From the 19th century, the story of a dissenting judge and colonialism
At a time when courage has become rare, one has to look up to those who stood for dissent in the colonial era.
Syed Mahmood, son of the great social reformer of 19th century India, Sir Syed Ahmed Khan, was the perhaps first judge to espouse the cause of judicial freedom. He was born on May 24 in 1850.
Mahmood made history during his six-year stint as a judge of the Allahabad High Court (HC) from 1887 to 1893, which was the highest position a “native” could hold in the British Government of India.
He was the first Indian Muslim and the first north Indian to be appointed to any HC in India, besides being the first non-European member of the Allahabad Bar.
From the age of 32 in 1882, he officiated as a judge of Allahabad HC thrice, before eventually becoming permanent in 1887.
As a judge, Mahmood stood out for demonstrating judicial integrity through dissent.
Even while he was still only a temporary judge of the Allahabad HC, he wrote dissenting judgments with vigour and fearlessness, and put humanity at the centre of his judicial universe, a digression from the purely legalistic approach of earlier judges.
In his famous dissenting judgment in Queen Empress vs Phopi, he recognised “fair trial” as an essential part of the criminal justice system, in defiance of the then colonial law, to protect the rights of the accused in situations where they were neither present in person before the court nor represented by a lawyer.
Similarly, in Queen Empress vs Babulal, his dissent put checks on torture of prisoners for extraction of confessions under the colonial evidence law.
Thereafter, the chief justice of Allahabad HC, Sir John Edge, stopped assigning Mahmood criminal cases. Eventually, this hostility with Chief Justice Edge culminated in Mahmood’s resignation from judgeship in 1893. As a truly independent judge, he simply could not accept judgeship being dependant on the frowns and smiles of the British.
Sir Syed, his father, saw it as a spiteful act of “Englishmen robbing Indian civil servants of their self-respect”, but was proud his son had the courage to stand up to the British.
Tej Bahadur Sapru, a prominent Indian freedom fighter who helped in drafting the Indian Constitution, termed the episode a “public calamity”.
Imagine those days of the last quarter of the 19th century when Justice Mahmood was the only Indian among British judges. As an Indian judge of standing in colonial India, he perhaps exemplified the burden of double consciousness — having to think of as an Indian judge in British India.
As a son of India with a judicial aptitude far ahead of his time, many of his dissents were later accepted by the courts, and continue to be the law of the land.
He was quoted by the Supreme Court (SC) of India in the Shayara Bano judgment abolishing the practice of triple talaq; and recently, in 2020, SC in Raghunath vs Radha Mohan, quoted with approval his judgment on the Muslim law of pre-emption.
While Mahmood is most reputed for his metier in Muslim law, his judicial scholarship sparkled in other areas of law as well, leavened by his vintage quest for a reason to confront orthodoxy and dogma.
His pronouncements on Hindu Law not only widened the grounds for Hindu widows for claiming maintenance, but were also useful in drawing the legislative framework of the Hindu Marriage Act, 1955 — the modern codified Hindu law governing marriage and divorce.
The enduring light of Mahmood shines from the intellectual integrity he never let go of in moments of conflict.
To the Indian legal fraternity, he will inspire us to learn deeply, think clearly and most crucially, never be afraid, when it is time to speak.
Mohammad Nasir is an assistant professor of law at Aligarh Muslim University
The views expressed are personal