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A people's judge

By T.R. Andhyarujina

Justice V.M. Tarkunde who died on March 22, 2004 was one of the increasingly rare breed of judges of the past who had interests in public affairs outside the field of law. From his early days in 1936 he was a follower of M.N. Roy and joined his Radical Democratic Party. After its dissolution he was active in the Radical Humanist Movement, which replaced the Radical Democratic Party and was the editor of the Radical Humanist for many years. After his resignation as a judge of the Bombay High Court in 1969 he was active in movements to secure civil liberties. In 1974 with Jayaprakash Narayan he founded Citizens for Democracy. He was also one of the founders of the Peoples Union for Civil Liberties in 1976. Until his death at the age of 94 he was active in the Radical Humanist movement and in the cause of civil liberties and wrote frequently on these subjects.

Tarkunde was a liberal intellectual who appeared to have strayed into the legal profession. His conspicuous character as a judge was his overwhelming desire to arrive at what he conceived to be a just decision in the case before him even if it meant bending the facts and the law for that result. He apparently believed in Bassanio's plea to Portia in Merchant of Venice: " Wrest once the law to your authority; to do a great right do a little wrong."

Tarkunde was a judge from 1957 to 1968. In those days judges did not have the expansive and liberal scope of their judicial power, which they have today. Tarkunde's decisions therefore appeared to be made to suit his notions of equity. I remember typically two cases decided by him. In Sophie Kelly's case, he set aside the Government's decision to force heads of schools in Maharashtra to put up students to the Board examinations irrespective of their merits and not to detain them in the ninth standard. Tarkunde held that Government's action was a gratuitous interference with the common law right of parents and heads of schools to educate children.

In another case, Tarkunde set aside the Government's decision to ban a petty literary crossword competition conducted by the Illustrated Weekly of India on the ground that it was a game of chance. Tarkunde held that the competition was an exercise in skill. He believed the Government was focussing its attention on small games when it was openly allowing gambling in horse-racing. In both cases, the legal basis of his decisions was dubious and he overruled policies of Government, but ultimately the Government accepted both his decisions.

As a young junior lawyer I used to frequently appear in his court for the Government. When I confronted the law against his views, Tarkunde had a favourite expression: " We shall find a way out." At that time, I deeply resented his judicial approach. In retrospect, I cannot say that Tarkunde was wrong.

The most abiding contribution of Tarkunde was his leadership and effort to safeguard secularism in India from religious intolerance. Strangely it came from a confirmed rationalist and agnostic. Tarkunde defended strongly the citizen's right to freedom of religion, conscience and religious practices. Two instances come to my mind.

In 1960, the Pope made his first ever visit abroad to inaugurate the Eucharistic Congress of Catholics in Bombay. The Government made the Oval Maidan available to the Congress. The Government's action was challenged in Court as aiding religion. The case came before Tarkunde. I was briefed to appear for the Cardinal with Nani Palkhivala. We feared that the case had come before an unsympathetic judge knowing Tarkunde's rationalist background. Our fears were misplaced. Tarkunde upheld the right of Catholics to hold the Congress and the Government's help to them. He said that though India was a secular state it was not indifferent to religion.

Many years later in 1983 after his retirement, Tarkunde as a lawyer appeared for the Ananda Margis in the Supreme Court to defend their religious beliefs to conduct processions in the streets of Calcutta with human skulls and daggers. His rationalist beliefs did not inhibit him to defend the rights of religious denominations even if such practices appeared to be bizarre to others. Despite his valiant efforts without any personal reward Tarkunde did not succeed.

Tarkunde rallied the forces of secularism amidst communal hatred. His was the voice of sanity which guided activists to confront the communal forces in the anti-Sikh riots in 1984, the Ayodhya outrage in 1992-1993 and the Gujarat carnage in 2002. One of his last writings in the Radical Humanist was on the importance of the next national election to the secular fabric of our Constitution.

A great American judge, Oliver Wendell Holmes, once said that the intensity with which one does one's work was vital. He said an hour's intensity was worth many days of dragging work. Tarkunde had that intensity of approach in all that he did, whether he wrote a judgment, argued a case or espoused a national cause.

The public life of India will be the poorer by the loss of this man of commitment.

(The writer is a Senior Advocate and former Solicitor-General of India.)

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