Photo: Mint
Photo: Mint

A collegium of Nehru, Patel and Rajaji

Any mechanism for judicial selections must ultimately command widespread trust and acceptance

The Supreme Court’s rejection of the National Judicial Appointments Commission has received much censure, criticism and commendation. The judgement is the court’s fifth ruling on judicial appointments. While the first case arose in 1976, disputes over such appointments occurred even before India’s founding as a republic in 1950.

As we await the government’s next step, it is worth revisiting a remarkable, yet largely forgotten, controversy over the first chief justice’s appointment. This episode played out even as the Constituent Assembly’s members streamed into New Delhi to sign the Constitution and attend Republic Day ceremonies. By then, invitations had also gone out for the court’s inauguration a few days later.

Under the Constitution that the Assembly adopted, the Supreme Court would replace the federal court. Sitting federal court judges would be transferred to the new institution. But the text was silent on who would head the Indian judiciary. It was, however, widely anticipated that Harilal Kania, who led the federal court, would remain as Chief Justice of India on 26 January 1950.

On 23 January, Prime Minister Jawaharlal Nehru was reviewing a routine file about appointments to the Madras High Court. The file included Kania’s remarks on Basheer Ahmed, who was being considered for a permanent seat. With words that “deeply shocked" Nehru, Kania forcefully opposed Ahmed’s appointment. We don’t precisely know what Kania wrote. One can, however, infer from Nehru’s reaction that Kania opposed Ahmed on religious grounds.

An incensed Nehru shot off a note to home minister Sardar Patel. Nehru complained that Kania’s remarks revealed that he lacked a judicial “mentality". His action was certainly unbecoming of a “judge of a supreme tribunal". Nehru then consulted Governor General C. Rajagopalachari.

After talking to Rajaji, Nehru sent Patel a second letter. Accusing Kania of improper behaviour, Nehru questioned whether he was fit to preside over the court. Nehru believed that the judge simply wasn’t up to “the standard necessary for a high position". “It would be a great risk," Nehru warned, “to make him the permanent chief justice." Nehru also informed Patel that Rajaji wanted Kania to resign. He seemed uncertain about how to obtain the judge’s resignation. So, he insisted that Patel give the matter immediate consideration and mention it at cabinet.

Patel responded with characteristic promptness. He told the prime minister that home secretary H.V.R. Iyengar would ensure Ahmed’s appointment. Patel agreed that Kania had made a mistake. To defuse the situation, he had telephoned Kania and warned him that blocking Ahmed’s appointment would be construed as a communal act. Yet, Patel was unwilling to demand Kania’s resignation. It was easy to ask the judge to resign, he reasoned. However, the demand could easily boomerang if Kania declined. After all, the government could not simply dismiss him. Patel argued that some of the judge’s “indiscretions" must be tolerated. Otherwise, the government would be accused of interfering with judicial independence.

Patel also assured Nehru that he would “manage" Kania, whom he described as sensitive and petty-minded. Those were traits, Patel lamented, “not uncommon to some heads of the judiciary". Some judges were convinced “that they have the sole monopoly of upholding independence, integrity and purity". Even so, Patel politely rebuffed Nehru’s suggestion for a cabinet discussion. Instead, he suggested that Nehru “allow the breeze to pass over."

Patel forwarded his correspondence to Rajaji. Before the day was over, the Governor General wrote back to say that he was surprised at Kania’s attitude. But, Rajaji advised Patel that the government had to carry out its “previous decision". It’s unclear what decision Rajaji was referring to. In any case, early next morning, Rajaji summoned Nehru and Patel for a meeting. The three principals apparently discussed and settled the matter. Two days later, Kania was sworn in as chief justice. Ahmed went on to a distinguished judicial career in Madras.

It is foolhardy to make direct comparisons between the Kania affair and the ongoing conundrum over judicial appointments. Yet, the controversy offers some instructive lessons that may be relevant even today.

First, Rajaji, Nehru and Patel came together as an impromptu collegium to debate Kania’s appointment. Their candid discussions demonstrate that the executive can meaningfully evaluate a judicial nominee. Of course, it is difficult to conclude that neither Nehru nor Patel were motivated by political considerations. Moreover, the country’s overall situation was a lot less partisan than present.

Second, as Nehru argued and Patel conceded, one cannot ignore a judicial nominee’s temperament and social outlook. Yet, it’s difficult to draw bright lines when making such assessments. Kania wasn’t probably the best candidate to be chief justice. Nor was he constitutionally entitled to the job. At the same time, his eleventh-hour supersession could have caused acrimony and an inauspicious opening for the court.

Third, Patel’s actions helped improve fledgling relations between the judiciary and executive. Yet, neither Patel nor any of his successors could stem the growing perception that government interference seriously compromised judicial appointments. As George Gadbois, who has written extensively about the court, suggests, any mechanism for judicial selections must ultimately command widespread trust and acceptance.

Finally, with hindsight, Patel’s promise that he would “manage" Kania does seem rather ominous. It was probably a careless remark made without malice. Yet, it also reminds us that not every dimension of a historical event needs to be a teaching moment for the future.

Vikram Raghavan is working on a book about India’s founding as a republic.

Comments are welcome at theirview@livemint.com

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