Malaviya - Exemplary Career at the Bar
Formerly Professor, Muir Central College, Allahabad
Lecturer, Modern History, University of Allahabad
Practice of law was perhaps the only alternative to journalism as a means of livelihood for one without independent means who was yet intent on taking the fullest part in the public life and who indeed made a brilliant debut in it. Malaviya’s avowed dislike of this profession was overcome by the persuasion of his ardent well-wishers, Mr. A.O. Hume and Pandits Ajudhia Nath and Sunder Lal. Raja Rampal Singh having failed to dissuade him from leaving Kalakankar, exhorted him to take the L.L.B. degree and continued to pay him a hundred rupees per month, thereby providing him with the means of subsistence during his studies and in the early year of his practice.
Pandit Ajudhia Nath had come to Allahabad from Agra on the establishment of the High Court. During the three years following his resignation of editorship (which tragically turned out to be the last years of Ajudhia Nath’s life) Malaviya was closely associated with him as his right hand man in the work of the Indian National Congress, in the editing of his journal, the ‘Indian Union’ and as pupil of his at Muir Central College where Ajudhia Nath was Professor of Law. Ajudhia Nath was one of the leaders of the Bar, a member of the Provincial Legislative Council and the top leader of the Congress movement in this part of the country. His fearlessness won for him the epithet of the “Lion of the Upper Provinces.”
Pleased with Malaviya’s performance at Calcutta Congress of 1886, Ajudhia Nath had taken him under his wings. Malaviya on his part held him in the highest respect, as proof of which we have seen how he broke with Raja Rampal Singh over some disparaging remarks about the Pandit which Malaviya was unable to forgive.
Malaviya actively assisted Ajudhia Nath in the work of the National Congress even while working at Kalakankar. As Chairman of the Reception Committee of the session held at Allahabad in 1888 Ajudhia Nath had difficulty in securing a site for the session because of the formidable opposition of the lieutenant-governor, Auckland Colvin. When all efforts failed he sent Malaviya with an urgent message to the Maharaja Bahadur of Darbhanga, Sir Lakshmishwar Singh by whom the spacious premises and grounds of Lowther Castle (subsequently renamed Darbhanga Castle) lying immediately to the north of Government House in which Sir Auckland Colvin resided, were made available for the Congress session which proved a conspicuous success, as will be narrated in due course.
Ajudhia Nath was elected Joint General Secretary of the Congress at the Calcutta session of December 1890 and was re-elected to the office next year. The ensuing session of December 1892 was to be held at Allahabad. The venerable Pandit Bishambhar Nath, a senior colleague of his in Allahabad High Court Bar as Chairman of the Reception Committee largely counted on his help. The tragic death of Ajudhia Nath three months before the date of session threatened to lead to its abandonment, but Malaviya’s fortitude and firm resolve saw it through. Touching reference were made to the passing away of the great patriot in the speeches of the Chairman, Reception Committee and the President of the session, but a proposal to erect a memorial to him on behalf of the Congress was not entertained. Hume said “For God’s sake waste no money on memorials or any other minor enterprise but give every farthing you can spare to the general cause.” So Allahabad is left without even a road bearing the name of Ajudhia Nath. By an irony of the fate the one on which his own house is situated was egregiously named Clive Road.
Malaviya’s abiding respect for him is brought out in a speech he made years later when he was at zenith of his public career. He declared that in the whole of his life he had not come across a more impressive personality than Pandit Ajudhia Nath.
Malaviya had now completed his study of law for which he had rejoined Muir Central College in 1889. The law classes though incomparably smaller than now were bigger than classes in other faculties. We know of only one other teacher of law (Professor W. Jardine) besides Pt. Ajudhia Nath who must, from the fact of his being a practicing lawyer, have been a part time teacher. Malaviya was awarded a second class L.L.B. degree in 1891. He started practice in the District Court even before being admitted to the degree, by virtue of having passed the examination for enrolment as Vakil of High Court, considered by the High Court ever since its establishment in 1866. It could be taken after a year’s study but was much stiffer than the examination for the L.L.B.
Unlike other High Courts, the Allahabad High Court did not require a graduate in law to undergo a period of apprenticeship before being allowed to take up cases himself. Malaviya who had started taking cases in the district courts in 1891began practice in the High Court in 1893 directly on taking the L.L.B. The High Court had at the time a large number of legal luminaries both on the bench and in the bar. Among the latter were Sudar Lal, Moti Lal Nehru, Jogendranath Chaudhary, O’Connor and Satish Chandra Banerji. Among the judges were Sir John Edge, Pramada Charan Banerji and George Knox.
Malaviya rose quickly to eminence in the profession. Cases in which he was engaged began to find place in the Indian Law Reporter as early as 1895. Their number rose steadily till 1898; it fell for a couple of years while he was engaged in preparing a petition to Government for the adoption of Hindi as Court language. It rose again from 1900 to 1908 after which he gradually relinquished his practice to devote time to the work of the Benares Hindu University. He left the High Court about 1913 and appeared thereafter only once in 1923 to plead for the life of the large number sentenced to death in the Chauri Chaura case. Malaviya always had plenty of cases, many more indeed than he could manage.
In the early years of his practice it is said that someone complained to Hume that Malaviya was neglecting national work because of his busy practice. Hume who rejoiced in Malaviya’s growing success in the profession, said to him: “Madan Mohan, God has given you a keen intellect. If you apply yourself whole-heartedly to the profession even for ten years, you are sure to get ahead of everybody and then you will command respect in society and be able to serve the country all the better.”
Hume’s prophecy came true. Malaviya was besieged by clients from early in the morning to late in the night, and not infrequently missed his principal morning meal because he could not find time to take his bath and perform his sandhya before it was time to go court. It was usual for him to change into his court dress when driving to the High Court in his carriage in which the clothes were placed for him.
This boom would have continued and in all likelihood been accelerated had not Malaviya begun to play the truant. He took time off not only to attend and actively participate in periodical sessions of the Congress and other political and social organization but also undertook time consuming tasks like the preparation of monumental petition for the adoption of Hindi as court and official language, and the raising of funds for establishing a hostel for Hindu students, and finally in giving shape to his dream of a Hindu University which would teach and cultivate every subject under the sun, ancient as well as modern.
He plunged simultaneously into civic and legislative work, being elected member (later Vice-Chairman and Chairman) of the Allahabad Municipal Board (1901) and member successively of the Legislative Council of the U.P. (1902) and India (1910). He also started two journals the Abhyudya and the Leader while still in active practice. It was inevitable in these circumstances that his zest for law should decline. Rajarshi Purushottam Das Tandon probably had this period in mind when in the course of his speech at the unveiling of Malaviya’s portrait in Prliament House, New Delhi on December 19,1957 he stated that Malaviya did not have his heart in the business of law and narrated how he frequently turned over briefs brought to him to his friends Tej Bahadur Sapru, Isvar Saran, Gokul Prasad and others. Having joined the High Court bar in 1908 Tandon had missed the high tide of Malaviya’s professional career. In the course of the same speech Tandon paid a rich and well-deserved tribute to Malaviya’s high ideals of professional conduct. How many lawyers, he asked, “can claim that they have not rewarded touts for bringing clients to them, or that they have not had bribes paid through their munshis (clerks) or that they have not had false evidence tendered by witnesses tutored by them. Malaviya never resorted to such practices. He carried on his legal practice with the same purity as he observed in his private life. This was possibly only for one who did not hanker after money.”
We may now notice some of the reported cases in which he was engaged in order to get an idea of his professional learning, ability and skill.
Some Important Cases
The first reported case in which he appeared alone and won approbation from the judges of the High Court was a second appeal from the judgment dated 28th November 1893 of H. Bateman, District Judge of Saharanpur, revising the decree of M. Muala Bakhsh, Munsif. The case was heard on April 17, 1896 by the Chief Justice Sir John Edge sitting with Justice Blennerhassett I.C.S. Malaviya appeared for the appellant Mohammad Bakhsh, and Abdul Raoof (later elevated to the Bench) appeared for the opposite party.
Malaviya relied on a Privy Council judgement in an Indian appeal and a Chancery Court judgment of Sir Thomas Plumer about which the judges observed: “This case is a high authority showing that in order to grant partition as between joint tenants of a holding it is not necessary that the landlord should be party to the suit”.
We allow this appeal with costs in this Court and in the Courts below and restore and affirm the decree of the first Court.”
A marvellous display of legal learning and subtle logic took place before a full Bench of the Allahabad High Court consisting of Justices George Knox, P.C. Banerji and Aikman when it heard the arguments of Madan Mohan Malaviya (with whom was Moti Lal Nehru) on behalf of the appellant and Sundar Lal (with whom were T. Conlan and Ghulam Mujtaba) for the respondents, in a reference made by a single judge of the Court (Justice Burkett) on the question whether “the distinction between whole-blood and half-blood observed on the case of brothers and their sons extends to the descendants of the grand- father and of remote ascendants and if so how far ?”
Malaviya in the course of his arguments cited a large number of Sanskrit authorities the list of which occupies 22 lines almost a whole page of the Indian Law Reporter for 1897 and in the course of his reply to the other side he supplemented it by citing further authorities whose names occupy another 8 lines. Sundar Lal produced an equally impressive array of authorities whose names took up 19 lines in the Reporter.
Separate though concurring judgments were delivered by the three judges constituting the full Bench. These contain a close examination of the very intricate arguments advanced by learned counsel on both sides and the following tributes to Malaviya:
“The learned Vakil for the appellants, in a very careful and learned argument, for which we are much indebted to him, labored hard to get rid of these precedents by falling back upon the Viramitrodaya. It would be interesting, but in a way profitable, to follow up the discussion as the matter is really concluded by the view which has been adopted by their Lordships of the Privy Council, a view we cannot depart from unless something far stronger be brought before us than what is after all only a dictum of a text book, of great authority undoubtedly but a dictum against the mitakshara and one not supported by any proof of custom or authority in its favour.”
The reference was decided against Malaviya but the observations just cited justify the conjuncture that the Privy Council whose views the High Court found itself unable to depart from, might have revised those views in the light of the authorities and arguments later produced before the High Court.
When he appeared in the High Court in 1923 after an interval of ten years, it was to support the appeal of the 170 persons sentenced to death by the Session judge of Gorakhpur in the Chauri Chaura case. In this case 225 persons had been tried for setting fire to the police station of Chauri Chaura (in Deoria district) and causing the death of one Sub-Inspector and 21 constables trapped in it. One hundred and seventy had been sentenced to death by the session judge. A barrister from Aligarh named Qadri was crown counsel. Malaviya argued the case in general for all the accused for four or five days. A dozen other lawyers appeared for individual accused persons. The case was heard by a bench consisting of Chief Justice Sir Grimwood Mears and Justice Sir Theodore Piggot. The atmosphere in the crowded court room was tense. When Malaviya stood up to begin his address, the Chief Justice looked red with rage though his colleagues Justice Piggot before whom Malaviya had appeared in the past was in a calm and dignified judicial pose. As Malaviya proceeded with his argument in his usual sweet and persuasive manner the Chief’s appearance and attitude changed visibly, and when Malaviya had finished the Chief paid him a handsome tribute in something like the following words: “Mr. Malaviya, we are extremely grateful to you for putting this case so fairly and well before us. We feel sure nobody else could have argued it so ably.” In the result 151 of the 170 condemned men were saved from the gallows and strictures were passed on the police.
Malaviya attained a roaring practice within a few years. His classical education gave him access (which not many had) to the original sources of Hindu law. His perfect command of the English language, persuasive eloquence, incisive logic and habitual diligence (characteristics of a classical education) which ensured complete mastery of the details of the case, capped by a marvelous memory made for sure success. His distinguished personality - fair complexion, handsome features, distinctive dress- and his gentle and refined manner were no mean aids to success. Conscientious hard work, however, lay deepest at the root of his professional success. This is brought out in an incident which he narrated in 1940 to Tripathi.
“I was briefed by a Maulavi Mohammad Mahmud-ul-Hasan of Allahabad district in a case for which some books of reference in Arabic had been obtained from Egypt. From these I had noted down extracts in Devnagari character. When counsel for the client started reading out from the books in court, he faltered. Thereupon I asked him to let me read the extract and did so from the transcript I had made in Devnagari. The reading was so correct that Zamin Ali a leading advocate who had listened to it, congratulated me in the verandah after we left the court room and said that he was now convinced of the excellence of the Nagri script, though he would not say so publicly.”
Shiva Ram Pandey Vaidya, an intimate friend of his early years, has recorded that the fee which Malaviya received for his first case was of the same amount (nine rupees) as Pandey himself got from the first patient to whose bedsides he was called. Malaviya’s earnings, however, rose rapidly and he attained affluence. In one of his celebrated cases (that of the Rani of Sherkot) he was so well remunerated that he was able to pay off all outstanding debts and to rebuild his ancestral house in Atarsuiya (or Bharati Bhavan) in pucca brick in an elegant style, while the rest of the locality still remained under titled roofs.
Renunciation of practice so lucrative and still growing was an act of sacrifice not easy to explain in the circumstances of the case. Malaviya was born poor, he had a large family of his own and many who could look up to him as prosperous relation for help. His action can be understood only by those who can enter into the depth of his feelings for his country and particularly for the Hindu community whose culture was threatened with slow extinction under the impact of the forces he saw working round him. He threw up his practice in order to have all his time free to devote to political work for the emanicipation of the motherland and for building up a centre of higher education where Hindu culture might be conserved. Gokhale characterized Malaviya’s action as tyaga or sacrifice in the true sense of the word. Born in poverty he had made a fortune as a lawyer and tested the joys of affluence and then discarded them. Bishan Narain Dar characterized Malaviya’s life as a sermon on sacrifice which all can understand. A distinguished judge of the High Court put the case in the language of sport comparing Malaviya to the player who had the ball at his feet but refused to kick it. In the words of Sita Ram Chaturvedi “The goddess of wealth (Lakshmi) was waiting at her open door, arti and garland in hand, to welcome Malaviya. But his ears having caught the cry of the poor and the helpless, he turned back to pick up the begger’s satchel for their sake.”