HITLER’S GHOST WILL HAUNT

Justice Kunwar Bahadur Asthana

Justice Kunwar Bahadur Asthana was the Chief Justice (1974-77) of the Allahabad High court during the emergency. It was because of him that the Allahabad High Court could withstand the onslaught of the emergency. He died on 23rd December 1998. This article was written at that time and is a tribute to him.

Kunwar Bahadur Asthana retired as Chief Justice of the Allahabad High Court in 1977. He is no more. He expired on 23rd December 1998. A condolence meeting was held on the reopening of the High Court in the New Year. Alas, references are no longer held. The occasion had been misused by some. What a pity, for when I mentioned that his name should be written in golden letters in the history of the Allahabad High Court, many young and some not so young asked me, 

‘Why should it be so?’ 

It was then that a special reference for the first time in the history of the Bar Association, was held on 5th January 1999. But it is a good question - Why the name of a person whose kindness  extended to a fault as many would say; who had few inhibitions, should go down in history in golden letters. But before that—some personal background. 

Dr. N.P. Asthana, father of Justice Asthana, was a leading lawyer of Allahabad. He was the President of Allahabad High Court Bar Association for 18 years and the first Advocate General of Uttar Pradesh. Justice Asthana was born on 9th May 1915. He started his practice in 1937 and was elevated to the High Court in 1963. He became Chief Justice of the Allahabad High Court in 1974 and was a member of the Rajya Sabha after his retirement until 1980. 

Justice Asthana was the Chief Justice of the Allahabad High Court during the dark period of the emergency (1975-77)—the finest hour for the High Courts in India (kindly see 'CHAPTER-1: THE EMERGENCY' and the articles 'THE HABEAS CORPUS CASE', 'LIVERSIDGE VS ANDERSON', and 'LOG-BOOK 109-111'. To say that he played some part in making it the finest hour for the High Courts is an understatement. 

Some lawyers appearing for the detenues during emergency feared arrest under DIR merely for appearing for them. He was the first one to grant anticipatory bail to those lawyers. 

The right to move the Court for ‘life and liberty’ (Article 21) was suspended during emergency. Many were arrested. They filed Habeas Corpus petitions. A division bench of this Court was doubtful whether it was maintainable or not. They referred the case to a full bench of five judges. This was presided over by Justice Asthana. 

The full bench by four is to one held the Habeas corpus petition to be maintainable. It was not only the judgement that mattered but how the manner in which he handled the Advocate General and the other advocates opposing the Habeas Corpus writ petitions. No one had engaged them. They had appeared of their own to oppose the petitions. They were more loyal to the King than the King himself. 

Justice Asthana delivered his judgement in Hindi. One does not know if it was on purpose, or otherwise. May be, he wanted to convey not only to the lawyers and Judges but also to the common people: the importance of liberty; the meaning of Rule of law; the independence of judiciary. It is true that his judgement was full of rhetoric but it was legally sound too. Whatever he said has now been established as correct though at that time the Supreme Court wrongly overruled him. 

One should not forget that it was rhetoric in those abnormal difficult times. Some of those lines still ring in one's ears. It is difficult to translate it. One should enjoy it in the language in which it is written. No newspaper reported it. The TV and the Radio did not say a word about it. Yet, the entire country knew it, only through word of mouth. Ironically the place where it is now reported is a government publication 1976 Nirnay Patrika 855. Here is the best that I can do as a translation:

'A State or society cannot be called civilised unless and until the dignity of its people is not safe. The constitution is not an empty formality. Under our constitution, the executive without authority of law cannot take action to the prejudice of a citizen. It is the duty of judiciary to see that the executive acts within the limits of law. Mere suspension of Articles 21 and 22 does not give the right to the executive to act contrary to the law.

If the argument of the Advocate General is accepted then during emergency the life and liberty of a person can not be protected. Officers whether high or low will have the right to curtail anyone’s liberty and dignity and then a person cannot get justice in this independent democratic country. The learned Advocate General has said that right and liberty has been eclipsed. This means that in this dark period the executive has full right to act arbitrarily and Hitler’s ghost will haunt and play hide and seek with the citizens’ life, liberty and terrorise the people. This thought could never have been in the mind of the President when he passed the order suspending the right to move the court for enforcement of Articles 21 and 22.

It is my firm belief that every person has a right to life and liberty. This right has been given to him by being Homo Sapiens. It is not given by the State. It is the man, who makes the society, to spend his life with dignity. I am not willing to accept that it is the State, which grants him dignity, right to life or liberty. It is beyond that. The State by its laws limits those rights. The State has made law for preventive detention. The executive has to act within that. If a person raises a question that the executive is acting contrary to the law then he is claiming rights under the statute- apart from Article 21 of the Constitution.’ 

The Judgement today may appear simple but it was extraordinary. It did not stop Hitler’s ghost but gave strength to the people. 

The full bench decision in the Habeas corpus case was not the only full bench decision for which he should be remembered. There was another full bench, during the emergency; he will be remembered for that too.

The provisions for anticipatory bail were introduced by the Criminal Procedure Code in 1974. It was available in Uttar Pradesh when the emergency was introduced. It was deleted in the State during that period. Under the provision, a person could move for the anticipatory bail before the District Court or the High Court. The District Courts were not granting bail under DIR during the emergency. These criminal prosecutions were false yet provision for bail under DIR was different as well as difficult. Many who anticipated arrest wanted to come directly to the High Court for grant of anticipatory bail. 

The Judge who was sitting in that jurisdiction was doubtful if the application for anticipatory bail could be entertained directly by the High Court. He thought that the applicants should first approach the District Court. This would have taken time. He was persuaded to refer the matter to the larger bench. Justice Asthana constituted the bench with that judge along with him. The matter could not be resolved. It was referred to the full bench of three judges. 

Ultimately the full bench unanimously held that application for anticipatory bail could be moved directly in the High Court. This case is reported in ON Agrawal Vs State:1976 A.L.J. 223. It was because of this decision that many got anticipatory bail immediately. It is besides the point that those who got anticipatory bail under DIR were detained under MISA, the law for preventive detention at that time. 

His role during the emergency is sufficient to put his name in golden letters. But this was not all. He had other qualities. 

The bar of any court cannot develop unless the juniors of that court are encouraged. The bar and the bench are the two wheels of the same chariot- justice. They are two sides of a coin. You can not have respect for the judges if the judges don’t respect the lawyers. It is fundamental. Justice Asthana understood it well. It seems few have forgotten it. Justice Asthana always encouraged juniors. 

If a junior ever made a mention in his Court that the case may be passed over for sometime for the senior, he would always refuse and insists that the junior should argue the matter. In case he agreed with him he would decide, but in case he was not so inclined he would ask the junior to call his senior. It was not that he changed his opinion after hearing the senior, but it ensured that no litigant should think that he lost the case because the junior had argued it. 

Justice Asthana respected the lawyers. There was a senior criminal practitioner in Banda. He was good but he never minced his words. He once said something unpleasant to the District/Sessions Judge. The latter did not like it and referred the matter to the High Court for initiating contempt proceedings. The lawyer undoubtedly had said many things and what he had said was contempt, regardless of whether it was true or false.  Truth is not a valid defence in contempt law. 

The incident had taken place sometimes in 1974. Justice Asthana was then Chief Justice.  The bench was presided over by him. He thought it best to bury the matter without deciding if those words had been uttered or not. This could be done if the lawyer apologised. The lawyer was called near the dais. But he refused. He said, 

‘I will not   apologise to the corrupt judge.’ 

One could have ignored what was said earlier but how could this be ignored, something in front of the Judges? It was contempt in the face of court. It was then that Justice Asthana inquired about the entire incident and found that the lawyer was right. He asked the District and Sessions Judge to apologise first and then the lawyer apologised. This is how the matter was resolved. 

Justice Asthana was kind. He never punished anyone. Many criticised him for that. He let off employees and Judges when their services ought to have been terminated. He would say, 

‘Sins of a person should not visit his progeny.’ 

A memorable quote; but what about discipline? 

Justice Asthana never refused any invitation. He used to say, 

‘If I accept one how can I refuse another.’ 

He believed that judges should not live in an ivory tower but mix with lawyers. But this never affected his judgement. This may not be true with others. 

Discipline is necessary. So is distance between Judges and lawyers. If he had shortcoming it does not mean anything. It merely shows that he was not a superman but like us, from this very place; this very planet. One wishes there were many more like him: bold, independent and the one who could rise to any occasion.