The Battle Over A Day's Jail Term- The Epic Combat Between The UP Legislature And The High Court

On January 4, 1642, throwing tradition that barred the sovereign from entering the chamber of Commons to the wind, the King, with 400 armed men, barged into the House of Commons and disrupting the proceedings, thundered at the House Speaker that he identify the traitors.

William Lenthall was in a quandary and from his dilemma was institutionalized the convention in the Britannic constitution that traversed the seas to seed India's legislative bodies via her Constitution. It was the doctrine of 'Parliamentary Privilege'. In fact, shamefully, India's Constituent Assembly in Article 105 (Parliament) and Article 194 (State Assemblies), could not even set out a swadeshi version of privileges. The Houses of Westminster were expressly mentioned in our constitution, stating that the same privilege powers would be enjoyed by Indian legislative bodies until they framed their own laws. Chairman of the Constituent Assembly, Babu Rajendra Prasad, had prophetically warned that "Parliament may never legislate" on this issue and that the members should be "vigilant". In fact, Janata Government's 44^th Constitution Amendment excised these shameful reference simply stating the powers of the legislature would be as it was before the amendment which deleted the reference to the English Parliament!

Lenthal's split second decision to save his life and that of the rebels, in fact ended up saving Parliamentary Democracy.

The quick-thinking Lenthall immediately fell on his knees and paid all obeisance to the Monarch and said "I have neither eyes to see nor tongue to speak in this place but as this House is pleased to direct me". Checkmated, Charles retreated.

What has this got to do with dusty Gorakhpur? If I told you that this is the story of Narsing Narayan Pandey, perhaps your confusion would be compounded!

This is also the story of Pandeyji. Narsing Narain was a social worker from Gorakhpur who was drawn into politics. He began with the United Socialist Party only to realize that there was only one Party that could ensure him electoral success. Pandeyji entered the Uttar Pradesh Assembly as a Congress legislator which he peopled during 1962 to 1967. It is another matter that he rode into the Fifth Lok Sabha in 1971 from the Gorakhpur Constituency riding on Indira's massive Garibi Hatao Tsunami only to be washed aside by Janata Party ally Congress For Democracy party's Harikesh Bahadur in 1977's Janata Wave. When an elephant-back ride to Belchi brought Indira back in 1980, she rehabilitated him in the Rajya Sabha.

The Fifth Lok Sabha records indicate that his "Hobby" was "politics" and his "favourite pastime" was "reading".

This is the story of what Pandeyji had read as member of the Uttar Pradesh Assembly. This is also the story of the writer of the pamphlet that Pandeyji had read – another fellow Gorakhpuri – one Keshav Singh.

The title of Keshav Singh's pamphlet did not leave much else for the imagination. It read "Exposing the Misdeeds of Narsingh Narain Pandey". Keshav was attached with a little known opposition party, "Socialist Party". The pamphlet, which had been also signed by Keshav's two other colleagues, had not only be extensively distributed in Gorakhpur but also in the precincts of the Vidhan Sabha in Lucknow, 300 kilometers away.

Pandey was encouraged to petition the Speaker to initiate Breach of Privilege action against the signatories. The Speaker, claims Shanti Bhushan, was a 'man of learning who had carefully studied Mayne's Parliamentary Practice". He must have therefore been aware that the House of Commons referred to in Article 194 had itself not exercised its powers of breach of privilege to reprimand or sentence a non-member since 1880.

He summoned the signatories to the Bar of the House for a reprimand. On February 19, 1964, others complied, while Keshav failed to make that 300 km journey citing lack of funds. The Speaker would have none of this. The Marshall of the House was sent to forcibly produce Keshav Singh. On March 13, 1964, the Marshal of the Assembly arrested Keshav Singh at Gorakhpur and on March 14, 1964, produced him at the Bar of the Legislative Assembly.

On that fatal day, when the Speaker repeatedly asked Keshav to state his name for the record, he defiantly kept silent. He also turned his back to the Speaker. Helpless, the Speaker drew attention of Keshav's missive addressed to him that the warrant of arrest was "Nadir Sahi"!

The House could not take this lightly. An insult to the Speaker was an insult to every member, a serious breach of the privilege of the House. The legislators promptly passed a resolution introduced by Chief Minister Sucheta Kriplani, India's first woman to hold that post and UP's first and only Bengali head of government, sentencing Keshav to seven days' imprisonment. A founding mother of India's constitution, Sucheta Kriplani, before being Chief Minister was a lecturer of Constitutional History at the Benares Hindu University. Little did she think that by her resolution she would set in motion that making of constitutional history! In all fairness, she already had earned her place in India's history with her enthusiastic participation in the Quit India Movement, being by Mahatma's side at Noakhali and singing Vande Mataram, Sare Jahan Se Achha and Jana Gana Mana before Nehru delivered his Tryst with Destiny Speech at the Midnight Hour when the world slept and India awoke to life and freedom.

Keshav Singh was promptly taken into custody and handed over to the prison authorities to undergo the week's confinement.

The story could also have ended here had Keshav finally relented. However, on the sixth day of his seven-day sentence, his advocate B Solomon petitioned the Allahabad High Court, serving a copy on government pleader KN Kapur.

When the matter was taken up immediately after the lunch recess at 2 PM by a bench of Justices Nasirullah Beg and GD Sehgal, all agreed that it should be taken up an hour later.

However, when the matter was called again, assistant government pleader Kapur was missing in action. There are conflicting explanations for this crucial absence. Kapur claims he was in discussion with government officials, Solomon insisted it was strategic.

In the absence of the respondents, the Court set Keshav free pending final hearing on condition that he attended every hearing.

The Speaker was livid and this time it was viewed that not only Keshav but also his lawyer, the judges who had set him free and the court staff were all in breach of the privilege of the Assembly. Two days after the judges set him free, the judicial order was overturned by the Assembly which passed a resolution directing that Keshav would indeed remain in prison. The parties in breach were directed to be arrested and produced before the Legislature.

Now it was a battle of the branches – legislature versus the executive. Would India really witness judges turning up in the Assembly to justify their judicial orders? Justices Beg and Sehgal had not even been intimated of the Assembly's latest resolution through the official channels. Shanti Bhushan insists that Beg was waiting with a loaded gun ready to "shoot the marshals and protect the honour of the Allahabad High Court."

The next morning the Northern India Patrika prominently reported the story of what Gadbois would go on to define as the "spectacular and, in part, ludicrous, altercation between the judiciary and the legislature".

To save themselves from embarrassment, the judges, moved Court as petitioners themselves seeking a suspension of the Assembly's resolution. Jagdish Swarup who would one day be Solicitor General represented the High Court.

Chief Justice Desai was away and so as acting master of the roster the senior most judge had to constitute a bench. However, the belligerence of the Assembly made this simple task a daunting affair. What was the guarantee that the Assembly would not go after such a bench too?

With Jagdish Swarup's help an unprecedented solution was thought of for an unprecedented problem. All the judges of the Court, other than the two petitioning judges, would sit together and decide! Chief Justice Desai returned to Allahabad and constituted a bench of twenty-eight judges.

On anticipated lines, this mammoth bench admitted the petition of the brother justices and restrained the executive from executing the arrest warrants handed down by the Assembly. Lawyer Solomon followed suit and got identical relief. Keshav Singh however failed to make a hatrick.

The Assembly took a step back. It passed a resolution justifying summoning of the judges to explain their position. However, arrest warrants for Solomon, and the two judges were dropped. They were still required to appear and submit their explanations.

The Allahabad High Court again stayed this watered down Assembly resolution. Its judges were not ready to appear in the House to justify their judicial orders.

When the matters were at a head, anxious to end the conflict, Sucheta Kriplani prevailed upon Nehru to get the President to make a reference for an advisory opinion under Article 143 from the Supreme Court. The five terms included^[1]:

• Could the Court have dealt with the case?
• Could Solomon have filed the case?
• Could the Court have ordered Keshav's release?
• Could the Assembly direct judges to be appear before it?
• Could the Full Bench have entertained Solomon and the judges' petitions?
• Could it be said Court was in contempt of Assembly and could Assembly take action against a judge for contempt?

The reference was answered by a bench of Chief Justice Gajendragadkar sitting with Justices Sarkar, Subbarao, Wancho, Hidayatullah, Shah, and Ayyangar.

The Uttar Pradesh Assembly was represented by none other than HM Seervai assisted by Tehmtan Andhyarujina. The high court judges were represented by former Attorney General MC Setalvad, whose bills for the case would never be settled as they were caught in the bureaucratic shuttling between the state government and the court! ^[2]

The galaxy of legal luminaries who appeared in this case included CK Daphtry, HN Sanyal, GS Pathak, Nani Palkhivala, NC Chatterjee and Jagdish Swarup.

"Seervai sought a broader reading of the legislature's powers to punish for contempt. He drew analogies with precedents from the British Parliament to show that it had consolidated its powers to include those of self-composition. …However, the majority favoured Setalvad's arguments that there were fundamental differences in the structure of government created by the Indian Constitution".^[3]

The Court held that Article 21's right to life and personal liberty would be applicable even against the Legislature's breach of privilege action and hence such action was subject to judicial review. However, the freedom of speech of the citizen was held subservient to legislative privilege. In his dissent Sarkar held that the Legislature had the power to require an explanation from Solomon and Justices Beg and Sehgal. Writes Chintan Chandrachud, "The thought of high court judges being summoned to offer explanations to the assembly did not seem to concern Justice Sarkar as it did the others."

Gadbois writes that the Supreme Court's opinion "caused an uproar both in Uttar Pradesh and New Delhi". The October 1^st issue of the Hindustan Times reported in its front pages that some legislators in UP had demanded an emergency session of the Assembly to take up the Supreme Court's decision. Would this group have considered summoning the Constitution Bench? We will never know. Another section of legislators demanded a convention of speakers of all assemblies and of the Lok Sabha.

A day before Gandhi Jayanti, the Lok Sabha itself took up the discussion on the Court decision. Law Minister AK Sen, a great lawyer himself, told Parliament that the Court's opinion would cause a "deep erosion" of the legislature's privileges. Hukum Singh, the Lok Sabha Speaker was also "very much perturbed". He felt the Court had gone against the intent of the Constituent Assembly.

Unsurprisingly, a "voice of moderation", as Gadbois, describes, was Prime Minister Lal Bahadur Shastri. He was quoted by The Statesman as advising "utmost restraint and caution in dealing with this 'delicate' matter'".

The events created a cleavage between the legislators and the bar. While the January 1965 Conference of the Presiding Officers of Legislative Bodies, held in Bombay, severely criticized the Supreme Court judgment for eating into the powers of the legislatures, The Bar Association of India organized a symposium chaired by Pandit HN Kunzru and attended by Setalvad to create an awareness about 'citizen's rights' and the 'rights of legislatures'.

Keshav Singh's petition had been transferred to the Allahabad Bench from Lucknow. The state was represented by Advocate General Kanhaiya Lal who advised Kriplani, impleaded as a respondent in her own name, to file a response lest the Court passed strictures. The Speaker, on the other hand, advised her that as she had been impleaded as Leader of the House, no way could she submit to the jurisdiction of the Court. Bhushan says Kriplani found herself "placed between the devil and the deep sea". Bhushan claimed that Kriplani had greater confidence in him than in her Law Officer and so he had to cut short his Bombay vacation to return post haste to advise Sucheta. Bhushan advised against the Chief Minister filing her affidavit and suggested that the facts could be elaborated in the reply to be filed by the jail superintendent. Kriplani also promptly replaced the Advocate General with Bhushan in that case to be her counsel.

On March 10, 1965, a bench of Justices JN Takru and GC Mathur finally disposed of Keshav's habeas corpus petition condemning Keshav to complete the remaining jail term-one day!