Pradeep Gupta
When Ms Kiran Vijay Singh, ADM Jabalpur ordered the detention of Shivakant Shukla under MISA during the run up to the ‘Emergency’ little did she know that her act would earn her a footnote in the Indian judicial history. When the Madhya Pradesh High Court quashed the detention order holding that Habeas Corpus Petitions could be heard and decided under Article 226 notwithstanding the Proclamation of Emergency, the lady judge filed an appeal in the Supreme Court culminating in the infamous lead case titled ADM Jabalpur V/s Shivakant Sharma. Contemporaneously dramatic events were unfolding on the Indian political scene. PM Mrs. Gandhi was confronted by the “Navnirman Andolan” in Gujarat, students protests in Bihar, railway strike spearheaded by George Fernandes and finally a call for ‘Sampoornakranti’ by Jayaprakash Narayan. In the midst of this turmoil, order of Justice Jagmohan Lal Sinha on 12 June, 1975 holding Mrs. Gandhi guilty of election malpractices and simultaneously barring her from holding an elected office for six years sent her into a tizzy.
Instead of countering her opponents politically she chose the ’emergency route’ to quell the unrest and perpetuate her rule. At her behest, the proclamation of Emergency was signed by President Fakhruddin Ali Ahmed on the mid night of 25th June, 1975 without the proposal being considered by the Union Cabinet. The matter was placed post facto before the cabinet the next morning! The Proclamation was followed by another Presidential Order on 27th June, 1975 declaring that rights to move Courts under Articles 14, 21 and 22 shall remain suspended during the period of Emergency. Consequently political leaders and others opposed to the Government were imprisoned on a massive scale under MISA. It was in this backdrop that ADM Jabalpur case was heard and decided by the MP High Court and thereafter the Supreme Court. A five judge bench of Supreme Court comprising of CJI AN Ray, Justices HR Khanna, MH Beg, YV Chandrachud and PN Bhagwati by a majority judgement, Justice Khanna being the lone dissenter, decided the matter on 28th April, 1976 holding that in view of Presidential Order dated 27 June, 1975, no person has a locus standi to move a writ petition under Article 226 before a High Court for habeas corpus or any other writ challenging the legality of an order of detention even on the ground that the order is not under the Act or is illegal or is vitiated by malafides factual or legal! The court further held that Article 21 of the Constitution is the sole repository of right to life and personal liberty. The majority took a narrow construction of the Presidential Order dated 27 June, 1975. Judiciary was the last bastion of hope for the beleaguered citizens detained during the emergency. Unfortunately the Court instead of protecting the liberty of the people leaned in favour of the State.
In his celebrated dissenting judgement, Justice Khanna held that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the constitution was drafted. The principle that no one will be deprived of his life and liberty without the authority of law was not a gift of the Constitution. It is a basic assumption of rule of law and it existed before the Constitution came into force and was protected by Article 372 of the Constitution. The dissenting judgement cost Justice Khanna elevation to the position of CJI while other three brother Judges constituting the bench went on to become CJIs. Justice Khanna resigned when he was superseded by Justice Beg.
The damage done by the majority judgement in the ADM Jabalpur case was undone by the Constitution 44th Amendment effected by the Janata Party Government in the year 1978 whereby Articles 20 & 21 were brought out of the purview of Article 359. But it still stood technically and to review the impugned judgement by a nine judge Constitutional bench arose only in the year 2017 in the so called ‘Privacy Judgement’ Case titled KS Puttaswammy V/s UOI. The Supreme Court while holding that right to privacy is protected under Article 21 being intrinsic to life and personal liberty, overruled its decision in the ADM Jabalpur case primarily relying on the dissenting judgement of Justice Khanna. The Court held that life and personal liberty are inalienable to human existence and power to issue a writ of Habeas Corpus is precious and undeniable feature of rule of law and not a bounty conferred by the State. It was a rare moment in the history of Indian judiciary that Justice DY Chandrachud was part of the bench that overruled the judgement to which his father Justice YV Chandrachud was a party! This Landmark judgement was brought to a closure by annulling the earlier judgement that had shocked the nation and haunted the conscience of the judiciary for decades. Judiciary is the saviour of human rights and writ of Habeas Corpus an effective tool to protect right to liberty. Yet the citizens have also to nurture the tree of Life, Liberty and Freedom.
(The author is a former civil servant)
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