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Forty Years Ago

ADM Jabalpur Vs Shiv Kant Shukla (The Habeas Corpus case) dealt with maintainability of Habeas Corpus petition during emergency. It was decided forty years ago on 28th April 1976. It made Justice HR Khanna immortal and continues to be a blot on the otherwise golden armour of our highest  Court.
VKS Chaudhary was Senior Advocate and the chairman of the Trust. He was detained during emergency. The full bench of the Allahabad High Court held his Habeas Corpus to be maintainable. However the decision was reversed by the Supreme Court in the Habeas Corpus case. 
Justice yatindra Singh (now chairman of the Trust) was the counsel in the case. The article below is recollection of that time before the Supreme Court.

नवभारत में निकले, हिन्दी में इस लेख को पढ़ने के लिये यहां चटका लगायें।

Internal emergency was declared on 26th June 1975. On the next day, the right to move to the court to enforce Articles 14, 19, and 21 were suspended under Article 359 of the Constitution. Thousands were arrested by lodging false FIRs under Defence of India Rules (DIR). They were granted bail but before they could come out, they  were preventively detained under Maintenance of Internal Security Act  (MISA) without informing any reasons.

The detenus filed habeas corpus for their release. The State raised objection about maintainability  of the petitions because of suspension of right to move for the enforcement of Article 21.

Nine High Courts namely, Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Kerala, Madhya Pradesh, Rajasthan, and Punjab & Haryana, where the objection regarding maintainability was raised, decided against the Government. However, the Supreme Court stayed the further hearing of the petitions in the appeals against the orders.

The case was decided by  a bench consisting of Chief Justice AN Ray, Justice HR Khanna, Justice MH Beg, Justice YV Chandrachud and Justice PN Bhagawati. 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 the senior Judges should decide such an important question.

A delegation of senior advocates, led by CK Daftary, met Chief Justice Ray in Chambers to change the bench. To a query from the Chief Justice, Daftary said that the case was an unprecedented one and in case if any precedent for the change of bench was required then it had happened earlier at the time of Justice SR Das. It is not clear if the statement was correct or was said at the spur of the moment. Chief Justice Ray was an admirer of Justice Das: he changed the bench to the one including the five senior judges.

Justice KK Mathew was next to Justice Khanna in seniority and was senior than the other three judges.  He was to retire shortly and was not taken in the bench .

A day before the appeal was to be heard in the Supreme Court, the lawyers for detenus met at the residence of Daftary to chalk out the strategy. There was some talk, 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.

The mood in the conference was buoyant. After all, every High Court had decided in detenus favour. The question was difficult but there was no way that the Supreme Court could decide against us. It 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.”

Niren De, the then Attorney General, began his arguments on 15th December, 1975 in the same fashion as the Government of those days was behaving―bullying the court. I do not mean any disrespect, as his voice is hushed but he did create terror.  There was so much terror that none of the judges asked any uncomfortable questions on the first day.

The second day, Justice Khanna was the first one to ask, “Life is also mentioned in Article 21. Would Government arguments extend to it also?” Without pause, Niren De answered, “Even if life was taken away illegally, courts are helpless.” It is then that the others (Justice Chandrachud, Justice Bhagawati) started asking uncomfortable questions. We were relieved.

By the time the other advocates for the Union Government and State Governments finished their arguments, all  effects of the first day had vanished. The mood of the court was cheerful and better.

The Supreme Court reserved the judgement. It was not pronounced even after a considerable delay, continuing the detentions. An application was filed, with a prayer that either the judgement be pronounced or the stay order  be vacated. It was expected that the government might lose the case by three is to two. So 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 that the doubts arose.

The 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 detenus. And this is how, the Supreme Court gave the biggest blow to itself.

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