When legislators demanded High Court judges be arrested: This 1964 case was once a national landmark

Keshav Singh was a resident of Gorakhpur in Uttar Pradesh, about 300 kilometres east of the state capital, Lucknow. He was a worker of the Socialist Party, an opposition party of ‘much noise but little electoral success’1 in Uttar Pradesh.

On one occasion, he successfully generated some “noise” among opposition ranks and in the Congress party, which governed the state, by publishing a pamphlet in collaboration with two of his colleagues. This pamphlet, entitled “Exposing the Misdeeds of Narsingh Narain Pandey”, alleged that Pandey, a Congress party MLA, was corrupt. The pamphlet was signed by its three authors, and distributed locally in Gorakhpur as well as in the vicinity of the legislative assembly in Lucknow.

This pamphlet did not go down well with the Congress party MLAs or Pandey, who once listed the reading of books (but not pamphlets) as one of his recreational activities. They complained that the pamphlet constituted a breach of privilege, that is, the rights and immunities enjoyed by the assembly and its members. Keshav Singh and his colleagues were ordered to appear before the assembly in Lucknow to receive a reprimand.

For Keshav Singh, complying with this order would have required making a railway journey of several hours from Gorakhpur to Lucknow. While his colleagues appeared before the assembly and accepted a reprimand on 19 February 1964, Keshav Singh failed to do so, citing a lack of funds to make the journey. The assembly then decided that what could not be procured voluntarily must be acquired by force. Singh was arrested and brought to the assembly on 14 March.

The matter would have ended there had Singh done the same as his co-pamphleteers and silently allowed himself to be reprimanded. But he had other ideas.

When the speaker of the assembly repeatedly asked Singh to confirm his name, he refused to answer. He stood with his back turned to the speaker, and remained silent as questions were posed to him.

Matters got even worse after this. The speaker brought to the attention of the assembly a letter that would cause further consternation among Congress MLAs. Singh had written a letter to the speaker protesting against the reprimand, confirming that the statements in the pamphlet were accurate, and condemning the warrant for his arrest as “Nadirshahi” (tyrannical).

By then, the MLAs had heard enough, and Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for seven days. While some members of the assembly were eager for a stricter punishment (of three months) to set a precedent, others were conscious that imprisonment may be perceived as unduly harsh, and that Singh should be discharged on condition of an apology. The assembly eventually passed a resolution in the form proposed by the chief minister, and Singh was taken to prison for his week-long sentence.

Until 18 March, the dispute between Singh and Congress MLAs was confined to a local political squabble, at best offering fodder for gossip within political circles in Uttar Pradesh. However, matters were escalated significantly the following day. Just one day before he was due to be released upon the completion of his sentence, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking his immediate release.

The petition was premised on the argument that Singh’s imprisonment was illegal as he was offered no opportunity to defend himself after he was reprimanded, and that the assembly lacked the authority to commit him to prison.

Singh’s petition first arose for hearing at the high court at 2 pm, before a bench of two judges – Justices Nasirullah Beg and GD Sehgal. Singh’s advocate – B Solomon – appeared on his behalf, while KN Kapur, an assistant government advocate, represented the state government. It was agreed that the hearing should proceed an hour later on the same day.

However, when the case arose for hearing at 3 pm, Kapur did not show up and the government remained unrepresented. Kapur was thought to be briefing the secretary to the judicial department of the Uttar Pradesh government about developments in the court at the time. It was not clear whether his failure to return to the court in time was by accident or design. Based on the facts and arguments presented by Solomon, the high court ordered that his client be released on bail, subject to conditions – including that Singh attend court at every future hearing.

The first reaction of the bureaucracy in Uttar Pradesh was to treat this as they would any other case. It was suggested that the government appear at the next hearing of the case and file affidavits in the usual way. However, the speaker of the assembly’s reaction to the order was not quite as sanguine. The speaker, himself a lawyer, perceived the court’s approach as contrary to the separation of powers.

One of the ways in which the separation of powers among the legislature, executive and judiciary was meant to be sustained was by allowing each branch autonomy in the exercise of its core functions, without interference from the others. In the speaker’s view, the high court’s order undermined the assembly’s exclusive authority to address a breach of its own privileges.

The speaker went a step further, indicating that those directly associated with the order – including Singh, Solomon, and Justices Beg and Sehgal – had breached the privileges of the assembly. It was just as well that others, such as the administrative officers in the high court that facilitated the filing of the case, were spared.

Just two days after the court’s order, the assembly passed a resolution by an overwhelming majority that Singh remain in prison and be brought back to the assembly to answer for the petition filed in the high court.

Astoundingly, the resolution also ordered that Solomon and the two high court judges be brought in custody before the assembly to answer for their own indiscretions.

At this stage, the skirmish between Singh and the assembly transformed into a serious battle among constitutional institutions. Singh’s role as the original instigator was now forgotten, as the political community shifted its focus on how this unprecedented confrontation would play out. How would the judges respond? Would Justices Beg and Sehgal make the journey from Allahabad to Lucknow? A number of strategic and prudential considerations were now in play.

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 be criticised for persecuting well-intentioned judges. Another option was for the judges themselves to file a petition in the high court, but there was no gainsaying that the judges who heard that petition would meet the same fate.

Justices Beg and Sehgal were not notified of this resolution through official channels. Instead, they learnt of it through a broadcast on All India Radio that evening. Any apprehensions of a mistaken report were cast aside the next morning, when the resolution was reported in the Northern India Patrika.

The judges were conscious of the importance of taking prompt action. They filed petitions in the Allahabad High Court claiming that the resolution passed by the assembly violated Article 211 of the Constitution, which prohibited discussions of the conduct of any judge of a high court or the Supreme Court in state assemblies.

Justices Beg and Sehgal requested that the implementation of the resolution against them be suspended while the case remained pending before the court. Advocate and legal scholar Jagdish Swarup, who was later appointed solicitor general of India, represented Allahabad High Court.

These proceedings presented difficulties for the the judges. The chief justice of the high court (and in his absence, the most senior judge after the chief justice) is entrusted with the responsibility of case allocation. Since Chief Justice MC Desai was away, it fell upon the next most senior judge to allocate the case to a bench. He was reluctant to do so fearing that the bench would suffer similar consequences at the hands of the assembly.

Ultimately, Jagdish Swarup offered an ingenious solution to the chief justice: that all the judges of the high court (aside from Justices Beg and Sehgal) should sit together to hear this case.

This was not just a symbolic gesture of solidarity. The chief justice saw practical merit in the suggestion: “the legislature will have to decide to arrest all the judges if they really persist in that course of action.” The high court had just raised the stakes. Securing the custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.

Chief Justice Desai returned to Allahabad, and a bench of twenty-eight judges was allocated to hear this case. This was the largest number of judges allocated to decide a case in a high court or the Supreme Court at the time. This record still stands over five decades later.

Excerpted with permission from The Cases That India Forgot, Chintan Chandrachud, Juggernaut.