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How the Judiciary Defied the Government to Uphold Constitutional Values During the Emergency

At a time when all critical voices against the government were being muted and the media had become compliant, lawyers and judges continued to argue for civil liberties.

Indira Gandhi. Credit: PTI

Indira Gandhi. Credit: PTI

The declaration proclaimed on June 25, 1975, under Article 352(1) of the constitution that a grave Emergency existed whereby the security of India was threatened by internal disturbance was the declaration of a phoney Emergency. Its real cause was the erosion of Indira Gandhi’s hold on power. The occasion to declare it on that day was an adverse decision of the courts. On June 12, 1975, in the election petition filed by Raj Narain, Jagmohan Lal Sinha, justice of the Allahabad high court, had found Gandhi guilty of corrupt practices.

The Supreme Court had risen for its summer vacation and Justice Krishna Iyer happened to be the vacation judge. On the very day of the decision, the judge received a curious telephone call from the law minister H.R. Gokhale (popularly known as Balasaheb) that he wanted to call on the judge. On inquiry, Gokhale mentioned that it was about the verdict in the prime minister’s case. The judge declined to meet him, but advised him to file an appeal and seek an early hearing.

At the hearing on June 24, 1975, Gandhi’s counsel Nani Palkhivala pressed for a complete stay, urging that otherwise the very legitimacy of the prime minister would become an issue. The judge, however, followed the established practice and granted only a limited stay (Indira Nehru Gandhi vs. Raj Narain, (1975) 2 SCC 159). Now the citizens of India had the protection of a ‘double Emergency,’ because from December 3, 1971, we were already governed by an earlier proclamation that an Emergency existed whereby the security of India was threatened by external aggression.

At 9:30 pm on the night of June 25, 1975, the proclamation was sent to President Fakhruddin Ali Ahmed. No cabinet meeting had been held to discuss the matter, much less to approve of the measure. Gandhi evidently wanted even her colleagues to face a fait accompli. The president also did not insist on a cabinet meeting, but was persuaded to sign the midnight proclamation. It is a historic irony that the order of a judge keen on preserving the rule of law provided the excuse for its suspension.

The report of the Shah Commission and now the book The Emergency by Coomi Kapoor shows that the actual preparation for an internal Emergency had started much earlier. Gandhi was being advised by a core group close to her, namely Siddhartha Shankar Ray (chief minister of West Bengal), D.K. Barooah (Congress president), Rajni Patel (chairman of the Bombay Pradesh Congress Committee) and Balasahab Gokhale, the last two being the contribution of the Bombay Bar.

A declaration of Emergency necessitates an elaborate administrative legal framework. An earlier model was already available in the Defence of India Act and various subsidiary orders thereunder. The list of proposed detenus, which was being prepared from as early as January 1975, had to be updated. One critical declaration now invoked was under Article 359(1) which denied anyone to move any court for enforcement of the rights guaranteed by Articles 14, 21 and 22.

The Bombay high court was particularly fortunate to have an independent and resolute leadership provided by Chief Justice Kantawala and Justice Tulzapurkar. On some occasions, even the sword of transfer was invoked by the government against some of the judges. For instance, Justice Vimadalal was transferred to the Andhra Pradesh high court. A transfer order was also passed against Justice Mukhi who was keeping indifferent health. He was abruptly ordered to be transferred to the Calcutta high court. Unfortunately, the news weighed so heavily on him that he passed away in September 1976, even though by this time his transfer order had been revoked (Bombay Law Reporter Journal page 1).

The bar also rose to the occasion. Persons who were oppressed by preventive detention orders or press censorship had ready champions at the bar to fight their causes. One of the devices prevailing in the Emergency was that critics of the Emergency were picked up for detention and removed outside Bombay so that they would not be accessible. Further, the conditions for a detenu were made harsher. Interestingly, we were able to rely on a passage in a Supreme Court decision of Justice Shah where he had observed:

‘It must be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must consistently with the effectiveness of detention, be minimal.’ (Sampat Prakash vs. State of Jammu & Kashmir, 1969 (1) SCC 562).

This passage was creatively used by the judges to give far reaching relief to the detenus. The court permitted detenus to get their own food, reading material and to receive visitors. These were precious rights which kept up their spirits. There was the case of Mrinal Gore, who was lodged in a grim cell with a leper and thereafter a lunatic on the excuse that no other ‘accommodation’ was available. Her conditions were dramatically improved by court orders.

The court further accepted the submission that the writ of habeas corpus meant ‘produce the body’ and that therefore at every hearing, the detenu must be kept present in court. This gave a precious opportunity to the detenus to come to the court room in Mumbai and meet their friends. The most memorable instance was when the court ordered hearings on the same day for two different petitions viz. of Madhu Dandavate and his wife Pramila who were lodged in different jails. The court hearings enabled them to meet in the rather unromantic corridors of the Bombay high court.

It must be added that so far as availability of lawyers was concerned, the government often found itself in a quandary. Many lawyers declined to appear for the government in cases affecting civil liberty and the government could not always get the legal assistance that it desired. There was loose talk that counsel constantly appearing against the government would also be detained. The Maharashtra government, however, did not detain any lawyer unless he was undertaking forbidden political activities.

The bar also expressed its solidarity by appearing in some cases involving civil liberty in particularly large numbers. For instance, the office bearers of the Bombay Committee of Lawyers for Civil Liberty thought of calling a private meeting at the Jinnah Hall on October 18, 1975, and issued non-transferable cards to lawyers. It was to be addressed among others by a distinguished and a sedate panel including the former Chief Justice M. C. Chagla, the former Chief Justice J. C. Shah and Justice Nathwani. Although it was a private meeting, the lawyers sought permission of the commissioner of police which was duly refused. This then became an issue before the high court in which Palkhivala led the argument along with more than 150 lawyers as noted in the court record. Ironically, the elaborate hearing in the court on civil liberty itself constituted a meeting and perhaps a public meeting at that. The order was struck down. Chief Justice Kantawala held that such a meeting of lawyers could not be called a public meeting and that every executive action affecting liberty would have to comply with a specific legislative authority or legal sanction. Justice Tulzapurkar observed in sharp words:

‘The Commissioner ought to have acted with more care and responsibility before imposing such a near-total ban which would bring within its mischief all types of private assemblies or meetings leading to outrageous results. A family unit of five consisting of husband, wife and three children cannot sit together for a dinner at a table without obtaining the prior permission of the Police Commissioner and a Muslim cannot socially meet his four wives at one time and place without obtaining the prior permission of the Police Commissioner.’ (N. P. Nathwani vs. The Commissioner of Police, 78 (1975) Bom LR page 1)

Similarly, when the order of detention against Ram Jethmalani was challenged, a large number of lawyers appeared for the petitioner. The detention was stayed and we were all hopeful that the Supreme Court would recognise, at the least, the minimal right that no Indian could be deprived of his life or liberty except according to the letter of the law especially when the provisions were harsher. I recall how during the earlier Emergency, a law officer had sought to argue before the Supreme Court that if Article 21 was suspended, the citizen would be left with no rights of life or liberty. Justice Mathew pointedly asked whether before the independence a British officer could oppress or kill an Indian without the support of any specific law. Surely, an Indian could not be worse off after the independence and lose his rights, because ‘fundamental rights’ which were conferred in 1950 were subsequently suspended.

The Bombay high court was taking the view that during the Emergency the validity of a law may not be examined, but the text of the law could not be abandoned and had to support government order. This view was particularly helpful in detention and in press censorship cases. For instance, Justice Madon had struck down the censorship order served on the monthly Freedom First, observing to the effect that the objections urged by the censor were unrelated to any of the purposes or objects of the censorship order and that most of the consequences contemplated were fanciful and far-fetched. The view taken was such, as no person acting rationally could ever possibly take (Binod Rao Vs. M. R. Masani, 78 (1975) Bom LR 125). Several high courts had taken a similar view.

On April 27, 1976, when the decision in ADM Jabalpur was pronounced in the Supreme Court, I carried a copy of the judgment to Mumbai for the prompt information of Jethmalani who would now become an absconder (ADM Jabalpur vs. Shivakant Shukla, (1976) 2 SCC 521). When I read it on the flight, I could not believe that the judges by a majority led by Chief Justice Ray and Justice Beg and unexpectedly joined by Justice Chandrachud and Justice Bhagwati (but with a strong dissent of Justice Khanna) had declared that the right to life and liberty was not available during the Emergency since Article 21 itself got suspended. The majority judgment relied on the wartime decision of the majority of the House of Lords in Liversidge vs. Anderson (1942 A.C. 206), disregarding the ringing dissent of Lord Atkins.

The decision in ADM Jabalpur had a drastic impact on petitions for habeas corpus. During this period, the matters relating to Emergency in the Supreme Court were placed before the First Court. Unlike his normal court demeanour, Chief Justice Ray was clearly hostile to lawyers who argued for civil liberties. I have an ironic memory of a matter which can be called ‘the case of the hungry jailor.’ Our client was detained in the jail in Agra and was entitled to get his own food. His tiffin box used to be scrutinised by the security staff who evidently relished chicken dishes which were appropriated during the checking. We moved the Supreme Court to enforce his rights under the rules. At the first hearing, I discovered that an impressive looking tall gentleman was sitting in the first court when we assembled. The chief justice mentioned that ‘he was pleased to welcome Sir Robert Kerr, the former chief justice and now the governor general of Australia.’ I felt that Chief Justice Ray would not deny my client some relief, particularly in the August presence of the foreign visitor. As soon as the case was called out I mentioned the need for observing the conditions of detention strictly and the guest looked interested in the matter. The chief justice thereupon delivered a homily partly addressed to the audience that all detenus must be treated in the best possible way. He addressed the solicitor general, ‘Mr. Sinha, I shall adjourn the matter only for a day. Tell us promptly tomorrow what is the actual position in the Agra jail and what you propose.’ Alas, the next morning, the mood was completely transformed. When the matter was called out I expressed the confident hope that the learned solicitor general had received his instructions and would give us the good news. Before Sinha could respond, the chief justice said ‘What good news? First tell me what is your locus to file this writ petition,’ and we were unceremoniously bundled out.

Chief Justice Ray later presided over the bench which despite a powerful argument by Homi Seervai reversed the Bombay judgments on the conditions of detention including in the case of Mrinal Gore (UoI vs. Bhanudas K Gawde, (1977) 1 SCC 834).

In a little while all critical remarks against the government became muted and the media became compliant. The government now had illusions about its popularity. The debacle in the general elections of 1977 took it by complete surprise. The Supreme Court had to face the heaviest criticism in its history for letting down citizens during the Emergency. ‘Never again’ was the call in civil liberty meetings like the meeting of Citizens of Democracy. It must be noted that the objective was partially achieved by the 44th Constitutional Amendment of 1978 which also amended Article 359. Under the then existing provisions, once an Emergency was proclaimed, Articles 20 and 21, which guarantee life and liberty of citizens, could be suspended. The solution adopted by the 44th amendment was to ensure that no government in the future could suspend these rights which now become non-derogable. It must be added that in a remarkable swing of the pendulum, the Supreme Court has thereafter enlarged the concept and the application of Article 21 well beyond what was ever contemplated by the framers of the constitution. At least in this area, the lessons of the Emergency have been learned.

One later aspect of the Emergency cases remains to be considered. How sound was the view of the majority in ADM Jabalpur which was dissented to by Justice Khanna? While it is true that the reasoning in ADM Jabalpur is no longer good law in the light of the 44th amendment, it is interesting to consider the views of two later benches of the Supreme Court. Subsequent courts have been reluctant to discuss the correctness of the majority view on the ground that after the 44th amendment it was no longer a live issue. In Attorney General for India vs. Amrit Lal Pranjivandas (1994 (5) SCC 54), the Supreme Court held that the amendment was not retrospective, however, the court noticed some earlier judgments including Jaychand Lall Sethia vs. State of West Bengal (1966 Supp SCR 464: AIR 1967 SC 483: 967 Cri Lj 520) in which the court has held that the presidential orders under Article 359 (1) will not prevent a citizen challenging the order of detention if any of the grounds given in the order of detention are irrelevant or malafide. Then it went on to say that:

“To the same effect is the decision of another Constitution Bench in K. Anandan Nambiar V. Chief Secretary, Government of Madras (1966 (2) SCR 406). The majority opinion in ADM Jabalpur, however, appears to take a view contrary to the one expressed in Jaichand Lall (1966 Supp SCR 464) and Anandan Nambiar but for the purposes of this case, it is not necessary to go into the correctness of the reasoning in ADM Jabalpur, since it has not been debated before us. Indeed, a three-Judge Bench in Union of India V. Bhanudas Krishna Gawde (supra) has taken the extreme view, purporting to follow ADM Jabalpur, that even the restrictions placed and facilities denied cannot be questioned in a court during the period the order under Article 359(1) is in operation (sic)”

The correctness of ADM Jabalpur was directly considered in Ram Deo Chauhan V. BaniKanta Das (2010) 14 SCC 209: (2011) 3 SCC (Cri) 727. The court expressed its emphatic view that the majority judgment in ADM Jabalpur was itself violative of fundamental rights. It held:

This Court in exercise of its appellate jurisdiction has to deal with many judgments of the High Courts and the 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. 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.

We can remind ourselves of the majority decision of the Constitution Bench of this Court in ADM Jabalpur v. Shivakant Shukla. 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 mala fide or not in compliance with the Act (see SCC paras 78 and 136 of the Report).

The lone dissenting voice of Justice Khanna in ADM Jabalpur case interpreted the legal position differently by inter alia holding: (SCC p. 777, para 593)

“593. (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.”

There is no doubt that the majority judgment of this court in ADM Jabalpur case violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachaliah in the Khanna Memorial Lecture delivered on February 25, 2009, observed that the same be “confined to the dustbin of history”. The learned chief justice equated Justice Khanna dissent with the celebrated dissent of Lord Atkin in Liversidge v. Anderson. In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th constitutional amendment, Articles 20 and 21 were excluded from the purview of suspension during Emergency.

The suggestion that Supreme Court judgment can be violative of fundamental rights is an unusual one. It, however, shows the great doubt that is constantly entertained about the reasoning in ADM Jabalpur. The last words can be left to Seervai to record his views on Liversidge and ADM Jabalpur.

Delivering a lecture in the Bombay University on January 10, 1979, Lord Scarman said: “The House of Lords has put the Liversidge Case where it belongs – in a War Museum.”

Seervai concludes “It remains to add that the ADM Jabalpur case is the most glaring instance in which the Supreme Court of India has suffered most severly from a self-inflicted wound.” (Constitutional Law of India, third edition, H. M. Seervai, Page 1053 and 1048). 

Written on the occasion of the 150th anniversary of the Bombay Bar Association.

Ashok H. Desai is a senior advocate and former attorney general for India.