Nariman: It is only for two days: the judges of the high court had reserved judgment several weeks ago, and delivered it on a Friday. Hence the request...

Chief Justice: We cannot help that. In matters of personal liberty we cannot grant a stay.

Nariman (gnashing his teeth): As your Lordship pleases!

The next morning, on Saturday, all the detainees were freed, and having been released from preventive detention they could not be re-arrested, even if the judgment of the Delhi high court was ultimately set aside: that was (and is) the law.

There was a furore in government circles — the finance minister and law minister met with a host of secretaries to the government and proposed that Article 226 (the ample writ jurisdiction of the high courts under our Constitution) should be forthwith amended to prevent this sort of thing from happening again!

I tried to reason with them but they remained sceptical. All this was in the month of April 1975.

I quit my post of additional solicitor general a day after the Proclamation of Internal Emergency on June 26, 1975. The Supreme Court was then in vacation. When the court reopened in July, the first week after the reopening, I happened to be present in the same chief justice’s court when on an oral application by the then solicitor general of India, the justices stayed a judgment of the Bombay high court which it had not even seen or read!

The case concerned municipal councillors in the Municipal Corporation of Bombay who had been detained under MISA (the then current preventive detention law). There was to be a mayoral election in which the Congress had nominated its candidate for mayor. If the councillors who had been detained under the preventive detention law in Bombay had been permitted to exercise their franchise and cast their votes, the Congress would have lost the mayoral election. A writ petition was filed in the Bombay high court on behalf of the detained councillors contending that they had not lost their right to vote though preventively detained, and consequently they should be permitted to exercise their vote either in jail or be brought under guard to the voting centre. This prayer, which seemed eminently reasonable, was granted by a bench of the Bombay high court. This was on a Monday, and the decision was reported in the Delhi newspapers the next day.

... contd.