Should India not recognise the contribution of Shivkant Shukla and those countless Indians who suffered loss of freedom because of the Supreme Court’s decision in ADM Jabalpur?
We may be pardoned for borrowing a part of the title for this story from here, for there is a common thread that puts the US Supreme Court’s 1944 decision in Korematsu vs United States and the Indian Supreme Court’s most unpopular judgement in Additional District Magistrate, Jabalpur vs Shivkant Shukla, delivered in 1976 in the same league. Both have been widely recognised as shameful blunders in the histories of their respective country’s Supreme Courts. Yet both continue to stand, as if to remind us of the posterity of those discredited chapters.
The Korematsu case
Fred Toyosaburo Korematsu was an American activist, who objected to the internment of Japanese Americans during the Second World War. He challenged the executive order issued by then US President Franklin D. Roosevelt that authorised the removal of individuals of Japanese ancestry living on the West Coast from their homes and for them to be interned.
The US Supreme Court, with three of the nine judges dissenting, endorsed the executive order, which required 110,000 Americans of Japanese ancestry to be removed from their homes and confined in detention camps, by relying on wartime hysteria streaked with racism. The majority judges reasoned that security, not racial prejudice, motivated the military to order the internments.
The US army concealed vital information from the court that showed that Japanese Americans were not a threat to peace. Korematsu succeeded in overturning his conviction for evading internment after a few decades. The US Supreme Court has not shown an inclination in overturning its judgment in Korematsu, even though individual judges of the court, like the late Justice Antonin Scalia and Stephen G. Breyer, had described it as shameful and discredited.
This made the supporters of US President Donald Trump imply that the Korematsu precedent could be cited in support of a national registry of Muslim immigrants or other morally repugnant classification schemes. Writing in the New York Times, Noah Feldman has argued that Korematsu’s uniquely bad legal status means it is not precedent even though it hasn’t been overturned.
ADM Jabalpur vs Shivkant Shukla
Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla, popularly known as the Habeas Corpus case, was decided by the Indian Supreme Court on April 28, 1976, by a bench of five judges, namely, Chief Justice A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. Justice Khanna was the lone dissenter in the case.
The name of the ADM was Kiran Vijay Singh. He appealed against the Madhya Pradesh high court’s verdict that was in favour of the detenu, Shivakant Shukla. That was the lead case. The Supreme Court set aside nine high court judgements including this, which had ruled in favour of enforcement of fundamental rights during the Emergency.
The majority judges on the Supreme Court bench in the case concluded as follows:
“In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Article 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 Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”
The presidential order referred to in the conclusion of the judgement had declared 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 those rights would remain suspended for the period during which the proclamation of Emergency was in force.
Justice Khanna, in his dissent, held that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the constitution was drafted, and the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the constitution, Justice Khanna declared. Therefore, he reasoned that even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life or liberty without the authority of law.
Justice Khanna reasoned that before the constitution came into force, no one could be deprived of his life or personal liberty without the authority of law. Such a law continued to be in force after the constitution came into force in view of Article 372 of the constitution.
He suggested that when the right to move any court for enforcement of rights guaranteed by Article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the excise of substantive power to deprive a person of his life or personal liberty. It cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power, he held categorically.
Justice Khanna, in his dissent, observed:
“As observed by Chief Justice Hughes (Chief Justice of the United States Supreme Court, Charles Evans Hughes, Sr. from 1930-1941), judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, 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.”
The day visualised by Justice Khanna in his dissent has not yet arrived, even though there has been an unstated consensus among the judges of the Supreme Court that the judgment in ADM Jabalpur must be consigned to the dustbin of history, and not followed as a valid precedent.
The reason for this paradox of an unpopular judgment still continuing as a good law, is that the court cannot be convened for the purpose of overturning a past decision. A court can overturn a decision where it has competency to do so, except as part of the required ratio of a decision on a lis before it.
As a scholar of the Indian constitution put it: “Therefore, we may have to live with a gradual and cumulative overruling of ADM Jabalpur rather than have a neat, singular reversal unless a suitable lis presents itself, or a suitable reference is drafted.”
Reason for citation
Ironical though it may appear, the Supreme Court and the high courts continue to cite ADM Jabalpur for a different point of law just as Korematsu is cited in the US as the first case wherein the court invoked the doctrine of strict scrutiny, justified by a compelling governmental interest of security. The case is also cited for its lip service against suspect classification.
The principle that the ADM Jabalpur judgement has yielded to the posterity is that an obiter cannot take the place of the ratio. In that case, strong reliance was placed on behalf of the detenus on certain observations made in the earlier majority judgment of the Supreme Court in Makan Singh v State of Punjab, on the question, as to what were the pleas available to a detenu in challenging the legality or propriety of his detention, despite the presidential order dated November 3, 1962 (during the Emergency declared following the Sino-Indian conflict).
The constitution bench in the ADM Jabalpur case held that the Makan Singh bench did not address the issue and its observations, being relied upon by the detenu, were just obiter. Though the obiter would be entitled to be given great weight, it is not binding. The ADM Jabalpur bench also held that greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine them in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit.
Even as Indian courts continue to cite ADM Jabalpur for this proposition, the absence of a judicial opportunity to set it aside has not been considered a serious lacuna, as much of the damage done by the majority judgment in that case to the defense of fundamental rights had been reversed by the 44th Amendment to the constitution, during the Janata period after the Emergency.
American constitutional scholars are of the view that the common perception that Korematsu is dead is just plainly incorrect. Korematsu remains very much alive, and in the post 9/11 world, there are many who want it fully rehabilitated and ready for use. They want the central principle in the case, what the dissenting judge, Justice Robert Jackson called a “loaded weapon”, readily available in this new era in which we face a new threat from a homogenous, external group.
On the contrary, there has been considerable judicial introspection and admission by former judges that ADM Jabalpur was wrongly decided. Justice Bhagwati, who passed away recently, acknowledged that he regretted his support to the majority judgement in that case and that Justice Khanna’s dissent was the correct view. The Supreme Court also officially admitted its blunder in ADM Jabalpur in a subsequent judgement delivered by a two-judge bench in 2010.
In Korematsu, the US government had knowingly submitted false information to the Supreme Court that had a material effect on the court’s decision. In 2011, the US Department of Justice officially admitted its error.
In ADM Jabalpur, the majority judges simply adopted the then attorney general’s view, instead of subjecting it to critical scrutiny.
Like Korematsu, ADM Jabalpur will hopefully serve as a reminder of what citizens could expect when judges adopt government’s claims in rights litigations uncritically.
A report issued by the US Congress in 1983 declared that the Korematsu decision had been “overruled in the court of history,” and the Civil Liberties Act of 1988 contained a formal apology – as well as provisions for monetary reparations – to the Japanese Americans interned during the war.
In 1998, US President Bill Clinton awarded Fred Korematsu, who passed away in 2005, the Presidential Medal of Freedom. Should India not recognise the contribution of Shivkant Shukla and those countless Indians who suffered loss of freedom because of the Supreme Court’s decision in ADM Jabalpur?