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Why an SC judge’s dissent 43 years ago is relevant to Kashmir clampdown today

While 4 SC judges said fundamental rights were suspended during Emergency, Justice H.R. Khanna held that life & liberty can’t be at the Executive’s mercy.

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New Delhi: At a time when the nearly month-long communications clampdown in Jammu and Kashmir is making national and international headlines, the legal provision of habeas corpus has come into focus.

Habeas corpus, which literally means ‘produce the body’, is used to protect personal liberty from the excesses of the state. It entails public officials delivering the imprisoned or detained individual to the court and showing a valid reason for that person’s detention.

Since the abrogation of Article 370, the Supreme Court has heard two habeas corpus pleas related to Kashmir — one by CPI(M) leader Sitaram Yechury about his detained party colleague Mohammed Yousuf Tarigami, and another by Mohammad Aleem Syed, a law student at Delhi’s Jamia Millia Islamia, who wasn’t able to get in touch with his parents in south Kashmir’s Anantnag. In both cases, the court allowed the petitioners to travel to Kashmir and see the persons in question for themselves.

The most infamous habeas corpus case in India, though, was ADM Jabalpur vs Shivkant Shukla during the Emergency in 1976, which is labelled a ‘black spot’ on the judiciary. ThePrint looks back at the case, and how far the Indian judiciary has come from it, prominently featuring the members of one judicial family.

The judgment

The case was filed on 28 April 1976, almost a year after the proclamation of Emergency through Fakhruddin Ali Ahmed’s presidential order on 26 June 1975.

During Emergency, under Article 359 (1) of the Constitution, articles 14, 21 and 22, which grant the right to equality, protection of life and personal liberty, and protection against arrest and detention, were all suspended.

Anyone who opposed the state was jailed, including top politicians such as Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee and L.K. Advani.

Many habeas corpus petitions were filed in various high courts, most of which ruled in favour of the petitioners, so the Indira Gandhi government approached the Supreme Court to challenge them. The government’s rationale was that during Emergency, since these articles of the Constitution were suspended, how could the writ of habeas corpus, which comes from Article 21, be used?

The case was heard by five judges of the Supreme Court — Chief Justice of India A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. They held by a  4:1 verdict that during Emergency, fundamental rights were not available to citizens and that they couldn’t even file habeas corpus pleas in high courts. Only Justice Khanna gave a dissenting judgment.

Senior advocate Sanjay Hegde, who represented Jamia student Syed in the habeas corpus petition in the Supreme Court last month, called the 1976 judgment, “the highest hallmark of judicial deference to the executive”.


Also read: Beyond Article 370, we must ask if the J&K bifurcation was constitutional


The dissenting judge

Journalist and author Khushwant Singh said of the dissenting Justice Khanna that he was “so clean a man that he makes angels look dishevelled and dirty”. It has been reported that before Khanna gave his dissenting judgment, he told his sister: “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.” 

Khanna held that even if a person’s fundamental rights were taken away, he/she could move the court for the right to know why they are being detained. This was because Article 21 was not the only place for life and liberty, and even if suspended, they were the basic hallmarks of a society.

He wrote: “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive… What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute… Detention without trial is an anathema to all those who love personal liberty.” 

His prediction came true when, despite being the senior-most Supreme Court judge, he was superseded by Justice Beg as CJI in January 1977. Khanna resigned the same day.


Also read: Three sacrifices the BJP must make to ‘fully integrate’ Kashmir with India


Overruled, 41 years later

On 24 August 2017, a nine-judge bench of the Supreme Court overruled the 1976 judgment in the case of Justice K.S. Puttaswamy (Retd) and another vs Union of India and others, regarding the right to privacy.

Interestingly, this judgment was penned by Justice D.Y. Chandrachud, son of Justice Y.V. Chandrachud. The judgment said: “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence.

“The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.”

How it applies to current situation in Jammu and Kashmir 

ThePrint spoke to Abhinav Chandrachud, grandson of Justice Y.V. Chandrachud and son of Justice D.Y. Chandrachud, who is an author and advocate in the Bombay High Court, to understand the two judgments and how they apply to the current situation in Jammu and Kashmir.

Speaking about the 1976 judgment, the advocate said: “The justices of the Supreme Court were following the letter of the law — of what was enshrined in the Constitution regarding the suspension of habeas corpus during the Emergency. But it was Justice Khanna who upheld the spirit of the Constitution. In a similar manner, the abrogation of Article 370 is legal in a formalistic sense, but is in absolute violation of the spirit of the Constitution.

“While one cannot compare the national Emergency of 1975 and the current emergency in Kashmir today, it is sheer hypocrisy to praise Justice Khanna’s dissent in the ADM Jabalpur case and still celebrate the communication clampdown in Kashmir.”

Paying tribute to Khanna’s dissenting judgment, Abhinav added: “Justice Khanna’s dissent was very courageous and is what set the ball rolling for judicial activism in India.”


Also read: 20 Kashmiri youths ‘missing’ since Article 370 move, role of terror headhunters feared


 

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3 COMMENTS

  1. Justice Khanna was wrong. The Constitution DOES permit fundamental rights to be suspended during an Emergency. An Emergency means that the nation’s security is under grave threat. AT times like that, extreme measures are to be called for, which means that fundamental rights are indeed suspended.

    This principle derives from the time of the Roman Republic, when the Senate would authorise the Consuls to appoint a Dictator to take control and protect the Republic. The Dictator was basically THE Law. But the Dictator’s term was also fixed, and it was not easy to have the Senate agree to approve the appointment of one. And they would do it only when the fate of the Republic was under grave external (e.g., invasion by Hannibal) or internal (e.g., the Catiline Revolt) threat.

    The problem is that our Constitution makes it supremely easy for the Executive to declare an Emergency. THAT is what should be curtailed.

    Our SC, over the years, has increasingly decided that they possess a unique insight into something they define as the “spirit”of the Constitution.

    This is a DANGEROUS phenomenon, as any random, unaccountable Justice will decide he or she knows better than We, the People, what we want our laws to be. We chose to have a written Constitution because we wanted our elected representatives, representing us, to write our laws in plain, clear text. There is no reason at all why a Judge should choose to read between lines and act as a Diviner of some unknown “spirit” that he/she then ferrets out to justify one action or nullify it, often in direct contravention of the plain text of the Law itself.

  2. Justice H R Khanna’s portrait hangs in Court no 1, a continuing reminder to all those distinguished gentlemen who preside over it, that some human rights are inalienable, not subject to the whim or caprice of the sovereign.

  3. The great constitution of India was framed in a background of English law. It took the assistance of English lawmen and Indians educated in England to frame it.
    The Indian constitution is being slowly chipped away by various judgements to sculpture it to fit into the aspirations of the great Bharat Mata people.
    This is because our constitution is a British adjunct, a foreign object, it goes against the laws of Manu. It must be ripped out of the fabric of INDIA, it is anti national.
    Bharat Mata’s Social Laws have framed the caste system and the great Hindu religion for a thousand years. This is the natural law of the land
    Our present constitution is alien to the Hindi view of the world,.
    The vision seen by Brahmins and Hindutva and their worldview is the way to go. We are no longer slaves of the British

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