oxford don in Mathematics, loved children; especially Alice, the one with the haunting eyes. On a summer afternoon in 1862, he took her and her two sisters for a rowboat ride. They quipped 'what is a rowboat ride without a story' and  Dodgson told them a story about a young girl, who falls through a rabbit hole into wonderland. This young girl was Alice herself. 

On insistence of Alice, Dodgson penned it down and illustrated it titling 'Alice's Adventures Under Ground'. It was presented to her on 24 November 1964 as a Christmas present, dedicating it as 'A Christmas Gift to a Dear Child in Memory of a Summer's Day'. 

This week in 1865, a  hundred and fifty years ago, the story was published by Macmillan under pen name of Lewis Carroll with the title 'Alice's Adventures in Wonderland' (commonly shortened to 'Alice in Wonderland'). It sold 160,000 copies and provided Dodgson with such a comfortable living that he asked Christ Church to reduce his salary. 

The original manuscript by Dodgson was auctioned by Alice in 1928 for 15,400 pounds ($75,000 US) to an American collector, who resold it for $150,000.  In 1946, it was auctioned again and was purchased by the Library of Congress and was presented back to British people and is now kept in the British Museum. 

The novel is not only most quoted book in the business world but in the legal world as well. Lord Atkin referred to conversation between Alice  and Humpty-Dumpty from the book in his classic dissent in Liversidge Vs Anderson  1941 (3) ALLER 338 (the Liversidge case). This annoyed Lord Simon, the then Chancellor. The article below is about this case; it also mention how Lord Atkin had used the conversation, what heart burning it produced, and answer of Lord Atkin to Lord Simon.

The majority opinion was heavily relied uppon in ADM Jabalpur Vs Shiv Kant Shukla AIR 1976 SC 1207 : (1976)2 scc 521: 1976 UJ (SC) 610: 1976 Cr LR (SC) 303: 1976 CrL J 1945 (SC) (the Habeas Corpus case), where majority of our Supreme Court wrongly held that writ of Habeas Corpus was not maintainable during emergency.
This is a painting by William H Bond National Gepgraphic Creative. It is taken from the this page, where more details as to how book was written can be read. 

The Liversidge case was decided by the House of Lords during second world war. It should have been lost in the heaps of law reports. But it went on to become the most talked about case of the twentieth century.  
Lord Atkin - courtesy Wikipedia

The Liversidge case is the most celebrated case—not because any fundamental interpretation of the law involved in it, or because of the personalities involved or even for its result.  It is for few paragraphs of the lone dissenting judgement of Lord Atkin that created history. The four paragraphs of his judgement are not only most quoted in context of liberty but are part of every book on human rights and liberty as well. 

During second world war, Liversidge was detained in England under Defence Regulation 18-B (the Regulation). It provided, 
 ‘...if the secretary of state has reasonable cause to believe any person to be of hostile origin or association and that by reason thereof it is necessary to exercise control over him; he may make an order against that person directing that he be detained.’

Liversidge filed a case for false imprisonment.  Anderson, the then Home Secretary set up his own order in defence. The order did not disclose the grounds on which it was made but merely asserted that he (Anderson) had reasonable cause for the arrest. 

Liversidge applied for supply of the grounds.  It was refused by the courts below.  This is how the matter came before the House of Lords. 

The fate of the Liversidge case hinged upon the interpretation of the words 'reasonable cause to believe' used in the Regulations.  It was substituted for the words, 'if satisfied'. The question was whether these words should be interpreted to mean that if a Secretary of State thinks that he has reasonable cause to believe or should they be given its natural meaning. In other words, should satisfaction be subjective satisfaction of the Secretary of State or objective satisfaction of a reasonable man? 

Liversidge could be denied knowledge of the grounds if the satisfaction was subjective and not otherwise.  If the satisfaction was objective then it could be seen to ensure whether it was of reasonable person or not.

To be fair to the majority, one must say that the appeal was argued in September 1941.  It was the lowest point for England in the Second World War: the Balkans and Crete had been overrun; the British summer offensive in the Western desert had failed; the invasion of Russia had carried the Germans close to Leningrad and Moscow; the Japanese menaced the Malayan Peninsula and Singapore; and the United States was yet to join the war.  It was a judgement of those times.  And at that, time Lord Atkin dissented. 

The majority (4:1) upheld the lower court's order refusing to supply the ground. Only Lord Atkin dissented. The following four paragraphs of his dissent are part of history. He said, 
I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive- minded than the executive ....
In England, amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptability to the court of King's Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put upon words, with the effect of giving an uncontrolled power of imprisonment to the minister.  To recapitulate the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.…
A page from original manuscript - courtesy Wikipedia

I know of only one authority which might justify the suggested method of construction. "When I use a word’ Humpty Dumpty said in rather scornful tone, 'it means just what I choose it to mean, neither more nor less’. ‘The question is’ said Alice, 'whether you can make words mean different things’.  ‘The question is’, said Humpty Dumpty, ‘which is to be master that's all'"… the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they can not, and the case should be decided accordingly. 

The judgement has been described as passionate, almost wildly rhetorical.  It certainly did not win him any friends amongst his colleagues. Lord Simon, the then Chancellor, had read the judgements in advance. He wrote a private friendly note, requesting Lord Atkin to delete the reference to Alice and Humpty Dumpty. He felt it ridiculed his colleagues and lowered the dignity of the court.  Lord Atkin politely but firmly refused.

The appeal was presided over by Justice Maugham, who himself apparently did not like the dissent …  for two days later he published a letter in The Times entitled ‘War and Habeas Corpus’—something that had never happened before or since then.  In the letter,  Atkin did not answer either in print or in private. The article caused questions to be raised in the House of Lords whether judges should criticise each other through the press. 

Justice Prabha Srideven  was judge of the Madras High Court.  She wrote a letter to me mentioning that, 'there was a reply to Justice Mauagham's letter, which was published, which prompted His Lordship to require the Advocate General to grant leave to sue for contempt, and that the Advocate General replied, if His Lordship Justice Maugham should write a stupid letter, he should expect a stupid reply and that there is no contempt.'  (This does not appear to be correct. A small comment on this along with the full text of the letters are Appendix-I of this post.) 

Justice Simon and Justice Maugham were not the only judges upset over the dissenting judgement.  Justice Dovecotes the then Chief Justice was upset by the reference to the ‘attitude of the judges … who are more executive minded than the executive.’ Atkin explained that  
‘It is neither criticism of the judges generally nor imputation of subservience to the executive.’

Atkin had held that satisfaction had to be objective, a view which has been justified not only by C.K. Allen in Law and Order and in Wade's Administrative Law, but also by later decisions in England Nakkuda Ali Vs Jayaratne 1951 AC 66; R Vs Brixton Prison Governor (1969) 2 AllER 347; Registrar of Trading Vs. WH Smith (1969) AllER 1065. 

In ITC Vs Rossminster  Ltd. 1980 (I) AllER 80,  Lord Diplock said, 'I think the time has come to acknowledge openly that the majority of this House in Liversidge Vs. Anderson was expediently and at that time perhaps excusably wrong; and the dissenting speech by Lord Atkin was right'. The Liversidge case was overruled yet, was wrongly relied by the Supreme Court in the Habeas Corpus case.   

Even today, Lord Atkin's dissenting judgement continues to be relevant; its appeal is not time bound. At that time, in a letter to Atkin, CK Allen remarked, ‘Such cries in the wilderness have strong and loud echoes.’ Well, we still hear them.

Appendix-I
National Judicial Academy Bhopal (NJA) is a debatable venture: many judges think it is waste of money and time; however equal number disagree and think otherwise.  But I always enjoyed being there.  At the initial stage, Professor Madhav Menon was its Director; I was a junior judge and had more time: I visited NJA many times; sometimes as participant, sometimes as an expert. My visits to the NJA also led to friendship with Professor Menon that I still cherish.  

One thing that everyone appreciates about the Academy is that it has given excellent opportunity to meet with other judges across the country.  On one of my trips, I met Sister Prabha Sridevan, she retired as judge of the Madras High Court. After her retirement, she was Chairperson of the Patent Board as well.  

I had presented a copy of the book 'A Lawyers World and Childhood Dreams' to her and this is her letter that includes a reference to Justice Maugham's letter, reply to the same and leave to sue for contempt. But I don't think it is correct. Here is the reason for the same.   

The letter of Sister Sridevan is as follows
Dear Brother Yatindra Singh,
Thank you very much for your prompt despatch of the articles and books.  I read the Habeas Corpus case immediately.  I showed it to my son, Srinath too.  The judgement of HR Khanna, J. moves my son beyond measure and when he was still a law student, he wrote an article on the binding effect of a minority judgement.  If I lay my hands on it, I will send it to you.  So, I though he must read the article written by a person, who was “in the ring” during the action.  He loved it.  He says that there was a reply to Justice Mauagham's letter, which was published, which prompted His Lordship to require the Advocate General to grant leave to sue for contempt, and that the Advocate General replied, if His Lordship Justice Maugham should write a stupid letter, he should expect a stupid reply and that there is no contempt.  I'm sure you know about this.  I too am happy that I met you at Bhopal.
Warm regards,               Yours sincerely,
(PRABHA SRIDEVAN)

Lord Maugham's letter was published on 6th November, 1941 in 'The Times'.  It is as follows:
Sir ― Those who took part in the decision of the House of Lords in the case of Liversidge v. Anderson could wish for no better statement of the reasons which guided the House, in affirming the views of so many eminent Judges, than is to be found in your leading article of 4 November, but there is one thing which I would like to add.
Lord Atkin, in his dissentient speech, stated that he had listened 'to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I'. Counsel, according to the traditions of the Bar, cannot reply even to so grave an animadversion as this. I think it only fair to the Attorney-General and Mr. Valentine Holmes, who appeared for the respondents, to say that I presided at the hearing and listened to every word of their anything which could justify such a remark
Yours truly, Maugham

There was no reply of this letter by Lord Atkin. My reason for saying this is, because of the following incidents.

Immediately after the Lord Maugham's letter was published, Lord Atkin wrote to his daughter Nancy, 
'I suppose you saw Maugham's letter in the Times today. I think he must be suffering from nervous strain. It is of course quite unprecedented and quite unpardonable for one judge to attack another's judgement in the Press, and nothing will induce me to reply.'
Lord Davies had asked the following question in the House of Lords,  
'Whether they considered it to be in accordance with the high traditions of the judiciary and in the public interest that Law Lords should criticise each other through the medium of a newspaper.'
Lord Maugham was asked to make comments on the same. He wrote to Lord Atkin, requesting him to be present at the time of reply. 
My Dear Atkin,
Lord Davies has put down for tomorrow the 19 a starred question inviting the Lord Chancellor to reprove me for my (celebrated) letter to the 'Times'. This may and probably will elicit an explanation from me. I shall only wish to explain why my remarks were not made in the House, and why I though it necessary to write to the 'Times'.
And I shall end by holding out an olive branch.
I rather think you will wish to be present.
Yours sincerely
Maugham.

Lord Atkin replied,
My Dear Maugham,
Thank you for letting me know of the question and your proposed statement yesterday. As a matter of fact your letter only reached me in the afternoon but I should not have been present for judgement once it has been delivered.
With best wishes.
Sincerely yours.
Atkin

I am not sure if anyone else had published any reply or any attempt for initiating contempt proceeding was taken or not. But 'The Daily Telegraph' did publish a leading article on 7th November, 1941 under the heading 'A Judge's Lapse' condemning the letter of Lord Maugham. This was more apt as 'The Daily Telegraph' had supported the majority decision and disagreed with the dissent. 

The article stated, 'The rebuke to Lord Atkin was in fact superfluous; but even if the complaint had been never so well justified that could not have excused the method chosen by Lord Maugham to ventilate it.'


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