THE
ECONOMIC
WEEKLY
A p r i l 23
1960
On the Case of the State Against
Kawas Maneckshaw Nanavati
Ashok H Desai
THE
case of Commander Nanavati has the three elements of
a classical tragedy: the hubris, the
predicament and the nemesis-—the
pride and the pageantry r o u n d an
eminent naval officer; the sordid
affair that blighted his career and
the inexorable course of justice that
of necessity has to he blind 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 reg a r d i n g the nature and the scope of
a reference against the verdict of a
misdirected j u r y on w h i c h the Supreme 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 political issue in
the m i d d l e of the j u d i c i a l process.
A fiat suspending the sentence of
the H i g h Court and rendering its
w r i t infructuous was issued by Governor S r i Prakasa on advice from
Delhi w h i c h was tendered, it was
explained, because eight good men
and true, and an eminent surgeon
had accepted the version of the accused ( S h r i Asoke Sen's explanation
in London) and because of a naval
convention w h i c h has not yet been
properly ascertained ( S h r i Nehru's
speech to press reporters) and because the accused was a very i m portant officer (the still unretracted
p a r i of Shri K r i s h n a Menon's interview w i t h M a x L e r n e r ) . It is only
f a i r to add that the four distinguished persons concerned are barristers
by t r a i n i n g .
J U R Y ' S V E R D I C T REVERSED
Kawas Maneckshaw Nanavati was
charged w i t h the m u r d e r of Prem
Bhagwandas A h u j a o n 2 7 t h A p r i l
1959 at Bombay. T h e case of the
prosecution was that Nanavati had
deliberately shot A h u j a who was his
wife's paramour.
The defence p u t
forward the alternative version that
the finger on the trigger of the revolver was undoubtedly that of
Nanavati but that the revolver was
used not of Nanavati's v o l i t i o n 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 g u i l t y of murder
or of culpable homicide. The P r i n cipal 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 H i g h Court under Sect i o n 307 of the C r i m i n a 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 w r o n g and against the
weight of evidence. An accused in
Bombay has a right to be tried by
his peers
( b a r r i n g exceptionally
complicated trials) and the Judges
of the H i g h Court do not interfere
w i t h the verdict of the j u r y because
they m i g h t come to a different conclusion.
The Government Pleader.
Shri Chandrachud, appearing for
the State advanced the ingenious
argument that no sanctity attaches
to the verdict of a misdirected j u r y
and that such a verdict could not
control the deliberations of the H i g h
Court.
Once this proposition was
accepted and once infirmities in the
charge to the j u r y were established
the Court assessed the entire evidence
anew.
T h a t it found Nanavati
g u i l t y of the highest offence was no
surprise since this was preeminently
a case in w h i c h a layman and a
trained legal m i n d would honestly
come to different conclusions reg a r d i n g the c u l p a b i l i t y of Nanavati.
SENTENCE SUSPENDED
The c o n c u r r i n g judgments of the
D i v i s i o n Bench of the H i g h Court
consisting of Mr Justice Shelat and
Mr Justice Naik were delivered from
M a r c h 8 to the forenoon of M a r c h
1 1 . The normal sentence for murder
is the capital punishment.
But in
this case the lesser alternative of
l i f e imprisonment was awarded. No
application was made on behalf of
Nanavati at the termination of the
judgment for the suspension of the
sentence pending an appeal to the
Supreme Court,
On M a r c h 11 the
hearing of the application for leave
to appeal to the Supreme Court
under A r t i c l e 134 of the Constitution on the ground that the case
involved a substantial question of
651
law was deferred by three days.
A n d the H i g h Court in its normal
course issued a W r i t to the P r i n c i p a l
Judge. Sessions Court, Bombay, for
the issue of a warrant.
The chronology is of some significance. On the evening of Thursday, M a r c h 10. when the judgment
of the Court was yet to be fullydelivered, the Prime Minister was
approached to intercede on behalf
of Nanavati or at any rate to advise
suspension of the sentence w h i c h had
not been finally pronounced.
Presumably, this approach to the Prime
Minister was after a futile request
to the Chief Minister of Bombay
who would be constitutionally responsihle to the Governor. At this
time, the Governor was f o u r i n g the
Sabarkantha
District.
It
speaks
volumes for the haste of the executive and little for its wisdom that
w i t h i n a matter of hours, without
proper deliberations and consultations, the Governor passed his order
under A r t i c l e 161 of the Constitution of India of b r i n g "pleased to
suspend the sentence" against Commander Nanavati " u n t i l the appeal
intended to be filed by h i m in the
Supreme Court against" his sentence
is disposed of and subject, meanwhile, to the condition that he shall
be detained in naval custody in
'I N S K u n j a l i ' . "
FULL BENCH UPHOLDS
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 w r i t of the
H i g h Court. The Division Bench
which on March 14 rejected Nanavati's application 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 Full Bench of five judges
was whether the impediment in the
way of the execution of writ of the
Court was a legal one. The F u l l
Bench held that Article 161 covering
its if did the field of mercy should
THE ECONOMIC
A p r i l 23, 1960
WEEKLY
be l i b e r a l l y 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 i n t e g r a l p a r 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 t h e i r brother
judges, this doubt was not pressed
to the p o i n t of dissent and the whole
order was held to be w i t h i n the competence of the Governor.
But that surely was never the m a i n
cause for disquiet at the executive
interference while the j u d i c i a l proress was not exhausted. The power
of the executive to pardon, suspend
or r e m i t sentences is a necessary
attribute o f sovereignty. I n E n g l a n d
it is regarded as an act of grace, a
Royal prerogative, though it is exerrised only on the advice of the H o m e
Secretary. A r t i c l e I I o f the A m e r i can Constitution gives the power to
the President to grant p a r d o n that
can absolve f r o m even c r i m i n a l contempt of a court of law, the o n l y
l i m i t to it being that it 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 a m p l i t u d e . T h e
j u d i c i a l process is a result of a l o n g
and civilised t r a d i t i o n . But like all
h u m a n institutions it 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 i d e n t i t y l i k e of
Beck or of deliberate frame-up l i k e
that of Oscar Slater are not unk n o w n . A j u d g e cannot take i n t o
account facts and circumstances outside the record of a casa. In t r y i n g
to establish common norms, l a w is
sometimes harsh and judges themselves often commend cases as bei n g suitable for executive grace.
W H A T IS CONSTITUTIONAL?
That an act of the executive of
such interference is strictly w i t h i n
the compass of the law of the Constitution is h a r d l y its redeeming feature.
T h e fundamental law of the
land—the Constitution — is couched
in w i d e terms and has to be supplemented
by
healthy conventions.
Strict and legalistic i n t e r p r e t a t i o n
can sustain the most i m p r u d e n t act
of the executive "which may outrage
the " t r a d i t i o n s of c i v i l i t y " that have
to govern the p o l i t i c a l frame-work
in a democracy.
E n a b l i n g acts of
wide latitude do not render dictator's fiats " l e g a l " and totalitarian
actions " c o n s t i t u t i o n a l " in this sense.
U l t i m a t e l y the p r i n c i p l e s of the Constitution are p o l i t i c a l p r i n c i p l e s .
" U n c o n s t i t u t i o n a l " in a democracy curious manner in w h i c h the suggesthe
means not just illegal b u t also con- tion was communicated and
t r a r y to the traditions and conven- haste to circumvent the order of
H i g h Court before it was pronounced
tions of the Constitution.
The r u l e of law is a part of the presumably led to the confusion or
accepted theory of
democracy. It error which widened the scope of
means the absolute supremacy or the o r i g i n a l suggestion. T h e P r i m e
predominance of regular law as op- Minister referred to the suggestion
posed to the influence of a r b i t r a r y as being only an advice. The P r i m e
Minister evidently does not k n o w his
power. It excludes the existence of
arbitrariness, of unchecked preroga- power and the influence in his adtives and even of very w i d e discre- visory capacity.
t i o n a r y a u t h o r i t y on the part of the
CLUMSY INTERCESSION
government. The r u l e of law also
The case of Nanavati is pre-emiconnotes equality before law or the
nently a case in w h i c h after an adequal subjection of all classes of
citizens to the o r d i n a r y law of the verse decision of the Supreme Court,
l a n d administered by the o r d i n a r y the President m i g h t be justified in
law courts.
T h e p r i n c i p l e of the showing mercy, after some stage of
The tragedy of the
rule of law has been attempted to the sentence.
matter
is
that
those
who wanted to
be formulated in our Constitution,
as in A r t i c l e s 14, 20, 21 and 22. help Nanavati ( w h o is described byB u t even in common parlance we Mr Justice Shelat as "a man of
distinguish between the letter and courage and h o n o u r " ) have dragged
the s p i r i t of the Constitution. In the matter into the p o l i t i c a l arena.
the ultimate analysis, the p r i n c i p l e Politicians should leave the j u d i c i a l
field severely alone.
T h e i r clumsy
cannot be a matter of the words of
a statute; it has to be a vigilant intercession has forced Nanavati to
regard for the traditions of the Con- fight the battle on fronts on w h i c h
he was unprepared w h i c h is always
stitution.
a disaster in any strategy.
It has
INDISPENSABILITY N O GROUND
made his p e r i l more dangerous for
E q u a l l y distressing, w i t h the disno fault of his o w n . It has created
regard for the rule of law that is a most unhealthy precedent a n d disevident in the action of the Goverclosed scant respect on the part of
nor, is the precipitate manner of its
the executive of the j u d i c i a l proexecution. Different excuses have
cess.
One wishes that barristers,
been p u t f o r w a r d by the persons when they venture into politics, do
concerned; all of them feeble and
not shed their sense of the majesty
u n c o n v i n c i n g . S h r i Asoke Sen talkand the supremacy of law w i t h their
ed of the decision of the j u r y and
wigs, bands and gowns.
the evidence of Dr Baliga h o l d i n g in
little esteem the verdict of a D i v i sion Bench o f H i g h Court.
Shri
Bhilai Steel's F i r s t L a k h Tons
N e h r u vaguely talked of a naval r u l e ,
There is no such naval rule. There ON
A p r i l 11 the first one lakh tons
cannot be a naval convention w h i c h
of steel was produced by B h i l a i
can penalise a gallant officer who is Steel W o r k s . Steel production at
f o u n d not g u i l t y by the Supreme B h i l a i commenced on October 12.
Court and who w o u l d be presumed
1959 when the first open hearth
always to have been innocent. If
furnace for steel m a k i n g started
there is such a convention it is h i g h
operation. T w o more open hearth
time it was jettisonned.
Shri
furnaces have since been commisMenon's apologia related to the i m sioned, the second on December 17,
portance of Nanavati. T h e Govern1959 and the t h i r d on M a r c h 22.
ment has never interceded when equ1960.
ally eminent citizens are in the same
Each furnace is capable of prodanger. The Government has not
interceded when o r d i n a r y naval rat- d u c i n g 500 tons of steel d a i l y . B h i l a i
ings are in the same position. It is w i l l have six such furnaces for
production of one m i l l i o n tons of
h i g h t i m e the Government recognised
that indispensability to the armed steel a n n u a l l y . T h e remaining three
forces, even if such be the case, is furnaces are under construction and
no basis f o r interference w i t h the w i l l be completed this year.
due process of law.
U p t o now about 55,000 tons of
A c c o r d i n g to the P r i m e Minister,
his suggestion was for suspension of
the sentence for a few days. The
653
steel billets and slabs have been
despatched In re-rolling mills in the
country.
THE
April 23, 1960
654
ECONOMIC
WEEKLY