The Political and Judicial Atmosphere - An Overview

I think the present political and judicial atmosphere would be the most appropriate time to go through some of speeches made as part of the nationwide protest against supersession of some Judges by the Government of India, made at the Public Meeting held in Bombay on May 4, 1973. It would be good to have a look at it, so that we could avoid falling to the same position again.

 I am quoting some random portions of the speech made by Mr. H. V. R. Iengar, who was the Secretary to the Constituent Assembly.  

“Although I am completely ignorant of constitutional law, it did happen in the course of my official career that I was the Secretary of the Constituent Assembly of India from the day it started, viz. the 9th of December 1946, till the day it was wound up. And as Secretary of the Constituent Assembly, it was my privilege to be the Secretary of every single Committee of that Assembly—the Fundamental Rights Committee, of which Acharya Kripalani was the Chairman, the Minorities Committee of which Sardar Patel was the Chairman, the States Negotiator Committee of which Pandit Jawaharlal Nehru was the Chairman, and the rest. I was, of course, only the administrative head. And who were these leaders? They were not only Congress people. Mahatma Gandhi had advised the Congress that in the interests of framing a sound Constitution they should not pack the Assembly with their own nominees, with their own party members, but should go outside and seek talent from wherever it came. In those days, the Congress was at the height of its glory. Out of 210 seats, they actually got 199, almost 200. But they selected 30 outstanding people who did not belong to the Congress Party. And what a galaxy they were! There were, for instance, the great lawyer Alladi Krishnaswamy Iyer, the great civil servant Sir N. Gopalaswamy Iyengar, the great philosopher Dr. Radhakrishnan who subsequently became the President of India, Pandit Kunzru who was the President of the Servants of India Society, a professor of education, a professor of English from Calcutta called Dr. H. C. Mookerjee, an Indian Christian who subsequently became Governor of West Bengal and various other people of this sort. There was Dr. Ambedkar and they not only made Dr. Ambedkar a Member of the Drafting Committee, but the Drafting Committee elected him as its Chairman. And he was no lover of the Congress! I met all these gentlemen in -the course of my work and I came into contact with the discussions that used to take place.

Now, in retrospect, I think three fundamental decisions were taken by the Constituent Assembly. The first was that there should be universal adult franchise in India. There were some people, Pandit Kunzru for instance, who doubted the wisdom of this. And it may be in retrospect that several of us might doubt whether this was altogether wise to do — to jump from a completely restricted franchise to an unlimited universal franchise. And there are people who genuinely think that many of our troubles today are due to the fact that the politicians have got to pander to the ignorance of our electorate.

The second major decision taken was that we should go in for a parliamentary system of government. In other words, we should have a President who is like the Crown in England, or to put it in crude language, who is just a signing dummy, and a Ministry headed by a Prime Minister who is only responsible to Parliament. Now when they took this decision, there were many people in the Constituent Assembly who doubted the wisdom of this. They thought that this would invest the Prime Minister in the country with too much power.

One tremendous illusion of the powers in Delhi is this — I discovered it when I was working as Secretary to the Government of India: they believe that they are going to be permanent. I recall a Minister who introduced a very drastic amendment of the law seeking very serious powers for the executive. I told him, “Sir, I think this is too drastic”. He said “I am honest. Don’t you know that I am honest? I am not going to misuse this. I am going to use this in the interests of the country”. I said “I accept this. But how do you know that 5 or 10 years from now, your successor will not be a person who will misuse this power that you have given to him?” This is precisely what has happened. I do not want to mention names.

Now I have not the slightest doubt in my mind that Indira Gandhi is completely sincere in all that she says and does. But she suffers from the illusion that if she takes power, that power is going to be used permanently for the good of this country. The poor lady does not seem to realise that there is no such thing as a permanent Prime Minister! She is not going to live forever and one day she is going to be succeeded by a Prime Minister who may not have the same attachment to the country as she has.

I am profoundly pessimistic about the future of this country. Mr. Motilal Setalvad is, he told me, 88 years young. Well, I plead guilty to being 71 years young! I don’t know about my friend Chandu Daphtary — he looks younger than me but I don’t know if he is older! These two gentlemen here, I know, have retired recently as Chief Justices, so they must be only 66 or 67. We belong to the generation that is passing away. But we have children and we have grandchildren and we want them to have a good life. And that good life is not possible unless the Government behaves with a certain degree of responsibility.

I remember talking to Sardar Patel once about the exercise of power. He told me a very wise thing. He said, “The exercise of power must be done with a great deal of restraint. You don’t use power in order to hit people on the head. You just show that power exists in your hand and if you do it gently enough, you will produce results.”

In the very same meeting, Mr. N. A. Palkhivala also spoke. He referred to the speech made by Mr. Mohan Kumaramangalam, the Minister for Steel and Mines, in the Lok Sabha on May 2, 1973, where Mr. Kumaramangalam had in effect suggested that the Government is entitled to select judges who subscribe to the philosophy of the ruling party. Every government naturally thinks that it is forward-looking and its opponents are backward-looking; and Mr. Kumaramangalam says that in appointing the Chief Justice, “we are entitled to come to the conclusion that the philosophy of this judge is forward-looking and of that judge backward-looking and to decide that we will take the committed forward-looking judge and not the backward-looking judge”. To this Mr. Palkhivala commented that a committed judge is a contradiction in terms. You cannot have a committed judge any more than you can have boiling icecream. Either a man is committed or he is a judge in the true sense; he cannot be both. A man is wholly unfit to be a judge and is necessarily false to his oath unless his exclusive commitment is to the Constitution regardless of the outlook and changing fortunes of political parties. He said in short, the Devil could make out a more plausible case for citing the Scriptures than the Government has made out for relying on the Law Commission’s Report supporting its actions.