Author: Adv. Jos. Peter D'Souza
Publication: People's Reporter
Date: May 10 -25, 2001
April 28th, 1976 is a day never
to be forgotten by any of us Indians who love the pledges of Justice and
Liberty which we gave to ourselves in the Preamble of our Constitution.
It was on this day when four of the five senior most Judges of the Supreme
Court (including the Hon'ble Chief Justice) struck the first mortal blow
to these cherished dreams enshrined in our Constitution. On this day, during
the Emergency, the Supreme Court sank to its lowest when it decided the
infamous Habeas Corpus Case with the. following conclusion:
"In view of the Presidential Order
dated June 27, 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.
April 28, 2001, we complete 25 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 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 recognised 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 possibly 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 he was superceded by his junior, Justice M.H. Beg. 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 June 25, 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
terrorised. 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 December 14, 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 April 28, 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 authorised 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 he 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 detenus 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 May 24, 1977 The Times Of India
reported: "The Calicut regional engineering student 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. His words read: "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 June 25, we brought
back to mind the proclamation of Emergency being the start of the darkest
period in Indian democracy. If 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.