When a foreign chief justice was the chief guest at India’s Republic Day

By Sumit Kumar Ganguly* 

India, that is Bharat, has been celebrating Republic Day on 26 January since 1950. It was on this day that the full Constitution of India came into force. The occasion is marked by military parades by the Armed Forces and paramilitary forces, along with cultural presentations by various Central departments and State governments. 

Since the first Republic Day, foreign Heads of State or Government, or other senior dignitaries, have been hosted by the President of India for the parade, beginning with President Sukarno of Indonesia. In 1956, the Chief Guest for India’s seventh Republic Day was Dr Kotaro Tanaka, Chief Justice of Japan, along with Richard Austen Butler, Chancellor of the Exchequer of the United Kingdom. That was the first time two or more Chief Guests were invited. Notably, it was the first and only occasion when a sitting Chief Justice of a country graced the Republic Day celebrations.

Dr Kotaro Tanaka wore several hats in his lifetime. He was a professor and was appointed Dean of the Faculty of Law at Tokyo Imperial University in 1937. By then, he had completed his magnum opus, A Theory of World Law (three volumes). From 1946 to 1947, he served as the last Minister of Education in Imperial Japan. As Minister, he had friction with the Communist-led Teachers’ Union and banned student agitations. He was nominated to the House of Peers (the upper house under the Meiji Constitution) by Emperor Hirohito. As a member, he vehemently opposed the birth-control programme. In 1947, he was elected to the House of Councillors under the new post-war Constitution. Dr Tanaka was appointed Chief Justice of the Supreme Court of Japan in 1950 and served in that position until 1960. During his tenure, the United States–imposed Constitution was given its final interpretation. Following his retirement, he became a judge of the International Court of Justice (ICJ) after being elected by the United Nations General Assembly (UNGA). His role as a judge in the Japanese Supreme Court and at the ICJ will be discussed later.

A short video of the 1956 Republic Day celebrations, when then President Dr Rajendra Prasad took the salute at the march past, is available on British Pathé. In the video, the news presenter says, “When India celebrates, she does it in a big way.” Jugantar (a Bengali newspaper), on 27 January 1956, published two reports on the grand programme held in New Delhi. On page 5, it reported that a felicitation ceremony for guests was organised at the Mughal Garden (now Amrit Udyan) in the evening by the President. It stated that among the foreign guests were Lady Mountbatten and Dr Tanaka. Some tribal leaders and Uzbek cultural representatives also participated.

The second report, on page 9, described the Republic Day parade at Rajpath (now Kartavya Path) in detail. The event began with the conferment of the Ashok Chakra on the deceased Captain D.K. Jatar of the bombed Air India aircraft Kashmir Princess. The report said that the Army, Navy and Air Force marched with light and heavy tanks, artillery cannons, armoured vehicles and other weapons. 

The march past was followed by a colourful procession reflecting the culture and lifestyle of different states. The tableau of Madhya Pradesh, themed on Bapu Kuti of Mahatma Gandhi’s Sevagram Ashram, was ranked first. The report also mentioned that war veterans of the two World Wars took part in the parade.

Diverting briefly, it is useful to draw an analogy between the constitutionalism of India and Japan. The current Japanese Constitution came into force on 3 May 1947, just a few months before India attained independence. The Indian Constitution was finalised on 29 November 1949 after prolonged discussion, debate and dissent in the Constituent Assembly. Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, was partly adopted from Japan. The Constituent Assembly borrowed the phrase “procedure established by law” from the Japanese Constitution. 

In 1957, the Japanese Supreme Court, headed by Chief Justice Tanaka, held that the Japanese translation of D.H. Lawrence’s novel Lady Chatterley’s Lover was “obscene literature” (The Japan Times, 14 March 1957). Following in its footsteps, the Indian Supreme Court in 1965 also held the novel to be obscene in Ranjit D. Udeshi v. State of Maharashtra.

Dr. Tanaka at the airport to attend R-Day 1956 celebrations

Dr Tanaka, who was directly appointed as the second Chief Justice of Japan, was not an advocate, unlike his predecessor Tadahiko Mibuchi. According to an article published by The New York Times on 2 March 1974, “Dr. Tanaka’s knowledge of Western legal conceptions—he had studied commercial law in the United States, Britain, Germany, France, Sweden and Italy—helped his nation in administering a new democratic constitution along foreign lines.” In 1959, the Japanese Supreme Court ordered a retrial in the Matsukawa train derailment case by the Sendai Higher Court, with Chief Justice Tanaka and four other judges dissenting (The Japan Times, 11 August 1959). In the controversial Sunagawa case (Sakata et al. v. Japan, 1959), the Supreme Court ruled that the presence of the US military in Japan was neither constitutional nor unconstitutional and that the US–Japan Security Treaty lay beyond the scope of judicial review. Declassified documents revealed in 2008 showed that Chief Justice Tanaka had been unduly influenced by the US Ambassador to Japan in delivering the judgment.

In October 1960, Justice B.P. Sinha, then Chief Justice of India, toured Japan on a goodwill visit, where he met his counterpart Dr Tanaka, as well as the Japanese Emperor and Prime Minister (The Japan Times, 8 October 1960). In November that year, Dr Tanaka was elected to the ICJ at The Hague. During his nine-year term, he participated in seven contentious cases, including the Barcelona Traction, Light and Power Company, Limited case, the Temple of Preah Vihear case and the Northern Cameroons case. Significantly, he delivered dissenting opinions in the South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa, 1966) and the North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands, 1969). 

In his landmark dissent in the South West Africa cases, Dr Tanaka declared that the practice of apartheid was inconsistent with the principle of equality before the law and international standards of non-discrimination. He held that “the practice of apartheid is fundamentally unreasonable and unjust. The unreasonableness and injustice do not depend upon the intention or motive of the Mandatory, namely its mala fides.”

It was nearly six decades later, in 2014, that another Japanese Chief Guest attended the Republic Day parade. Prime Minister Shinzo Abe visited New Delhi at the invitation of President Pranab Mukherjee. Coincidentally, four months later, Mr Abe reinterpreted the Sunagawa judgment, claiming that it permitted Japan to exercise the right to collective self-defence. 

Three years ago, my friend, author and columnist Priyadarshi Dutta, wrote an article questioning the predominance of the military parade over constitutionalism on Republic Day. He wrote, “Republic Day is marked in honour of the enforcement of the Constitution. It is, however, deplorable that the occasion is little used to popularise the Constitution itself amongst ‘We, the People of India.’” Nevertheless, it is expected that the Indian State will continue to maintain the status quo. With respect to the Chief Guest at the Republic Day parade, it appears unlikely that any Chief Justice of another country will be invited again, given the prevailing trend.

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The author is an Assistant Professor at The Neotia University, Diamond Harbour. He can be reached at sumitganguly.law@gmail.com