Nehru's Word: Govt should avoid interfering with high courts’ discretion

In the context of the continuing concern about civil liberties, including individual freedom and the freedom of the press, and the role of institutions such as the judiciary, the executive and the legislature in relation to these, we bring to you this week some more extracts from letters that Jawaharlal Nehru wrote to the chief ministers in the first year of independence. These reveal how deeply concerned he was that courts must perform freely their major role as “defenders of freedom”. He warned against keeping people in detention for long without trial, and advised that panels of senior judicial officers, including high court judges, be formed to look into such cases. At the same time, he was at pains to emphasize that this did not mean that communal ideologies such as those of the Muslim League and the RSS should be allowed to spread freely.

I have written to you often enough on the subject of people kept in prison or detention without trial. Circumstances may compel us to do this, and circumstances in India today are bad, and we will not take a risk which may lead to violent repercussions. Subject to this, I would again ask you to consider how far it is desirable to keep people for long in detention without trial. This has a bad effect on our reputation and I continue to receive large numbers of protests from every part of the world. I cannot advise you because the responsibility is yours and you have to judge finally.

I only wish to point out to you the dangers of continuing a policy which ultimately probably depends on the judgement of police officers or the like, and which tends to become stabilised as a method of government. It must always be remembered that this is not a normal or proper method of government or administration and that it can only be indulged in in cases of grave emergency.

It is true that there is emergency in India today. I would suggest to you, what indeed some provinces have done, that a panel of senior judicial officers, preferably high court judges, might be asked to examine all cases of detention, and to advise government what action to take in regard to them. It is obviously something that does not redound to the credit of government that high courts should pass strictures on government when such matters are brought before them.” (3 August, 1948).

Recently there has been much criticism of certain legislative measures in a province which tend to deprive high courts of their normal powers. [An ordinance was promulgated in Madras on 25 May, 1948 giving extensive powers of detention to the Madras Government and restricting the jurisdiction of the Madras HC to entertain writs of habeas corpus. On 30 July, the Madras High Court, while upholding the main provisions of the ordinance, overruled any restriction on its jurisdiction to entertain writ petitions].

Sometimes, ordinances are issued, and at other times, the provincial assembly deals with the matter. I have written to you on several occasions about the growing tendency to restrict individual and group freedom. In a crisis, much can be said in justification of this, and we live in days of crisis. Nevertheless, it is a dangerous path to tread and governments get used to very special measures which they cannot do without later. For us, with our past record in regard to civil liberty, this is a peculiarly distasteful course.

In any event, any attempt to limit the powers of a high court or to prevent it from judging executive action in the normal way is fraught with grave consequences. The judiciary are supposed to be the defenders of freedom within the law. If they cannot even do this then one of their chief functions vanishes. The reputation of high courts, which has been high, suffers. I would, therefore, earnestly request you to keep this in mind and not to interfere with the high courts’ discretion or to put too many restrictions on individual freedom.

This is particularly applicable to habeas corpus applications and to the freedom of association in trade unions, etc. In many countries in the world today there are labour or semi-labour governments. For them it is a creed that trade unions must have freedom. Anything that lessens it, therefore, is objected to by them. I continue to receive from foreign countries, especially from trade unions, letters of protest expressing their surprise and dismay at some things that our governments have done.

So far as high courts are concerned, we have been advised by high judicial authority that even if an ordinance or other kind of legislation comes in the way of a high court issuing the writ of habeas corpus, the right of the high courts will not be affected in this regard. Our Draft Constitution expressly preserves this right of the high courts. We have, therefore, officially advised provincial governments that it is undesirable to oust the jurisdiction of high courts in habeas corpus applications under the Public Safety Act.

While we cannot go far in suppressing activities, even those considered objectionable, there is no doubt that in existing circumstances, we have to take every precaution against the revival of anti-social elements.

Reports have come to us from many parts of India that the activities of the RSS are again growing. The RSS method is often to speak softly but their whole ideology and activity is different and opposed to the ideology which has governed us for so long. We cannot, therefore, so long as we are the Government, tolerate the encouragement and spread of this wrong ideology. I hope that provincial governments are wide awake in this respect and will not permit the spread of communal doctrines in whatever shape.

I might mention that it has come to my notice that the RSS are now functioning in various guises, even as civil liberty unions or Jana AdhikarSabhas. We must not be led astray by these names but should find out the content behind them.

There are also reports of a certain revival on a smaller scale of some pro-Muslim League feeling in India. I was surprised to find this as far away as Madras. That also we cannot encourage in any way.” (16 August, 1948).

(Selected and edited by Mridula Mukherjee, former Professor of History at JNU and former Director of Nehru Memorial Museum & Library).

(This was first published in National Herald on Sunday)