The Allahabad High court was established on 17th March 1866. It has completed one hundred and fifty years. The period of internal emergency 1975-77 was the 109th to 111th years of its establishment. It was its most glorious period. This article was written as diary of the Allahabad High Court on its 125th anniversary but has been suitable amended. It recounts the role of the Judges and lawyers during its most difficult period, since its inception
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| This picture is courtesy Syed Fazal Advocate Allahabad |
My parents had moved from our ancestral home in Calcutta. They always wanted to settle in Allahabad; even my ancestors wished it. But they first settled at Agra. I was born there more than hundred and fifty years ago, on 17th March, 1866.
I moved to Allahabad within three years of my birth. I do not remember many things of these 150 years, but I do remember 21 months of the years 1975-77; It is known to be the darkest period of independent India but it wasn't dark for me: it was my brightest period; the period that I cherish; the period that justifies my establishment; my existence.
During internal emergency, thousands were arrested. They came to me; may be for their liberty, or for their salary, or for the principles? But I think, they came to me for my dignity, my existence. But at that time, I had my limitations: the right to come to me had been suspended.
Judges
I have always treated the judges as my children; lawyers as my guardians; and the Advocate General as my guardian in chief. During that period, one of my guardians VKS Chaudhary (see End Note-1) was detained under the Maintenance of Internal Security Act (MISA). He filed Habeas Corpus for his liberty. Do you remember, two of my children—HN Seth and GD Srivastava? They were hesitant. They referred his Habeas Corpus petition to the larger Bench. Five of them sat down to settle the issue—Should people be permitted to come to me for their freedom, for their liberty?
Today this might seem simple but in fact it was not. It troubled everyone. But four of them answered in affirmative. I heaved a sigh of relief!
KB Asthana spoke in Hindi. It was so that people may understand. It was more of rhetoric, but needed at that time. GC Mathur was traditional. Two others, HN Seth and KN Singh had a new insight. The fifth one spoke in a different language. He held that people should not be so permitted. I forget his name (see End Note-2). Do not blame me. Do you remember any one apart from Atkin, who were there in Liversidge Vs Anderson, 1941(3) AllER 338.
How can I forget DM Chandrashekhar (see End Note-3), the one who came from Karnataka? He had strongly dealt with similar matters there. He was punished and transferred to Allahabad. By the time he came here, my elder had upset my decision. He not only closed his doors but the doors of brothers as well as my doors. My elder was wrong. But what could I say, I never question my elder.
All Habeas Corpus petitions were coming up for hearing. Nothing could be done. They had to be dismissed. But these petitions were from jail and there was no one to prosecute them. Should they be dismissed without hearing the detenus or should the detenus be heard?
The State was pressing hard that they should be dismissed without hearing the detenus: bringing them to Allahabad would not only entail expenses but would be inconvenient for the State. Do you know what Chandrashekhar said? It still rings in my ears.
‘Principles of natural justice are not empty formality. We have to hear the detenus. If you arrest them, you have to bear the expenses.’
Was it compassion; was it dignity; or was it the love for liberty? I cannot say. May be it was in my honour. Sometimes I find it difficult to fathom my own children.
After the decision of my elder, there was another set of litigation – detenues claimed better treatment in jail, in light of different statutory provisions. At that time Raja Ram Agarwal had become guardian in Chief and BD Agarwal his chief assistant (Chief Standing counsel). They vehemently opposed these petitions on the ground that my elder has held such cases to be not maintainable.
To my great pleasure, my children distinguished the elder’s decision on the ground that these rights are not based on Article 21 but on statutory provisions – they not only held the petitions to be maintainable but granted the reliefs. What an act of great wisdom and courage.
What about the contempt application filed at that time by VKS Chaudhary? The Habeas Corpus Petition, which was referred to the larger bench, was sent from jail. The Superintendent of Jail instead of sending it to me had sent it to the District Magistrate. He later said that the District Magistrate had instructed that all petitions be routed through him, as he wanted to be satisfied about the maintainability of the petition. And only then it was to be sent to me. Imagine, what temerity!
The District Magistrate had also ordered that the interview between the detenue and his advocate would take place in the presence of Assistant Jailer. HN Seth and GD Srivastava not only held the order to be illegal but also held of them to be guilty of contempt. Not on one but on both counts.
There were other cases; Professors, teachers, workers stripped off their jobs; denied their salary―but not of their dignity. Of course you remember those who granted relief- Yashoda Nandan, HN Seth and BN Sapru. The families would have starved but for their orders.
Yashoda Nandan parted company early before it was due. He was suffering from cancer and he died in office. He was short but stood tall in those difficult times. With his immaculate manners and command over language, he could control his Court well. But even he would often be irritated with the state action.
HN Seth, who was rather difficult with exparte motions, was liberal. After all it was a matter of liberty.
BN Sapru was quick and often sat with the other two. Due to him much became possible. I do remember another case that came before me in1980. It related to emergency and was dealt by a bench presided over by Sapru.
In the 1980 case, a boy had come to me. He was Andhrarite; he was brilliant and passed all his examinations in first class. During emergency, he was a college student. In a protest march in Maharashtra, he had carried a placard on his back,
'Indira Gandhi Murdabad. Down with Emergency'.
He was produced before the Magistrate, where he accepted that he had carried such a placard. He was convicted under Defence of India Rules (DIR) and sentenced to the period undergone. He was released. He did not file an appeal. His conviction stood.
He had studied at the IIT Kanpur, qualified for Indian Geologist Service and ONGC but preferred ONGC. At the time of filling form, he did write that he was arrested but was released.
He was taken on probation and records were sent to the collector in Andhra Pradesh for character verification. Had the boy not mentioned anything, no one could know about the incident; as it happened in another State, namely, Maharashtra. But the boy was honest. He mentioned everything.
The Collector sent a report that character of the boy was very good but he was convicted under DIR.
The ONGC ignored the report of the Collector but terminated boy's probation for he was convicted under DIR for protesting against emergency. What a shame? What misunderstanding of law? It is difficult to imagine that people can have such poor understanding of law. But then my existence is because of such understanding of law; I would be redundant had there be no such persons.
The bench presided over by Sapru initially granted the interim order, but was informed, that his order might not be respected on the pretext that the termination order had been given effect to. Do you know what he did? He took back the file, cut that order and then in his own hand writing, an unusual gesture, wrote that:
'The boy shall be taken back in service'.
It saved the boy’s life. It is interesting to know as to what happened thereafter.
This termination and the case happened, when the Janata party had fallen and Indira Gandhi was the Prime Minister. It was an interim order that was passed by the bench presided by Sapru. It came up for confirmation. At the time of confirmation, on behalf his employers ONGC, it was opposed by LP Nathani, one of my guardian.
I was very nervous that it might vacated on the technical ground that the termination order had been given effect to. But SD Agarwala confirmed it. ONGC was not satisfied. The matter was taken to the Elder but the elder confirmed the interim order and suggested to the ONGC to end this litigation, which they gracefully did.
Do you remember Rule 194 of Defence of India Rules (DIR)? I mean the clause (b) of that rule. Let me remind you. It provided that if there is a contravention of the rules or the orders made thereunder and in case prosecution opposes the bail application, then bail may not be granted unless the Court has reasonable grounds for believing that the accused was not guilty of such contravention.
During that period, all bail applications were strongly opposed. All FIRs were similar, if not the same. The accused were respectable persons from different walks of the life; they were Professors, doctors, advocates, and political thinkers. Every one knew these cases were false (see End Note-4).
Much to my relief and to the relief of the oppressed, JP Chaturvedi and MP Saxena started granting bail. And MP Saxena, the chirpy one, would often say that rule 194 (b) works the other way round. According to him all these first information reports were false unless proved to the contrary.
It is often said that ‘great cases like hard cases make bad law’. The phrase has to catch on; after all it was Holmes who made it famous in Northern Securities Vs US. 193 US 197. But in the words of Ronald Dworking 'hard cases make great judges'.
Those twenty-one months are witness to it. They were the ones who stood firm in those difficult times. But to say that they were the only ones, would be wrong; there were others as well.
Lawyers
What about my guardians? I recollect they had passed a resolution condemning those dark days. I was sure of that. But somehow it is not in their diary.
I remember the guardians who had signed up a petition urging the Government to release VKS Chaudhary. Some did not sign. But it is irrelevant. The relevant thing is that all those who mattered had signed the petition, irrespective of their political ideologies. Many searched in vain to sign the petition. They had missed it. It had already been sent.
Most of those, who appeared for the innocents harassed detenus, for one relief or other had appeared without any fees or for nominal fees. And many appeared at the cost of their own arrest. Some even refused to appear for the Government. Why did they do so?
I am sure, they did it for me, my dignity, my position in history. I feel humble. In that short period they paid me back, whatever they owed me. One can talk about many. But I wish to talk about three: Jagdish Swarup, SN Kacker and SC Khare … for they are no more with us.
Jagdish Swarup was learned. He appeared for the detenus; for liberty. He was a pessimist. He would often tell his clients they had no case: but not in this one. He would often inspire when the light of liberty might be flickering.
SN Kacker (see End Note-5) was a better orator. He appeared to support the state action, the emergency itself. He was guardian in chief at that time. People often say ‘he ought not to have appeared’. But those who say really do not understand the role of the guardians (kindly see the article 'Lawyers’ Duty').
You see my children are like Yuyutsu (युयुत्सू), the step brother of Duryodhan, who listened to his conscience, irrespective of his allegiance. However, my guardians are like Karna or Arjun and they have to appear for the side they have allegiance to.
My guardians cannot refuse for a side they have allegiance to. But then there were some (Nani Palkhiwala and Fali S Nariman), who did refuse to appear for the Government. Well, guardians are masters of their own conscience; they can ignore their own principles.
SC Khare was not a good orator, but was probably the most brilliant. He did not appear in these cases. He had personal difficulty. He had appeared for Indira Gandhi the then Prime Minister in the election petition and had lost the case. It is after that, or was it due to that, that the emergency was imposed. But I remember one instance involving him in those difficult times.
At that time, there were too many detenu. The Government was unable to look after them. To overcome this difficulty, the State Government amended the rules laying down the conditions of detention to their detriment. It was argued that the advocates, doctors, professors, political activists―who were innocent, yet detenus―at least be given the same treatment that was being given to murderers and hardened criminals. In fact, they were entitled to more respect. These petitions were being opposed by the guardian in chief.
SN Kacker opposed the Habeas Corpus petitions before me in the 1st round and before the elder. However, later when the Chief Minister resigned, he also resigned and in his place Raja Ram Agarwal was appointed as the guardian in chief. BD Agrawal was the chief standing counsel. They opposed these petitions.
In these petitions the point was pressed (by the author) that the State government is a delegate, it cannot further delegate on the basis of ‘delegatus non potest delegare’ doctrine.
The bench of Justice Yashoda Nandan and Justice BN Sapru wanted to give relief but were not fully convinced. It was a difficult time. Fundamental rights were suspended. If you remember it was the time when Niren De, the guardian in chief before the elder, had argued that Government could shoot anybody without being questioned and was spared by him. The matter was put up for the next date.
SC Khare was listening to the arguments and asked the author to meet him next morning at 6 AM. This was his usual time. He suggested to advance arguments on the line that discretion has to be exercised on relevant considerations. In case relevant considerations are not indicated then the court should cull out the same on the principles of Padfields Vs Minister of Agriculture 1968 (1) All ER 694. This was author's first lesson on administrative law. The next day, it was so argued and the Court granted interim orders.
On my 100th birthday, KL Mishra (see End Note-6) the then guardian in chief said,
'In very recent history, it [Allahabad] had acquired a reputation for standing against tyranny and oppression.
I did not disappoint him. I have to fulfil one of his other prophecies. I have to wait ‘for visitors from Mars and from Venus and even from other planets and stars [for I] have to prove [my] traditions of justice, independence and impartiality.’(see End Note-7)
This dark period or with your permission this bright period is ample proof of that. I know I will go on. Guardians are seldom wrong.
End Note-1: VKS Chaudhary (02-09-1919 to 29-09-2015) was father of the author. He was advocate General of Uttar Pradesh from 1991-92. It was during this time that post centenary silver jubilee celebrations of the Allahabad High Court were held.
End Note-2: He was Justice MN Shukla.
End Note-3: Justice DM Chandrashekhar was transferred as a punishment. He had held in the writ petitions filed by Atal Bihari Vajpayee, LK Advani and others that the Habeas Corpus was maintainable.
Justice Chandrashekhar became the Chief Justice of the Allahabad High Court. This was during the time when the Janata Party was in power in the Centre. He was the senior most here.
Justice Satish Chandra, who was to become the Chief Justice in case Justice Chandrashekhar was not transferred to Allahabad, did not appreciate it. He resigned, then took back his resignation on the understanding that Justice Chandrashekhar would go back. This led to litigation. This was the first time that a High Court Judge had resigned and then took back his resignation. Justice Satish Chandra lost the case before the High Court but won it before the Supreme Court (Union of India Vs Gopal Chandra Misra AIR 1978 SC 694).
Chief Justice Chandrashekhar went back to Karnataka and Justice Satish Chandra became Chief Justice of the Allahabad High Court. He was later transferred to the Calcutta High Court as its Chief Justice.
End Note-4: Internal emergency reminds one of George Orwell’s Nineteen Eighty-four: False documents; false FIRs were officially prepared. This led the bureaucracy to the downfall that it stands today. It is silver lining that some of them do realise the malaise that has fallen and do stand up to the political bosses but suffer the fate of frequent transfer.
End Note-5: SN Kacker opposed the Habeas Corpus petitions before me in the 1st round and before the elder. He later on resigned when the Chief Minister resigned. He became Solicitor General of India after emergency when Janata Party came to power.
End Note-6: There is an excellent biography of KL Misra by SS Ray Sr. Advocate. It appears in the Commemoration Volume I of Post Centenary Silver Jubilee of the Allahabad High Court. You can read it here.
End Note-7: This was an impromptu speech. It was in answer to President Radhakrishnan’s speech. on the centenary celebration of the Allahabad High Court. President Radhakrishnan, had unintentionally offended many. It is not only one of the finest speeches ever delivered but also the most inspiring. Both speeches are printed in Commemoration volume II of the Centenary celebrations as well as Post Centenary Silver Jubilee celebrations of the Allahabad High Court.
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