From veiled attempt to attack judiciary by proposing to supersede Justice Patanjali Sastri, to haranguing legal doyens like Justice Mehar Chand Mahajan and Justice PN Bhagwati, to imposition of Emergency, the contempt Congress as a party had and has for judiciary and constitution is notorious. From trying to arm twist the judiciary whenever the judgement did not go in its favour to wild baseless accusations, the grand old party has tried to subvert this pillar of the Constitution to suit its agenda. It is now crying hoarse over a few recent verdicts is nothing but a wolf crying victim when caught
A month ago, when Shashi Tharoor said ‘We have chaiwala as Prime Minister because Nehru ji made it possible’, legatees of Nehruvism sermonised us on how we owe our freedom and democracy to our first Prime Minister. Not just to silent indecisive majority but also to some of his sworn detractors, Pt Nehru remains a diehard democrat; one who tirelessly defended right to speech and reign of law. While many grudgingly acknowledge Indira as deviant, they regard Nehru as an everlasting epitome of propriety. Time is now opportune to demystify this domain, which has long remained undiscussed, if not untouched.
In the year 1950, when we became a Republic by giving ourselves the Constitution, Nehru regime clamped a pre-censorship order on Organiser, and directed it to submit for scrutiny, in duplicate before publication of all news and views about Pakistan including photographs and cartoons other than those derived from official sources. Such was his patriotism that Nehru administration was heavily angered by Organiser’s criticism on Pakistan and its espousal of the plight of the Hindu refugees.
The tradition continues even today as scion of Nehru-Gandhi legacy, Rahul Gandhi, unsurprisingly threatened the SC judges with impeachment motion
Legal experts are of the firm opinion that impeachment threat was a device used by Congress to deter the judges from passing a verdict in Ayodhya case
To Nehru’s utter disenchantment, Supreme Court upheld the Writ Petition filed by printer cum publisher and editor of Organiser (Brij Bhushan and KR Malkani, respectively) and applauded the espousal of fundamental rights under Article 19 (1) (a) of the Constitution. Justice Patanjali Sastri wrote the majority decision on behalf of the Supreme Court striking down the illegal and unconstitutional pre-censorship execute fiat.
Similarly, in Romesh Thapar’s case too, apex court came down heavily against Nehru Government for its highhandedness on freedom. Being stung, and rightly so, Nehru vented his frustration by saying: “Judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.”
This is Nehru and his respect for the judiciary.
As a retort Nehru resorted to a veiled attempt to attack judiciary by proposing to supersede Justice Patanjali Sastri, second senior most judge of the Supreme Court, and appoint either Justice Bijan Kumar Mukherjea (fourth in the rank of seniority) or MC Chagla (then Chief Justice of Bombay High Court) as Chief Justice of India.
Such was the selflessness and greatness of Justice Mukherjea that he offered to resign without a second thought, if seniority principle in judicial domain was breached by Nehru’s errant executive.
But alas! Nehru was simply unstoppable and never shied away from striking again. Soon after the resignation of Justice Patanjali Sastri, Nehru openly proposed to bypass Justice Mehar Chand Mahajan, the next in seniority, and bring Justice Mukherjea as the Chief Justice. This time, not just Justice Mukherjea but all his companion judges offered to resign en masse. Nehru was left
red-faced and had to beat a retreat and thus, the cause of justice marched forward.
Indira, befitting heir of Nehru, was committed to the doctrine of committed judiciary. Her Cabinet Minister for Steel and Mines, Surendra Mohan Kumaramangalam, former editor of Communist Daily ‘People’s War’, brazenly advocated committed judiciary, to force judiciary to toe the lines of political executive. It is indeed a travesty that Kumaramangalam was educated at Eton and King's College, Cambridge and was a Barrister of eminence. He had joined Congress as part of the strategy called Entryism adopted by Communists worldwide, wherein they joined mainstream parties to influence latter’s policies.
Granville Austin, who wrote the celebrated book entitled ‘Working a Democratic Constitution—A History of the Indian Experience’ (1999) chronicles that it was Kumaramangalam who was the motivating force behind Indira Gandhi's decision in 1973, to appoint Ajit Nath Ray as the Chief Justice of India superseding three senior judges—Jaishanker Manilal Shelat , AN Grover and KS Hegde. It is noteworthy that just a day prior to this supersession (April 24, 1973) apex court had delivered the verdict in Kesavananda Bharati case, where a 13-judge Constitution Bench, by a 7-6 verdict, had outlined the ‘basic structure’ doctrine of the Constitution. Superseding was a punishment inflicted on the judges for delivering the majority verdict.
Then came the dark age of Emergency. The shameful saga of “ADM Jabalpur” case (Habeas Corpus Case,) wherein the Supreme Court, the guardian of fundamental rights, held that all fundamental rights remain in suspension when Emergency is clamped is too infamous to be recounted. This judgement authored by Justices AN Ray, PN Bhagawati, MH Beg and YV Chandrachud, in a way paved the way for perpetration of illegal detentions and untold atrocities of the Emergency era.
One can imagine the degree of fear instilled into the minds of Supreme Court judges by this passage of Justice Hamidullah Beg’s judgement in this infamous verdict.Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated, is almost maternal. Even parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.
Celebrated judge HR Khanna remained the lone dissenter and sole protector of the Constitution. When he passed this dissenting judgement, Justice Khanna was fully conscious of the fact he would be superseded by his juniors. And Indira Gandhi, as usual, never belied his hopes.
Judiciary remained so much terrorised and tormented that soon after Indira Gandhi assumed charge after Emergency that on 1980, Justice PN Bhagwati wrote to Smt Gandhi: May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as prime minister of India? It is a most remarkable achievement of which you, your friends and well-wishers can be justly proud. It is a great honour to be the prime minister of a country like India.
Utterly shocked and dismayed by this gesture of servitude, Bhagwati’s colleague in the Supreme Court, Justice VD Tulzapurkar, without making a direct reference said: “It is a very disturbing trend, damaging the image of the judiciary from within and it must be deprecated.” (Address at India Law Institute 22nd March, 1980) The tradition continues even to this date as scion of Nehru-Gandhi legacy, Rahul Gandhi, unsurprisingly threatened the Supreme Court judges with impeachment motion. Many legal experts are of the firm opinion that impeachment was a device employed by Congress to deter the judges from passing a verdict in Ayodhya case.
This explains how and why an inadvertent syntax error that crept into the recent verdict also becomes a tackle in the Congress armoury to attack judiciary and make oblique reference on its integrity.
(The writer is a Bengaluru based lawyer and managing partner of Navayana Law offices)