H.J. Kania

Early life and career

Sir Harilal Jekisondas Kania, the first Chief Justice of India, was born on 3 November 1890 in Surat, in the state of Gujarat. He was the son of a Sanskrit professor who was also principal of Samaldas College in Bhavnagar, a princely state. His grandfather had been a revenue officer in Gujarat. George Gadbois notes in Judges of the Supreme Court of India 1950-1989 that four out of the first eight judges at the top court had fathers who were Sanskrit scholars. 

Justice Kania graduated with a Bachelor of Arts degree from Samaldas College in 1910 and eventually earned an LLB and LLM from Government Law College, Bombay in 1912 and 1913 respectively. In 1915, he began his practice at the Bombay High Court on the original side. Justice Kania often practised alongside his brother Hirajlal J. Kania. The two brothers were first-generation lawyers from the family. In 1987, Hirajlal’s son, M.H. Kania also became a judge of the Supreme Court.

During Justice Kania’s early years at the Bar, he also worked as an Acting Editor at Indian Law Reports.

Early career as a judge

Justice Kania was appointed as an Acting Judge of the Bombay High Court in 1930. ‘Acting Judge’ was essentially a temporary position offered by the local Bombay government, usually to Indian appointees, when permanent judges took leave to travel to Britain, different from an Additional Judge position which is an assessment tenure before permanent appointment. 

Justice Kania became an Additional Judge in June 1931 and remained so till March 1933 when he briefly returned to the Bar for a few months. In June that same year, he became a Permanent Judge of the Bombay High Court. 

Justice Kania was a Permanent Judge in the Bombay High Court for 13 years. In 1939, he was appointed Chairman of the Bombay Disturbances Inquiry Commission, tasked with investigating police firing at a worker’s strike protesting a trade disputes bill that resulted in injury and death of many workers. Justice Kania’s report held that the firing was in self-defence and held that the “consequent casualties, must rest on the” worker leaders.

In 1943, Justice Kania was knighted by the British Crown as part of the King’s Birthday Honours. 

As the seniormost judge at the time of Sir John Beaumont’s retirement, Justice Kania should have been his successor as Chief Justice of the Bombay High Court. According to M.C. Setalvad, the first Attorney General of India, Beaumont and Justice Kania had a fallout in 1942 because of which Beaumont did not recommend Justice Kania’s name for the chiefship of the Bombay High Court. Instead, Sir Leonard Stone superseded Justice Kania and became the Chief Justice of the Bombay High Court in 1943. 

At the Federal Court

Justice Kania was appointed to the Federal Court on 20 June 1946 to replace the retiring Sir Srinivasa Varadachariar, joining as the second senior-most judge. According to Setalvad, Justice Kania’s appointment was supported by Leonard Stone who had felt that Justice Kania’s non-appointment as the chief of the Bombay High Court had been an “injustice.” 

Sir Patrick Spens, the Chief Justice of the Federal Court, stepped down on the eve of India’s  independence in August 1947. Justice Kania replaced him to become the second Indian-origin Chief Justice of the Federal Court, the first being Justice Varadachariar.

At the time, Justices Fazl Ali and Kania constituted the entire Federal Court. Justice Kania’s appointment as the chief was not without resistance. In fact, the law secretary had been keen on appointing Setalvad to the Federal Court in 1946, even offering him to become the first Chief Justice of independent India after Spens’ retirement. But Setalvad had turned down the offer owing to his age. 

Another major obstacle to Justice Kania’s appointment as CJI was Jawaharlal Nehru’s dislike of him. It stemmed from comments that Justice Kania had made regarding certain additional judges who were proposed to be made permanent at the Madras High Court. Reportedly, Nehru had been upset about a remark against Bashir Ahmed, a Muslim judge. In January 1950, Nehru had written a letter calling Justice Kania’s comments “unjudicial.” 

According to former Law Minister Arun Jaitley, Home Minister Vallabhbhai Patel’s “pragmatism” played a key role in settling the differences. In response to Nehru’s letter, Patel directed the home secretary to confirm Justice Ahmed’s appointment, and conveyed to Justice Kania that if the latter imposed any “adverse actions” on the former, it would be considered “communal.”

The first Chief Justice of the Supreme Court of India

26 January 1950—the day the Constitution was adopted was also the first working day of the new Supreme Court of India. By this time, the Court reached its full authorised strength of eight judges. During Chief Justice Kania’s tenure, Justices M.P. Sastri, M.C. Mahajan, B.K. Mukherjea, S.R. Das, N. Chandrashekhara Aiyar and Vivian Bose were appointed. 

According to George Gadbois in Judges of the Supreme Court of India 1950-1989, these appointments were influenced by CJI Kania and Vallabhbhai Patel. M.C. Chagla, noted Indian jurist and a former union minister under Nehru’s government had also been approached by CJI Kania to join the Supreme Court but he had to turn down the offer since he was satisfied with his work as Chief Justice of Bombay High Court at that time.

On 6 November 1951, before his tenure could have ended, CJI Kania died of heart failure.

Tenure at the Supreme Court in numbers

Figure 1 shows that during his tenure, Justice Kania authored 30 judgements and was a part of 68 benches.

Figure 2 shows a subject matter-wise breakup of the judgements authored by Justice Kania.

Notable cases

In the Bombay High Court

As part of the Bombay High Court, Justice Kania was part of a bench that delivered one of the most significant judgements on contempt in pre-independence India in Parashuram Detaram Shamdasani v King-Emperor. In 1942, Shamdasani, a frequent litigant, was arguing on a summons to review taxation of costs before a bench headed by Justice Kania. During these hearings, Shamdasani had stated that he disclosed “everything, unlike members of the Bar, who are in the habit of not doing so and misleading the court.” 

Following uproar from the Bar, Advocate General Sir N.P. Engineer moved the court to initiate contempt proceedings. A Bench headed by Justice Kania found Shamdasani guilty of contempt. The Bench sentenced him to three months in prison and imposed a fine of ₹1000 on him. 

 Subsequently, in the hearing on whether the certificate to appeal can be granted, a Bombay High Court Bench headed by Beaumont interpreted contempt in a progressive manner, noting the class of actions for which contempt can be pursued has to be restricted and not expanded. The Beaumont-led Bench felt that Shamdasani was not in contempt since his comment was not targeted at any particular individual. The certificate to appeal was granted. 

At the Privy Council, a Bench comprising Lord Macmilan, Lord Goddard and Sir Madhavan Nair overturned Justice Kania’s decision, noting that the power of contempt should only be used sparingly.

In the Supreme Court 

As CJI, on 19 May 1950, Justice Kania was part of the six-judge Constitution Bench that delivered the verdict in A.K. Gopalan v Union of India. The Bench in a 5:1 majority held that the restriction under Article 21, of ‘procedure established by law’ could not be interpreted as ‘due process’ as adopted in American jurisprudence. 

In this case, Communist leader A.K. Gopalan filed a writ of habeas corpus against his detention under the Preventive Detention Act, 1950 which he claimed was in violation of ‘procedure established by law’ as mentioned under Article 21. 

Gopalan’s contention was that ‘procedure established by law’ meant ‘due process’. The import of the ‘due process’ argument was that it was not enough for an Article 21 restriction to be imposed under a law—it was also necessary for the law to be just, fair and reasonable. 

Justice Kania led the majority opinion, which noted that ‘law’ in ‘procedure established by law’ meant State-made law and did not refer to the abstract or general embodiment of natural justice principles. Justice Fazal Ali famously dissented, noting that ‘procedure established by law’ could be interpreted as ‘procedural due process’ as understood in the American constitutional context. 

On 26 May 1950, Justice Kania was part of a six-judge Constitution Bench that delivered similar judgements in Romesh Thapar v State of Madras and Brij Bhushan v State of Delhi. Both the judgements held that freedom of speech and expression under Article 19(1)(a) could not be restricted on grounds of ‘public order’. 

The erstwhile Article 19(2) only restricted Article 19(1)(a) on grounds of “libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”  

Two separate state public-order related laws were enacted in Madras and Delhi which imposed bans on Crossroads, a Communist magazine in Madras, and Organiser, the Rashtriya Swayamsevak Sangh’s magazine in Delhi. Both laws were challenged and heard as the Romesh Thapar and Brij Bhushan cases respectively. 

In both cases, the Bench, in a 5:1 majority, held that a provision that restricted freedom of speech under Article 19(1)(a) on wide grounds such as securing of public safety or maintenance of public order was outside the scope of Article 19(2). 

It’s been suggested that the Nehru-led Central government was not happy with the judgements. This dissatisfaction prompted the First Constitutional Amendment, 1951, which introduced the ‘public order’ restriction under Article 19(2).