Chapter 132: Judicial Reforms?

Allahabad

3 May 1950

Nehru, true to his word, spent two weeks consulting. He called on Chagla in Bombay, on Sir Alladi in Madras, on the old Chief Justice of the Allahabad High Court, Sir Iqbal Ahmad, who received him in a book-lined study and, to his surprise, said the Prime Minister’s diagnosis was correct.

"The backlog is a scandal," Sir Iqbal said. He was an old man with a white beard and a shrewd, humorous eye. "I have presided over it for nine years. I have a case on my list that was filed when Ramsay MacDonald was Prime Minister. If the Government says something must be done, I shall be the first to agree."

"But?"

"But I should want to know what, precisely." He rubbed his beard. "Your Prime Minister’s proposal has much that is good in it. The limit on second appeals is long overdue. The tribunals, if properly constituted, would be a mercy. I have no objection to a Regional Court of Appeal. But I do not like the way the Supreme Court is to be cut. A court that decides nothing but constitutional questions decides everything on principle and nothing on fact. It would become very grand and very remote."

"That is what I fear."

"It is also what I fear about the executive. A government that has been given a clear field will find a great many reasons to use it." Sir Iqbal lifted his hands. "I do not say Mr. Gupta is such a man. I say one cannot legislate for one man."

"Then what would you do?"

"Keep the Supreme Court’s appellate jurisdiction, but limit it by leave. A litigant must persuade the Court that his case raises a substantial question. That alone would reduce the docket by nine-tenths." He smiled. "And I should give the Court a few more judges, and a proper building. Let me add, Minister, since you are a friend of the Bench: I have received a good many letters from England this month. All of them say the same thing. I do not think it is an accident. You may wish to ask yourself who finds it useful."

Nehru wrote it down. He was not a stupid man, and he turned the remark over as he went out into the evening.

His last call was on Ambedkar, at the house in Hardinge Avenue. They sat on the verandah drinking tea, with a heap of unopened books between them and a view of a small, overgrown garden. Ambedkar, who had been unwell, wore a heavy shawl in spite of the heat.

"He has sent you to ask my opinion," Ambedkar said.

"I have come of my own accord."

"You have come because he asked you to." Ambedkar took off his spectacles and rubbed his eyes. "Well, I shall tell you. I have read the papers. I have thought about them for two weeks. The problem is real, dreadfully real. I have been in the High Court of Bombay. I have seen the poor man who has spent his last rupee on a lawyer and is told that his case will be heard in four years. I know what the courts are, for the poor."

"Then you agree with the reform."

"I agree with half of it." He put the spectacles back on. "The limit on appeals, yes. I would go further. A man who loses a civil suit should have one appeal and no more. The Regional Courts of Appeal are a sensible device, though I should like their judges appointed by a commission. The tribunals I am less sure of."

"Why?"

"Because I have seen how the administration treats the poor man." Ambedkar’s voice had grown hard. "I have spent my life among people who have been refused by every office. The village headman refuses them. The patwari refuses them. The Collector, if they can reach him, does not hear them. The only man who has ever listened is the judge, who is not a member of the village and owes nothing to the headman. He is the one door that is not locked."

"The tribunals would have judicial members."

"Retired officials who have spent forty years agreeing with the Collector." Ambedkar shook his head. "I will not say it can never work. I say that if it is done, it must be done with the greatest care, with a right of appeal to the High Court on every question of law, and the rights of access preserved in the most explicit terms."

"And the Supreme Court?"

"Ah." Ambedkar’s mouth twisted. "I wrote the clauses the Chief Justice complains of. I did not like them. I accepted them because Ram and Patel said the alternative was no Constitution, or one that would paralyse the state. I do not trust the executive. I trust it less today than I did then. And now they propose to take away the one remaining check."

"They propose to leave the Court with constitutional questions."

"Which means eight old men who tell the nation what the words mean and have no power to say that a man was wrongfully convicted." He put down his cup. "I do not say the Court is perfect. The Chief Justice is a vain man. His colleagues are cautious. But they are the only body in the Republic that has no master."

"You will oppose it?"

"I shall say what I think in Parliament." Ambedkar looked at the dim garden. "And I shall say one thing more, which you may carry to Ram. I do not believe he means to destroy the courts. I believe he has seen a real evil and proposed a real remedy. But he has a way of thinking that I find very dangerous. He believes that if a thing is efficient, it is just. He believes that if a nation is strong, it is free. I do not think either is true."

Nehru did not answer at once. The light was going. A lamp had been lit somewhere in the house, and its glow lay on the floor of the verandah.

South Block

5 May 1950

The first draft of Ram’s proposal was shorter than anyone expected. It ran to eleven pages, typed by Shaktidas himself, and was circulated on the morning of the fifth to four people: Nehru, Patel, Shroff, and the Law Secretary, Mr. Bannerjee, a thin, anxious, scholarly man who had spent twenty years as a district judge before joining the Ministry. They sat at the long table. Nobody touched the tea.

"I shall be brief," Ram said. "The figures you have read set out the problem. I propose four reforms."

He turned to the first page.

"First, the appellate structure. Today a case may go from the District Court to the High Court to the Supreme Court, and then to review. I propose a new tier between the High Courts and the Supreme Court: Regional Courts of Appeal, one for each principal region, each with a bench of three judges, to hear all appeals on questions of fact and ordinary law. Their decision would be final on those matters. A litigant would have one appeal on the facts and one on the law, and then the matter would end."

"And the Supreme Court?" Nehru asked.

"That is the second reform. The Supreme Court would cease to be an ordinary court of appeal. Its jurisdiction would be confined to the interpretation of the Constitution, disputes between the Union and the States, and appeals involving a substantial question of law of general public importance, which the Court itself would certify. It would sit as a constitutional court. It would no longer be asked to decide whether a man in Gonda owns a field."

"A very large reduction in its authority," Patel said.

"Yes."

"The judges will not like it."

"I am sure they will not." Ram turned the page. "Third, administrative tribunals. A great many disputes are not between citizens at all, but between the state and its own departments, or between a government servant and his employer, or between a taxpayer and the revenue authority. They clog the ordinary courts and do not need them. I propose specialised tribunals: a Tax Tribunal, a Service Tribunal, a Land Revenue Tribunal, an Inter-Departmental Disputes Tribunal. Each would have a judicial member and an expert, with security of tenure, and would decide finally, subject to a limited appeal on a point of law."

"A government that sits in judgment over itself," Nehru said slowly.

"A government that does not drag its own departments through eleven years of litigation. At present, if the Ministry of Railways and the Ministry of Finance disagree over a contract, they sue each other in the High Court, with the Government’s own lawyers on both sides and the taxpayer paying for both. It is theatre."

Nehru drew a slow breath. "I agree with every word of your diagnosis, Ram. I have been in and out of courts since before you were born, and I know the disease. I am not at all certain of the cure."

"Tell me why."

"Because you propose to take away the judges’ power, and I do not think it is possible to take away a judge’s power without taking something from the citizen." He paced to the window and turned. "The independence of the judiciary is not a convenience for judges. It is the thing that stands between a man and the state. I have been jailed by a magistrate who was afraid of the Collector. I do not want to build a system in which every magistrate is."

"The tribunals will have security of tenure."

"On paper."

"And what of the delay?" Patel asked.

They turned. Patel had been silent. Now he spoke, in his slow, grating voice, without raising it.

"Jawaharlal, I have a great regard for your principles. I have none at all for the machinery that has been built to defend them. I have been in the Home Ministry for two and a half years. In that time, I have received eleven hundred and four petitions from persons who have been in jail awaiting trial for more than two years. For offences carrying a sentence of six months. The man is imprisoned for longer than the crime would have cost him, because there are not enough judges to try him. And you tell me the system protects the citizen."

"I tell you a hasty system will protect him less."

"And I tell you a slow system protects no one but the lawyer." Patel’s eyes were bright and clear. "I think the proposal is too gentle. Let the Ministry that is party to a dispute name the tribunal, and let the Cabinet review its decisions. If we give them independence, they will become another court, and in ten years they will have a backlog of their own."

"Vallabhbhai, that is precisely what I wish to avoid," Ram said. "A tribunal that answers to the Minister is the Minister’s own opinion in a different hat."

"It is quicker."

"It is quick because it is not a trial."

Patel’s mouth twitched. "You are as stubborn as Bapu."

"I learned from the best."

"Very well." Patel spread his hands. "I accept the principle. You have not asked me about the appeal limits."

Ram turned to the last page. "Fourth, the right of appeal itself. At present it is unlimited in principle and limited only by the litigant’s purse. I propose that no second appeal be permitted on a question of fact. That no appeal be permitted in a civil suit where the amount in dispute is less than a stated figure. That in criminal cases there be one appeal as of right and any further appeal only by leave. And those frivolous appeals, dismissed without a hearing on the merits, attract costs against the appellant."

"They will say you are closing the courts to the poor," Nehru said.

"They will say it. But look at who the poor are. The poor man does not have the money for the second appeal. He has been ruined by the first. It is the rich man who files five appeals to keep the poor man from his land." Ram looked at him. "I have read a case in the Allahabad files in which a landlord kept a tenant’s widow in litigation for twenty-two years over two acres. The landlord’s lawyers were paid from the proceeds of the plot."

Nehru was silent.

"I do not ask you to love the proposal," Ram said. "I ask you to compare it with what we have."

"I have no love for what we have. I merely do not trust what we are about to build." Nehru took off his cap and turned it in his hands. "I shall support the principle. I shall oppose the speed. If we go through Parliament with this in a month, the whole Bar will be against us, and half the High Courts, and the newspapers will call us tyrants. Let me speak to them first."

"There is no version they will like."

"There may be one they will accept."

"Then you have until the middle of the month." Ram gathered his papers. "None of this is to be mentioned outside this room."

It was mentioned outside the room by the afternoon.

The leak, when Mullick eventually traced it, came not from the Cabinet but from the Law Secretary’s own office, where a junior clerk had been asked to make a fair copy of the memorandum for the Chief Justice’s information. It was an ordinary courtesy. The clerk had meant no harm. But he had a cousin in the chambers of a Calcutta advocate, who had a friend, and the friend, in turn, had a pleasant, helpful acquaintance who called himself Laidlaw.

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