The various thoughts, opinions and policies of Jawaharlal Nehru have dominated public discourse since time immemorial. As a leader in the freedom struggle, Jawaharlal Nehru was one among many, subject to pulls and pressures of the Congress party and other leaders. As the first Prime Minister of India, several of his economic and social policies have been subject to both critique and commendation. However, one aspect that has remained uncovered is Jawaharlal Nehru’s opinions and relationship with the judiciary. Through the following part of this article, I attempt to shed light on what shaped Jawaharlal Nehru’s initial views towards the judiciary and his frosty relationship with the judiciary in his leadership years.
To gather an insight into what shaped India’s first Prime Minister’s views in the time to come, we must take a step back and understand his outlook towards the judiciary and legal profession in his early years. Jawaharlal Nehru’s father, Motilal Nehru was a leading lawyer in the city of Allahabad. Following his father’s footsteps, Jawaharlal Nehru too pursued law from the University of Cambridge. Pursuant to his return from the United Kingdom, Jawaharlal Nehru did not meet with much success at the barand came to resent the legal profession thinking of it as rather mundane. In his later years, he followed up his early resentment of the legal profession with uncharitable comments on lawyers. He stated that lawyers have ‘kidnapped and purloined the Constitution.’ Thereafter, it was no surprise that Jawaharlal Nehru left behind his legal career and focussed upon politics and the ongoing freedom struggle.
Since then, Jawaharlal Nehru first expressed his views on the judiciary in the Constituent Assembly wherein he stated If courts prove obstructive, one method of overcoming the hurdle is…the executive, which is the appointing authority of judges. [It can] begin to appoint judges of its own liking for getting decisions in its own favour. One might perceive this to be a stray comment however Jawaharlal Nehru said something more on similar lines in the Constituent Assembly as well. This time he stated “Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where, the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of Parliament.”
Through these remarks we can draw two conclusions. First, they are indicative of Jawaharlal Nehru’s resentment towards an independent judiciary even prior to becoming the first Prime Minister of India. Second, they dispel the notion that the attempts to create a ‘committed judiciary’ were only undertaken during the time of Jawaharlal Nehru’s daughter, Indira Gandhi.
In Jawaharlal Nehru’s leadership years there are two instances which give credence to Nehru’s frosty relationship with the judiciary. The first instance revolved around one of independent’s India very first scam and the second over Nehru not taking too kindly to criticism.
Coming to independent’s India very first scam, the Life Insurance Corporation of India had bought shares in entities run by HaridasMundhra at a price deemed to be higher than market value. Coincidentally, Mundhra also made generous donations to the Congress party. This quid pro quo was unearthed by Justice Vivian Bose and when asked about Justice Bose’s findings Nehru said that the judge was lacking in intelligence for suggesting this was a quid-pro-quo arrangement.
The Calcutta High Court did not take lightly to Nehru’s comment and took strong exception to the “tenor and nature” of Nehru’s remarks. Thereafter to prevent himself from being caught up in contempt proceedings, Jawaharlal Nehru did apologise. However, it is clear that he seemed frustrated that a judge could question the Nehru government’s intentions in what was a clear scam.
And now to the second instance, in March 1950, an English weekly, namely the Organiser was critical of the Nehru government and it’s inept handling of the riots that took place after the partition of India. With a view to curb dissent, the government issued an order wherein it was mandatory for the ‘Organiser’ to submit content, including cartoons, to the government for approval. This order invited widespread criticism from all quarters including noted jurists such as MC Chagla and PR Das opposed such actions. It was no surprise that the Supreme Court of India quashed the order issued by the government. However, what is surprising that in response to the judgement of the Supreme Court of India, Jawaharlal Nehru decided to prune the right to freedom of speech and expression in India by way of the First Amendment.
Furthermore, besides these two instances, Nehru’s unkind comments against Justice Harilal Kania, then Chief Justice of the then Federal Court, are also well known. It is almost as if the Congress party’s attempt to browbeat judges and attack judicial autonomy, find their roots in Jawaharlal Nehru’s actions.
It can be argued that there existed a deeper reason for Nehru’s disdain towards the judiciary. Despite proclaiming himself as a democrat often, Nehru seemed to have had a distinct unease with anything that would check his power, either politically or policy-wise. Unsurprisingly, such anti-democratic tendencies showed up often in his policies. And, an example of the same was the introduction of the Ninth Schedule which made certain laws immune to judicial review. This amendment was brought in the background of several successful legal challenges mounted against social and economic policies of his government.
Notwithstanding his frosty relationship with the judiciary, one of the most critical issues facing our judicial system, pendency of cases, too tracks back to Nehru. The 14th Law Commission Report formulated by the Law Commission of India had criticised the Nehru government for its failure to tackle the issue of pendency in courts.
While he was very keen on speaking about the problems posed by India’s population, India’s longest serving prime minister did very little to ensure adequate number of judges at every level of the judiciary to cater to a vast population’s requirements. Even, the judiciary’s strength was increased at a snail’s pace and these appointments too were beset by allegations of partisanship. From pendency in the Court of 690 cases in 1950, the number grew to 2506 by1964, setting off a trend that has since been a persistent problem for India.
Further, under Nehru, not enough courts were set up at district level, infrastructure at lower courts was woefully inadequate, no uniform method of appointments was created despite recommendations, tenure of judges was not increased despite recommendations and court fees were seen as a source of revenue which stopped poorer people from approaching courts.
Therefore, it is evident that Jawaharlal Nehru’s persona as well as policies, despite having a clean slate to set India off on an upward trajectory by enabling a vibrant judiciary, did the exact opposite.
[The author was faculty at National Law University, Bangalore before joining the Bar.
She is Additional Advocate General, Madhya Pradesh in Supreme Court]
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