It was 30 April 1976 and the newspapers in India had either turned silent on will or had been censored into almost silence. So, one often had to rely on international newspapers to get an understanding of what was unfolding in the country. On that eventful day, the New York Times (NYT) in their editorial, saluted the efforts on an unlikely hero - a judge who NYT said deserved his own monument for upholding the constitution and the rule of law, even though it meant sacrificing his own career. This Supreme Court judge in question was Justice H R Khanna and the case in question was ADM Jabalpur vs Shivkant Shukla.

The memorial never came but Justice Khanna’s brave dissent laid bare the way in which the Indian National Congress manipulated and trampled upon the independence of the judiciary. And from the days of the Emergency to the present day, the Congress continues with its track record of impairing the independence of the courts.



So what are the tactics that the Congress has used in the past few decades to make the judiciary pliable to its interests? The party’s approach can be summed up in three points.

1. Make way for the people who are loyal to you and those who would continue to be loyal to make their way up to the highest position.



In the year 1973, veteran leader Jai Prakash Narayan (JP) wrote a letter to the then Prime Minister, Indira Gandhi, expressing his deep concern with the way three senior judges were superseded to make Justice A N Ray the Chief Justice of India. It is important to note that the three senior judges had ruled against the government in the Kesavananda Bharati case which allowed the judiciary to strike down any amendment that would alter the ‘basic structure’ of the constitution. This was the cause of immense embarrassment for the government and the Congress realised that any of the three judges in the highest position would be difficult to work with. But Justice Ray had dissented against the majority verdict. Therefore, they made way for Ray to be made the Chief Justice of India.

JP in his letter wondered aloud and summed up the concerns of the nation by asking the Prime Minister whether the idea behind all of it was to make the Chief Justice, ‘a creature of the government of the day’. In fact, that was the very idea. The ministers of the government even used the argument that the ‘philosophy and outlook of the judges’ should be taken into consideration when deciding on their elevation. Indira Gandhi had herself lauded the Congress decision of promoting Justice Ray by saying that he was a judge who had recognised the ‘winds of change’.

2. Judges who are not supportive of positions of the Congress party to face impediments in their career

The first strategy can only be implemented if it is in conjunction with the second strategy of pulling down the judges who are not compliant with the Congress party and its whims. This could be through stalling promotions of senior judges like the case cited above or it could be through major steps like initiating impeachment proceedings, like in the recent tirade against CJI Dipak Misra. Each of these strategies seems to germinate in the period of the Emergency. For instance, during the Emergency, nine high courts across India had ruled against arbitrary detention under the draconian Maintenance of Internal Security Act (MISA).