‘The time has come’ The Walrus said
‘To talk of many things:
Of shoes and ships and sealing wax-
Of cabbages - and kings-
And why the sea is boiling hot-
And whether pigs have wings’
THE HABEAS CORPUS CASE :AN INTRODUCTION
The Latin term "habeas corpus" means 'you must have the body' and a writ for securing the liberty of the person was called habeas corpus . The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government.
The writ of habeas corpus is described by May in his 'Constitutional History of England “as the first security of civil liberty”. Julius Stone in 'Social Dimensions of Law and Justice calls it a picturesque writ with an extraordinary scope and flexibility of application.
Article 21 of the Constitution right to life and liberty, now can not be suspended. Not even during emergency, 44th Constitutional Amendment Act, passed unanimously, ensured it. It is instructive to look back on the Habeas Corpus case during internal emergency (1975-77), the reason for 44th Constitutional Amendment Act and Leversidge Vs Anderson which played such an important role before the Supreme Court in deciding that even article 21 can be suspended during emergency
The Shah Commission, in its authoritative account of the emergency, mentions,
“The one single item which had affected the people most, over the entire country was the manner in which the power under the amended MISA was misused at various levels”
Maintenance of Internal Security Act (MISA) was an Act for preventive detention and detentions made there under were held valid. A.D.M. Jabalpur Vs Shiv Kant Shukla (Commonly known as the Habeas Corpus case) was to a large extent, responsible for this. Writ of Habeas Corpus has been described as ‘a key, which unlocks the door to freedom ,' and as the case dealt with its maintainability, it has come to be known as the Habeas Corpus Case.
HISTORICAL BACKGROUND IN BRIEF
It all started with the election of Mrs. Indira Gandhi, the then Prime Minister, which had been held to be invalid by the Allahabad High Court. Indira Gandhi lost her election case on June 12, 1975 and on her appeal in the Supreme Court she was only granted a conditional stay. As a result, she could neither vote nor speak in the Lok Sabha. She became a dysfunctional Prime Minister. Wanting to cling to the chair at any cost, she chose to declare emergency as on 25th June 1975 - the pretext being 'internal threat' to India (read INDIRA) . Any person who was considered to be a political threat, or who could politically voice his opposition was detained without trial under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security Act).Immediately thereafter, on June 25, 1975, she proclaimed a state of internal Emergency. In a midnight swoop, most of the prominent Opposition leaders including Jayaprakash Narayan, Morarji Desai, Atal Behari Vajpayee and L K Advani were detained without charges and trial. The fundamental rights to life and liberty (Article 21) and equality (Article 14) were suspended.
FACTS IN BRIEF :-
On June 25 th, 1975 the President in exercise of powers conferred by clause (1) of Articles 352 (Proclamation of Emergency) of the Constitution declared that a grave emergency existed whereby the security of India was threatened by internal disturbances. On June 27 th, 1975 in exercise of powers conferred by clause (1) of Articles 359 the President declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the proclamations of emergency made under clause (1) of Article 352 of the Constitution on December 3 rd, 1971 and on June 25 th, 1975 were in force. The Presidential Order of June 27, 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause (1) of Article 359 of the Constitution.
On January 8 th, 1976 there was a notification passed in the exercise of powers conferred by clause (1) of Article 359 of the Constitution whereby the President declared that the right of any person to move any to court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights would remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on December 3 rd, 1971 and on June 25 th, 1975 were in force. Several illegal detentions were thereupon made across the country, pursuant to which various writ petitions were filed throughout the country. Nine High Courts gave decision in favour of detunes, holding that that though Article 21 cannot be enforced, yet the order of detention was open to challenge on other grounds such as that the order passed was not in compliance of the Act or was mala fide. Against these orders, many appeals were filed before the Supreme Court. Disposing of all the appeals together, the Supreme Court set aside that the decisions of the High Courts which had held the declaration and the subsequent detentions as illegal and upheld the declaration and suspension of the said rights.
The pre-eminent questions are four.
First, is the Presidential order under Article 359 a bar at the threshold ?
Second, is Article 21 the sole repository of right to the and personal liberty?
Third is the Presidential order subject to the rubric of Rule of Law ?
Fourth is section 16A(9) of the Act a rule of evidence ?
The most important question before the court was whether a petition for habeas corpus and other similar petitions under Article 226 were maintainable (notwithstanding the suspension of the fundamental rights) on the ground that the orders were beyond the statute or were issued malafide or were not in accordance with law.
The first question turns on the depth and content of the Presidential order. The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental right. While a Proclamation of Emergency is in operation the Presidential order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights. The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 355 provides for indemnity where as Article 359(1) does not Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential order and is therefore much wider than Article 358 which includes Article 19 only.
DECISIONS OF THE HIGH COURTS
Seervai rightly says,
‘The High Courts reached their finest hour during the emergency; that brave and courageous judgements were delivered ... the High Courts had kept the doors ajar which the Supreme Court barred and bolted.’
It is difficult to get hold of all cases of Habeas Corpus decided during emergency. Not all of them are reported. Some are reported in journals, which are difficult to get. A gist of the cases, reported in CrLJ and the other unreported decisions supplied by the counsel for the Union Government during arguments before the Supreme Court, show almost complete unanimity in the High Courts on the question of maintainability of the Habeas Corpus. Though some of the High Courts had dismissed the writ petitions on merits: the Allahabad High Court in a full bench of five judges the Andhra Pradesh High Court in a full Bench of three , the Bombay High Court and, the Delhi High ,the Karnataka High Court , the Kerala High Court , the MP High Court and the Punjab and Haryana High Court held that the Habeas Corpus petition was maintainable. The Madras High Court did not decide the question of maintainability of the Habeas Corpus petition but assumed that they were maintainable and decided them on merits. It is rather strange that four judges of the Supreme Court chose to overrule such an overwhelming view expressed by the High Courts. It is relevant to note that the Gujarat Government had always maintained that Habeas Corpus was maintainable and its Advocate General had argued in the Supreme Court in favour of detenues on the question of maintainability, the only question argued before it.
ARGUMENTS ON BEHALF OF STATE
Niren De, the then Attorney General began the arguments on 14th December 1975. The Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance.He focused on the aspect of 'liberty' as found in Art.21 of the Constitution. His central contention was that since the right to move any Court had been suspended, the detenue had no locus standi and their writ petitions would necessarily have to be dismissed. It was on the next day that Justice Khanna was to ask the first uncomfortable question. "Life is also mentioned in Article 21 and would Government argument extend to it also?" There was no escape. Without batting an eyelid Niren De answered,
'Even if life was taken away illegally, courts are helpless'
The Attorneyey General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance. It has been recognised that times of grave national emergency demand grant of special power to the Executive Emergency provisions contained in Part XVIII including Articles 358, 359(1) and 359(1A) are constitutional imperatives. The validity of law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1)
ARGUMENTS ON BEHALF OF RESPONDENTS
First, the arguments on behalf of the state mean that during the emergency there is no right to life or liberty. Article 358 is more extensive as the fundamental right itself is suspended. The Presidential order under Article 359(1) does not suspend any fundamental right.
Second, the object of Article 359(1) is to bar moving the Supreme Court under Article 32 for the enforcement of certain specified rights without affecting in any manner the enforcement of common law and statutory rights to personal liberty under Article 226 before the High Court.
Third, Article 359(1) removes the fetter in Part III but does not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers.
Fourth, while the Presidential order operates only in respect of fundamental rights mentioned in the Presidential order it would not affect the rights of personal liberty at common law or under statute law or under natural law.
Fifth, Article 359(1) is not to protect illegal orders of the Executive. The Executive cannot flout the command of Parliament relying on a Presidential older under Article 359(1). The suspension of fundamental right or of its enforcement cannot increase the power of the executive vis- a-vis the individual.
Sixth, there is no reason to equate the state with the Executive. The suspension of the fundamental right or the right to enforce it has only this consequence that it enables the Legislature to make laws violative of the suspended fundamental rights and the Executive to implement such laws. The suspension of the fundamental right does not unable the Executive to flout legislative mandates and judicial decisions.
Seventh, the Executive can act to the prejudice of citizens only to the extent permitted by valid laws. The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take.
Eighth, the right to arrest is conferred by the Act on the State and their officers only if the conditions laid down under section 3 of the Act are fulfilled. Therefore, if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra vires the said Act.
DECISION RELIED ON LIVERSIDGE VS. ANDERSON
Certain decisions taken by their highest courts continue to shame all countries, particularly the legal fraternity of their civil society. It was the United States Supreme Court’s declaration in the Dred Scott case , that a slave was a private property that ultimately resulted in the civil war. The decision in the Liversidge Vs. Anderson case, blasting all civil and political rights of citizens in wartime, makes English judges run for cover even now. In India, the Supreme Court judgment in ADM Jabalpur, holding that the right to life did not survive during Emergency, would continue to proclaim the pusillanimity of the Supreme Court in refusing to act as a sentinel to safeguard human rights.
It is rather strange that Liversidge Vs Anderson that had no relevance and was no longer a good law even at that time in England was cited and relied on so heavily by the majority in the Supreme Court. A critique of this case appears as the next article in this chapter. It is not quoted in most of the judgements of the High Courts. The Delhi High Court did quote it but had rightly held that decision to be no longer a good law. Majority judgement of the Allahabad High court does not refer to it. The minority judgement does refer to it, but ignores the cases overruling it. For their conclusion, they relied on the single most important case of Liversidge vs Anderson , wherein the House of Lords in England by majority (the sole dissenter being Lord Atkin) had held that the Home Secretary’s opinion that a person should be detained was final and not renewable by the court.
Chandrachud and Bhagwati allowed themselves to be persuaded otherwise by following the majority decision in Liversidge to the effect that the opinion of the detaining authority was not challengeable, to the extent that even if a policeman were to shoot a citizen maliciously and capriciously there was no remedy to that action in a court of law.
But surprisingly, both these judges ignored Lord Atkin who was caustic about those judges who “show themselves more Executive minded than the Executive” and commented that such arguments might be addressed acceptably to the Court of King’s Bench in the time of Charles I.
It is however unexplainable how Chandrachud and Bhagwati chose to ignore that soon after the Liversidge decision was given there had been vociferous support given by jurists to Lord Atkin’s views as against the majority view. In fact, one Justice Stable was so upset that he said that the status of the judiciary had been reduced “to mice squeaking under a chair in the Home Office.”
Lord Reid referred dismissively to “the very peculiar case in Liversidge vs Anderson” and said, “it should be confined, apparently to a wartime context,” and “that it is already clear that the decision was regarded as an aberration .”
The trenchant criticism of the Liversidge judgment had been available in various law quarterly reviews since the beginning. And yet our Supreme Court surprisingly chose to follow the majority view. The embarrassment was becoming more and more intolerable as time went on. That is why Lord Diplock (HL) in 1979 was constrained to rule “For my part I think the time has come to acknowledge openly that the majority… in Liversidge vs Anderson were expedient and, at that time, wrong and the dissenting right .” And Lord Scarman hit the final nail by saying that “the ghost of that decision need no longer haunt law.”
Some commentators have ironically described the majority in the Liversidge case as the court’s contribution to the war effort of England. Similarly, in our country people are inclined to describe the majority in the Jabalpur case as the Supreme Court’s contribution to the continuance of the 1975 Emergency. I am inclined to agree. Had the Supreme Court taken the same view as the nine high courts, the Emergency would have collapsed immediately because no court could have upheld the detention of stalwarts and patriots like Jayprakash Narayan, Morarji Desai, Bhimsen Sachar, Madhu Limaye, and thousands of others on the ground that they were a danger to the security of the country. The inevitable result would have been the immediate release of these leaders, leading to an overwhelming Opposition movement which would have swept away the Indira Gandhi government by the end of 1975, earlier than in 1977.
But alas, all this is in the realm of speculation. The Supreme Court did not show courage and this case will continue to haunt the Court and the judicial fraternity. We will never be able to live it down. How future of nations can be influenced by the pusillanimity of a few individuals, but then such is life. However, we may not have to pass through that darkness again, because the 44th Amendment to the Constitution (1978) has taken away the power of the President to suspend Article 21. But still we must continue to remember that “eternal vigilance is the price nations must pay for safeguarding the liberties of individuals .”
The Liversidge case involved whether subjective interpretation or objective one be given to the Regulation 18-B under which he was preventively detained. It had nothing to do with the maintainability of the Habeas Corpus during Emergency or Articles 21 and 359. There was no need to refer to this case. It was even strange that majority neither referred to the opinion of jurists of England, nor the subsequent decisions in England which had held the Liversidge case to be wrongly decided. No one can say that they were not cited.
Lord Radcliff had killed the majority view of the Liversidge case within 10 years of the decision in the Nakkuda Ali’s case It is more than 10 years since the Habeas Corpus case has been decided. We have accepted our shame. No one approves of the emergency or the judgement in the Habeas corpus case. But then, it still stands. One is not sure, if judicial activism by the Supreme Court since then, is an effort to redeem itself.
MAKHAN SINGH Vs STATE OF PUNJAB
Emergency was declared on an earlier occasion during the Indo-China war. At that time the right to move any court for the enforcement of Articles 14, 21 and 22 was suspended under Article 359 only for the persons detained under the Defence of India Rules (DIR), the Preventive detention law at that time. It was a partial suspension. Supreme Court interpreted it to mean that rights were suspended only for legally detained persons. So if a person was illegally detained under DIR, he could maintain the Habeas Corpus petition.. It was for the first time during emergency imposed on 26th June 1975, that Articles 14, 19, 21 and 22 were suspended in their entirety, without any reference to any law. This time when detunes filed Habeas Corpus petitions, a question was raised that Article 21 being the sole repository of liberty has been suspended in its totality, no writ of Habeas Corpus is maintainable. The Government also sought to distinguish the earlier case of Makhan Singh on the different phraseology of the notification suspending the rights. Almost all the High Courts decided this question against the Government. And on this issue the matter was taken in appeal to the Supreme Court.
The 1962 Pesidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made there under whereas in the 1975 Presidential order no statute is mentioned.
The Supreme Court held that it was impossible to accept that only right that can be suspended by an order made under article 359(1) was the right guaranteed by article 32 (1) to move to the Supreme Court for the enforcement of the fundamental rights and a citizen would be free to seek relief from high court under art.226
The Supreme Court pointing out that a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus if his detention had been malafide. The illegality of orders was challenged in Makhan Singh's case (supra) in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.
JUDGEMENT OF THE HABEAS CORPUS CASE
The habeas corpus case was argued for more than two months after which the Supreme Court reserved judgment. The judgment was not pronounced even after a considerable time had elapsed. An application, with a prayer that either the judgment is pronounced or stay order be vacated, was filed. It was expected that the government might lose the case by three to two.
Judgements were read in the open court by the judges on 28th April 1976 Marking the black day of Indian legal history , the Supreme Court rejected the arguments of the Respondents and held that Article 21 of the Constitution was the sole repository of right to life and liberty and therefore, the suspension of it implied that all the remedies protecting this right under any other law shall also be suspended. The Court while construing Article 21 as the sole repository of life and personal liberty denied all available remedies to the detenus on any ground that any challenge to the detention order for the enforcement of the right to personal liberty under Article 21 could not be so done on account of the presidential order suspending it being in force. The majority further held that even the order of detention could not be challenged even on any other ground, even if the detention order was passed mala fide, rendering the detenu without any remedy even against an illegal detention.
JUDGEMENT (Per majority A.N. Ray C.J., M.H. Beg. Y.V. Chandrachud and P.N. Bhagwati JJ.)
Therefore, the Court declared, “in view of the Presidential Order dated June 27 th, 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations”, closing its doors to any sort of relief whatsoever to any person suffering from illegal detention.
Second. Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential order
Third. Section 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention.
Fourth. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.
The appeals are accepted. The judgments of the High Courts are set aside.
The majority’s rationale portrayed by Chief Justice Ray was that the judiciary was ‘ill equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency.’16 The implication was that the judiciary should abandon all scrutiny of governmental control of individual activities once an emergency was proclaimed, even if there was egregious misuse of such power by the executive. The court’s decision was reviled by many as the nadir of justice and weakened the court’s legitimacy
J. Bhagwati wrote a concurring judgement in the infamous ADM JABALPUR case in which he held that , ‘There can be no doubt that in the view of the presidential order which mentions Art 21, the detenus would have no locus standi to maintain the writ petition if it could be shown that the writ petitions were for the enforcement of rights conferred by Art 21’. The Supreme Court in effect held that because it was a time of emergency, no person had the right to life under the Indian Constitution.
ADM JABALPUR : A SUPREME MISTAKE
This one case is a glaring example of how the four wise Judges of the Supreme Court tried to outdo themselves in being more loyal to the throne than the king himself. The final order goes way beyond what was demanded of them by the plea of the Union of India. All the individual judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extensio the submissions of the Attorney-General on behalf of the government wherein he made the claim that the detenue had no right to approach the Court to challenge his detention.
They also record the concession of the Attorney-General to the effect that despite this general ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorized to pass it, or if it is passed for a purpose outside those mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney General had thus handed over to the Supreme Court the same key with which all High Courts had earlier used to keep ajar their doors for the detenues to squeeze through and enter. The Supreme Court, instead, preferred to throw away this key to their own self-respect. The majority judgment, literally taken, and as understood thereafter by all High Courts, clearly directed that detenues were to be stopped at the doors if not in the corridors of the halls of Justice.
Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency and the condition of those detained Justice Beg has this to say: "We understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass."
Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the nazi gas chambers. He voiced his belief that people who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.
A special mention must be made of Justice Bhagwati the man who had a knack with words and who knew how to use them to play to the gallery. Though Justice Khanna had held high the torch of freedom, it was Justice Bhagwati who spoke grandiosely about liberty: "I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind, without it life would not be worth living. It is one of the pillars of free democratic society… But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear."
The proclamation of Emergency being the start of the darkest period in Indian democracy and we should never forget that during this dark period, the 28th April, 1976, was its blackest day. It is all the more important to remember this day since we the people of India have grown accustomed to being ruled by preventive detention laws where thousands are being jailed without trial. If we, the people of India, forget this, we will be condemning ourselves sooner or later to history repeating itself.
DISSENTING OPINION OF J KHANNA
Khanna, in his powerful dissent, held that Article 21 could not be considered to be the sole repository of the right to life and personal liberty, and such right could not be taken away under any circumstance without the authority of law, in a society governed by rule of law. He elaborated in detail all the points in consideration and concluded that
Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without.
Under Article 359 the Presidential orders have been of two types. on 3 November, 1962 in exercise of powers conferred by clause (1) of Article 359 of the Constitution the President declared that "
the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India ordinance 1962 or of any rule or order made thereunder"
. The 1975 Presidential order under Article 359(1) does not have the words "if such a person has been deprived of any such right under the Defence of India ordinance 1962 or any rule or order made thereunder". In other words, the 1962 Presidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made thereunder whereas in the 1975 Presidential order no statute is mentioned. The illegality of orders was challenged in Makhan Singh's case (supra) in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.
That there is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter, that the Presidential order of June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order.
Justice Khanna, conscious of his aloneness, ended his judgment with a quote:
"As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree… A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed."
COURAGEOUS JUDICIAL SENTINALS
Lord Atkin’s dissent in the House of Lords during the thick of World War II is unsurpassed. He thundered: “In this country amid the clash of arms, the laws are not silent.” He protested “against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister”. The issue was about the interpretation to be placed upon a Defence of Realm Regulation. Lord Atkin was virtually ostracised. Today the majority judgment lies buried six fathoms deep. Lord Atkin’s dissent has been wholeheartedly accepted in England and in Commonwealth countries.
It is debatable whether Justice Khanna had the brilliance of Justice Chandrachud or Justice Bhagawati; but one thing is sure, he had better understanding of human nature . Hitler had come to power by legal means; by votes of ballots. Justice Khanna, by his single dissent in the Habeas Corpus case, has become most famous Judge to have ever walked on the Indian soil. It is fifty years since Liversidge case was decided. No one remembers who were the other judges who sat in the case were except for Lord Atkin. Sufficient water under the bridge is yet to flow in India.
Justice Khanna, in his autobiography, he says: ‘‘In view of his (Attorney General’s) submissions, would there be any remedy if a police officer, because of personal enmity, killed another man?’’ he said, ‘‘there would be no judicial remedy in such a case as long as the Emergency lasts .’’
Justice Khanna became world famous overnight. The New York Times remarked,
‘‘If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings…. and the Indian Supreme Court’s decision appears close to utter surrender.’’
Dubbed as “a scar on Indian Judiciary”, the judgment exposed the dangers facing the Constitution (read total anarchy) if the judicial wing was unwilling to stand firm and intolerant to violation of constitutional mandate. Justice SD Agarwala, former Chief Justice, Punjab & Haryana High Court says,
'The experience ... written in black and of the Emergency will go down in the history of the judiciary, and will ever remind the citizens of the country, the manner in which the people were dealt with during the said period.'
However Justice Khanna, who gave the dissenting judgment, was praised for his integrity of duty to deliver justice. Unfortunate decision in Shukla Vs ADM, Jabalpur 1976, emergency days, laid down that Art.21 is the sole repository of right to life and that during emergency when by Presidential order, enforcement of Fundamental rights remains suspended, the State can even shoot citizens with immunity ( This argument for Union of India, was advanced by Niren De, the then Attorney General and upheld by the Supreme Court).
Unfortunate, because, Constitution or no Constitution, every one has a basic right to life, and because the Hon'ble S.C. did not consider that the Constitution is a document," WE THE PEOPLE OF INDIA GIVE UNTO OURSELVES", as per the preamble, and thus the people of India pre-existed the Constitution, and the latter can not be used as an instrument to obliterate the former by an agency created by the former.Later, with the next government came in power, the Constitution was amended whereby it was provided that Article 21 could not be ever suspended, even in case of emergency. Thus the reoccurrence of such a situation has been amended by a Constitutional Amendment where the right of life and personal liberty cannot be suspended in any situation.