In 1912, Jawaharlal Nehru finished reading law in England and returned to practise at the Allahabad High Court. He joined the chambers of his father Motilal Nehru, then the doyen of the Allahabad Bar. But Nehru found litigation limited, dull and not intellectually stimulating. He would soon turn to politics.
Years later, as prime minister, Nehru’s vision of social justice and the constitutional role of courts in helping achieve it shaped public law discourse in Independent India.
For Nehru, the Constitution was foremost a roadmap for creating a socialist democratic society. But in the early years after Independence, the judiciary’s views on social justice issues such as land acquisition and compensation clashed with his.
A little over a decade after Nehru’s death, however, the Supreme Court adopted his vision of social justice through the jurisprudence of Justices PN Bhagwati and Krishna Iyer.
The Supreme Court’s interpretation of the judiciary’s constitutional role as an active participant in democratic social change started in 1975 when Iyer and Bhagwati introduced an expansive interpretation of locus standi that changed forever the courts’ approach to social-economic justice.
Bhagwati’s judgements in Fertilizer Corporation Kamgar Union, SP Gupta v President of India and People’s Union for Democratic Rights cases in the early 80s evolved the courts’ approach from going by the traditional individualism of locus standi to recognising collective rights through public interest litigation, or PIL. Such an interpretation felled many cumbersome statutory processes, making it easier for socio-economically weaker citizens to access justice.
In his Hussainara Khatoon judgement of 1979, Bhagwati addressed the plight of the poor caught in the criminal justice system – the dismal condition of jails, the fact that undertrials languished behind bars because they could not afford bail. He reasoned that protection of human rights and dignity, as part of the right to life, was paramount. So, the court must take cognisance of such abuses without being impeded by technical procedures.
In public interest
On September 18, 1982, Bhagwati decided the People’s Union of Democratic Rights case. It was brought through a writ petition arguing that the contractors building Asian Games projects were suppressing the rights of workmen. In his judgement, Bhagwati rebuked early critics of the PIL:
There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up files of the court...This is, to our mind, a totally perverse view smacking of elitist and status quoist approach…Millions of persons belonging to the deprived and vulnerable sections of humanity are looking to the courts for improving their life conditions and making basic human rights meaningful for them.
If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the Chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?
The Constitution-makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution.
Clearly, Bhagwati imagined judges developing law that would promote the socialist democratic project of securing justice. It was not enough to curtail excessive state power through judicial review, the courts had the duty to actively help achieve socio-economic goals as prescribed in the Directive Principles of State Policy.
That the courts readily accepted challenges to acquisition of land from zamindars disturbed Nehru as it hindered radical land reform. In 1951, he moved the First Constitutional Amendment and added Articles 31A and 31B to the Ninth Schedule to protect laws acquiring zamindar land from judicial challenge. Justifying the legislation, the prime minister said:
The High Court brings in Article 14, of all articles, to apply it to a question of land reforms…Here I am reminded that one has to respect the majesty of the law. The majesty of the law is such that it looks with an even eye on the millionaire and the beggar…but the millionaire has not much incentive to steal a loaf of bread, while the starving beggar has.
This business of the equality may very well, mean, as it has come to mean often enough, the making of existing inequalities rigid by law. This is a dangerous thing and it is still more dangerous in a changing society. It is completely opposed to the whole structure and method of this Constitution and what is laid down in the Directive Principles.
Bhagwati invoked this Nehruvian idea of equality and justice in his dissenting opinion in the Minerva Mills case of 1980. The case related to a challenge to the 42nd Constitutional Amendment of 1976, which made two key changes to the Constitution. One, that no constitutional amendment made by Parliament could be tested through judicial review. Two, legislation securing the Directive Principle of preventing, for common good, the concentration of wealth could not be voided on the grounds of violating the right to equality and the right to freedom of speech and expression.
Bhagwati joined other members of the bench in striking down the first change. He, however, dissented with the majority opinion in recognising the second change as constitutionally valid. Much like Nehru, he did not see fundamental rights as necessarily having primacy over the Directive Principles. Bhagwati disagreed with the eminent lawyer Nani Palkhivala, who argued the Minerva Mills case before him, that such an amendment would be anti-democratic and alter the basic identity of the Constitution. He explained that in importance, there was no difference between fundamental rights and the Directive Principles. The only difference was that while fundamental rights were enforceable through courts, the Directive Principles were not.
How could, he asked, individual liberties such as equality be considered in isolation from the politico-economic structures in which they operate? Bhagwati argued that equality and freedom of expression, though priceless rights, had little meaning for the downtrodden until the Directive Principles were implemented to ensure socio-economic justice for them.
He went on to offer an interpretation of equality remarkably similar to Nehru’s:
The principle of egalitarianism, as I said before, is an essential element of social and economic justice and, therefore, where a law is enacted for giving effect to a directive principle with a view to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense.
Bhagwati also drew from Nehru’s submission to the Congress’ Lahore session of 1929 as well as Constituent Assembly debates to argue that the purpose of the Constitution was to usher in social and economic change. To this end, the Directive Principles were critical, not least because they gave life to the static provisions of fundamental rights.
Nehru believed that a socialist democratic republic could be created through increased state intervention. Bhagwati agreed and argued that even the judiciary had a hands-on role in fulfilling this mandate.
Bhagwati, like Nehru, imagined law to be informal and accessible to the weakest sections of the society. For them both, justice was a product of idealism. Perhaps it would be fair to say Nehru, had he been a judge, would have created the jurisprudence of PIL much like Bhagwati effected revolutionary socio-economic change through the court.
Abhik Chimni is a lawyer in Delhi.