When Nehru and Patel agreed on CJI Kania being communal

Sardar Patel, Sir Harilal Kania, Jawaharlal Nehru

Differences between India's first Prime Minister Pandit Jawaharlal Nehru and Home Minister Sardar Vallabhbhai Patel have now enjoyed a new lease of life. This has led to assessments about Patel losing out on the PM chair, and Nehru's alleged lack of sympathy towards Hindu aspirations. Patel, a lifelong Congressman, and a disciple of Mahatma Gandhi, is appropriated by the Right in its diatribe against Nehru and Congress. Nehru's admirers are rightly accused of ignoring his dismissal of the duly elected government in Kerala led by the formidable EMS Namboodiripad, among other episodes. Left-leaning scholars have also pointed out Patel and Nehru's role in the violent police action in Hyderabad.

A general assessment dictates that Patel represented the Hindu Right in the Congress, while Nehru headed the left-liberal segment. And so never the twain shall meet. But sophisticated accounts exist of how two of post-independence India's most powerful leaders worked together and anticipated each others decisions and stance. In this context a chain of letters between Nehru and Patel relating to the appointment of Justice Bashir Ahmed to the Madras High Court is very illuminating.

Sir H J Kania, Chief Justice of the Federal Court of India (which became Supreme Court in 1950) objected to the confirmation of Justice Bashir Ahmed as a judge of the Madras High Court. While Kania's objections are not known (they are not part of the Sardar Patel's papers - at least I didn't see them), it riled Nehru who dashed off a letter to Patel. Writing to Patel on January 23, 1950 just days before India became a Republic, Nehru said:

"I read yesterday a letter which the Chief Justice of India wrote to you in regard to the Madras Judges of the High Court. This was in the file that came to me in connection with making theses judges permanent. I must say that I was shocked to read this letter. It exhibited a mentality which is very far from being judicial and is totally unbecoming in any person holding a responsible position, more specially a judge of a supreme tribunal. I am disturbed about this matter. I do not not know what we can do about it but I wanted to put before you my own reaction."            

It seems the same day (January 23, 1950) Kania wrote another letter to Patel which was also passed on to Nehru. This latest communique from Kania perhaps triggered Nehru's famous anger. He wrote another letter to Patel. The opening, 'My Dear Vallabhbhai' seems to have been penned in an extraordinary rush, which was followed by the typed letter: 

"I am deeply shocked by the attitude taken up by Chief Justice Kania in regard to Justice Bashir Ahmed...His letter to you of today's date confirms me in the opinion that Chief justice Kania's approach is completely unjudicial and indeed improper."  

Nehru sought Patel's views and support to ask Kania to resign. "In view of these facts we should ask Chief Justice Kania to resign." Nehru did not want Kania to become the permanent Chief Justice of the Supreme Court but was unsure of how to pull this. "How this is to be done is not quite clear to me." Sir Harilal Kania was from the Bombay province and the son-in-law of Sir Chunilal Mehta. The latter was an influential industrialist and well known to Congress leaders. Sir Chunilal's first cousin was Sir Purshotamdas Thakurdas who was an even more powerful figure then Sir Chunilal. But family connection was not the reason for Sir Harilal to become the first CJI of Supreme Court.

Sir Harilal was an efficient judge at the Bombay High Court and was looked over for the appointment as chief justice in favour of a British judge. He was soon after made an associate judge at Federal Court of India, and on the eve of Independence in 1947 became the chief justice. It was during this period that Sir Harilal's views were solicited pertaining to appointments and confirmation of judges. Sir Harilal was not in favour of Sir R F Lodge being appointed the first Chief Justice of the Assam High Court when it was established in 1948. He did not relish an English ICS officer to hold the position in Independent India and had passed his views to Patel. Lodge was a judge at the Calcutta High Court. 

But it was Sir Harilal Kania's views on the confirmation of Justice Bashir Ahmed that had caused a controversy. It could have become bigger, perhaps, if not for Patel's cautious approach. His response to Nehru do not fit the narrative that is sough to be weaved around Patel. He told Nehru:

"I share your criticism of the manner in which Chief Justice Kania has approached this question. In fact, I told him on the telephone that any rejection of Justice Bashir Amed (sic) at this stage could reasonably be regarded as being based on communal grounds. At the same time, I feel that any precipitous action such as you have suggested, would definitely put us in the wrong...After all, asking Chief Justice Kania to resign does not mean that he would resign...On the whole, however, I would prefer if you would agree to allow the breeze to pass over."

Patel also got Justice Bashir Ahmed's appointment confirmed overriding Kania's objection. The Governor-General C. Rajagopalchari, too, concurred with Patel's views of not pressing for Kania's resignation although he also expressed "surprise at the attitude of the Chief Justice." 

All I want to suggest is that the optics of Nehru and Patel agreeing on Kania's conduct as communal is inherently problematic to those distilling the narrative of difference. This does not absolve Nehru and Patel of their roles in Hindu Code Bill, Operation Polo, and other shortcomings and blemishes. But at same time the constant use of "we" in correspondence between Patel and Nehru shows their resolve to work in tandem despite their differences. Let it be on record that in the case of Justice Bashir Ahmed they were on the same page.    

I found it most interesting that in independent India a road in Alwarpet, Chennai is named Bashyam Bashir Ahmad Street after two legal luminaries K Bashyam Iyengar and Bashir Ahmad Sayeed.