In early 1943, Lord Wilfred Green, the Master of Rolls and the head of the Chancery Division of the British judiciary, authored a secret memorandum proposing that the Judicial Committee of the Privy Council become a “peripatetic court” that would travel throughout the British Empire.Footnote 1 This article explores the origins and politics of this proposal to provide a critical re-description of the role of the Privy Council and the circulation of law within the British Empire.
Historians have increasingly drawn attention to the fact that the British Empire was tied together in a web of law, through which precedents, documents, statutes, and personnel circulated across five continents.Footnote 2 The right to appeal from the colonial courts to the Judicial Council of the Privy Council (JCPC) in London was a major legal sinew that tied the common law world together, making the JCPC the major the main archive for many of the new histories of law and colonialism.Footnote 3 A surviving remnant of the British Royal prerogative, by the seventeenth century the Privy Council had become the final appellate tribunal for British territories overseas.Footnote 4 For more than 400 years, the JCPC heard thousands of appeals from territories ranging from Newfoundland in the West to Hong Kong in the East, covering the North American colonies until 1776; the dominions of Canada, South Africa, Australia and New Zealand, Ireland, and India; and British possessions in East and West Africa. With the enactment of the Foreign Jurisdiction Act, 1890 the Judicial Committee also began to hear appeals from special tribunals located in Japan, China, Thailand, and the Ottoman Empire. Peaking in the early twentieth century, the JCPC swiftly faded into insignificance after the Second World War, with colonies abolishing appeals to the Privy Council as they became independent. Today, the JCPC continues to function as a panel in the United Kingdom Supreme Court, and hears appeals from a handful of Caribbean countries; the islands of Jersey, Guernsey, and Man; and some British military bases.Footnote 5
In its heyday, the Privy Council, as Mitra Sharafi has argued, forged a “centripetal jurisprudence” that homogenized law across the British Empire, as judges smoothed over local differences by applying precedents from colonies and communities across the Empire.Footnote 6 Scholars studying imperial sovereignty and authority have turned to the Privy Council appeals to understand the relationship among the various subordinate authorities in the Empire as they evolved and influenced new polities.Footnote 7 The extremely rich and detailed printed papers of the Privy Council cases have become pivotal for historians tracing how identities based on race, religion, gender, and community were created through engagements with law.Footnote 8 The article turns to the “peripatetic court proposal” to engage with this literature in three specific ways: it conceptualizes the JCPC as a self-conscious agent in legal history, it challenges the narrative of judicial cosmopolitanism by emphasizing the centrality of the Indian appeals to both the power and the decline the JCPC, and, finally, by focusing on the faultiness between dominions, it highlights the tensions between the drive for uniformity and centralization and the variegated legal spaces that made up the British Empire.
In these rich new colonial legal histories, the Privy Council appears as a stage on which the great debates about empire play out. The extension or limitation of its jurisdiction is seen as a result of machinations of imperial legislators, and its attention is brought to bear on critical subjects through the efforts of canny litigants. Therefore, the initiation of an appeal is interpreted as a result of changed executive policy (i.e., political) or of the agency of the litigant. Although the proclivities of individual judges might influence a case, as an institution, the Privy Council is presented as a neutral forum. Commentators tended to contrast the magnitude of the work of the Privy Council with its very unprepossessing character. Sir Courtney Ilbert, the law member on the Indian Viceroy's Council, remarked, “almost all the laws and customs of the world-civilized and uncivilized- come up for discussion in that dingy little room.”Footnote 9 A journalist observing a session of the Judicial Committee in 1929 described it as “a pleasant looking room, the size of a large dining room in a country house, having the same smell of leather, English gentlemen and old old dust.”Footnote 10 The popular image of the JCPC was of a learned, technical body, far removed from the excitement of imperial politics, and, therefore, disinterested in the outcome of the case. The combination of technocratic excellence and remoteness from politics served it well. Former subjects would publicly lament the ending of the connection with the Privy Council, noting “no judicial body in the history of civilization has ever established a more inspiring record of absolute and unquestionable independence, impartiality and competence.”Footnote 11
This article argues that the JCPC was not just a stage, but also a significant actor in legal history. Its judges jealously guarded the jurisdiction of the court, and behaved strategically to maximize its institutional authority and legitimacy, promoting certain kinds of legal mobility. Therefore, judicial decisions could not be reduced to the proclivities of judges or the “correctness of the law.” Historians and anthropologists studying local and national legal systems have long argued that law operates in a “semi-autonomous field;” however, what remains underexplored is law's implications for its movement outside these domains.Footnote 12 This article will demonstrate how the JCPC, when protecting its own institutional ambitions, often diverged from the goals of the imperial executive. In describing the judges' actions as political, I do not mean to imply an adherence to a partisan political ideology, but instead, I examine the judiciary as a corporate body that sought to guard its power and influence.
Coupled with the idea of its neutrality, the JCPC has been the subject of several eulogies lauding its cosmopolitan, almost exotic nature. Viscount Haldane, describing the JCPC to law students at Cambridge, told them that they might find
white men, some of whom look as if they had come from the far West, and may be American in appearance; yellow men, some of whom come from Hong Kong; Burmese, who come from Burma; Hindus and Mohammedans from India; Dutch from South Africa; a mixed race from Ceylon- all sort of people may be straying in there, and you will feel yourself in good imperial company.Footnote 13
For these very reasons, the Privy Council was cited approvingly as a model for the International Court of Justice in the 1940s, and is being used to advocate for an international criminal court today.Footnote 14 Norman Bentwich, the British jurist, advocating for an international court of human rights, argued that the JCPC had been an effective instrument for safeguarding “human rights” of an enormous number of people.Footnote 15 However, as this article will demonstrate, by the early twentieth century the JCPC's cosmopolitanism is overstated, as it comes to function primarily as an appellate court for India. Indian appeals are five times more numerous than the appeals of all other dominions put together. In recognition, the JCPC began to sit in two divisions, one focused exclusively on Indian appeals and the other hearing appeals from everywhere else.Footnote 16
Despite the centrality of the Indian appeal, the literature on the decline of the JCPC focuses almost exclusively on the politics of the white settler dominions,Footnote 17 nor have the claims of the JCPC's benevolence or protection of human rights been rigorously been examined. India's decision to formally sever ties with the Privy Council in 1949 is seen as an inevitable consequence of its independence.Footnote 18 However, until the late 1930s, the Indian nationalist leaders, unlike their Irish or Canadian counterparts, were not overly critical of the JCPC. This article examines how judges (both British and Indian) serving in India became the real source of opposition to the JCPC. India, therefore, became central to the debate over Lord Greene's proposal for a peripatetic JCPC.Footnote 19
Lauren Benton articulates the consensus of several historians of empire when she describes empires as an “assemblage of variegated legal spaces,” driven by the contingencies of expansion, making imperial law both fragmented and episodic.Footnote 20 However, these histories focus largely on the early stages of acquisition, until the nineteenth century. Lord Green's proposal and the reactions to it reveal the dynamism of the legal landscape of the British Empire through the early twentieth century. At the end of the First World War, the British Empire consisted of several distinct categories of possessions: the largely white settler colonies of Canada (1907), Australia (1907), New Zealand (1907), and South Africa (1910), along with Ireland (1922), were granted dominion status and a large degree of self-government; large swathes of territories in Africa, Southeast Asia, the Carribean, and the Pacific were governed as colonies through the colonial office; other territories such as Hong Kong, Cyprus, and Bermuda were governed directly as Crown colonies; Egypt was a protectorate, and Palestine and Iraq were held as mandates. India, the largest and strategically most valuable part of the Empire, had an anomalous status between a dominion and a colony. This article explores how the pressures that nationalism and improvements in technology placed put severe strains on these arrangements and created a “variegated legal empire.”
From Forum Shopping to Forums that Shop
Lord Green's memorandum proposing that the Privy Council become a peripatetic court that would travel throughout the British Empire generated considerable excitement in Whitehall and received attention from the prime minister and members of his cabinet, leaders of the British dominions, the India Office, and prominent members of the British higher judiciary, before being suspended indefinitely in 1946.Footnote 21
Lord Wilfred Greene was quite explicit about his reasons for drafting the JCPC reform memorandum in 1943, noting that “unless steps were taken to place the JCPC in a position of authority that will be accepted by the dominions and colonies,” the disappearance of its jurisdiction in a comparatively short time was inevitable.Footnote 22 The solution he proposed required an itinerant Judicial Committee, which would visit each dominion and hear appeals, both from the dominion courts and its provinces. He argued that the “imperial nature of this jurisdiction” would be greatly enhanced if this new body would comprise not just the British members of the Judicial Committee, but also members from the dominions. Therefore, when the new court would travel to Ottawa to hear the appeals from the Supreme Court of Canada, it might consist of three British law lords, the chief justice of Australia, and the chief justice of New Zealand. Similarly, if the Court sat to hear provincial appeals from Ontario, the British judges would be joined by judges from other Canadian provinces.Footnote 23 To round off the scheme, Lord Greene also suggested that it was desirable to amalgamate the existing Judicial Council of the Privy Council with the House of Lords into one imperial Supreme Court of Appeal, granting a uniform status to all final appeals across the Empire, which would “add greatly to the attractiveness of the scheme from the point of view of the dominions.”
The Master of Rolls' proposals were taken up enthusiastically by then Lord Chancellor, Viscount John Simon.Footnote 24 As Lord Chancellor, Simon was the head of the British judiciary, presided over the Judicial Committee of the Privy Council, and was a member of Churchill's cabinet. Having previously served as home secretary, foreign secretary, and Chancellor of the Exchequer for different governments, he was extremely influential in the British government. Unlike most members of the Council, he also had extensive imperial experience. In 1927, he headed the controversial statutory commission that drew up a series of constitutional reforms for India.Footnote 25 Simon eagerly seconded Lord Green's proposal reminding the prime minister that an itinerant board might be the only means of preserving “a valuable imperial link.”Footnote 26 Unless this step was taken, it was likely that the usefulness of the Judicial Committee of the Privy Council as the supreme tribunal for the heading imperial appeals would peter out in a generation or less.
Lauren Benton, in her study on law and colonial cultures, has demonstrated how local agents (both European and native) shaped colonial legal structures by exploiting the ambiguities of law to their own benefit. This was done through strategies such as forum shopping, whereby litigants moved between and across political and religious boundaries within a legal system to seek the forum that was most advantageous to them.Footnote 27 Whereas it is well established that local litigants in the British Empire shopped for forums to maximize their advantage, the response to this strategic maneuvering by the colonial state and the legal order itself remains largely unmapped. Lord Green's proposal and the enthusiastic response given by the JCPC judges are a significant example of how a forum, too, sought to keep itself relevant.
The study of judicial forums requires us to pay careful attention to the motivations of judges. Scholars have privileged the judge as an individual, drawing upon both biography and intellectual history, in order to chart how a particular decision was reached.Footnote 28 The cultural histories of the judiciary have sought to explain judicial behavior as a result of the judges' education, family background, political opinions, intellectual proclivities, and faith.Footnote 29 Those scholars who have sought to study the colonial judiciary as an institution rather than an assortment of individuals have argued against judicial autonomy and have portrayed it as an instrument of power/authority/hegemony for dominant classes.Footnote 30
Although both approaches are illuminating, they fail to capture what political scientists have described as the “strategic interaction.” Epstein, Knight and Shvetsova have developed a model that captures the role of courts in democratic societies, in the form of the strategic interaction of the courts and other institutional actors. The interaction begins with the court deciding to hear a particular case involving a particular policy, and then deciding where to place the policy. After the court moves, the other actors must decide whether to modify, overrule, ignore, evade, or otherwise harm the court in some way.Footnote 31 Importing this lesson to colonial courts reminds us that judges are invested in the institutions that they are a part of and that their decision-making seeks to bolster their institutional authority. Second, it suggests that the judiciary, although sharing ideological and class positions with other organs of the state, was often guided by different and often contradictory institutional logic. By examining the colonial and imperial judiciary through the lens of “strategic interactions,” I am not suggesting that the judiciary was completely independent of the executive or advocating the imperialist narrative of the rule of law. However, as the next section will trace, both the JCPC and the judiciary in the colony were willing to break with the colonial/imperial executive when their own institutional interests were threatened. The statements of Lords Simon and Greene make the reasons for the reform proposal quite explicit. As judges, they were concerned with the declining prestige and relevance of the Judicial Committee, a body that they were both invested in, and whose decline they sought to halt.
Mobility, Neutrality and Distance
Lord Green's memorandum was not the first proposal for an imperial mobile court of appeal. The fact that the House of Lords, the highest appellate authority for Britain, and the Judicial Committee, the highest body for the Empire, consisted of the same personnel but had different jurisdictions and procedures, had usually caused some comment at imperial conferences. In 1911, Prime Minister William Hughes of Australia had proposed combining both judicial tribunals to ensure greater uniformity and provide a more effective symbol of unity in the Empire. Hughes proposal was met by equal disinterest from British and colonial representatives.Footnote 32 The suggestion arose again during the 1930 imperial conference and was dismissed by most commentators. Hector Hughes, an Irish legal academic, wrote that such a “peregrinatory Judicial Committee” was calculated to destroy the dignity, the prestige, and the efficiency of such an institution.Footnote 33
The reasons that prompted Lord Green to make the proposal were very different from the earlier calls to reform. Previous demands to create a unified and mobile imperial court of appeal had been to secure uniformity and symbolize unity. Green, however, sought to remedy specific criticisms of the Privy Council that had been articulated through the 1930s.
The growth of self-government in the dominions had created a feeling that the jurisdiction of an English court was a “badge of inferiority.” The fact that English and Scot appeals went to the House of Lords, whereas the rest went to the JCPC, fostered the idea of second-class treatment. When partisans of the JCPC noted that the right to appeal to the King's justice through the JCPC was a right of every British subject, critics noted that His Majesty's subjects in England and Scotland were denied this right.Footnote 34 Nationalists in the dominions also resented the implication that the local legislatures and the judiciary in the dominions could not be trusted to ensure justice.
The JCPC was considered by some to be too remote and removed from local conditions to make effective decisions. The tribunal, consisting largely of lawyers who were educated in and only had experience in England, had to consider questions on Roman-Dutch law from South Africa and Sri Lanka; French civil law from Quebec; and Hindu, Islamic, Budhhist, Zoroastrian, and Jewish law, as well as tribal and customary laws from Africa and Asia. As a noted constitutional commentator observed with characteristic understatement, “sometimes the Privy Council had ignored local conditions and misunderstood local law.”Footnote 35 Historians have begun to explore how the JCPC's misunderstanding of religious or customary law wreaked havoc in the political economy of the colonies. For example, by drawling an analogy between English trusts and Muslim endowments (wakf) the JCPC overruled the legality of a wakf being set up for private benefit, upsetting hundreds of financial arrangements and sparking a political campaign by the Muslim League.Footnote 36
Henry Boutell, an American law professor watching the proceedings of the JCPC in 1920, noted with some amazement that strange questions were presented to the court, including a suit of specific performance of an agreement to execute an ijara,a suit of pala yam, the validity of the vakalatnama, and a suit by the mahunt of a temple. “What are ijara's, pala yams and mahunts?, The members of the Judicial Committee are supposed to know,” he said with some admiration.Footnote 37 However, a significant number of the judges did not know and had to be guided by lawyers, detailed guidebooks, and the two Indian judges on the JCPC. Attempts to increase the number of judges with Indian experience had failed to clear Parliament, despite an offer by the Indian government to pay half the costs of such an arrangement.Footnote 38
The distance of the tribunal involved great expenses and delays to the litigants. It added a third layer in the appellate process in many dominions and reduced the certainty of litigation: after being heard by a local court, a case could be appealed to the provincial high court, the dominion Supreme Court, and then to London. The litigants themselves were unable to be present at the hearing of their cases and were compelled to either hire English counsel, or pay the expenses of travel for their local counsel. The costs associated with the system skewed it in favor of wealthy persons and firms who could often win by attrition, or who could simply last through the system of appeals. The procedure also caused delays. For example, in the case of Indian appeals, the entire case history of an appeal, beginning with early documents such as a police complaint, had to be translated into English, printed, bound, and shipped from India. Because of the fluctuating number of judges and the absence of judicial dissents, the JCPC could find itself deadlocked, and require an appeal to be reargued before another bench at considerable expense to the parties.Footnote 39
There were allegations of class bias in the dominions of Australia and Canada, where commentators argued that the JCPC was the protector of large capitalist interests in England. This belief was fostered by the fact that the British government itself saw the existence of the Privy Council as a valuable safeguard to the interests of English investors in the dominions. Chamberlain had explicitly told the drafters of the Australian constitution that the British government felt it was its duty to look at the appeal from the point of view of a large class of persons interested in “Australian securities or Australian businesses who are domiciled in the UK.”Footnote 40 Similarly, stringent opposition arose in Ireland, where the right of appeal was seen as a way of protecting Irish landowning classes (who were often English).
Procedurally, the JCPC differed from other courts significantly in not allowing judges to write dissenting or concurring judgments. As the JCPC was premised on the fiction that its judgment was advice to the King, they could not offer divided counsel. The JCPC was also not bound by its own precedent and could reverse its own decisions in similar matters with ease, creating greater uncertainty. Both these features rendered the process more opaque.
The JCPC had in the past been impervious to criticism, and came down strongly at any attempt to challenge its authority. Attempts by the Canadian legislature to directly eliminate all appeals to the Privy Council had been shot down by the British government. However, the Canadians were able to unobtrusively insert a clause eliminating appeals to the Privy Council in criminal cases, among a set of amendments made to the Canadian Criminal Code in 1888.Footnote 41 In 1925, two men convicted of criminal offences by the Supreme Court of Alberta appealed to the JCPC. The Crown asked the JCPC to quash the appeals as “incompetent,” as the JCPC had lost its jurisdiction after the amendments to the Criminal Procedure Code. The JCPC upon consideration ruled that the amendments preventing appeals to the Privy Council were void as they violated the Colonial Laws Validity Act, 1865.Footnote 42 Section 2 of the Colonial Laws Validity Act held that any colonial law that was repugnant to any act of Parliament that extended to a colony would be void and inoperative. The JCPC held that the criminal procedure amendments were repugnant to the Judicature Acts of 1833 and 1834 that had originally formalized the jurisdiction of the JCPC over Canadian criminal appeals.
This decision was not an obvious one. The amendments had been made under powers granted to the Canadian legislature under the British North America Act, 1867, which expressly provided that Parliament would have the right to legislate on “the criminal law,…including procedure in criminal matters.” The Colonial Laws Validity Act that had been enacted to ensure the will of the British government was not challenged by subordinate legislatures. However, the amendment in question had received the assent of the British cabinet, which was not invested in protecting appeals in criminal cases. It had also remained in force with little controversy for more than 40 years. Moreover, the appeals before the court had very little legal merit, and the JCPC itself would find that they raised no issues of unfair legal processes or violation of natural justice.
The JCPC dismissed the appeals in question, but used the opportunity to strike down the attempt by the Canadian legislature to block appeals. The JCPC held that the appeal to the Privy Council was a part of the royal prerogative and a right of every British subject and could not be annulled through ordinary legislation. Viscount Cave, then Lord Chancellor, wrote,
The practice of invoking the exercise of the royal prerogative by way of appeal from any Court in His Majesty's Dominions has long obtained throughout the British Empire. In its origin such an application may have been no more than a petitory appeal to the Sovereign as the fountain of justice for protection against an unjust administration of the law; but if so, the practice has long since ripened into a privilege belonging to every subject of the King.Footnote 43
The JCPC noted that the British North America Act, 1867 gave the Canadian legislature the power to affect the rights of its subjects within its borders; however, they had no extraterritorial powers and could not affect an action taking place in London. The JCPC acknowledged that the criminal procedure had received royal assent, but held that even this assent could not give validity to a law that was void by imperial statute. The only legal way to end appeals to the Privy Council would be through another imperial statute enacted by the British Parliament.Footnote 44 This decision marked an important break between the imperial executive (as embodied in the government), which was ready to accommodate Canadian aspirations, and the imperial judiciary, which was anxious to protect its domain.
The JCPC remained acutely conscious of criticisms being made against it, and sought to answer them in an appeal from the newly constituted independent Irish Free State. Irish nationalists had been very critical of the retention of appeal to the Privy Council, and saw it as an effort to perpetuate British interference in Irish affairs. More practically, several law lords who sat on the Privy Council such as Lords Carson, Sumner and Cave were seen as particularly hostile towards Ireland.Footnote 45 Viscount Haldane used the judgment in Hull v. McKenna to answer several critics of the Privy Council. He began by reminding counsel that
the Judicial Committee of the Privy Council [was] not an English body in any exclusive sense. It is no more an English body, than it is an Indian body, or a Canadian body, or a South African body, or for the future, an Irish Free State body….I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law.”Footnote 46
Haldane asserted that the Privy Council could as easily be elsewhere; Ottawa, Dublin, Durban, or New Delhi; and it was only for convenience that the court sat in London. He also pointed at the Privy Council did not consist exclusively of British judges, and had frequently had judges from Canada, Australia, or India sitting with them. The Privy Council therefore “sat as an imperial court that represented the Empire and not any particular part of it.”Footnote 47
At an after dinner talk given in 1922, Haldane had waxed eloquent about how the judges themselves transcended the limitations of race and religion. Haldane recounted a case, in which as a young lawyer, he had represented a Muslim landowner from Zanzibar whose land had been acquired by the British railways. The judges were reluctant to accept his submissions, on the grounds that there were no affidavits to determine what the position in Mohammedan law was to be, to which Haldane had apparently replied that he was addressing the court, “not as seven English judges who are required to have foreign law proved to them, but as seven Cadis of the Mohammedan religion who are presumed to know the Koran.” The judges were convinced to turn to the Koran on the spot.Footnote 48 A similar argument was made by Professor Morgan in his Rhodes Lecture on the Judicial Committee at a meeting presided over by Lord Haldane and the secretary of state for India. Morgan congratulated the JCPC for being “more Hindu than the Hindus” by remaining true to the “classical tradition,” and thwarting attempts by native Hindu lawyers to liberalize Hindu law.Footnote 49 Haldane and Morgan's claims of expertise and benevolence were dubious but important in bolstering the mythology of the JCPC and of imperial justice.
Nationalists in the dominions remained unconvinced and continued to lobby the British government to end the practice of appeals. The Statute of Westminster, 1931 repealed the Colonial Law's Validity Act and gave greater power to dominion legislatures. Eamon de Valera, the Irish Prime Minister, proceeded to abolish appeals to the Privy Council by Irish legislation in 1933. This validity of this legislation was reluctantly confirmed by the JCPC in a judgment that has since been criticized for its “gratuitous side swiping” at the Irish government for curtailing appeals.Footnote 50
With the abolition of Irish appeals and growing unpopularity of the JCPC in Canada and Australia, the numbers of appeals continued to dwindle through the 1930s (Table 1). Lord Greene would later circulate figures of the declining appeals to the cabinet (Table 2). As the Canadian criminal law amendment demonstrated, the Colonial Office and the British Cabinet were disinclined to expend political resources on securing the right to appeal to the JCPC. The British government's support for the Privy Council in the case of Ireland was an exception, because of concerns expressed by British capital and the Protestant minority.Footnote 51–Footnote 53 As the previous section demonstrates, Greene's proposals were the latest in a series of interventions made by the judges on the Privy Council to maintain the influence of the institution.
Table 1 Imperial Appeals to the Privy Council.
Table 2 Appeals to the Privy Council from Dominions, India and the Colonies.
Building Local Constituencies for the Imperial Court
The idea of going on circuit drew on English medieval history, when Henry III began the practice of having judges ride around the countryside to hear cases rather than forcing everyone to bring matters to London. The judges would travel through a set jurisdiction, stop at different towns, summon juries, and hear cases.Footnote 54 This practice travelled with the British to the United States, Ireland, India, and Ceylon. Apart from delivering justice, the circuit also functioned as royal authority and state power in the deepest countryside.
Lord Simon had warned in his memorandum that unless the itinerant court was adopted, “it is not unlikely that the usefulness of the JCPC …will peter out in a generation or less.”Footnote 55 What would a peripatetic imperial court achieve? The proposal sought to counter the rising tide of criticism against the JCPC and to build a constituency for itself in different parts of the Empire. Lord Greene argued that the litigants and the general public did not relate to the JCPC as they did to the other courts, because the parties, the public, and the press who were interested in the litigation were not present at the hearings. The fact that technically, the JCPC was open to the public in London, did not make it a public one from the point of view of, for example, an Australian litigant or a Canadian newspaper. The improvement in air transport would make it possible to have a peripatetic court that could travel to each dominion. This would have the advantage that the local public, politicians, litigants, and the press would see the case decided before them instead of thousands of miles away.Footnote 56 Greene believed that the local interest in the sitting of the court would be very great, strengthening the imperial connection.
The mobile court would make the personalities of the itinerant judges known to the public in different colonies. Visibility would help counter prejudice that was created by distances. Green also recognized that there was opposition from the local legal communities, and sought to build ties. Itinerant judges themselves would become better acquainted with the local bar and bench, and bring the worlds of local law and imperial law closer. Greene also, unsurprisingly, believed that the travels of English judges to the dominions would have an “educational influence: on members of the local legal profession. Furthermore, integrating dominion judges into the JCPC's circuit would make them valuable allies who had a stake in continuing the system.
Faced with the prospect of its irrelevance after the Second World War, the JCPC attempted to radically redefine itself. It sought to attract both popular legitimacy and to create an Empire-wide judicial public that would be invested in the continuation of the JCPC. The proposals were backed by prominent cabinet members including the secretary for the Dominions; the high ocmmissioners of South Africa, Canada, Australia, and New Zealand; and the leader of the House of Lords. More significantly, it was backed by all the leading figures of the British judiciary, including successive Lord Chancellors (who presided over the JCPC), the Lord Chief Justice (Lord Goddard), and the Master of Rolls (Lord Wilfred Greene).Footnote 57 However, the proposal for a neutral professional cosmopolitan court unraveled when faced with the “India question.”
The Privy Council and the Rule of Colonial Difference
The first note of discord among the consensus in London was struck by the India Office. Leo Amery, the secretary of state for India commenting on the itinerant proposal, noted that “the position of India in relation to this suggestion of increasing the scope of JCPC seems to be to bristle with awkwardness that it may even, when they are recognized, kill the scheme before it is hatched.”Footnote 58 The key question was whether India could participate equally with the other dominions in the new expanded JCPC. The Lord Chancellor consciously avoided asking the question in the meeting with the dominion representatives, noting that it might have completely quenched their warm attitude.
The key problem was that if India participated in the scheme, Indian judges would be enabled to sit with the JCPC in India and, to the same extent as other dominion judges, be eligible to be nominated to the commonwealth pool. The India Office noted that it was almost certain that South Africa, Australia, and Canada would decline to allow an Indian judge to hear appeals from their dominions. Since the late nineteenth century, judges with Indian experience had sat on the JCPC, initially as assessors, and then as full members. With the appointment of Syed Ameer Ali in 1912, there had also been a more or less unbroken presence of a native Indian judge. However, the constant stream of appeals from India and the creation of an Indian appeals division meant that the Indian judges need not sit in judgment on appeals from the other dominions.
Historically, the relationship between India and the white settler dominions had been fraught. The claim to equal rights as British subjects had come under severe strain in South Africa over the rights of Indian workers, and in Canada over immigration.Footnote 59 The South African government had long been resistant to the idea of a body to deal with interimperial disputes, simply because of the possibility of India bringing up the issue of the rights of Indians in South Africa.Footnote 60 The India Office also noted that this resistance could cut both ways; given South Africa's racial policies, it was possible that Indians would emphatically object to South African judges travelling to India.Footnote 61
However, it would be most embarrassing if Indian judges were ineligible to sit on appeals outside India, whereas judges from other dominions were not. The British government in India feared that the exclusion of Indian judges would be seen as an intolerable insult in the eyes of the Indian legal profession and nationalist circles. The government also noted that the Indian legal profession was already very vocal on political issues, and should not be given more cause for resentment, as it might foster ideas, already existent, of secession from the Commonwealth.Footnote 62
Counsel in the India Office also noted that it might be difficult to find Indian judges of sufficient eminence to become members of this panel. Despite the rhetoric of professional equality, distinctions continued to be made between Indian and white judges and lawyers who had similar qualifications. An infuriated Indian solicitor wrote to the India Office in 1940 demanding to know why the office never hired any Indian lawyers for the conduct of state litigation before the Privy Council, and accused the office of “racism.” He suggested that the conduct of litigation be moved from the India Office (a part of the British cabinet) to the High Commission for India (representing the administration in India), which was more representative of Indian interests. After some discussion, bureaucrats at the India Office baldly concluded that the only “competent” Indian lawyers were dead, or too old, or were good writers but bad at oral advocacy.Footnote 63
Historians have challenged British claims to establishing a universal rule of law in the Empire, arguing instead that colonialism was fundamentally based on stressing the absolute difference between the colonizer and the colonized, usually in terms of race. This “rule of colonial difference” was what distinguished the colonial state from other modern states.Footnote 64 The everyday operation of the law in the colony was structured through the politics of race, often privileging Europeans over Indians as participants in the legal system.Footnote 65 In the nineteenth century, a move to permit a handful of Indian judges to try cases involving Europeans had led to widespread protest among Europeans domiciled in India.Footnote 66 However, by the twentieth century, the elite world of the legal profession was seen as an arena in which “merit” could overcome race. Indian lawyers dominated the bar, and several Indians were appointed to the judiciary, in greater proportion to their presence in the upper echelons of the bureaucracy or the army.Footnote 67 In contrast, the European judges serving in India were viewed as inferior, as many were untrained in law and directly appointed from the Indian Civil Service (ICS). These ICS judges were looked down upon by both Indian lawyers, who saw them as being unskilled in law, and their ICS brethren, who saw the “judicial route” as soft and not challenging compared with the rigors of administration.Footnote 68
By 1944, when the proposals were being drafted, the majority of High Court judges in India were Indian, and there were two Indian judges in the JCPC at London. However, there were limits to judicial cosmopolitanism, and arenas to which the Indian judges could not travel.
Competing Jurisdictions: The Federal Court in India
In a marked difference from the other dominions and Ireland, Indian resistance to the JCPC did not come from nationalist politicians but from a small but powerful set of lawyers and judges. As this section will explain, both the nationalist support and the judicial opposition arose not from any intrinsic quality of the JCPC or its judgments but because of the structure of imperial administration.
This is reflected in the India Office memorandum on the second set of “domestic” problems that an itinerant JCPC would raise. The government of India in 1944 was seeking to enlarge the jurisdiction of the Federal Court of India. Set up in 1939 as part of the reforms for self-government, the India Office believed that the Federal Court had not yet had the opportunity to establish its authority like its counterparts in the dominions. If the JCPC began to pay regular visits to India, “with its long established and (in India) highly venerated authority,” it might attract cases that would otherwise have increased the reputation of the Federal Court.Footnote 69 Excluding India from the Privy Council circuit would be viewed as an affront by the Indian legal establishment, but including India would diminish the authority of the fledgling Federal Court.
It is noticeable that the officials and the judges concerned were acutely aware that the courts were in competition. The Federal Court at New Delhi had been inserted between the provincial high courts and the JCPC in London. Its jurisdiction was limited largely to the interpretation of the 1935 Government of India Act and interprovincial disputes. However, both the provincial high courts and the JCPC resented this new authority. As Lord Chancellor, Viscount Simon had strenuously opposed the expansion of the Federal Court's jurisdiction at the expense of the Privy Council, arguing that the JCPC had a special responsibility toward India because “the special conditions which prevail in India with the contrasts in outlook and sympathy between different communities” made the substitution of the Privy Council by an untried court staffed by members drawn from different communities, a risk. Such a court would not succeed in achieving the good will of the Privy Council, where judges could decide untinged by fear or favor.Footnote 70 Simon reversed the criticism of the JCPC's non-representativeness to suggest that it was its very alienation from India that made it an effective tribunal for Indians who were divided by caste and religion. He challenged the charges that appeals to London caused expenses and delay by stating that Indians were naturally litigious and that nothing that he had seen made it likely that the procedure would be any faster in India. Therefore, the continuing claims of the JCPC were strongly rooted in notions of culturally different behavior expected from Indians.
Another variant of Simon's argument was repeated by the India Office, which argued that from the point of view of the Indian “litigating public,” it was a distinct advantage that the JCPC was seen as “remote and impersonal,” as it bolstered confidence it its legal ability and strict impartiality. The fact that the members of the JCPC stood wholly removed from local influence meant that even the most “violent” politicians had not suggested that their judgments were affected by any consideration apart from “pure law and justice.” If the judges came nearer the scene of events in relation to which their legal decisions were sought, their judgment was likely to be impaired. More significantly, if the travelling JCPC interacted with members of the local executive, as they were likely to do, this might be given an exaggerated significance by the Indian mind.Footnote 71 The JCPC saw the Federal Court as intervening in its special relationship with India.
These claims were not entirely imaginary. The JCPC received far greater public support in India than in other colonies. When the proposal to create a Supreme Court in India was first broached in the legislative assembly, leading nationalists such as Jawaharlal Nehru opposed it. As an exasperated commentator remarked with bitterness, a nationalist movement that was strong enough to demand political autonomy and even independence was not ashamed to confess that the country was not fit for legal autonomy.Footnote 72 The Nehru Report on the Constitution of India, produced by a cross-section of nationalist leaders and endorsed by the Indian National Congress, only limited appeals to the JCPC in constitutional questions, and continued to permit them in civil and criminal cases.Footnote 73 It also provided that any future limitation of such an appeal did not impair any right that the king might be pleased to exercise by virtue of his royal prerogative to grant special leave of appeal from the Supreme Court to the JCPC.Footnote 74
Mithi Mukherjee's recent work on imperial discourses of justice offers an insight into the popularity of the JCPC. Mukherjee argues that beginning with the trial of Warren Hastings, there was a discourse of imperial justice, which put the people of India, the colonial state, and the House of Lords or the Crown in a triadic relationship, with the sovereign being visualized as an impartial judge who could arbitrate in conflicts between the colonial state and the people of India. This discourse of justice grew, after Queen Victoria's Proclamation in 1858, into the idea of justice as equity, which gave the colonial government the role of the mediator in a society of warring communities.Footnote 75 Justice was not rooted in natural law, but was seen a gift of the British monarch to the people of India. These discourses influenced early nationalists who petitioned London against the excesses of the colonial government.Footnote 76 Lord Haldane, without a trace of embarrassment, recounted an anecdote in which travelers in North India, upon coming across a remote tribe worshipping a strange god, asked the tribals who the god was. The tribals replied, “He don't know, except that he is a very powerful god, because he interfered on our behalf against the Indian government and gave us back the land that the government had taken. The only thing we know is that the name of the god is the Judicial Committee of the Privy Council.”Footnote 77 For Lord Haldane and others, the appeal to the Privy Council exemplified this notion of justice; however, its eroding popularity reflected a shift in the locus of impartial justice from London to authorities within India.
The influence of the JCPC also increased because of the nature of colonial administration in India, which remained distrustful of local authorities. Both the nineteenth century Civil and Criminal Procedure Codes allowed almost every procedural decision to be appealed several times before superior courts. These easy appeals were based on stereotypical notions of native behavior, as Indian subordinate officials who staffed most of the lower judiciary were never to be trusted completely, and their decisions could be overturned.Footnote 78 This idea filtered through the system, and Sir George Rankin, privy councilor and former judge of the Bombay High Court, noted “that the leave to appeal to the Privy Council was given more freely in India than elsewhere, but this was keeping with the requirements of India and the desires of Indians.”Footnote 79
Whereas British judges of the JCPC attributed the popularity of their court in India to the desires and natural inclinations of Indians, Indian lawyers were far more prosaic about their reasons. In 1924, Nihal Singh, noting with some alarm pronouncements that a wide latitude would be permitted to appeals from India because Indians “desire such interventions,” explained that this desire was only because the High Courts in India were dominated by British judges, many of whom were not experienced lawyers, but rather permanent officials who did not wish to shoulder executive responsibility or were too incompetent to do so. It was inevitable that such judges would deliver legally faulty decisions that would need to be rectified on appeal. Nihal Singh reassured his readers that “sooner or later, Indians will have the powers to remove such anomalies” and when they do, they will wish to render themselves self-sufficient judicially.Footnote 80 Singh was equally concerned by the JCPC's suggestion that they would grant the appeal more liberally to federal polities such as Canada, compared with unitary states such as Ireland, because a neutral body could better arbitrate conflicts between the center and the provinces. Noting that a country of India's magnitude could only evolve into a federation, he warned against a trend that gave the JCPC the legitimacy to interfere in judicial administration.Footnote 81
By the 1940s, Indian judges occupied a majority of positions on Indian High Courts, and the new Federal Court had begun to hear cases in Delhi. This new Federal Court, comprising British, Hindu, and Muslim judges, was well aware that it would have to compete with the Privy Council, and needed to distinguish itself from it. Chief Justice Maurice Gwyer had spelled out his position as early as 1938 on the inauguration of the Federal Court, stating that its establishment recognized the unifying influence of a central judicature and that the “recognition of the fact that a new and perhaps final stage of constitutional evolution of India has begun.” His desire to play a pivotal role in late colonial India comes through clearly in his inaugural speech. “Obeying the old maxim that it is the part of a good judge to enlarge his jurisdiction, I have for a moment looked far into the future. I do not forget the main tasks of the court, independent of governments and parties and unaffected by the vicissitudes of politics, its primary duty is to interpret the constitution and to provide a peaceful and rational solution of differences which, in the absence of an impartial and independent arbiter, might inflame passions and even issue in violence.”
In an attempt to carve out institutional space for itself, every judge of the Federal Court actively lobbied the government to expand its very limited jurisdiction.Footnote 82 It asserted itself against both the Privy Council and the provincial High Courts by emphasizing its role as the India's apex court. It began both admitting appeals from the High Courts on very tenuous claims and preventing further appeals to the Privy Council. Explaining why the Court had rejected four consecutive leaves to appeal to the Privy Council, Gwyer stated “that we were not a subordinate court, and we also said that we could not at present ignore the evolution of a political thought in India … . we were not disposed to encourage Indian litigants to seek for decisions on constitutional questions other than in their own Supreme Court, the first Court sitting on Indian soil with jurisdiction over the whole of British India.”Footnote 83 Early in its career, the Court had held that once the jurisdiction to hear an appeal was vested by the court, no subsequent event could divest it of its jurisdiction. A certificate appeal was “the key which unlocks the door of the court and a litigant who has once passed through the door cannot afterwards by rejected by the happening of events outside his control.”Footnote 84 This was similar to moves that had taken place in other dominions, but whereas the resistance in Canada and Ireland emerged from the political classes, in India it was led by judges.Footnote 85
The Federal Court obtained the opportunity to build a public constituency for itself by emerging as a stellar guardian for civil liberties during the Second World War. Breaking a tradition of judicial deference to the executive in security matters, the Federal Court delivered a series of judgments in the 1940s striking down colonial emergency laws and ordinances that were being used to detain and target nationalist leaders. As I note elsewhere, the assertion of independence by a colonial court staffed by appointees of the colonial government was in stark contrast to the more acquiescent attitude toward the restriction of civil liberties that was taken by the House of Lords in the United Kingdom at the same time.Footnote 86 The colonial government appealed all the critical Federal Court decisions before the JCPC, where they were reversed as expected.Footnote 87
For the Indian nationalist movement, this moment endowed the Federal Court with a greater sense of legitimacy. An early critic of the Privy Council, Sir Hari Singh Gour had identified the JCPC's lack of connection with public opinion in India as one of its greatest flaws. The judiciary in India was watched and subjected to public criticism. Therefore,
if there were a drunken brawl in Burra Bazaar and the press were to raise the war cry that the Empire was in danger, the Judge would only smile because he knows his Burra Bazaar and is conversant with the mentality of the people. But if the same cry were raised in England, it is apt to cause undue alarm...and an English judge could be persuaded to recommend a panicky piece of legislation…which was a symptom of the sensitiveness of the Englishman to the happenings in his overseas EmpireFootnote 88
Gour, writing in the 1920s, had in mind the failure of the Privy Council to deal with the question of martial law protests in the Punjab. The arrest of popular political leaders had led to popular demonstrations and the death of an Englishman. As a consequence, martial law had been imposed in the Punjab and provided for offenders to be retrospectively tried by a special commission for waging war against the King, instead of by a regular criminal court. Although the Privy Council tested the legality of the martial law ordinance, that is, whether all proper procedures were followed in promulgating it, it did not question whether a crowd that was trying to secure the release of a popular leader could be held guilty of high treason.Footnote 89 As Gour noted, in England, courts would not allow the executive to suppress a breach of peace, however serious, by the promulgation of martial law.
This pattern was repeated with every high profile nationalist trial, most notably in the Bhagat Singh case, in which the Privy Council had refused to adjudicate whether the Viceroy had correctly taken the decision to declare an emergency on the grounds that it could not presume to understand the realities in India.Footnote 90 The Privy Council sitting in London had held that the viceroy was the best judge of the situation in India, but that a judicial body such as the Federal Court based in India, composed of Indians and Englishmen with Indian experience, could assert that it was better placed to question executive actions. In a series of well publicized decisions, the Federal Court struck down viceregal ordinances authorizing detention without trial, released politicians charged with sedition, and struck down summary trial procedures.Footnote 91 However, on appeal, the Privy Council reversed each of these decisions, deferring in substantive claims to the judgment of the colonial executive.Footnote 92 Until the 1930s, courts in India and the JCPC had both deferred to the colonial executive. However, the increasingly activist stance taken by the new Federal Court created a sharp contrast to the conservatism of the Privy Council and belied claims of impartiality and justice.
A second line of attack challenged the effectiveness of appeals to the JCPC in criminal cases. The JCPC was not a court of revision or ordinary appeal, and it would only decide cases in which there was a disregard for legal process or the principles of natural justice. It could not correct mistakes in evidence or procedure that the dominion Supreme Court could address. The JCPC clarified the narrow grounds on which it would intervene in criminal cases by stating “the constitution of the Empire was tending to develop in the direction of regarding as final the decision given in the local administration of criminal justice.”Footnote 93 As a result, the quality of criminal justice before the JCPC was limited. Bishwanath Sen, a young lawyer practicing before the JCPC in the 1940s, recounts his first criminal case. He had prepared a long set of arguments and, like a novice, turned up with half a dozen books borrowed from the Middle Temple Library. The experienced opposing counsel stood up and said, “My lord's it is just the usual story,” and then the presiding judge smiled and the matter was dismissed.Footnote 94 The Federal Court, on the other hand, did have powers to deliver greater justice in criminal appeals.
Faced with the objections from the India Office, the Lord Chancellor suggested that the practical solution would be to exclude India from the scheme until it had achieved the same measure of self-government as the other dominions, optimistically hoping the racial question would also become less important over time.Footnote 95 However, the exclusion of India made the proposal far less viable. By 1940, the JCPC was primarily sustained by Indian appeals. For example, in 1939, there were 29 appeals from the setter dominions, 48 from all the colonies, and 149 from India, and 149 was a record low, because of the outbreak of the war. The average number of appeals from India to the JCPC through the 1930s had been 198, as opposed to 28 for all the settler dominions. It was difficult to make an argument for the expenditure and logistics involved if the plan would not extend to India.
Table 3 Comparison between Indian Appeals and Other Appeals.
Conclusion
What can we learn from a failed proposal? Lord Green's proposal reveals that the JCPC was an active institution that foresaw a scenario of its declining relevance after the war, and attempted to build a new by radically fashioning itself into a peripatetic world court. Envisioning the JCPC as a strategic actor protecting its own interests would offer new insights into the voluminous jurisprudence of the JCPC, which has largely treated the institution as a stage rather than an actor. The circuits of law within the British Empire were given coherence by the institution of the JCPC. As onetime Lord Chancellor and secretary of state for India, Lord Birkhenhead pointed out, “…it is vital and elementary, that there should be a common jurisprudence, that there should be one authoritative and dignified tribunal …to give decisions which are recognized as binding all over the Empire, and which keep alive the immense unity of a common view of law. Such is the Judicial Committee of the Privy Council.”Footnote 96
The JCPC was invested in securing and furthering its role, and sought to do so by encouraging colonial appeals from across the Empire. The current histories of colonial forum shopping are complicated by the fact that forums often have imperatives of their own. Judges were motivated by institutional logic to both increase and reduce the mobility of law.
Scholars have argued that the Second World War and its aftermath offered an opportunity to imagine more radical possibilities of imperial association, as seen through a 1958 referendum in which the majority of French African colonies voted to stay within the French community rather than opt for complete independence. There were efforts not to escape empire but to transform it.Footnote 97 Mark Mazower's recent work on the origins of the United Nations reminds us that many of these efforts were to promote a liberal world order that was compatible with empire and ensure “white leadership of the world.Footnote 98 There was nothing inevitable about India ending her association with the JCPC upon independence. As Harshan Kumarasingham points out, several of the former British colonies made strategic uses of the imperial form by retaining the monarchy or adopting dominion status.Footnote 99 However, this Privy Council episode shows that at least in the British context, the limits of imagining a more liberal empire were constrained by racist limitations of the other dominions. Moreover, the failure of the proposal caused by the nonparticipation of India emphasizes the centrality of India to the legal landscape of the British Empire, and the need to integrate the histories of the settler dominions with those of the Asian and African colonies.
India's break with the Privy Council did not follow the pattern in the other dominions, and was influenced by the growing influence and strategic behavior of the Federal Court. This calls for more careful attention to the changing interinstitutional dynamics within the British Empire. The rise in popularity of the Federal Court challenged paternalistic accounts of the Indian veneration of the JCPC, and cultural explanations of Indian litigiousness. When Indian courts were staffed by mediocre judges, or were equally likely to side with the executive, the appeal to the JCPC served as yet another opportunity to obtain a favorable decision or to rectify an error in law. However, the increasing “Indianization” of the judiciary and the assertion of independence from the executive by the Federal Court distinguished the Indian courts from the JCPC, and nurtured a constituency that would favor them. In 1949, the Indian Constituent Assembly ended appeals to the JCPC by creating a Supreme Court in Delhi.
To return to the analogy of travel, this article also demonstrates that distances matter. For litigants in India, it is the remoteness and alienness of the JCPC that endowed the court with credibility in its early years. However, as is evident from the decision in Hull v. Mckenna, the JCPC saw itself as neither remote nor alien; the judgment held that the Privy Council was “not a body, strictly speaking, with any location,” and as an aspect of the sovereigns authority, was everywhere. Similarly, the JCPC claimed expertise in local laws and customs, arguing that expertise was not linked to actual experience in that system. Conversely, local courts such as the Federal Court in India emphasized its nearness to boost its legitimacy. The contrast was marked in the approaches of the Federal Court and the JCPC in judging politically charged cases on public order.
Despite the failure of Lord Green's proposal, the idea of an appellate court that drew its legitimacy from its mobility and its cosmopolitan bench of judges did not disappear. In 1945, during the consultations in San Francisco to set up the United Nations, the International Commission of Jurists (ICJ) recommended that the proposed future International Court of Justice have three regional chambers around the world, and have a “flow in and out of judges from other parts of the world”.Footnote 100 This regional scheme was not opposed to the “unity of the court,” but seen as a means of enabling this institution to extend its activities through the world while reassuring people that the ICJ was not merely a European court. Alternately, they suggested a single ICJ with a fixed number of judges and permanent seat, which could then travel across the world to hear particular cases and reconstitute the bench to include local judges.Footnote 101 Commentators reviewing these proposals noted the similarity to the structure of the JCPC.Footnote 102 While the peripatetic International Court of Justice was voted down, a peripatetic court took concrete shape in the form of the East African Court of Appeals. The Treaty for East African Cooperation, 1967 transformed the old Court of Appeals for East Africa into an appellate court for Kenya, Uganda, and Tangyanika that would be staffed by judges of all countries. Although its prime seat was Nairobi, it would also move in circuit to Dar-e-Salaam and Kampala.Footnote 103 More recently, the Supreme Court of India (the successor to the Federal Court) has been criticized for being inaccessible to much of the country, and the Law Commission suggested the idea of creating regional benches of the court where judges could be sent on deputation from Delhi.Footnote 104 However, it was only from 2008 on that the judges of the Privy Council began to travel to Mauritius for a week annually in order to hear appeals. Given Mauritius's profile as a hub for offshore finances, the government felt that the presence of the Privy Council would reassure foreign investors.Footnote 105
In the recent mappings of law's journeys across the Empire, law and legal forms have comprised the baggage of the real traveler, be it imperial ideology, theological exchanges, global capital, or authoritarian expediency. For example, the utilitarian Indian codes were brought to British East Africa to meet the needs of administrative efficiency,Footnote 106 English trust law was applied to Indian temples in order to free up capital for colonial investments,Footnote 107 and Muslim legislators in British India borrowed Maliki legal precepts from Egypt to counter anxieties about gender and community identity.Footnote 108 Thus, law, when it travelled, was often seen as purely instrumental, part of a superstructure and driven by factors external to it. Lord Green's proposal and its failure emphasizes that legal institutions have a logic and agency of their own, and that their journeys are not solely driven by external factors.
