When the Supreme Court struck down Habeas Corpus
"In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations."
The Presidential Order referred to was the one issued during Emergency declaring that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency are in force.
On 28th April, 2001, we complete twenty-five years of this horrific day when four of the five senior most Judges of the Supreme Court of the world's largest democracy could unabashedly declare that under those circumstances no one could seek the assistance of any court in India to try and save his liberty, life or limb threatened to be taken away by the State. A day, which produced a judgment so shameful that even Hitler would have blushed, had he the opportunity to peruse it!
The question was simple: Despite the Presidential proclamation, can the High Court entertain a writ of habeas corpus filed by a person challenging his detention? All High Courts that had answered the question, had done so in the affirmative and had kept their doors open to those unfortunate who dared risk the wrath of some petty governmental official. Against the unanimous decision of the High Courts, four of the five senior most Hon'ble Justices of the Supreme Court thought it fit to rule otherwise. They were the then Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme Court had effectively ordered the High Courts to slam shut their doors and windows. The lone dissenting voice was that of Justice H.R. Khanna of whom the New York Times remarked: 'surely a statue would be erected to him in an Indian city'.
Justice Khanna, conscious of his aloneness, ended his judgment with a quote:
"As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed."
Justice Khanna paid the price for his dissent. He was next in line to become Chief Justice of India. He resigned when his junior, Justice M.H. Beg, superseded him. That was justice Indira Gandhi style.
It all started with the election of Mrs. Indira Gandhi, the then Prime Minister, which had been held to be invalid by the Allahabad High Court. Wanting to cling to the chair at any cost, she chose to declare emergency as on 25th June 1975 - the pretext being 'internal threat' to India (read INDIRA). Censorship muzzled the Press, which could not publish the numerous arrests of vast sections of people. Any person who was considered to be a political threat, or who could politically voice his opposition was detained without trial under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security Act). The opposition was silenced. The common man terrorized.
Many who had been arrested challenged their detention by filing writs of habeas corpus under Article 226 in various High Courts. In most High Courts, the State Governments had raised the issue as to whether such writs were maintainable on the ground that in light of the Presidential Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all rejected the Government's argument and held that despite the suspension of fundamental rights, a person detained could demonstrate that their detention was not in compliance with the law (under which he or she was detained), or that the State action was mala fide, or that there was a mistake of identity. Having received a drubbing nine to nil, the Government (read Indira Gandhi) decided to appeal against these decisions to the Supreme Court. It was thus that the Constitutional bench of five Judges came to be constituted to hear and decide the most crucial case in Indian legal history referred to in all law reports as A.D.M. Jabalpur vs. Shukla.
Niren De, the then Attorney General began the arguments on 14th December 1975. He focused on the aspect of 'liberty' as found in Art.21 of the Constitution. His central contention was that since the right to move any Court had been suspended, the detenue had no locus standi and their writ petitions would necessarily have to be dismissed. It was on the next day that Justice Khanna was to ask the first uncomfortable question. "Life is also mentioned in Article 21 and would Government argument extend to it also?". There was no escape. Without batting an eyelid Niren De answered, 'Even if life was taken away illegally, courts are helpless'. [Remember the Nazi holocaust]. The case was argued for over two months. Judgment was reserved. It was only when an application was moved for the pronouncement of the judgment that it was read in open Court on that dark and ignominious 28th April 1976.And so was delivered the biggest blow to the Supreme Court, by the Supreme Court.
This one case is a glaring example of how the four wise Judges of the Supreme Court tried to outdo themselves in being more loyal to the throne than the king himself. The final order goes way beyond what was demanded of them by the plea of the Union of India. All the individual judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extensio the submissions of the Attorney-General on behalf of the government wherein he made the claim that the detenue had no right to approach the Court to challenge his detention.
They also record the concession of the Attorney-General to the effect that despite this general ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorized to pass it, or if it is passed for a purpose outside those mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney General had thus handed over to the Supreme Court the same key with which all High Courts had earlier used to keep ajar their doors for the detenues to squeeze through and enter. The Supreme Court, instead, preferred to throw away this key to their own self-respect. The majority judgment, literally taken, and as understood thereafter by all High Courts, clearly directed that detenues were to be stopped at the doors if not in the corridors of the halls of Justice.
Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency and the condition of those detained Justice Beg has this to say: "We understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass."
Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the nazi gas chambers. He voiced his belief that people who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.
We will never know if any of these men ate their words when a year later on 24th May, 1977 The Times Of India reported: "The Calicut Regional Engineering student Mr. P. Rajan, 'died while in unlawful police custody at Kakayam Police Camp on 2 March 1976, as a result of continuous police torture with iron and wooden rollers'. This was admitted in the returns filed in the form of affidavits by respondents, including the former Chief Minister, Mr. K. Karunakaran before the Div. Bench of the Kerala High Court."
A special mention must be made of Justice Bhagwati the man who had a knack with words and who knew how to use them to play to the gallery. Though Justice Khanna had held high the torch of freedom, it was Justice Bhagwati who spoke grandiosely about liberty. It was Mark Anthony updated for the occasion telling us how much he loved liberty, but, how much more he loved the law. Let us read his own words: "I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind, without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear."
Yes, his intense love for the Constitution could not permit him to read into it things which were not there. Yet, all this he did, and much more a little later in the case of Indira Gandhi's daughter in law, Maneka Gandhi, when the Janata Government had impounded her passport. When it came to the then famous daughter-in-law's case, Justice Bhagwati read the Constitution like a visionary and prophet finding within its pages and between the lines the famous principle that laws have to be 'right, just and fair, and not arbitrary, fanciful or oppressive'. He also brought in the theory that the soul of natural justice was fair play in action.
Last year on 25th June we brought back to mind the proclamation of Emergency being the start of the darkest period in Indian democracy. If this were so then we should never forget that during this dark period, the 28th April, 1976, was its blackest day. It is all the more important to remember this day since we the people of India have grown accustomed to being ruled by preventive detention laws where thousands are being jailed without trial. Over and above this, Government after Government is attempting to bring in laws which put to shame both MISA and TADA combined. The Judiciary has failed us once. If we, the people of India, forget this, we will be condemning ourselves sooner or later to history repeating itself. So let us always remember A.D.M. Jabalpur.
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