The response by the three judges -- Justice K.S. Hegde, Justice JM Shelat and Justice AN Grover -- was bold and defiant. All the three resigned within 24 hours. That was the watershed. Since then, relations between the executive and the judiciary have never been the same.

Both have aggressively protected their independence. In the process, both have usurped what was the grey area. The present sniping at each other is because there doesn't seem to be any more territory left to occupy.

During her rule, Mrs. Gandhi went on to impose the emergency in 1975, when the Allahabad High Court cancelled her Lok Sabha membership for a poll malpractice. This did not deter her from superseding subsequently the senior-most Supreme Court judge, Justice HR Khanna.

He had given a dissenting judgment on the emergency, which the other nine judges had endorsed without any qualm of conscience. In fact, the executive's wrath had begun long before the super-session. Ms Gandhi had used a word, "commitment," as her yardstick to measure the loyalty of a judge, legislator or civil servant to her.

Those were the days when India was seeking to establish the socialistic pattern of society. The superseded judges, including Khanna, were not considered "progressive" enough to be in Ms Gandhi's good books. It is another matter that 15 years later, when the Congress returned to power at the centre, it began to demolish most of what it had established in the public sector to implement the theory of laizzes faire, a free economy which sounded the death knell of self-sufficiency.

When the criterion of "commitment" was still in use, I asked Mrs. Gandhi whether it meant leftist leanings, she stoutly denied that. She said "commitment" meant "loyalty to the constitution." She did not put her cards on the table, something, which came to her naturally. She superseded the judges because she considered them to be in the way of her "progressive laws."

The grievance she nurtured was the judgment (6-5) on the Golak Nath case in 1971, when the Supreme Court held that the fundamental rights enshrined in the constitution could not be amended, abridged or abrogated by parliament.

She did not like the three senior judges restraining parliament from making her "commitment" come true. There was also politics in the suppression, because one of the judges was ideologically with the old guard in the Congress, whom she opposed.

Things went on simmering, and they came to the boil when the Supreme Court held in the Keshavanand Bharti case that parliament could not change the "basic structure" of the constitution. Secularism, democracy, and India's federal structure, came within the ambit of basic structure.

Although the Supreme Court gave freedom to parliament to amend fundamental rights,

except those concerning the basic structure, the executive was not happy. The judiciary still remained the last word on what constituted the basic structure. Former Chief Justice Hidayatullah did suggest a way out -- the referendum -- but the executive did not fancy the proposal.

Probably, it is healthy in democracy not to spell out everything. Certain concepts gather the content as the executive and the judiciary comes into contact or conflict. Some kind of "friction" is necessary, as Chief Justice KG Balakrishnan has said in Delhi at the annual conference of High Court chief justices.

The point to ensure is that the equilibrium is not disturbed, either by the executive in the name of people, or by the judiciary in the name of review. Activism by either side can upset the applecart -- something a democratic structure cannot afford. Prime Minister Manmohan Singh has rightly reminded the judiciary and the executive not to over-reach.

Most of our neighbouring countries have played with the judiciary and tried to make it subservient to the executive. This has turned out to be disastrous for them. An over-active military has aggravated the situation.

Even if there were to be an effort not to dictate, the very presence of men in uniform would make most judges fall in line. India experienced that when the emergency was imposed; the magistrates even signed blank warrants of arrest.

Ultimately, the rhythm of democracy depends on the quality of judges. The nation cannot stop the election of undesirable members to parliament or the state legislators because of the nexus between criminals, moneybags and politicians.

At least, the appointment of judges can be independent. The judicial commission, proposed by the government, comprises of judges alone. Eminent citizens have to come in to keep the appointments above politics.

The current practice of collegiums of four to five senior judges selecting the appointees is like nomination of the office-bearers by trade unions themselves. This is neither fair nor judicious.

The constitution says, on the appointment of judges, that the executive should consult the Chief Justice of India before making any appointment. But the executive played havoc with this provision. The judiciary was a party when the word, "consultation" included "concurrence." Now, it is the other way round. The judiciary makes all the appointments and transfers, and the executive is nowhere in the picture. But there is no way to make the judiciary accountable.

Before amending the constitutional provision on appointments, the experiment of judicial commission should be tried. But the insidious campaign to have the "leader" among the judges as the chief justice is motivated.

Even after 34 years we have not got rid of the poison injected by the suppression of judges. Anything done to tinker with the judiciary, however abrasive, may turn out to be a fatal blow to the system itself.

India is still seeking equilibrium between the judiciary and the executive, a sort of equation so that one upholds the obligation and responsibility of the other. That parliament represents the people goes without saying, because they are the ones who elect it.

Their voice has to be pre-eminent. But they cannot get away with legislation, which is against the basic structure of the constitution, or does not measure up to judicial scrutiny.

A public debate can help. The judges have to be made answerable. Members of parliament and assemblies go back to the people, to face approval or rejection.

The judges cannot be removed without a motion of impeachment passed by parliament. Not even one case has made the muster since the implementation of the constitution in 1950. Some way has to be found to put the fear of god in the minds of judges.

Kuldip Nayar is an eminent Indian columnist.