61. The Federal Court

[Speech delivered by Gandhiji at the Federal Structure Committee on 23-10-1931 in the course of a discussion on 'Federal Court of India'.]

Lord Chancellor and Fellow Delegates, I feel considerable hesitation in speaking on this subject which has been rendered so highly technical by the course that the discussion has taken; but I feel that I owe a duty to you and a duty to the Congress which I represent. I know that the Congress holds some decided views on the question of the Federal Court, views which, I am afraid, may be very distasteful to a large number of the Delegates here. Whatever they are, seeing that they are held by a responsible body, it is, I suppose, necessary that I should at least present them to you.

I see that the discussions proceed, if not upon utter distrust, upon considerable distrust of ourselves. It is assumed that the National Government will not be able to conduct its affairs in an impartial manner. The communal tangle also is colouring the discussion. The Congress, on the other hand, bases the whole of its policy on trust and on the confidence that when we shall have come into power we shall also come to a sense of our responsibility, and all the communal bias will drop out. But should it prove otherwise, then too the Congress would run the boldest risks, because, without running risks we shall not be able to come to exercise real responsibility. So long as we have the mental reservation that we have to rest upon some foreign power for our guidance and for conducting our affairs at a critical juncture, so long, in my opinion, there is no responsibility.

One feels also embarrassed by the fact that we really are trying to discuss this thing without knowing where we shall be. I should give one opinion if Defence was not under the control of the responsible Government, and another opinion if Defence was under our own control. I proceed upon the assumption that if we are to enjoy responsibility in the real sense of the term, Defence will be under our control, under National control in every sense of the term. I entirely sympathize with Dr. Ambedkar in the difficulty that he raised. It is all very well to have a judgment of the highest tribunal, but if the writ of that tribunal does not run beyond the confines of its own court, that tribunal will be a laughing-stock of the nation and of the whole world. What is then to be done in connection with that writ? What Mr. Jinnah said, of course, came home—that the military would be there—but it will be the Crown that will run the writ. Then I would say, let the High Court also, or the Federal Court, be under the Crown. In my opinion the Supreme Court has to be, if we are responsible, under the responsible Government, and therefore, the process of carrying out the writ has also to be made good by the responsible Government. Personally, I do not share the fears that actuate Dr. Ambedkar, but I think that his objection is a very reasonable objection, and that a Court which gives judgments should also have perfect confidence that its judgments will be respected by those who are affected by its judgments, and hence, I would suggest that the judges should have the power of framing rules in order to regulate matters in connection with those judgments. Naturally the enforcement will not rest with the Courts; the enforcement will rest with the executive authority, but the executive authority would have to conform to the rules that might be framed by the Court.

We fancy that this constitution is going to give us every detail in connection with the composition of this Court. I respectfully differ from that view in its entirety. I think that this constitution will give us the framework of the federal Court, will define the jurisdiction of the Federal Court, but the rest will be left to the Federal Government to evolve. I cannot possibly understand that the Constitution is also going to tell us how many years the judges are to serve,' or whether they are to resign or retire at the age of 70, or 95, or 90, or 65. I think that these will be matters to be taken up by the Federal Government. Of course, we bring in the Crown at the end of almost every sentence. I must confess that, according to the conception of the Congress, there is no question of the Crown. India is to enjoy complete independence, and if India enjoys complete independence, whoever may be the supreme authority there, that supreme authority will be responsible for the appointment of judges and several other matters which today belong to the Crown.

It is a fundamental belief with the Congress that, whatever course the Constitution takes, there should be our own Privy Council in India. The Privy Council's portals, if it is really to give relief to the poor people in matters of the highest importance, should be open to the poorest people in the land and 1 think that is impossible if the Privy Council in England is to decide our fate in matters of the greatest importance. There, too, I would guide ourselves by implicit trust in the ability of our judges to pronounce wise and absolutely impartial decisions. I know that we run very great risks. The Privy Council here is an ancient institution, and an institution which justly commands very great regard and respect; but in spite of all the respect that I have for the Privy Council I cannot bring myself to believe that we also will not be able to have a Privy Council of our own which will command universal esteem. Because England can boast of very fine institutions, I do not think that therefore we must be tied down to those institutions. If we learn anything whatsoever from England, we should learn to erect those institutions ourselves; otherwise there is poor chance for this nation whose representatives we claim to be. Therefore, I would ask us all to have sufficient trust and confidence in ourselves at the present moment. Our beginning may be very small, but, if we have strong, true and honest hearts to give decisions, it does not matter in the slightest degree that we have not got the legal traditions which the judges in England claim and very properly boast of in the face of the whole world.

Widest Jurisdiction

That being my view, I feel that this Federal Court should be a court of the widest jurisdiction possible, and not decide only cases that arise from the administration of Federal Laws. Federal Laws of course will be there, but it should have the amplest jurisdiction to try all the cases that may come from the four corners of India.

It is, then, a question where the subjects of the Princes will be and where they will come in. Subject to what the Princes may have to say, I would suggest, with the greatest deference and with equal hesitation, that there will be, I hope at the end of it, if we are going to make something out of this Conference, something which will be common to all India, to all the inhabitants of India, whether they come from the States or whether they come from the rest of India. If there is something in common between all of us, naturally the Supreme Court will be the guardian of the rights that we may consider to be common to all. What those rights should be, I am totally unable to say. It is entirely for the Princes to say what they can be and what they cannot be. In view of the fact that they represent here not only their own Houses but have taken on themselves the tremendous responsibility of representing their subjects also at this Conference, I would certainly make a humble but fervent appeal to them that they would of their own accord come forth with some scheme whereby their subjects also may feel that though they are not directly represented at this table, their voices find adequate expression through these noble Princes themselves.

Salaries

So far as the salary is concerned, you will laugh, naturally, but the Congress believes that it is an impossible thing for us who, in terms of wealth, are a nation of dwarfs, to vie with the British Government, which represent today giants in wealth. India, whose average income is 3 d. per day, can ill afford to pay the high salaries that are commanded here. I feel that it is a thing which we will have to unlearn if we are going to have voluntary rule in India. It is all very well so long as the British bayonet is there to squeeze out of these poor people taxes to pay these salaries of Rs. 10,000 a month, Rs. 5,000 a month, and Rs. 20,000 a month. I do not consider that my country has sunk so low that it will not be able to produce sufficient men who will live somewhat in correspondence with the lives of the millions and still serve India nobly, truly and well. I do not believe for one moment that legal talent has to be bought if it is to remain honest.

I recall the names of Motilal Nehru, C. R. Das, Manomohan Ghose, Badrudin Tyebji and a host of others, who gave their legal talent absolutely free of charge and served their country faithfully and well. The taunt may be flung in my face that they did so because they were able to charge princely fees in their own professional work. I reject that argument for the simple reason that I have known every one of them with the exception of Manomohan Ghose. It was not that they had plenty of money and therefore gave freely of their talent when India required it. I have seen them living the life of poor people and in perfect contentment. Whatever may be the position at the present moment, I can point out to you several lawyers of distinction who, if they had not come to the national cause, would today be occupying seats of the High Court benches in all parts of India. I have, therefore, absolute confidence that when we come to frame our own rules and so on we will do so in a patriotic spirit and taking account of the miserable state that the millions of India occupy.

One word more and I have finished. Seeing that the Congress holds the view that this Federal Court or Supreme Court—whichever you call it—will occupy the position of the highest tribunal beyond which no man who is an inhabitant of India can go, its jurisdiction, in my opinion, will be limitless. It will have jurisdiction, so far as Federal matters are concerned, to the extent that the Princes are also willing, but I cannot possibly imagine that we shall have two supreme Courts, one in order to deal with merely Federal law and another to deal with all the other matters that are not covered by the Federal administration or the Federal Government.

As things go, the Federal Government may concern itself with the minimum of subjects; and therefore matters of the highest moment will be extra-Federal. Who is to adjudicate upon these extra-Federal matters if not this very Supreme Court? Therefore this Supreme Court or Federal Court will exercise double jurisdiction, if necessary, treble jurisdiction. The greater the power that we give to this Federal Court, I think the greater the confidence we shall be able to inspire in the world and also in the nation itself, I am sorry to have taken up these precious minutes of the time of the Conference, but I felt that, in spite of my great reluctance to speak to you on this question of a Federal Court, I must give you the views that many of us in the Congress have been holding for a long time and which, we should, if we could, spread throughout the length and breadth of India. I know the terrible handicap under which I am labouring. All the most distinguished lawyers are arrayed against me; the Princes also are probably arrayed against me so far as the salaries and jurisdiction of this Court are concerned. But I would be guilty of neglect of duty to the Congress and to you if I did not give you the views that the Congress and I hold so strongly on the matter of the Federal Court.

Young India, 5-11-1931, pp. 337-38