Monday, March 27, 2006


Article 21 of the Constitution guarantees right to the life and liberty. Right to move to the court to enforce Article 21 was suspended under Article 359 of the Constitution during internal emergency (1975-77). Soon a question arose if, in such a situation, a writ of Habeas Corpus is maintainable? ADM Jabalpur Vs Shiv Kant Shukla AIR 1976 SC 1207 : (1976)2 scc 521: 1976 UJ (SC) 610: 1976 Cr LR (SC) 303: 1976 CrL J 1945 (SC) (the Habeas Corpus case) dealt with this question. This article, written 20 years after the aforesaid case was decided, narrates about the incidents, lawyers and judges connected with that case and what has happened to them.

‘The time has come’ The Walrus said
‘To talk of many things:
Of shoes and ships and sealing wax-
Of cabbages - and kings-
And why the sea is boiling hot-
And whether pigs have wings’
Through the Looking Glass; Lewis Carroll

VKS Chaudhary being brought from jail after emergency

Article 21 of the Constitution; right to life and liberty, now can not be suspended. Not even during emergency, 44th Constitutional Amendment Act, passed unanimously, ensured it. It is instructive to look back on the Habeas Corpus case during internal emergency (1975-77), the reason for 44th Constitutional Amendment Act and Leversidge Vs Anderson (1941) 3 AllER 338 which played such an important role before the Supreme Court.

The Shah Commission, in its authoritative account of the emergency, mentions,
“The one single item which had affected the people most, over the entire country was the manner in which the power under the amended MISA was misused at various levels.”
Maintenance of Internal Security Act (MISA) was, what National Security Act (NSA) is today, an Act for preventive detention. ADM Jabalpur Vs Shiv Kant Shukla. A.I.R. 1976 S.C. 1207 (Commonly known as the Habeas Corpus case) was to a large extent, responsible for this. Writ of Habeas Corpus has been described as ‘a key, which unlocks the door to freedom,' and as the case dealt with its maintainability, it has come to be known as the Habeas Corpus Case.

Emergency was declared on an earlier occasion during the Indo-China war. At that time the right to move any court for the enforcement of Articles 14, 21 and 22 was suspended (see End Note-1) under Article 359 only for the persons detained under the Defence of India Rules (DIR), the Preventive detention law at that time. It was a partial suspension. Supreme Court interpreted it to mean that rights were suspended only for legally detained persons. So if a person was illegally detained under DIR, he could maintain the Habeas Corpus petition. The case is reported in Makhan Singh Vs State of Punjab AIR 1964 Supreme Court 381: (1964) 2 SCA 663 : (1964) 1 Cr LJ 269. It was for the first time during emergency imposed on 26th June 1975, that Articles 14, 19, 21 and 22 were suspended in their entirety, without any reference to any law. This time when detenues filed Habeas Corpus petitions, a question was raised that Article 21 being the sole repository of liberty has been suspended in its totality, no writ of Habeas Corpus is maintainable. The Government also sought to distinguish the earlier case of Makhan Singh on the different phraseology of the notification suspending the rights. Almost all the High Courts decided this question against the Government. And on this issue the matter was taken in appeal to the Supreme Court.

The arguments in the Supreme Court in the Habeas Corpus case began on 14th December, 1975, before a bench consisting of Chief Justice AN Ray, Justice HR Khanna, Justice MH Beg, Justice YV Chandrachud and Justice PN Bhagawati, the five senior most Judges of the Supreme court at that time. It is interesting to note how this bench was formed. On an earlier occasion, it was announced that another bench consisting of Chief Justice Ray, Justice Beg and three other Junior Judges would be formed. The lawyers in general felt that Senior Judges, as has been done on every other occasion should decide such an important question. A delegation of Senior Lawyers led by CK Daftary met the Chief Justice in Chambers to change the bench. To a query from the Chief Justice, Daftary said, the case is an unprecedented one and in case if any precedent was required it had happened earlier at the time of Justice SR Dass.

Every leading counsel in the country except Palkhivala appeared for the detenues. This is what he has to say for his non-appearance,
‘I was asked to appear in Habeas Corpus cases. I had a strong feeling that no purpose would have been served. Except for Justice HR Khanna, we had a bench of hopelessly weak judges who would have done anything to gain the favours of the then government.’ (see End Note-2)
Despite what he says, many felt, had he appeared, the result might have been different. Advocacy is reserved for juries; nonetheless it has a role with the judges too. Palkhivala, few months ago, had got a full bench to reconsider Keshwanand Bharti case AIR 1973 SC 1461 , dissolved by the power of his advocacy. Well, what can any one say? Lawyers are masters of their conscience.

A day before the appeal was to be heard in the Supreme Court. The lawyers for detenues met at the residence of CK Daftary to chalk out the strategy. There was some talk about whether Shanti Bhushan should lead the argument or VM Tarkunde. Ram Jethmalani clinched the issue by saying Shanti Bhushan would lead. Tarkunde had shown his reluctance to be in the delegation to meet the Chief Justice to change the bench. All speculated about the judgement in the case. The meeting ended with Ram Jethmalani relating the latest joke in Bombay. He said,
'The Supreme Court of Timbaktoo has decided that a prostitute can be a virgin with retrospective effects.’
Shanti Bhushan added
‘And the Government had submitted, it does not change the basic structure’.
The mood in the meeting was buoyant. After all every High Court had decided in their favour as far as the maintainability was concerned. The question, though difficult, there appeared no way that the Supreme Court could decide against them.

The next day, Niren De, the then Attorney General, began his arguments - in the same fashion as the Government of those days was behaving-bullying the court. He did create terror: no disrespect meant. Today his voice is hushed. None of the judges asked any uncomfortable questions. The second day Justice Khanna was to ask the first one,
‘Life is also mentioned in Article 21. Would Government arguments extend to it also?’
There was no halfway house. Without pause Niren De answered,
‘Even if life was taken away illegally, courts are helpless’.
It is then that others - Justice Bhagawati,, Justice Chandrachud - started asking uncomfortable ones. We were relieved. By the time the advocates for the Union Government and State Governments finished their arguments, all the effects of the first day had vanished. The mood of the court was cheerful and better. A few of the judgements of Justice Krishna Iyer were cited but were ignored. No one could explain the meaning of the words used by him, although dictionaries were summoned and consulted. (see End Note-3) Many a time Justice Iyer’s contribution to the jurisprudence has been lost due to his language - but more of this at some other time. During arguments PK Tripathi, Member, Law Commission moved an application for intervention in favour of the government. It was refused. He was asked to submit his arguments in writing. Lawyers in India are so used to oral advocacy that no one gives any importance to written briefs. This proved fatal. At least as far as Justice Bhagawati was concerned. He went on to pay high tributes to the novel submission of P.K. Tripathi. It is not clear if this novel submission was due to his jurisprudential genius or rather lack of it. But Justice Bhagwati can not be blamed on this score. We all know important cases are decided first: reasons are discovered afterwards.

The case was argued for more than two months after which the Supreme Court reserved judgement. The judgement was not pronounced even after a considerable time had elapsed. An application, with a prayer that either the judgement be pronounced or stay order be vacated, was filed. It was expected that the government might lose the case by three to two. Even if the judgements of every judge was not ready, the stay order could be vacated. It is only when this application was posted for hearing after a week that doubts had arisen.

Judgements were read in the open court by the judges on 28th April 1976. All interest was lost after Justice Khanna read his. It was clear that he was the only one who had decided in favour of detenues. And so was delivered the biggest blow to the Supreme Court by the Court itself. (see End Note-4)

Seervai rightly says, (see End Note-5)
‘The High Courts reached their finest hour during the emergency; that brave and courageous judgements were delivered; ... the High Courts had kept the doors ajar which the Supreme Court barred and bolted.’
It is difficult to get hold of all cases of Habeas Corpus decided during emergency. Not all of them are reported. Some are reported in journals, which are difficult to get. A gist of the cases, reported in CrLJ and the other unreported decisions supplied by the counsel for the Union Government during arguments before the Supreme Court, show almost complete unanimity in the High Courts on the question of maintainability of the Habeas Corpus. Though some of the High Courts had dismissed the writ petitions on merits: the Allahabad High Court in a full bench of five judges Virendra Kumar Singh Chaudhary Vs DM Allahabad 1976 NIRNAY PATRIKA 855, the Andhra Pradesh High Court in a full Bench of three judgesP Venkataseshamma Vs State of Andhra Pradesh AIR 1976 AP 1, the Bombay High Court KM Ghatate Vs Union of India AIR 1975 Bombay 324 and another unreported decision Criminal Application No 171 of 1975, the Delhi High Court DS Kapoor Vs Union of India 1975 CrLJ. 1376 and two other unreported decisions Criminal Writ No. 121 of 1975 Mrs Bharati Nayyar Vs Union of India, decided on 15.3.75 and Criminal Writ No 149 of 1975 Mrs. Satya Sharma Vs Union of India decided on 31.10.1975 , the Karnataka High Court Unreported Writ Petition No. 3318 of 1975 Atal Bihari Vajpayeei Vs Union of India , the Kerala High Court Fatima Beebi Vs MK Ravindranathan 1975 CrLJ 1164, the MP High Court Subhashchandra Jain Vs DM Jabalpur 1975 CrLJ. 1174, Haji Ibrahim Vs State of MP 1975 CrLJ 1438, Shiv Kant Vs Addl Distt Magistrate Jabalpur 1975 CrLJ. 1809). the Rajasthan High Court unreported Habeas Corpus petition no. 1606 of 1975 Nilapchand Kanungo Vs Union of India and the Punjab and Haryana High Court Darshan Singh Vs State of Punjab 1975 CrLJ 1974 held that the Habeas Corpus petition was maintainable. The Madras High Court unreported Writ Petition no. 68755 of 1975 V Dalan Vs Union of India did not decide the question of maintainability of the Habeas Corpus petition but assumed that they were maintainable and decided them on merits. It is rather strange that four judges of the Supreme Court chose to overrule such an overwhelming view expressed by the High Courts. It is relevant to note that the Gujarat Government had always maintained that Habeas Corpus was maintainable and its Advocate General had argued in the Supreme Court in favour of detenues on the question of maintainability, the only question argued before it. (see End Note-6)

Among the others who dealt with the Habeas Corpus cases at the High Court level, five of them, Justice Kailasam, Justice Chinnappa Reddy, Justice AP Sen, Justice V Balkrishna Eradi and Justice KN Singh (in that order) made it to the Supreme Court. Justice Singh with lady luck in his favour retired as Chief Justice of India. (see End Note-7) Justice Sen, Justice Eradi and Justice Singh had held against the Government. Justice Kailasam did not expressly decide this question. He had dismissed the petitions on merits. Surprisingly Justice Chinappa Reddy of National Anthem case, Bijoe Emmanuel Vs State Of Kerala; AIR 1987 SC 748, fame had held that it was not maintainable. This was a case other than the full Bench, which had held that the Habeas Corpus was maintainable. He had decided in favour of the Government. But in all fairness, it must be said that his judgement was of one paragraph only: it appears that the question was not properly argued before him. Justice RN Agarwal of the Delhi High Court who was Additional Judge at that time had to pay the price for his judgement against the Government. He was not confirmed despite recommendations of: the Chief Justice of the Delhi High Court, Chief Justice of India and the Law Ministry. Seervai says,
‘Sixteen other High Court judges paid the price of such judgements by forced transfers. A threat of forced transfers was kept hanging over 40 other judges but failed to deflect them from their duty.’ (see End Note-8)
Allahabad High Court

Chief Justice KB Asthana(see End Note-9) of the Allahabad High Court wrote his judgement in Hindi for common man to read. It was full of rhetoric and reminded many of Lord Atkin’s dissent in Liversidge Vs Anderson.

In most of the High Courts, question about maintainability of the petition was decided as a preliminary question. The Government had taken the matter to the Supreme Court in appeal against the decision on the preliminary point. Few of the High Courts decided the question of maintainability against the Government but dismissed the case on merits. But the Delhi High Court not only held the Habeas Corpus to be maintainable but also allowed the same.

Among the judges who decided the case in the Supreme Court, Chief Justice Ray retired into oblivion. Justice Khanna became world famous overnight. The New York Times remarked,
‘Surely a statue would be erected to him in an Indian city’.
It is debatable whether Justice Khanna had the brilliance of Justice Chandrachud or Justice Bhagawati; but one thing is sure, he had better understanding of human nature. Hitler had come to power by legal means; by votes of ballots. Justice Khanna, by his single dissent in the Habeas Corpus case, has become most famous Judge to have ever walked on the Indian soil. It is fifty years since Liversidge case was decided. No one remembers who were the other judges (see End Note-10) who sat in the case were except for Lord Atkin. Sufficient water under the bridge is yet to flow in India.

Justice Khanna was superseded. This was expected. Justice Beg became the Chief Justice of India. Justice Beg went on to clarify In re Shyam Lal AIR 1978 S.C.489, a case decided after emergency that it was never held that Habeas Corpus was not maintainable and Justice Khanna’s view was the unanimous view of the court and operative portion of the order in the Habeas Corpus the case was misleading. Well, what one can say, unlike Keshvanand Bharti the Supreme Court in this case had held those fundamental features of the Constitution can not be amended. It is reported in AIR 1973 SC 1461 case where some judges refused to sign the conclusions as according to them it was not correct, the operative portion in the Habeas Corpus case was signed by Justice Beg. May be we should switch over to our mother tongue. English after all is an alien language. Many do not comprehend it well. Seervai (see End Note-11) also says that the operative portion of the order of the Supreme Court is not in accordance with the body of the judgements. But damage had been done. All the High Courts (see End Note-12) after the decision of the Supreme Court, in conformity with the operative portion, dismissed the petitions as not maintainable. Their superior crippled them. Subsequently Justice Chandrachud gave a public apology. And we all know that soon thereafter Justice Bhagwati wrote that famous letter to Indira Gandhi. (see End Note-13)

It was clear during arguments that Justice Ray and Justice Beg would decide in favour of the Government. But what surprised every one was the judgement of Justice Chandrachud and Justice Bhagwati. No one had expected that. After the emergency, the Janta Government, despite objections from many, appointed Justice Chandrachud as the Chief Justice of India. Shanti Bhushan, the then law minister, went all the way to Bombay to convince Loknayak Jai Prakash Narayan, who was hospitalised there, that it was a right move. (see End Note-14)

Lawyers at Bar Association facilitating VKS Chaudhary
During the Janata regime, among the lawyers who appeared in the Habeas Corpus case, Shanti Bhushan became the Law Minister, Soli Sorabji the Additional Solicitor General, (see End Note-15) Ram Jethmalani (see End Note-16) an MP and strangely SN Kacker, (see End Note-17) who had argued for the State of UP against the detenues the Solicitor General of India. Rama Joise, had appeared for the detenues in the Karnataka High Court and before Supreme Court in December 1975. He did not come back in January 1976. He was arrested under MISA. The reasons were not disclosed., but he was appearing on behalf of most important political leaders (see End Note-18) detained in Jail at that time. He was elevated as Judge of the Karnataka High Court, then Chief Justice of Punjab & Haryana High Court. Unfortunately he resigned. He thought he was not fairly dealt with. He ought to have been elevated to the Supreme Court instead of his junior.

It is rather strange that Liversidge Vs Anderson that had no relevance and was no longer a good law even at that time in England was cited and relied on so heavily by the majority in the Supreme Court. A critique of this case appears as the next article in this chapter. It is not quoted in most of the judgements of the High Courts. The Delhi High Court did quote it but had rightly held that decision to be no longer a good law. Majority judgement of the Allahabad High court does not refer to it. The minority judgement does refer to it, but ignores the cases overruling it.

The Liversidge case involved whether subjective interpretation or objective one be given to the Regulation 18-B under which he was preventively detained. It had nothing to do with the maintainability of the Habeas Corpus during Emergency or Articles 21 and 359. There was no need to refer to this case. It was even strange that majority neither referred to the opinion of jurists of England, nor the subsequent decisions in England which had held the Liversidge case to be wrongly decided. No one can say that they were not cited. They were referred to in the judgement of the Delhi High Court against which appeal was filed in the Supreme Court.

Lord Radcliff had killed the majority view of the Liversidge case within 10 years of the decision in the Nakkuda Ali’s case (1951 AC 66). It is more than 10 years since the Habeas Corpus case has been decided. We have accepted our shame. (see End Note-19) No one approves of the emergency or the judgement in the Habeas corpus case. But then, it still stands. One is not sure, if judicial activism by the Supreme Court since then, is an effort to redeem itself. May be a psychiatrist can tell.

End Note-1: There is no such provision in American Constitution. At that time a fiction 'The R Document' by Irving Wallace became very popular. It dealt with a plot about proposed similar amendment in the Constitution of US.

End Note-2:There were two different versions for Palkhivala’s non-appearance. The first one- He refused to appear, as he thought nothing was working. The second one- He was to appear and sum up the arguments. This was his response to a letter to clarify the position.
End Note-3: One of the important reasons that Holmes or Denning could leave such an impact on the legal world is the simplicity of their language. Oxford has published an excellent book ‘The Plain English Guide’ by Martin Cutts on the simpler use of the language.
End Note-4:This tradition of reading entire judgements in the Supreme Court has now been rightly done away with. It was never followed in the High Courts; atleast in recent time.

End Note-5: Constitution of India: Appendix Part I The Judiciary Of India; Seervai
End Note-6: At the time Cong (I) was in the majority at the Centre but not in the State of Gujrat. A party in opposition at the centre ruled it.
End Note-7: He was appointed Chairman of the Law Commission after retirement.

End Note-8: Constitution of India: Appendix Part I The Judiciary Of India; Seervai

End Note-9: He became member of Rajya Sabha
End Note-10: The other judges were Viscount Maugham, Lord Macmillan, Lord Wright & Lord Romer

End Note-11: This is in chapter The Judiciary and the Emergency of his book on Constitution Law.
End Note-12: After the decision of the Supreme court this question was argued at length before a bench of Justice KN Singh and Justice BN Sapru in the Allahabad High Court It was opposed by Raja Ram Agarwal; who had then become Advocate General of UP in place of SN Kacker. The Court understood it well but expressed its helplessness in view of the Supreme Court decision. This is similar to another incident.
A petition was referred to a full bench of three judges with three questions. It had to be dismissed if even one question was decided against the petitioner. The first Judge decided 1st question against the petitioner; question no 2 & 3 in favour of the petitioner and dismissed the petition. The second Judge decided the 2nd question against the petitioner; question no.1 & 3 in his favour and dismissed the petition. The third judge decided 3rd questioner against the petitioner and question no. 1 & 2 in his favour and dismissed the petition. The operative portion of all the three judgements is to dismiss the petition. But if the bodies of the judgements are seen then two out of three have answered each question in favour of the petitioner. The petition is to be allowed.
End Note-13: Indira Gandhi won the election in 1980 after Janta Government fell. It is at that time Justice Bhagwati wrote a letter praising Mrs. Gandhi. One wishes he had not written that letter.
End Note-14: Many thought Palkhivala might be directly appointed as the Chief Justice of India. He was, however, appointed as the Indian Ambassador to USA.
End Note-15: He subsequently became Attorney General under VP Singh and Atal Bihari Vajpayee government.

End Note-16: He became Law Minister under Atal Bihari Vajpayee Government and then Minister for Urban Development when Vajpayee headed the government for the 2nd time.

End Note-17: He was the Advocate General when the matter was argued before the High Court in the 1st round and the Supreme Court. He, however, resigned when the Chief Minister of Uttar Pradesh was changed. He later on became Attorney General for a short time and then Law Minister under Charan Singh.

End Note-18: He was appearing for Atal Bihari Vajpayee and LK Advani.

End Note-19: Lord Denning had come to India during the emergency to deliver the lectures. One of them was at Delhi, some time in January 1976, during the arguments of the Habeas Corpus case. It was an inspiring lecture about independence and the courage of the judiciary. We always thought that it was to inspire his Indian counter parts at the Supreme Court. Alas ! It did not happen.

Tags: Internal Emergencyhabeas Corpus, Liversidge Vs Anderson,  

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