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| My parents in my father's office, after his release |
This post is about ADM Jabalpur Vs Shivkant Sukla (the Habeas Corpus case).
It is second post of the series 'It Lies In The Heart'.
For the first one see
here.
Article 21 of the Constitution guarantees right to the life and liberty. During internal emergency (25.6.1975-21.3.77), the right to move to the court to enforce Article 21 was suspended under Article 359 of the Constitution on 27th June 1975. Soon a question arose, whether the writ of Habeas Corpus was maintainable against illegal detention during suspension of Article 21.
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) was decided on 28th April, 1976 and dealt with this question.
The High Courts had held in favour of maintainability but the Supreme Court overruled the unanimous view of the High Courts. The Supreme Court held that because of suspension of article 21, the habeas corpus petitions were not maintainable and the prisoners as well as the détenus lost their locus standi to challenge their illegal detention.
Fortunately, the view taken by the Supreme Court has been superseded by the Constitutional (44th Amendment) Act and now Article 20 and 21 cannot be suspended. In WP-C 494 of 2012 KS Puttaswamy Vs Union of India (the Puttaswamy case) {AIR 2017 SC 4161 = 2017 (10) SCC 1} the basic question referred to the nine judge bench was whether the right to privacy was constitutionally protected right and if the MP Sharma case (1954 SCR 1077 = AIR 1954 SC 300) and the Kharak Singh {1964 (1) SCR 332 = AIR 1963 SC 1295} were correctly decided. The court partly overruled these cases and held that the right to privacy is protected as part of Article 21 and the freedoms guaranteed by Part III of the Constitution. While doing so, they also specifically overruled the Habeas Corpus case. However, the discussion about the Habeas Corpus case is not redundant: its good to know that the judges are also ordinary mortals and how they react in difficult times.
This article was written 20 years after the Habeas-Corpus case was decided. It talks about the lawyers and judges connected with that case and what has happened to them. Since then, it has been updated.
It was a matter of speculation as to why Nani Palkhivala, the greatest lawyer of that time, did not appear in the Habeas Corpus case. I consider myself privileged that we (Palkhivala and myself) were pen friends. We used to exchange letters on varied topics. I had written a letter to him inquiring about his non-appearance in the case. I did not publish his letter earlier for the reason that LM Singhvi chose not to publish it. This reason is mentioned in the succeeding paragraphs.
When I had just become a judge, LM Singhvi delivered a talk at the Allahabad museum. He was knowledgeable as well as good orator. I went there to listen to his talk.
After the talk, LM Singhvi came to know that I was also there. He came over to me and said that he was the chief editor of the book about 'Selected writings of Palkhivala' and had all letters written by Palkhivala to me; Palkhivala was keen that one of the letters written by him to me, about his non-appearance in the Habeas Corpus case should be published in the book but he was not including the letter for the strong language used in the letter. This was also the reason that I had not published the letter earlier. But since then, a book has come into existence mentioning a different reason for non-appearance of Palkhivala in the case.
Soli Sorabji and Arvind P Datar have written/ edited a book titled 'Nani Palkhivala: A Courtroom Genius'. In this book they have given a reason for non-appearance of Palkhivala in the Habeas Corpus case. This is different than the one mentioned by Palkhivala.
At the end of this article (Appendix-I), I have annexed the reasons mentioned for non-appearance in the book 'Nani Palkhivala: A Courtroom Genius', my letter to Palkhivala, and his reply to me. The letter of Palkhivala is the scanned copy of the original. It is self explanatory.
