A Black Mark on Rule of Law

The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Courts judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities.

The Supreme Court in A D M Jabalpur v. Shivkant Shukla by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati – the lone dissenter was Justice H R Khanna.

Strong Comments were made against the majority judgments and the role of Justice H R Khanna was appreciated and applauded all over the world. Mr. V M Tarkunde, an eminent lawyer and editor of The Radical Humanist, characterized the majority judgments as “Judicial Suicide”. H M Servai, a leading Commentator on Constitutional Law and former Advocate General of Bombay wrote: The Four judgments delivered in the darkest hour of India’s history independence, and they made that darkness complete…Ordinary men and women could understand Satan saying, ‘evil be thou my good’, but they were bewildered and perplexed to be told by four learned judges of the Supreme Court that in substance the founding fathers had written into the emergency provisions of our constitution ‘lawlessness be thou our law ’.

The Supreme Court reached its finest hour in the unforgettable dissent of Justice H R Khanna. He refused to bow down to the powers that be and immortalized the great spirit of the judiciary and the rule of law in his stinging dissent, observing: It has been argued that suspending the right of a Person to move any court for enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would be the absence of the rule of law. This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law . In his autobiography, Justice Khanna recounts that he told to his Younger sister Santosh, “I have prepared a judgment which is going to cost me the chief Justiceship of India ”. That came to be true and Khanna was Superseded b Justice Beg during Emergency. He thereupon resigned.

But any research on Rule of law is incomplete without a reference to the editorial in the New York Times which appeared on April 30, 1976, shortly after Habeas Corpus case. The Paper wrote: if India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the court’s decision upholding the right of PM Indira Gandhi’s Government to imprison political opponents at will and without court hearings. Indian democrats are likely to remember only in infamy the four judges who obediently over turned the decisions of a half dozen lower courts scattered across India which had ruled in defiance of the government…..But they will long cherish the lonely judge who said, in words reminiscent of other enduring declarations for freedoms: “….The Principle that no one shall be deprived of his life and liberty without the authority of law is rooted in the consideration that life and liberty are precious possessions” ….The submission of an independent judiciary to absolute government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.

How the emergency came to an end and Indira Gandhi was defeated at the polls is another story. Neither Chief Justice Ray nor Chief Justice Beg were able to live down their judgments. Justice Chandrachud and Justice Bhagwati both became the Chief Justice of India after the Emergency was withdrawn on the basis of seniority but they never commanded the respect, affection and reverence which Justice Khanna Commanded. Justice Khanna was in the Mould of Chief Justice Coke who could withstand “the frowns of power” and the refused to be “Craven and cringing”.