‘I was coming to those cases, my Lord, in my own plodding manner.’
What might have been a smile passed across the Chief Justice’s face; he was silent.
Half an hour later G.N. Bannerji was in full flow once more.
‘But ours, unlike the British but like the American, is a written Constitution expressly declaring the will of the people. And precisely, my Lords, because the same vesting of the different powers of the state among the legislature, the executive and the judiciary exists in the two Constitutions, it is to the rules that have been laid down by the Supreme Court in the United States of America that we must turn for guidance and interpretation.’
‘Must, Mr Bannerji?’ This was the English judge.
‘Should, my Lord.’
‘You are not implying that these decisions are binding on us? This question cannot admit of two answers.’
‘That, as from your question I have no doubt your Lordship perceives, would be a foolhardy contention. But there are certainly two sides to every question. What I meant was that the American precedents and interpretations, though not binding on us in the strict sense, are our only safe guide through what are for us comparatively uncharted waters. And the rule that has been laid down in America forbidding the delegation of power by any of the separate organs of the state should also be the yardstick for us to apply.’
‘Well.’ His Lordship sounded unconvinced but susceptible to persuasion.
‘The reasons, my Lords, that powers not be delegated, have been succinctly stated by Cooley in Constitutional Limitations, Vol I, page 224.’
The Chief justice interrupted. ‘Just a minute, Mr Bannerji. We do not have this book with us on the bench, and we would like to follow you on the page. This is one danger of crossing the Atlantic for your arguments.’
‘Presumably your Lordship means the Pacific.’
There was laughter from both the bench and the courtroom.
‘Perhaps I mean both. As you have observed, Mr Bannerji, there are two sides to every question.’
‘My Lord, I have had carbon copies made of the relevant pages.’
But the Court Reader promptly produced the book from his table below the rostrum. It was clear that there was only one copy of the volume, however, not five, as there would have been with the Indian and English law reports and authorities.
The Chief Justice said: ‘Mr Bannerji, speaking for myself, I prefer the feel of a book in my hands. I hope we have the same edition. Page 224. Yes, it appears we do. My colleagues, however, may avail themselves of the carbon copies you have provided.’
‘As your Lordships please. Now, my Lords, Cooley addresses the question in the following words:
Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed.
The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.
It is this sovereign trust, this sovereign trust, my Lords, that the legislature of Purva Pradesh has delegated to the executive in the Zamindari Abolition Act. Its date of activation; the sequence of the taking over of the estates of the zamindars, these decisions (quite possibly arbitrary, whimsical, even malicious) to be taken in many cases by very junior officials of the administration; the terms of the bonds sought to be offered by way of compensation, and the mix of cash and bonds; and many other points not merely of detail but of substance. My Lords, this is no mere filling in of details, this is improper delegation of authority, and the act, even if there were no other grounds, would be invalid on these grounds alone.’
Small, cheerful Mr Shastri, the Advocate-General, rose smilingly to his feet. His stiff white collar had gone limp with sweat. ‘Your Lordships please. A slight cor-rec-tion to my learned friend. Date of vesting is au-to-ma-tic with President’s assent. So act is ac-ti-va-ted at once.’ Although this was his first interruption, it was offered with undramatic and amiable courtesy. Mr Shastri’s English was not elegant (he pronounced ‘carte blanche’, for instance, as ‘ka-thee bi-lan-chee’), nor his manner of advocacy fluent. But he argued superbly if simply from first principles (or, as his irreverent juniors might say, prin-ci-ples), and there were few lawyers in the state, perhaps in the country, who were a match for him.
‘I am obliged to my learned friend for his clarification,’ said G.N. Bannerji, leaning forward on the lectern once more. ‘I was referring, my Lords, not so much to the date of vesting, which, as my learned friend points out, is immediate, but to the dates of the taking over of the estates.’