If there is one case which marked the downfall of Indian judiciary no doubt that it will be Habeas Corpus case (ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521). The case was decided by the court in a highly charged political situation and it was clearly visible for everyone that the decision was made the court not on merits but on external political considerations. The tragedy also gifted us with the courageous dissent of Hon'ble Justice H.R.Khanna who went down the annals of history and the saviour of the ideals for which the Indian democracy stood for. But the mortal blow that the decision and its subsequent repercussions dealt to the higher judiciary took a long time to recover. During the hearing of the case when Justice Khanna specifically asked whether there would be any remedy if a police officer, because of personal enimity, took into detention a law abiding citizen and even put an end to his life. The attorney general unequivocally stated that, 'consistently with my argument there will be no judicial remedy in such cases as long as the emergency lasts’. It is a treacherous path that the government went into and which the Supreme Court gave into. The decision altered the very nature and course that the judiciary was to take in its days to come. The blatant supersession of Justice Khanna in his appointment as the Chief Justice of India was a direct result of his dissent from the 4 other judges forming the majority which held that even fundamental rights are suspended when emergency is proclaimed. The then judicial reclusiveness gave way to newly found activism which elevated it to unknown heights. The judiciary cloistered itself and arrogated to it all powers that was possibly within its reach under the Constitution including its own process of appointments and transfers. Entering into a new era, its subsequent interpretive ventures expanded both reach and scope of civil liberties under the Constitution.
The new jurisprudence that which was heralded by the Supreme Court post the Habeas Corpus case ushered in an positive morality to the constituional provisions. But it is yet a surprising fact that the judgement, which is seen as a gruesome manifestation of state power, has dubious validity without being explicitly overruled. There arose no opportunity for the Apex Court to revisit this byproduct of the dark hours of emergency. In an era where far reaching rights, which were never intended or contemplated by the framers of the Constitution were provided by the judiciary purely through its powers of interpretation, it baffles one's reasoning power to think that this still forms a part of its history. In contrast with the judiciary that we know of now, this judgement yet remains a blemish in its record. To put this in perspective a passage from the majority judgement written by J. Beg will be instructive
“we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate prevent action against those children who may threaten to burn down the house they live in.”
The subsequent jurisprudence expounded by the Supreme Court in a series of landmark judgements changed the fundamental approach towards the interpretation of constitutional rights and the remedies. Therefore it is important for us to see what is the scope and reach of the jurisprudential conclusion arrived at by the court in this infamous judgement. Apart from its conclusion on the suspension of fundamental rights during emergency it also raised several contentious issues upon the substantive and procedural justice and it's implications.
The issue that arose in ADM Jabalpur is whether constitutional remedies under Article 226 and Article 32 of the Constitution can be availed by a party whose fundamental rights are infringed during emergency or not. The issue arose when, after the declaration of emergency by the President, many leaders of the opposition were arrested by the government on one pretext or the other all over the country. Within two days of declaring the emergency the President made another declaration whereby no person could move the courts for enforcement of articles 14, 21 & 22. The detainees initiated Habeas Corpus petition before the high courts challenging their detention. Though the judiciary was not able to examine the order of detention on any illegality under the maintenance of internal security act, 1971, several High Courts granted the relief to such Petitoners by scrutinising the validity of such detention orders on the pedestal of fundamental rights conferred under Article 14, 21 and 22, in spite of the proclamation of emergency under Article 359. The Supreme Court in the challenge to such orders concluded that
"Article 359 prohibited enforcement of articles 14, 21 & 22 and it also barred anyone from approaching the High Court to question his detention on any ground whatsoever. Liberty is the gift of law and can be forfeited by law. There is a complete bar to approach the court for any violation of articles 14, 21 and 22 once a proclamation under Article 359 is made. No person can question his detention for any reason whatsoever or on the ground that it is illegal and mala fide."
In a textualist reading of the provisions the majority concluded the above by ignoring the fact that one does always have to read the provisions of the Constitution with strict fidelity to its text, or in a manner faithful to the intent of its framers. The parochial understanding of Article 21 and its substantive reach was directly carried over from the A.K.Gopalan (AIR 1950 SC 27) where the court rejected the arguments to import the due process clause from the American Constitution. The entailing effect was that even when a procedure established by law passed by the legislature offends Part III the validity of such a law or the procedure cannot be challenged. The court also concluded the fundamental rights to be mutually exclusive and are water tight compartments which cannot have spilling effects on the other rights conferred under Part III of the Constitution. The substantive effect of such a conclusion is that the rights that were not explicitly recognized under the Part III cannot be enforced. The dissent by J. Khanna in refusal tellingly stated that
“The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights I did not have the effect of exterminating the independent identity of such a right and of making Article 21 to be the sole repository of that right.” (para 531)
This conclusion of the court over the ambit and scope of Article 21 that is seen above was substantially overruled by the court the celebrated case of Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. It is of interest to know that (ironically) three of the judges (Beg, Chandrachud, and Bhagwati) in the bench which decided the Maneka Gandhi were also a part of the bench which decided the Habeas Corpus case. It substantially imported the due process clause, which was consciously eschewed by the framers of the Constitution. The jurisprudence that was spearheaded by the Supreme Court in the subsequent decades expanded the ambit of the ‘due process’ to include 'substantial’ due process. In fact, it is the author of the Habeas Corpus judgement J. Bhagwati who opened up a whole new arena of rights under Article 21 by recognizing the epistolary jurisprudence for the first in the history heralding the new era of Public Interest Litigation (PIL). If one looks at the human participants behind these judgements, one cannot help but think that the ground breaking jurisprudence heralded by the Apex Court is a jurisprudence of redemption for what it failed to do during the hours of want for this country. While the external pressure made these decision makers to follow this path of regression, the subsequent decades, post emergency, provided valuable lessons for the judiciary to be cautious of the executive excesses affecting the Independence of judiciary and its ability to curtail the freedom. The judiciary saw this as an opportunity to redeem its role as a protector of civil liberties enshrined under the Constitution. Undoubtedly the subsequent developments be it the expansion of Article 21 to include civil rights of the new era or the expansion of its powers of judicial review is towards this goal. It is necessary for the court to not forget such lessons in the present when questions as to the very existence of rights as basic as privacy are put to question by the state before the court.
P.S: In the arguments before the 9 Judge bench, constituted for deciding on the fundamental right to privacy, Advocate Mr.Gopal Shankaranarayanan made an argument (albeit as a passing remark) that this judgement can be overruled by the present bench. The legal effect of the judgement, apart from the implied overruling by subsequent judgements of the court, the 44th constitutional amendment nullified it. Making it irrelevant as far as the legal effect is concerned. However, it yet remains as a blot in the judicial reasoning and deserves to be overruled by the present bench of 9 judges.
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