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February 06, 2011




Page: 20/30

Home > 2011 Issues > February 06, 2011

Legal Notes

When the dissent note of late Justice Khanna became the law of the land
An ode to democracy - ADM Jabalpur revisited

By Pinky Anand

It is heartening to have Judges who rise above everything in vindication of justice and even more important of democracy. It needed courageous Judges to come forth in defence of democracy, particularly when glaring mistakes have been made by predecessors. The judgement of Remdeo Chauhan, though late, is but a welcome penitence in that respect. Through it, the Court seeks to make amends for having failed the Indian people when they needed it the most.

THE case of Remdeo Chauhan @ Rajnath Chauhan Vs Bani Kant Das and Others was decided by a Bench of Justices Aftab Alam and AK Ganguly of the Supreme Court of India on November 19, 2010. This case was related to the scope of the power of review under Article 137 of the Constitution of India in relation to the commutation of death sentence to that of life imprisonment.

The Court observed in relation to the case of ADM Jabalpur Vs Shivakant Shukla in paragraphs 57 to 63: "57. The assumption in the judgment under review that there can be no violation of a person’s human right by a judgment of this Court is possibly not correct. This Court in exercise of its appellate jurisdiction has to deal with many judgments of High Courts and Tribunals in which the High Courts or the Tribunals, on an erroneous perception of facts and law, have rendered decisions in breach of human rights of the parties and this Court corrects such errors in those judgments.

58. The instances of this Court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.

59. We can remind ourselves of the majority decision of the Constitution Bench of this Court in Additional District Magistrate Jabalpur Vs Shivakant Shukla reported in (1976) 2 SCC 521.

60. The majority opinion was that in view of the Presidential Order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention{Maintenance of Internal Security Act of 1971}, on the ground that the order is illegal or malafide or not in compliance with the Act. (See paras 78 and 136 of the report)

61. The lone dissenting voice of Justice Khanna interpreted the legal position differently by inter alia holding: (8) Article 226 under which the High Courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of Habeas Corpus during the period of Emergency. Such a result cannot be brought about by putting some particular construction on the Presidential Order in question.

62. There is no doubt that the majority judgment of this Court in the ADM Jabalpur case (supra) violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be ‘confined to the dustbin of history.’ The learned Chief Justice equated Justice Khanna’s dissent with the celebrated dissent of Lord Atkins in Liversidge Vs Sir John Anderson reported in (1942) AC 206.

63. In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during Emergency."

The recent judgement of Justice Ashok Ganguly of the Supreme Court has yet again brought to the forefront the esteem and significance of the third pillar of democracy. We went back to history and saw rectification of grave error - a blur on democracy.

The Emergency era has undoubtedly been one of the darkest phases of Indian political as well as legal history. It was at this time that the oft-criticised judgement of the Supreme Court of India was delivered, namely, ADM Jabalpur Vs Shivakant Shukla in the year 1976. This case was decided by the Constitution Bench comprising of Chief Justice Ray, Justices Beg, Bhagwati, Chandrachud and Khanna. The ratio was 4:1 with Justice Khanna giving the dissenting opinion.

The decision of the majority is in serious discord with the letter, the ideals, and aspirations of the Constitution while the minority opinion is in harmony with them.

Justice Khanna in his historic dissent stated, "A dissent in a court of last resort 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."

It was after this judgement that Justice Khanna was superseded by Justice Beg for the post of the Chief Justice of India, by Smt. Indira Gandhi, the then Prime Minister of India who had promulgated the afore-mentioned Emergency.

Justice Ray had merrily written that "Liberty is confined and controlled by law, whether common law or statute." He further stated that ‘Liberty is itself the gift of the law and may by the law be forfeited or abridged’. Statements like these bring forth nothing but a strong feeling of distaste and aversion towards the ‘justice’ meted out by the judiciary.

Unfortunately the judges giving the majority opinion dismissed the possibility of human rights abuses during the Emergency. Justice Ray admonished the petitioners for raising phantom claims. He confidently claimed, "There is no record of any life of an individual being taken away either in our country during Emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a thing will happen."

These lines reveal the degree to which Ray’s ideological ardour and loyalties interfered with his ability to efficaciously reason, let alone impartially adjudicate. With the Jabalpur decision, the Apex court was rendered nothing but a rubber-stamp of the then Government by the overly-pliant Justice Ray. He thoughtlessly surrendered to Indira Gandhi’s totalitarian impulses with no concern for the freedoms and liberties of those he was sworn to protect. However, such decisions were one of a kind, both then and now. There are, thus, only a few judges in the legal history whose very names still incite so many furores among lawyers and activists.

But Chief Justice Ray should not be singled out. Other judges who gave the majority opinion made equally audacious statements and ought also to share the blame. Justice Beg breezily endorsed the government’s pretentious claims about the "maternal care" with which the detenues were "well housed, well fed and well treated." Justice Chandrachud went further in his paean when he ended his Judgement 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 judgement, 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 chided the counsel for the detenues who brought to mind the Nazi gas chambers. He voiced that ‘people who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country."

Presidential Order was 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.

In this case, in view of the Presidential Order dated June 27, 1975 all persons were stripped of 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 Maintenance of Internal Security Act, 1971 or is illegal or is vitiated by malafide, factual or legal or is based on extraneous considerations.

In this case, the pre-eminent questions were four:

  • First, is the Presidential Order under Article 359 a bar at the threshold?
  • Second, is Article 21 the sole repository of right to life and personal liberty?
  • Third, is the Presidential Order subject to the rubric of Rule of Law?
  • Fourth, is Section 16 A (9) of the Act a rule of evidence?

Justice Ganguly in Remdeo Chauhan attributed Jabalpur’s demise to the Forty-Fourth Amendment, which he says, vindicated Khanna’s dissent.

It is heartening to have Judges who rise above everything in vindication of justice and even more important, of democracy. It needed courageous Judges to come forth in defence of democracy, particularly when glaring mistakes have been made by predecessors. The judgement of Remdeo Chauhan, though late, is but a welcome penitence in that respect. Through it, the Court seeks to make amends for having failed the Indian people when they needed it the most. It is apt to quote Orlando A Battista who said that "an error doesn’t become a mistake until you refuse to correct it." The Supreme Court has tried to correct the error it made back in the times of Emergency so that it does not become a mistake.




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