It's Your Court but It's my Rule

By Kishore Kulkarni

1970's, A Decade which can be called as the most chaotic years in both political and judicial system of India. This was decade when India witnessed a political turmoil which started by the legislature to prove its supremacy over judiciary. For a democratic country to peacefully function there must be clear demarcation of powers and functions in the organs of government. One must not try to establish hierarchal order over other, that is perhaps what happened in India during 1970's. There was an constant tussle between Legislature and Judiciary, The former attempted to establish its command over the latter.

All of this dates us back to the basic doctrine judgment. judiciary, In a crystal clear way, limited the power of parliament, under Article 368, to amend the constitution. It officially introduced the concept of Basic Structure, which cannot be altered.

Many attempts were made to set aside this judgment, legislature introduced several amendments to re-establish its lost power. After the case which triggered the proclamation of Emergency in 1975, many prominent and influential activists were arrested without valid reason, the legal option to get out of such kind of un authorized detention is the writ of Habeas Corpus

In 21 months of Emergency(1975-77) people who were detained, amongst them were very prominent politicians like Vajpayee, Advani, etc. approached various High courts challenging their arrest then later appealed in the Supreme Court. The Apex Court constituted a bench of five judges to examine the matter. The court, perhaps considered as the worst decision, in a shocking 4:1 Majority held, The detention during emergency could not be questioned. The Court opined that the state has bestowed rights and liberties upon citizen and the state possess the authority to suspend them on valid grounds. Once Emergency was declared, no person can move to court nor question the detention. Fundamental rights were curtailed during emergency and many people were detained without legitimate grounds. The Constitutional writ of habeas corpus is issued to make sure no one is denied of these rights but the court, contrary to the very nature of the writ, held that such provision cannot be enforced during emergency. In the sense, the court was of opinion that people can languish in jail 

The five judge bench which decided the above matter, Four judges held the same but the only dissenter in this case was Justice H.R.Khanna. The institution of Judiciary is an independent organ of the Government but the appointment of Judges and Chief Justice's were and is, to some extent, in hands of Executive. Justice H.R.Khanna was in the line to be the next Chief Justice of India. He was superseded by Justice Beg. Justice Khanna, who was the lone dissenter, had to give-up his Chief Justiceship.

I use the line  'It's Your Court but It's my Rule'  because the instances which occurred after the judgment, The message was clear. It was either you be with me and you get the prestigious post or you will be sidelined, irrespective of your stature and meritocracy. Justice Hans Raj Khanna did not become Chief Justice but his name will be immortal and will be subjected to admiration of the Bar, Bench, Scholars, Academicians, Students etc FOREVER.

Thank You for your time.

BA LLB Student 

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