‘Dohai hai, Maharaja, Dohai hai’. Thus shouted the scantily dressed and weak subject to the great Maharaja Ranjit Singh of Lahore as he rode across the town from the citadel to the Shalimar Gardens. For the visibly shaken and scared subject, it was a great feat to shout out to the Maharaja, but he simply had no choice — his lands were gone — taken by the shrewd moneylender who kept increasing the interest every year, by the corrupt Qanungo who had colluded with the same moneylender — and, it seemed by the whole universe who had conspired to make a destitute out of this once prosperous and happy small farmer. Today, the only court of appeal, the only chance of justice, was to call out to the famous Maharaja.
For the ruler of the Punjab, Maharaja Ranjit Singh, who had recently brought lands as far as Hazara, Peshawar, and Multan under this reign this was not a strange call. He would often get called out by subjects in despair, and often his 30 minute horse ride would turn into 4 hours as people lined up on the sides of the streets to call out for help as their last resort. Today the Maharaja was not surprised either when he was called out — he looked around with his stern eye (he was blind in one eye), called the man forward, and asked him what his complaint was. After listening to the poor farmer, he immediately realised that he had been cheated out of his lands, and ordered a restoration of his property and a fine for the shrewd moneylender.
The Maharaja had heard enough tales of such kind and was adamant to dispense justice on such issues immediately. His courtiers who always flanked him noted his decision, and the farmer, for the first time in a year, sprouted a smile; his weeklong journey and three days of fasting had paid off.
While the Lion of the Punjab has always been known for his keen sense of justice and fair play, dispensing justice while riding to his afternoon excursion was perhaps not the best way round it. The Kingdom of Lahore was mainly a military enterprise and beyond the two offices of military and fiscal affairs, scarcely anything else was organised. There was a Saddar Adalat in Lahore but that was manned by ill trained judges and was substantially under staffed and ill equipped — there was no criminal or civil code to refer to, custom reigned supreme and often it depended on how powerful, rich or resourceful the litigant was — sadly some of this is still true in today’s court. There were Qazis for Muslims, but beyond conducting marriages, divorces and inheritances, they knew little, cared little, and could do little. The concept of individual rights, universal rights, nay any rights, was lost on them. The Maharaja did bring the whole of the Punjab under one government after almost a century, but the introduction of an impartial and organised judicial system would have to wait another day.
Fast forward to 1849 and on a crisp spring morning in Lahore on March 29, 1849, the ten-year-old Maharaja of the Punjab, Dalip Singh, stood motionless in front of the Secretary of the British Governor General of India Sir Henry Elliot. In front of the young King was a piece of paper he was told to sign, but he just intently gazed at it, seemingly lost in its cursive writing and large font. He might not have read what was written on it, but even at that tender age he knew what it meant — it meant signing away his Crown. With a trembling hand, the young king wrote his name in Roman letters and formally ended the half century of the Kingdom of Lahore.
By his signature, Dalip Singh had agreed to ‘resign for himself, his heirs, and his successors all right, title, and claim to the sovereignty of the Punjab, or to any sovereign power whatever’. He had also given over charge over state property and jewels to the East India Company and the infamous ‘Koh-i-Noor’ diamond was also surrendered to the Queen of England as part of the bounty. The proclamation of the transfer of sovereignty was then read aloud in English, Persian and Hindustani, greeted with deafening silence — even the victorious British respected the sombre solemnity of the occasion.
Fast forward again a few years and the son of the same small farmer we met earlier is again in trouble — these farmers do have a way! But time round there is no Maharaja, no stopping along the ride, no immediate impromptu decision. But today the young sturdy son of the Punjab seems less worried: ‘Larens sahib sub janata hai,’ he exclaimed as he entered the offices of the Board of Administration of the Punjab, set up after the annexation. He was, of course, referring to the famed Lord John Lawrence — after whom Lawrence Gardens is named, and who within a few years set up a formal system of government in the Punjab. Today, the farmer was less worried, he had a complaint, registered it in the office, only had to wait half an hour to meet the Judicial member of the Board, the indefatigable Sir Robert Montgomery — the same one after whom the town of Montgomery was set up, who listening to the petition in Punjabi — he was fluent in the vernacular, passed an order in Persian which was later recorded in English. Punjab had become trilingual, there was now a process for a trial and a rudimentary code — criminal and civil, based on customary law and common sense, was being set up. In these initial few years, John and Henry Lawrence, Irish-Scots noblemen, and Montgomery were the heart, the backbone, and the arm of the Punjab’s body-politic.
By 1853, the Board of administration had given way to the office of the Chief Commissioner and the Judicial Commissioner and a formal setting up of the judiciary commenced. The Judicial Commissioner codified customary law, then utilised the provisions of the Indian Penal Code in 1861, and set up a gradual system of justice in the country. Within a few years, seven tiers of courts were established, from the court of the naib tehsildar, to the final court of appeal with the Judicial Commissioner, each court had a defined role, a set procedure and a formal system — for the first time in history, justice was not dispensed at the whim of the ruler, the ill trained Qazi, or through influence.
There was written law and who ever broke it faced the consequences, and there was, for the first time, no respite. The British also introduced the concept of jails, long unheard of in this part of the world, where only two forms of sentences had hence existed: fine or mutilation. The fact that one could spend time behind bars for wrongdoing was something novel that Sir Robert had introduced, and it literally confused the rich who were flabbergasted at the prospect of spending time in such frugal circumstances when they could pay their way out of the crime — perhaps, Sir Robert is needed today too.
The absence of the fear of the rich and powerful, the formalisation of law and the setting up of courts from the tehsil level upwards literally opened the floodgates. The downtrodden masses, who had for long yearned for the rule of law, had prayed for a fair and equitable adjudication of their disputes, flocked to the new courts. The amount of litigation therefore increased manifold and the successors to Sir Robert, who was now the Lt Governor, realised that the Punjab needed to get what the other British provinces in India already had — a Chief Court. Therefore, in the year 1866, a Chief Court was set up at Lahore, with the last Judicial Commissioner as the Senior Judge and a Barrister as the puisne judge. This court had jurisdiction from the Khyber Pass to the Red Fort in Delhi, from Hazara to Multan — today six provinces in both India and Pakistan. It was also the final court of appeal in both criminal and civil cases.
While the work of the Chief Court remained steady, it was the work of the lower judiciary — now called the district courts that remained the main focus. Between 1865 and 1914, several changes were brought about to improve the workings of the lower judiciary. The judges of the Chief Court were aware that unless the first instance courts are not strengthened the dispensation of justice would suffer — the civil judges and magistrates were the ones who the people interacted with the most and unless they followed the law and provided speedy and fair justice the system would simply fall apart.
It was the year 1900 and our young farmer, now a middle aged man, reappears. His lands had been taken away by the moneylender who was charging 35 per cent interest rate and he had not petitioned the court under the Punjab Land Alienation Act 1900. This landmark act gave hope and sustenance to the overwhelming agricultural population of the Punjab and saved them from the extortion of the moneylender. The farmer received his due and went home happy, but the inspecting judge of the Chief Court — the predecessor of our Member Inspection Team, was not. His Honour had noted that the case took two weeks, and that was almost double the usual period of six days for such cases — the lower court judges were instructed, guided and helped to ensure that justice is not delayed — I hope we can return to that time now!
During the last decade of the 19th century, there was felt a need to increase the number of judges in the Chief Court. So steadily the strength was increased to six pusine judges, but as it happened the debate over the need and appointment of the fifth judge continued beyond even the appointment of the sixth judge! By that time, it was also felt that the Punjab should have a letters patent High Court with the right to appeal with the Privy Council. The three presidencies had High Courts, Allahabad High Court had been established and there was even talk of creating a High Court at Patna. But financial considerations prevented such an upgradation — the British were very serious about ‘living within one’s means’ and unless the Punjab could support a High Court out of its own pocket the Supreme Government in Delhi and London would not authorise it. It was informally called the High Court for a long time though.
The Supreme Government finally agreed to the upgradation during the Great War and the Letters Patent were issued on March 21, 1919 by His Imperial Majesty the King Emperor George V. The Chief Court had seamlessly transitioned into the Lahore High Court. The charming Sir Henry Rattigan became the first Chief Justice and six puisne judges took oath.
But the Lahore High Court was to become greater and more distinguished still. In 1920, it was granted extra territorial jurisdiction over British subjects in the Chinese province of Kashghar which lasted till 1943 — perhaps CPEC was in embryonic form already!
The year 1920 also saw another singular honour — the Chief Justice Sir Henry Rattigan passed away, and — for the first time in history, an Indian, Rai Bahadur Mr Justice Shadi Lal was appointed Chief Justice. Called the cleverest man in India, the later knighted and Privy Councillor, Sir Shadi Lal, presided over the High Court for over a decade, marking the longest tenure of a Chief Justice todate. Sir Shadi Lal’s steady hand steered the Court through perhaps its toughest times — the rise of the Indian National Congress, the All India Muslim League, and the communal fissures which were unleashed. It was during his time that case of Bhagat Singh, and Ilm Din were adjudicated, but Sir Shadi Lal, with his brother Muslim, Sikh, Hindu and British judges, put the law before everything else. This was also the time that men of the stature of Sir Abdul Qadir, Sir Muhammad Shafi, Sir Zafrullah Khan, the Quaid-e-Azam and Sir Muhammad Iqbal pleaded before the court.
The Lahore High Court was not only the most diverse in terms of the background of its judges but also most of the most sought after — so much so that judges from the Presidency High Court of Madras wanted to come to Lahore and a Chief Justice of Patna requested a transfer, a lateral one on paper but a promotion in reality.
The year 1946 saw the elevation of Sir Abdul Rashid to the office of the Chief Justice, the first Muslim Chief Justice of the Court. Sir Abdul Rashid hailed from the Mian family of Baghbanpura which already had the distinction of having the first Muslim Judge of the High Court, Justice Shah Din, in 1908. It was the firm and steady hand of Sir Abdul Rashid which steered the shaky ship of the Court during the turmoil of the partition and independence in 1947.
Sir Abdul Rashid — a stickler to form and propriety — had the lasting honour of administering the oath of the office of Governor General to Quaid-e-Azam Mohammad Ali Jinnah on August 15, 1947. And even on that day he showed his independent mettle and his unflinching commitment to the rule of law, it is said, by asking Mohammad Ali Jinnah to get up from the Governor General’s seat till he had oath-ed him into the high office. Sir Abdul Rashid then continued as Chief Justice of the Lahore High Court till the establishment of the Federal Court in 1949, of which he was the first Chief Justice. Hence, the Lahore High Court had the distinction of its Chief Justice becoming the first Chief Justice of Pakistan!
After that the story is easily told as recent history: the Lahore High Court became the Principal seat of the West Pak High Court in 1955 and only resumed its separate status in 1973, during that time and still several stalwarts have graced the hallowed halls of the Lahore High Court. I need not mention the long list of illustrious judges, but suffice to mention that the Lahore High Court has been at the forefront of upholding the rule of law in the Punjab, and indeed beyond.
But let me part with the grandson of the poor farmer we met in the 1850s. The poor man is again in the courts, coming day in and day out, spending large sums of money on lawyers and litigation, and yet he is stuck. He is stuck because justice is delayed, justice is complicated, justice is denied. But the time has come for a transformation, and it begins now.
Source: The News on Sunday
Byline: Yaqoob Khan Bangash
December 18, 2016