One, Who arrests, Bears The Burden

Summary: If it is not possible to do justice then at least empathise and try to ameliorate the hardship – illustrated by an incident from the court of Justice DM Chandrashekhar. 

Justice DM Chandrashekhar, soon after his elevation in 1963

LegalTrek - Reminiscences/ Advice

।। Avoid Legalese - Adopt Plain English।।  Know Your Judge।। Soar Rather than Sulk।। One, Who arrests, Bears The Burden।। 

This post is part of the series LegalTrek. There are a few posts in this series that relate to 'Biography'; some are 'Miscellaneous' i.e. not falling in any particular group. This one is part reminiscence, part caution, part advice. You can access posts of the other series by clicking on 'LegalTrek' under the heading 'Labels' on the right side.

In my post ‘Soar Rather Than Sulk’, I explained that law and justice are not the same thing. One should try to do justice, soar with law rather sulk with it. But often law or circumstances are such that it is not possible then one should try to empathise and ameliorate the hardship. I had occasion to witness it in the Court of Justice DM Chandrshekhar, but before I tell you about it, here is his brief biographical sketch.

Justice DM Chandrashekhar was born on 26th September 1920. He had his initial schooling in Bangalore, graduation (1940) as well as law (1942) from Bombay and Masters in Economics (1944) from Benaras Hindu University, where he stood first. 

Initially, he joined government service but resigned in 1946 to practise law. He started his practice in Bangalore. He was appointed as a judge of the Mysore High Court (now renamed as Karnataka High Court) on 20th September, 1963. By the time internal emergency was proclaimed on 25th June 1975, he was a senior judge of the Karnataka High Court. 

Top BJP leaders including Atal Bihari Vajpayee, LK Advani had gone to Bangalore for a meeting of a parliamentary committee. As soon as emergency was declared, they were arrested. They filed Habeas Corpus petition in the Karnataka High Court. The Government wanted to avoid the Karnataka High Court for its strong attitude. It adopted novel procedure to make their petitions infructuous but was not successful. 

The leaders were released, rearrested and except Atal Bihari Vajpayee (he was operated and doctor refused permission), were taken to Rohtak, Haryana. Their Habeas Corpus petition became infructuous but they again filed Habeas Corpus petition in the Karnataka High Court. It was this time that the bench presided by Justice DM Chandrashekhar passed bold orders to the dislike of the then government. 

The court overruled their preliminary objection regarding territorial jurisdiction as illegal detention began as soon as they were rearrested in Bangalore. They were ordered to be present in the court. The Government took another preliminary objection regarding maintainability of the petitions due to suspension of Article 21. 

On 28th November 1975, the Court negated the challenge to proclamation of emergency but overruled the preliminary objection regarding maintainability of the petition. The government took the matter to the Supreme Court and it was taken up along with other similar cases. Unfortunately, the Supreme Court on 28th April, 1976, upheld the objection of the Government regarding maintainability in ADM Jabalpur Vs Shiv Kant Shukla AIR 1976 SC 1207: (1976)2 SCC 521: 1976 UJ (SC) 610: 1976 CrLR (SC) 303: 1976 CrLJ 1945 (SC) (the Habeas Corpus case). In the meantime, LK Advani was elected to the Rajya Sabha and the High Court directed that he be taken to the Parliament for taking oath. However this order was also stayed by the Supreme Court. 

After the decision of the Supreme Court, habeas corpus petitions came up for final orders, the bench passed orders for their presence in the court. This was too much for the government. It could take no more lying down and to teach Justice Chandrashekhar a lesson for passing independent and bold orders, he was transferred to the Allahabad High Court. 

Justice Chandrashekhar was elevated as the  Chief Justice of the Allahabad High Court on 9th May 1977. He enjoyed his stay at Allahabad but then because of an unforeseen situation (See Endnote-1) decided to go back to Karnataka. He was Chief Justice of Karnataka High Court from 22.03.1978 to 25.09.1982.

It was during his tenure at Allahabad that I had occasion to appear before him on numerous occasions. 

The pending habeas corpus petitions were listed for hearing before the bench presided over by him. In view of the Supreme Court decision, nothing could be done and they had to be dismissed. But most of these petitions were from jail and there was no lawyer prosecuting them. Even in those where lawyers were appearing, they withdrew their vakalatnama. This was done on purpose. Soon, a question arose whether they should be dismissed without hearing the detenu or should they be summoned and heard?

We were submitting that detenu be summoned and heard. The State was pressing hard that they should be dismissed without hearing them. According to the State: there was no point in producing before the court as in view of the Supreme Court petitions are to be dismissed; apart from it, bringing them to Allahabad would not only entail expenses but would cause inconvenience. I distinctly remember his words in negating the submissions of the State. He observed, 

“Principles of natural justice are not empty formality. We have to hear the detenu. The result of the petition, or inconvenience, or expense to the State is immaterial.  If you arrest them, you have to bear it all” 

The detenu were produced. The Court heard them patiently and regretfully dismissed their habeas corpus petitions. Justice Chandrashekhar very well knew that detentions were illegal but couldn’t allow the habeas corpus petitions. His hands were tied; he was prisoner of the Supreme Court order. But he did empathise with the detenu; did his best to ameliorate their suffering. He provided detenu with opportunity to breath some fresh air; see open skies; and most importantly meet their relatives and friends. This is important;this humane touch to administration of justice; this is how a judge should be. 

But, one thing surprises me, why such an intelligent, independent judge was never taken to go to the Supreme Court. 

While I was gathering information about him for this article, some people told me that he was offered but he had declined. I don't have have any authentic information of this but surely he could be persuaded. Had he been requested by then President on the advise of Chief Justice of India and the cabinet (which was well aware of his abilities) I am sure he could not have declined such a request. And had he been there, the colour of judiciary would surely be different today.

On 27th September, 2020 was birth centenary of Justice DM Chandrashekhar. On this day, Bhartiya Vidya Bhavan Benglure, held a commmemorative programme in his memory. The video below is of that function.

    

End Note-1: This happened because one of the senior judges of the Allahabad High Court resigned and took back his resignation only when Justice Chandrashekhar offered to go back. This is an instance that in personal matters, one should never be ones own counsel and should not be attached to any goal. All this, at some other time.