THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS
MADAN BHATIA’S advocacy was for more than one passport
WITHIN THE old, rundown corridors that make up the chambers of the Delhi High Court, Madan Bhatia calls himself a fading lawyer. It is a harsh assessment,but inthe81-yearold lawyer’s cabin, there is a sense of lifeb eingtuned to an over alll eisurely pace. The peaks have already been scaled and Bhatia exists in that genial, blissful world of content that is the prerogative of former behemoths.
Bhatia’s moment of triumph came in 1979 in the famous Maneka Gandhi v. Union of India case. Maneka Gandhi’s passport had been annulled by the Janata Party government and Bhatia recalls the mysterious circumstances in which his association with Sanjay Gandhi took shape. “A client of mine asked me to help his friend who was in legal difficulty,” he says. Then suddenly at 10.30 pm on a night when his wife was seriously ill, he found an unexpected visitor at the door of his first-floor house. “My client asked me to come with him downstairs, saying that Sanjay Gandhi was waiting in the car,” he says. “No lawyer was willing to take his case, but I decided to help him.”
This was an arbitration dispute in Ghaziabad, but it was the beginning of a relationship of trust. “Every second day,Sanjay and Maneka used to visitmyhouse,”heremembers.Some days later, Sanjay Gandhi called him with something rather more serious.
“He told me he had received a letter informing that Maneka’s passport hadbeencancelled.”
The Supreme Court was closed for summer vacation, but a stay on the cancellation was procured “through the order of one judge who was available”. When the writ petition came for hearing in front of a three-judge bench, Bhatia’s arguments were heard for only 2-3 minutes. “They threw the file at me, saying there is nothing in the case,” he says. Bhatia argued that he had raised a substantial matter of law, relating to an interpretation of the Constitution. “By law, only a sevenjudge bench could dismiss the petition,” he says.
A seven-judge bench was appointed, and his adversary was the then-Additional Solicitor-General Soli Sorabjee. Bhatia invoked Article 21(a) — the right to personal liberty — to mount an assault on the legal understanding that any procedure established by law could deprive a person of his liberty. “In theUSConstitution,thereisaprovision for due process of law,” he says. “I argued that a due process of law mustbeestablished,andthisprocess must be just, fair and reasonable.”
The Supreme Court eventually accepted the argument and the cancellation of the passport was declared void. It was a landmark judgement, yet the legal brain who engineered it only stepped into the profession by accident. In 1955, he enrolled at Cambridge University as a student of English literature when a friend of his suggested he put his name down at the Lincoln’s Inn in London. “I told him I had no interest in law, but he asked–what is the harm?” He moved back to London, became a barrister at Lincoln’s Inn before moving to Delhi in 1961.
Maneka Gandhi v. Union of India was decided by a 7-judge bench of the Supreme Court in 1978.
The Court widened the protection of life and liberty contemplated by Article 21 of the Constitution. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be `just, fair and reasonable’ ..
In moving from the narrower threshold of `procedure established by law’ to the more liberal `substantive due process’ for restraining personal liberty, this decision was the precursor to the creative expansion of rights by the judiciary.