THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS
HABEAS CORPUS, 1976 SHANTI BHUSHAN lost the case, but his arguments endured
“NONE” was the one-word answer senior advocate Shanti Bhushan gave an Australian journalist who asked him if he was under any pressure while taking on the entire ruling establishment led by then Prime Minister Indira Gandhi against the declaration of Emergency. At the time of the interview, Bhushan had fought hard and just lost the ADM Jabalpur case, also known as the “Habeas Corpus case”, during the darkest hours of the Emergency in 1976. The Supreme Court of India had, as public opinion decided in retrospect, committed a “supreme mistake” by agreeing with the government’s self-declared right to detain citizens without reason or trial under the draconian Maintenance of Internal Security Act.
Hundreds of students, social workers, journalists, political workers, ordinary men and women were under detention. Nine high courts had refused to budge against the government decree. The country was tense, and all eyes were on the Supreme Court Bench led by then Chief Justice of India A.N. Ray to show the government its place, and Bhushan, they had hoped, was their man to do it.
“He (the Australian journalist) asked me if there was any attempt to put pressure on me to not conduct the case,” says Bhushan, relaxed at home on his weekend away from the Supreme Court, where he is till a force to reckon with. “The only pressure they (the government) could put on me was that of imprisonment. I was not afraid of that. My parents had spent their time in jail as freedom fighters. I had been to jail too for a week. I was not afraid of that pressure,” he said.
A moment later, looking towards the distance, he said: “But if they had threatened to kill my children unless I withdrew from the case… then I am not so sure whether I would have been able to resist the pressure.”
Bhushan says he was called from Allahabad to lead the arguments in the Habeas Corpus case. He was also the lawyer who represented Raj Narain and won a judgment from the Allahabad High Court on June 12, 1975 which declared the electoral victory of the Rae Bareilly seat by Indira Gandhi as void due to electoral malpractices. Ms Gandhi was cross examined by him. The case triggered the Emergency.
“The judgment in the Raj Narain case had won me international acclaim,” he said, adding that the Habeas Corpus case was only an extension of the Raj Narain matter. Bhushan describes the SC judgment delivered in 1976 as the “blackest day in the lives of the judges”. He says the judgment was “universally accepted as the darkest chapter in the life of the Supreme Court when majority of the judges on the Bench succumbed to burning ambition”.
Additional District Magistrate, Jabalpur v. Shiv Kant Shukla and Others, better known as the ‘Habeas Corpus case’, was delivered by a 5judge bench of the Supreme Court in 1976.
Four of the justices ruled that preventive detention was permissible since the protection of life and liberty (under Article 21) was suspended while the Emergency was in force.
This decision is described as the nadir in the 60 years of the Indian Supreme Court. It is often argued that the latent guilt arising out of this case drove an era of unprecedented judicial activism, especially in human rights.