In this post, I would be discussing the facts and incidents which led to paralysation of administrative machinery and a constitutional crisis. Interestingly, due to these facts and circumstances, the largest bench of 28 judges was constituted—even more than the 13-judges bench in the landmark case of Kesavananda Bharti v. the State of Kerala.
Keshav Singh, resident of Gorakhpur (U.P.) and a worker of an opposition party [Socialist Party] published a pamphlet along with his two colleagues—titled ‘Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod’. In that pamphlet, they alleged that Narsingh Pandey, Congress party’s MLA, was corrupt. The pamphlet was distributed in Gorakhpur and the vicinity of the legislative assembly in Lucknow. The Congress party MLAs including Pandey were offended by the act, hence, they complained to the Speaker that the pamphlet ‘breached the rights and immunities enjoyed by the assembly and its members’. Keshav Singh and his two colleagues were summoned to appear before the House in Lucknow to receive a reprimand.
While the other two colleagues accepted a reprimand on 19th February 1964, Keshav Singh failed to appear before the House citing ‘lack of funds’ to travel from Gorakhpur to Lucknow. Subsequently, the Assembly ordered to arrest Singh and brought him to the assembly on 14th March. After he arrived at the assembly, he was ‘expected’ to be reprimanded just like his other colleagues, but he had other ideas. He refused to answer when the speaker of the assembly repeatedly asked him to confirm his name. He turned his back towards the Speaker and stood silently after every question was posed to him. Another incident happened which worsened the matter was that- Singh had written wherein he protested against the reprimand as statements in the pamphlet were true, and condemned the warrant of his arrest as ‘Nadirshahi’ (tyrannical). Then, the first woman Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for 7 days and he was sent to prison. Until now, it was just gossip of the town.
On the 6th day of his imprisonment, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking immediate release. It was contended that Natural justice principles were not followed as Singh was not allowed to defend himself and assembly lacked the jurisdiction to commit him to prison. The matter was placed before Justices Nasirullah Beg and G.D. Sehgal at 2 p.m. wherein Singh was represented by Advocate Solomon and assistant advocate general, K.N. Kapur, appeared on behalf of the state government. Kapur sought a pass over and requested the matter to be placed at 3 pm. However, at around 3 pm, when the case was called Kapur was not present, due to some reasons [whether deliberate or not—we never know]. Solomon argued the case and based on the arguments and facts, the High Court ordered that Singh to be released on bail subject to a condition that Singh should be present in court at every future hearing.
After this usual course would have been that state government should have filed an affidavit, but the Speaker, Madan Mohan Varma, a lawyer by profession thought this as a violation of the doctrine of separation of power and he had read the Mayne’s Parliamentary Practices– an authoritative book on Parliamentary procedures and practices. In his view, the order of the High Court “undermined the assembly’s exclusive authority to address a breach of its own privilege”. Surprisingly, after two days of the order, the House passed a resolution with a majority that Singh, Solomon and two High Court judges be bought “in custody” before the assembly to explain their acts. Imagine a judge of a constitutional court being summoned before the legislative house to justify his acts in the judicial capacity. Isn’t this violation of Article 211 which states that “[N]o discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties”?
From a mere political issue, the whole incident became a clash between constitutional institutions. It became more of a power game between the Hon’ble High Court and the Hon’ble Assembly. This was unprecedented and the judges of the High Court had no clue how to react to this summon of the Assembly. According to Senior Advocate Shanti Bhushan,
Justice Beg “was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court”.
There arose a conundrum between saving the honour of the Court and contempt of the Assembly. As per Chintan Chandrachud, “if the judges agreed to appear before the assembly, the episode would risk undermining the independence of the judiciary. On the other hand, if they appeared and offered a robust defence, the assembly might be left with no choice but to refrain from further action, lest it criticised for persecuting well-intentioned judges”. The judges to save their honour and the honour of the Allahabad High Court filed petitions before the High Court stating that assembly’s resolution violated Article 211 and they were represented by Advocate Jagdish Swarup. There was a conundrum about the bench allocation because what if the judges which decide the matter would also suffer similar consequences as faced by the petitioner-judges. Later Advocate Swarup offered his suggestion that all the judges of the high court (except Justices Beg and Sehgal) should sit together to hear the matter. This was a symbolic gesture and for the first time in the history of the Indian legal system, 28 judges sat for deciding the case. The rationale behind this unprecedented action was that securing custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.
The judges sat in two rows which were also unprecedented and unseen. They admitted the petition and restrained the government from securing the execution of arrest warrants against the two judges. Later, even the assembly withdrew the arrest warrants against the judges and Solomon. This led to a lot of uncertainty and the police were rather confused about whether to arrest or not. As Chintan Chandrachud says,
“If the police escorted the two judges and Solomon to the assembly, they would be complying with the resolution of the assembly but possibly in contempt of court. If they refused to do so, the police would be complying with the court’s order but defying the resolution of the assembly.”
By this time there was a hassle in New Delhi as the news reached the Capital. The CM Sucheta Kriplani apprised the PM Nehru of the situation. Then, it was decided that a presidential reference shall be made to the President to “enable the court to rule decisively on the authority of the assembly on the one hand, and the courts on the other, to determine the scope of the privileges of the assembly”. The issue could have been decided by the Parliament or the assembly, but Nehru chose to refer it to the Supreme Court for further adjudication and ‘final decision’. A seven-judge bench was constituted which was headed by the Chief Justice Gajendragadkar in the Special reference no. 1 of 1964. [The law laid down by the Court, in this case, will be discussed in next posts on this blog]
In conclusion, an observation made by Chintan Chandrachud in this regard is worth mentioning,
“This case is worth remembering – if not nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.”
[Note: I would like to thank Chintan Chandrachud for his insightful book “The Cases that India Forgot“]