Supreme Court makes amends

Indira Gandhi

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With the imposition of the spurious June 1975 Emergency on the country by Indira Gandhi’s Congress government, democracy suffered a temporary demise. Several measures taken during the Emergency resulted in suspension of the fundamental rights of the people, curtailment of judicial powers and strangulation of the press by imposition of drastic pre-censorship for the first time. There was no pre-censorship of the press on any of the previous three occasions when the country was at war with its hostile neighbours. Countless excesses were committed during the 1975 Emergency. Fundamental rights of the people were flagrantly violated with impunity.

Regrettably, the worst excess during the Emergency was committed by the Supreme Court by its majority judgment in the ADM Jabalpur case. The majority held that during the operation of the Emergency no person can move a writ petition before a high court for habeas corpus on the ground that the order of detention is illegal or even mala fide. I may mention an incident in connection with the judgment. I was in Bombay at a conference with the late Nani Palkhivala at the Taj Mahal hotel. One of the lawyers at the conference mentioned that the ticker carried the news that the Supreme Court had by a majority of 4 to 1 pronounced its judgment on the habeas corpus petitions. Both of us assumed that the petitions were allowed and the judgment was in citizens’ favour. We had given up Chief Justice A.N. Ray and Justice M.H. Baig, taken Justices Y.V. Chandrachud and P.N. Bhagwati for granted to decide in our favour. We asked: “What about Justice Khanna?” The messenger lawyer interrupted our speculation by saying, “Sorry sir, the Supreme Court has decided in favour of the government and dismissed habeas corpus petitions.” There was a stunned silence. Nani and I exchanged glances which showed our disbelief and pain. It was impossible to believe that our apex court had ruled that a detention order tainted by mala fide could not be challenged during the Emergency.

Justice H.R. Khanna boldly dissented. He ruled that “even during Emergency the State has got no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilised society.” The courage of Justice Khanna is admirable because he was aware of the government’s habit of punishing judges who delivered judgments unpalatable to it. But he did not care about the consequences.

He decided according to his conscience. Alas, he paid the price. He was vindictively superseded as Chief Justice of India.

The deleterious effect of the majority judgment was neutralised by the 44th constitutional Amendment by the insertion of Article 359 which, inter alia, provides that during the operation of the Emergency the right of personal liberty under Article 21 cannot be suspended. Consequently, persons would be able to challenge any illegal or mala fide order of detention even during an emergency.

Save some passing observations in some subsequent judgments of the Supreme Court, the majority judgment in ADM Jabalpur had not been dissented from till recently when a bench of Justices Aftab Alam and A.K. Ganguly expressly dissented from the judgment. Justice Ganguly, speaking for the bench, said that the majority judgment of this court in ADM Jabalpur was clearly erroneous and it violated the fundamental rights of a large number of people in this country.

Our Supreme Court is final but not infallible. It has in the past, as in the present case, forthrightly acknowledged its fallibility in no uncertain terms. By its recent judgment, it has removed a shameful blot on the judicial record of the Supreme Court which, barring occasional aberrations, has been a valiant judicial sentinel.

There is an interesting parallel with England. During World War II, when Nazi aircraft were incessantly pounding London, the House of Lords, by its majority decision in Liversidge vs Anderson, gave uncontrolled power to the Secretary of State to detain a person under the Defence of Realm Regulations. Lord Atkin thunderously dissented: “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” Subsequently English courts have dissented from the majority judgment in Liversidge which now “lies buried five fathoms deep”.

For a person who spent the better part of his professional life during the infamous 1975 Emergency in appearing in the Bombay and Delhi high courts and the Supreme Court for victims of pre-censorship and for persons detained under the obnoxious MISA, the recent judgment of our apex court was the most heartening tidings for the New Year.

The writer is a former attorney-general for India,

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