Vol. 17, Part II · pages 41–45

18 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the High Court should lay down the fees for training in Chambers. Otherwise, the fees are likely to be prohibitive which would have the result of making the legal profession the preserve of the rich. 1 zz 1 Govt. Law College magazine : Vol. VII; No. 1 ; January, 1936.

3 DR. AMBEDKAR’S REPLY TO SIR S. RADHAKRISHNAN The Survival Theory “ Professor Radhakrishnan once said that there was one argument to prove the greatness of Hindus and that was : it had survived the shakes of time, it still existed whereas other ancient cults and creeds had been dead long ago. In reply to this argument Dr. Ambedkar says:— “I fear that this statement may become the basis of a vicious argument that the part of survival is a proof of fitness to survive. It seems to me that the question is, not whether a community lives or dies ; the question is, on what plane does it live. There are different modes of survival. But all are not equally honourable. For an individual as well as for a society there is a gulf between merely living and living worthily. To fight in a battle and to live in glory is one mode. To treat a retreat, to surrender and live the life of a capture is also a mode of survival. It is useless for the Hindus to take comfort in the fact that he and his people have survived. What he must consider is what is the quality of that survival. If he does that, I am sure he will cease to take pride in the mere fact of survival. The Hindus have been living a life of continuous defeat and what appears to them to be life everlasting is not living everlastingly. It is a mode of survival of which every right-minded Hindu, who is not afraid to own up the truth will feel ashamed.” 1 zz 1 Published in ‘The Lamp’ dated 25th June 1936; quoted in : Khairmode. Vol. 6. P. 266.

4 AND THE LORD SAID UNTO— Reports of Cases Argued and Determined Before The Lords Of the Privy Council, 1829-31 By Jerome Wm. Knapp, Barrister-At-Law, Vol. I. [A note Contributed by Dr. B. R. Ambedkar ] The case In re justices of the Supreme Court of Judicature, which is reprinted below was decided on the 14th of May 1829. It would, however, be a mistake to suppose that the case is of antiquarian interest merely because it is 107 years old. The case is not only of interest to students of History but it is also of interest to students of Law and to the general public as well. Students of History know the jealousy and the hatred that subsisted between the Officers of the East India Company and the Officers of the crown during the period of Double Government that preceded the Mutiny. The reader of the Memoirs of Sir Edward West will recall how a Governor appointed by the East India Company contrived to have a duel with a Judge of the Supreme Court appointed by the King. To the student of History the case is of interest because it illustrates the length to which this jealousy and hatred between the officers of the Company and the officers of the King had gone in those old days. To the student of Law the case though old is of great and present-day importance. The issue raised in the case was whether the Supreme Court established in Bombay had a right to issue a Writ of Habeas Corpus against a person not residing within its original local Jurisdiction. That the decision had relation to the powers of the Supreme Court which has ceased to exist does not lessen the importance of the case to the student of present day Law because although the Supreme Court has ceased to exist the power of the present High Court to issue the writ of Habeas Corpus, outside its original local Jurisdiction is a question which can be answered only by reference to the powers which once belonged to the Supreme Court. This is so because according to the Letters Patent the High

21AND THE LORD SAID UNTO— Court has only such powers as once belonged to the Supreme Court. To know the powers of High Court one must know the powers of the Supreme Court. Sir John Grant, the Chief Justice of the Supreme Court was driven to make the application to the Privy Council which became the subject matter of the decision because the Government of Bombay refused to execute his writs. Although the general question– whether the law should provide that the Executive shall be bound to carry out the orders of the Judiciary was not a question directly in issue yet there could hardly be a question of greater importance from the standpoint of the general public. In any Political Constitution the Judiciary is the weakest organ as compared to the Legislature and the Executive. It depends upon the Legislature for the powers it possesses and upon the Executive for the carrying out of its orders. The Executive generally respects the orders of the Judiciary and carries them out. It is true that in the case reported, the Judiciary had no authority to issue a Writ and, therefore, the Executive was justified in refusing to carry it out. But an occasion may arise where an Executive out of spite or out of contumacy refuses to execute the Writ of the Judiciary. Should that happen Justice will remain hung up in the air and a grave public question might arise involving menace to the life, liberty and property of the citizen. These observations are suggested by reason of the contrast which one finds between the provisions in the New Government of India Act, of 1935 relating to the obligation of the Executive to carry out the Writs of the Federal Court or the High Court and analogous provisions in the Constitution of the United States and the erstwhile German Republic which served as an interlude between the fall of the Kaiser and the rise of Hitler. It would certainly be a profitable study to pursue this matter and the curious will naturally do so. (See overleaf the Judgment referred above)

22 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES By Petition from Bombay IN RE THE JUSTICES OF THE SUPREME COURT OF JUDICATURE (14TH MAY, 1829) The Supreme Court of Bombay has no power to issue a writ of habeas corpus except when directed to a person resident within those local limits wherein it has a general jurisdiction, or to a person out of those limits who is personally subject to its jurisdiction [1 Knapp, 58]. The Supreme Court has no power to issue a writ of habeas corpus to the gaoler or officer of the native court such officer having no power to discharge persons imprisoned under the authority of a native court [1 Knapp, 58]. The Supreme Court is bound to notice the jurisdiction of a native court without having it set forth specially in the return to a writ of habeas corpus [1 Knapp, 59]. This case arose on the petition of Sir John Peter Grant, Knight, only surviving justice of the Supreme Court of Judicature at Bombay. It stated that by letters patent of the 8th of December*, in the fourth year of the present reign, his Majesty was pleased to grant, direct, ordain and appoint, that there should be within the settlement of Bombay a Court of Record, which should be called the Supreme Court of Judicature at Bombay; and did thereby create, direct and constitute the said Supreme Court of Judicature at Bombay to be a Court of Record, and that the same should consist of, and be holden by and before, one principal Judge, who should be and be called the Chief Justice of the Supreme Court of Judicature at Bombay, and two other judges, who should be and be called the puisne Justices of the Supreme Court of Judicature at Bombay. And that the said Chief Justice and the said puisne Justices should severally and respectively be, and they were all and every of them thereby appointed to be, Justices, and conservators of the peace, and coroners, within and throughout the settlement of Bombay, and the town and island of Bombay, and the limits thereof, and the factories subordinate thereto, and all the territories [* 1823. The text of the charter is given in Morley’s Dig. Vol. II., P. 638. The constitution and powers of the High Court of Bombay are now defined by letters patent of Dec. 28, 1865 (State. R. and O. Rev. Vol. IV., P, 108), issued in pursuance of the Indian High Courts Act, 1861 (21 and 25 Viet. 104)]