The loss of two titans

Blackmun, like Denning, could be a lone dissenter. When the Supreme Court ruled in 1993 that US authorities need not give hearings before seizing and returning Haitians who had fled their homeland by boats, Blackmun held that the plea of the refugees that the United States, land of refugees and guardian of freedom, should cease forcibly driving them back to detention, abuse and death, “was a modest one. We should not close our ears to it.”Blackmunwas considered a staunch conservative in his early days on the Court. On his retirement he was hailed as a liberal justice who upheld the right of individuals against the executive. Justice Blackmun, over the years, had supported capital punishment but sometime before his retirement strongly opposed the death penalty in all circumstances.

Controversy dogged both of them. Blackmun authored the landmark decision in Roe v. Wade, which recognised that women had a constitutional right to end their pregnancies and thus legalised abortion to some extent in the US. As a result, he became the most vilified Supreme Court judge and is said to have received more than 60,000 pieces of “hate mail”. Blackmun insisted on reading all such mail because he wanted to know what the people who wrote are thinking.

Denning’s pronouncements both on and off the Bench also embroiled him in controversy. He was constantly at odds with the House of Lords which during the period 1960 and 1970 regularly reversed his decisions onissues like the construction of wills, statutes and contracts, trade unions and the use of precedents. Denning’s passion for “straightening out the law here and now” and ironing out the creases in a statute was roundly condemned by the House of Lords as a naked usurpation of legislative powers under the thin guise of judicial interpretation.

No wonder Denn-ing thought that the House of Lords was “rather like Heaven — everyone wanted to get there, but not too soon”. Denning’s judgment that Sikhs were not a racial group for the purposes of the race discrimination laws raised another furore. Some of his judgments in immigration cases were severely criticised.

In a sense Dennings was a paradox. His radical side is revealed in his path breaking judgments: the High Trees case, in which he ruled a person should keep his word or bond; the many family cases in which he created the principle of the deserted wife’s equity, and cases curbing abuses of power, such as that overruling the Board of Trade when itdenied Laker Airways a licence to launch an airlines and thus permitted Sir Freddie Laker to compete with British Airways which paved the way for cheap transatlantic flights.

His reminder to the Labour Attorney General Sam Silkin, who was defending government’s action in increasing fees for television that “Be you ever so high, the law is above you”, citing Thomas Fuller 300 years earlier, was characteristic of Denning. His judicial career is marked by his deep belief that “Our Lady, the Common Law” was the essential defender of the common man against abuse of power. Before 1945, “Our Lady” had been in a period of quiescence and it was Denning who by his judgments awoke her from her slumber and ushered in an era of creativity.

Yet, in some matters, Denning displayed ultra-conservative str-eaks. He maintained that retribution had an essential place in the penal system. In sexual matters he was firmly on the side of orthodox morality. In a case involving a girl student from a teacher training collegewho was found sleeping with her boyfriend at her Hall of residence, Denning justified her expulsion from college and passed severe strictures on her. He was opposed to any liberalisation in homosexuality laws because he believed that while natural sin was deplorable, unnatural vice was worse.

In 1963, Denning was appointed to investigate and report upon various aspects of the Profumo affair. The Denning report became an immediate bestseller and over 100,000 copies were sold in the first three days after publication. It has been described as the raciest and most readable Blue Book ever published. However principles of fairplay were not always observed in making the report, possibly because as Denning admits, he “had to be detective, inquisitor, advocate and judge and it has been difficult to combine them.”

Denning did not favour the compulsory retirement of judges at 75 years. He believed that he gave some of his judgments of greatest value after 75. He confessed that he had all the Christian virtuesexcept resignation. However he resigned in 1982 because of some remarks in his book What Next in the Law (1982), which were perceived to be offensive to the black community.

That was a sad and bizarre end to the brilliant judicial career of one of the greatest judges of our century and who was more highly regarded than any other judge in the Commonwealth. Denning publicly apologised, the book was temporarily withdrawn and Den-ning resigned in July 1982.

Denning’s judgments are a model of clarity and display a homely and entertaining style. The use of simple and short sentences,“It was bluebell time in Kent”, made the law more accessible to the lay person, who became endeared to him. Prime Minister Tony Blair, who had appeared before him as a fledgling barrister, rightly remarked that Denning “had a tremendous feel for the ordinary people”.

Many judges have been admired and lauded for their erudition and creativity but none has been more loved than Denning. Why? It was because of his basic humanity,unfailing courtesy and kindness that made litigants, law-yers and his brother judges love him. Lord Scarman, the former law lord said: “How I loved that man. He was the finest judge that I ever met in my time, one of my heroes”. Lord Lane, the former Lord Chief Justice, considered Denning “an absolute charmer from start to finish. I was very, very fond of him”.

The present Master of the Rolls, Lord Woolf, recounted how Lord Denning guided him as a young advocate, through a difficult case. None can better the tribute paid by Lord Chief Justice Bingham that “Lord Denning was the best-known and best-loved judge of this, or perhaps any, generation”.

The writer is attorney general of India