ADM Jabalpur Vs Shivakant Shukla: Supreme Court and its Jurisprudence of Redemption

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.

Right to Privacy: Summary of Arguments Made by the Petitioners on Day 2 of the Hearings

Day 2: 

The bench comprised of 9 judges sitting from left to right in the following order

• Sanjay Kishan Kaul J.
• A.M. Sapre J.
• R.K. Agarwal J.
• Jasti Chelameshwar J.
• J.S. Kehar J.
• S.A. Bobde J.
• R.F. Nariman J.
• Dhananjay Chandrachud J.
• Navin Sinha J.

10:30 AM: Arguments were continued by Sr. Advocate Mr.Arvind Datar from where he let off the previous day

• The three types of privacy that an individual can command are as follows
• Physical privacy: Protection against tangible and intangible invasion of private space.
• Informational privacy: An individual's control over the dissemination of his private information.
• Decisional privacy: Protection of an individual's autonomy over fundamental personal choices.
• Interrupted by Dhananjay Chandrachud J. (DyC) with the following question 

DyC: For us to claim the protection from invasion of privacy from the state is one thing. But for a horizontal right like Right to Privacy can the same be enforced against private entities?

Datar: The remedy in that case is of damages.

DyC: But, the state has equal obligation for protection even against violations by a private player. Say for example its role might by to frame appropriate rules and regulations to prevent such violations from happening.

Datar: Yes! I completely agree. The state is obligated to play its role.

DyC: But the obligation and the entailing burden on the state may not be equal in all such horizontal rights.

11:00 AM: Mr.Datar rested his arguments and the stage was taken by Sr.Adv. Mr.Anand Grover

• Maneka Gandhi has overrules Kharak Singh, so there is no need to get into that discussion.
• The UOI has made a primary argument that the Right to Privacy is not present within the constitution in any form. If at all it is granted as a common law right. I say that English Common Law does not recognise the right. It is imported by the American Jurisprudence.
• It is baffling that we are still debating upon the very existence of a right as essential as this after the passage of such a long time.
• Such form of human rights is a part of the obligation that India has under the international instruments that it has signed. (Cites Article 17 of International Covenant on Civil and Political Rights).
• Sr. Adv. Mr.Gopal Subramanium (GS) interrupts: The recent Manipur judgement (Extra Judl. Exec. Victims Families Association & Anr. Vs. Union of India & Ors. W.P. Crl. No.129/2012) delivered by M.B. Lokur J. discusses this.
• It is the obligation of the state to implement and comply with such international instruments if it is not against any of the domestic law. It is in pursuance of such obligation that several acts like Protection of Human Rights Act, 1993 were enacted. In fact, Section 12 (f) of the Act obligates the National Human Rights Commission to study treaties and other international instruments on human rights to make suitable recommendations for their effective implementation. Interrupted by Rohinton F. Nariman J. (RFN)

RFN: The court can issue a mandamus to the government to enforce the commitments of the nation under such international instruments.

GS: Yes! It has happened in the past.

• If there is no domestic law and there is international law then the international law will prevail. This has been enunciated in the Vishaka Judgement by the Supreme Court itself.

RFN: Then we can say that the 8 judge bench in the M.P.Sharma case is outrightly wrong since it was delivered in the face of international instruments such as Universal Declaration of Human Rights (UDHR).

Grover: Also it does not have the ratio decidendi. Privacy was never an issue before that bench.

• Dignity is always associated with privacy. Interrupted by DyC: "Then the NALSA judgement would become vulnerable". (Mr.Grover enters into an animated discussion about the NALSA judgement by tracing out the dignity and privacy aspects of the issues involved in that case).
• The present bench should not precisely define the Right to Privacy in its totality. It may trace its contours to provide a general idea and leave the rest to be decided on case to case basis. 
• Cites Govind Vs. State of Madhya Pradesh 1975 SCR (3) 946. DyC: This judgement by Mathews J. is a rather narrow conception of privacy. The issue was not entertained in its full context. Only now the issue is entertained in full fledged manner.
• Tests that can be used differs from the Article under which the issue of privacy arises. It can either arise in Art.19 or 21. So the issue must be adjudicated and tested in the appropriate context. Several of such tests can be 
• Compelling state interest test.
• Proportionality test.
• Least Restrictive test.
• Legitimacy test.
• Privacy would also entail the right to identity and right to remain anonymous. DyC cites several practical examples where the issues of privacy and state necessity are encountered.

In applying for a passport for an adopted child can the authority compel to disclose the details of biological parents. Also in case of a single mother can there be any compulsion to disclose the identity of the father? To what extent such rights can be claimed, if at all there is any?

Suppose the government maintains a register about all people who has committed a crime. The violation of the Right to Privacy is not merely of the maintaining the register. There will be one if such an information is used to profile individuals and their propensity to commit crime. 

Ultimately, the important issue is that the identity should not be used to stigmatise the person. (Cites NALSA judgement.)

• Cites Right to Privacy and bodily integrity of a mentally unstable woman and a victim of rape to give birth to a child. (Suchita Srivastava Vs. Chandigarh Administration)
• There is a right to privacy. But it should not be defined now. It should be on case to case basis. It should be indicative (Sr. Adv. GS whispering in Grover's ears: Let us not go into the merits of Aadhaar case now. Grover nods in agreement).
• The Right to Privacy is all pervading, the test for which will depend on the right in which it manifests itself.

1:50 PM: Arguments rested by Mr.Anand Grover and the stage has been taken by Sr. Adv. Sajjan Poovayya (SjP).

• Cites United States Vs. Jones (2012). DyC: Please tell us about consent, informed consent and its entailing effects.

DyC: If any surveillance is a transgression of Right to Privacy, then what about the legitimate requirements of the state such as a person being put under surveillance under alleges terrorist activities?

SjP: Then it must be done under the procedure established by law.

Chelameshwar: What is the objection on mere collection of data?

SjP: Given the advancement in technology the collection of data and its processing happens near simultaneously due to artificial intelligence. The possibilities of abuse is large. Moreover, in case of a private player I consent for such a collection on a case to case basis on a private contract to avail its services. That is not the case with the state.

• Secrecy is not a prerequisite for protection under Right to Privacy. Even the information in public domain is entitled to such a protection.
• The state is not merely obligated to protect the physical being of its citizens, in modern times it is to protect their digital identity as well.
• Cites the various instances where the legislature has already acknowledged the existence of Right to Privacy.
• Section 5(2) of Telegraph Act.
• Section 8 (j) of RTI Act.

RFN: What happened to the privacy bill?

3:30 PM: Arguments rested by Mr.Poovayya. The stage was taken by Ms.Meenakshi Arora

• Cites Wolf Vs. Colorado.
• Rights there were already there before the Constitution came into being were inhered into the Constitution. Just because it is not stated there does not mean that it does not exist. A similar argument was taken by H.R. Khanna J. in A.D.M.Jabalpur case (Habaeus Corpus Case).
• Cites Row Vs. Wade.

04:00 PM: Adjourned. Hearing of Respondents arguments to continue on Tuesday.

Hearing without Hearing

A recent case of Review in Supreme Court that I worked upon opened my mind up to certain intriguing questions that I never thought before. As a law student, I have studied the review jurisdiction of Supreme Court in a superficial manner, under the constitutional law. However, the real world experience of drafting and filing a review petition was a world apart. Though theoretically I was sound I experienced a lot of difficulties in putting it to the best use possible. It was like an undelectable mix of dessert topped with salt for icing. Maybe I am one of those victims of the curse that most suffers here, the practice-academia disconnect. I was merely taught about what was review jurisdiction of Supreme Court of India, that too in a dilettantish way.

Coming to the topic of this post,

Though Article 137 of Constitution of India provides the power of review to the Supreme Court of India, its implementation is carried out through the rules that are framed by the Supreme Court, vide the powers vested in it by Article 145 of the Constitution. The Supreme Court Rules, coming into force for the first time in 15th January 1966, governs the procedures that are to be followed in the proceedings before the apex court of the country. This was subsequently repealed, considering the changing circumstances the change in circumstances with time and the necessity to keep pace with it, with The Supreme Court Rules, 2013, coming into force on 19th August, 2014.

In this particular brief that I worked upon, which has a history of long and protracted litigation, a Special Leave Petition was filed against the order judgement which the petitioner lost. Now he wanted to try his luck in a review of the judgement. It was only after filing of the review petition that I observed something peculiar in the Supreme Court Rules that governs the review petition. Under Part IV, Order XLVII; Rule 3 dictates that an application for review shall be disposed of by circulation, without any oral arguments. The provision itself is extracted below:

"Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed."

This was the first instance, which I encountered, where a person’s right to be heard publicly is curtailed expressly. This gives rise to a situation where a person's case is decided upon secretly, in the chambers of the judges, through the process of circulation, without giving an opportunity to present oral arguments. The hearing becomes 'deaf' without it. The purpose of this provision, ostensibly, is to prevent wastage of court's precious time, however, it in effect refuses a person a right as basic as to make oral presentation of his case in public. Moreover, this denial of this right, it can be argued, leads to violation of a person’s fundamental right equality enshrined under Article 14 and the procedural fairness under Article 21. Numerous case laws have expounded these two rights and it will be trite to mention them here emphasizing their importance as a fundamental right. The irony is that it is very same Supreme Court, which created this unconstitutional rule, in numerous cases acted as the paragon of justice, upholding these rights.

The previous version of this rule, introduced under Order 40, Rules 2 (1) & 3 of the Supreme Court Rules, 1966 as an amendment, was challenged in the case of P.N. Eshwara Iyer Vs. The Registrar, Supreme Court of India.[1] The rampant filing of review petitions, without much basis legally, made the court to think of a way to curb it, leading to the amendment that gave away the oral arguments for disposal through circulation. Two important arguments that were taken by the petitioner to invalidate the rule are (i) Scuttling of oral hearing is subversive of a basic creed that public justice shall be rendered from the public seat. (ii) A Review is a judicial process and its proceedings must not run away from the processual jurisprudence. However, the court rejected the arguments and upheld the constitutional validity of the rule. Justice. V.R. Krishna Iyer, writing on behalf of his brother judges Murtaza Fazal Ali and D.A.Desai J.J. reasoning can be condensed thusly

1.   Laxity in certification (to be given by the lawyer that there exists reasonably good grounds for a review) and ‘promiscuity’ in filing review applications has crowded the court with ‘unwanted review babies’.

2.    In order to curb the reckless filing of reviews, a process of preliminary screening is a need, which is established through this rule as the disposing of through circulation.

3.      Oral hearing has been substituted by written submissions and it adequately provides an opportunity to the petitioner a hearing. Moreover, the right to be heard is of essence but hearing does not mean more than a fair opportunity to present one’s point on a dispute, followed by a fair consideration thereof by fair-minded judges.

4.  ‘Circulation’, in the judicial context, merely means, not in court through oral arguments, but by discussion at a judicial conference. Judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions.

5.   A Review is not an original hearing and a second hearing of an order that is already passed after a full hearing is inept. The distinction between an original application vis-à-vis an application for review for the enforcement of fundamental right was observed as made in the case of Lala Ram’s Case.[2] There it was observed that an application for review is not to enforce a fundamental right but to reopen an order vitiated by an error on the face of the record. The enforcement of the fundamental right therefore is therefore a mere consequence of the review.

In the same case Pathak J. with A.D. Koushal J. also came to the same conclusion in a differently worded judgment. With this the matter was put to rest.

The question again came up for consideration in a batch of cases (It is interesting to note here that Yakub Memon’s petition was also one amongst them), in the context of a review in matters involving death sentences.[3] This time however the rule that was challenged was under the latest The Supreme Court Rules, 2013, albeit with the same wordings of the previous one in this regard. The question that came up for consideration before the court was, whether the rule holds good in the cases where a review is sought against an order confirming death penalty. Again the questions over right to life, irreversibility of a death sentence, importance of oral submissions, procedure for review of death sentence cases were considered. The majority opinion after considering and clarifying the P.N. Eshwara Iyer case ruled that Order 40, Rule 3 sufficiently meets the requirement of the principle of audi alteram partem. However, it clarified, in the cases death sentence the question is something that is over the life or death of a person. Therefore, even a remote chance of deviating from a decision which is sought to be reviewed would justify an oral hearing. It is too precious to be parted with. If it is found that such a sentence is not warranted, after the sentence is executed, it would serve no purpose. Thus the court found that a limited oral hearing, even at the stage of review, is mandated under Article 21 of Constitution in all the death cases. To support its cause the court relied upon the fact that Court’s overcrowded docket would be able to manage a limited oral hearing of 30 minutes in death sentence cases, which are numerically filed at the rate of 60 per annum. The court ruled it to have a prospective effect.

Jasti Chelameshwar J. dissenting from the majority held that an obligation to guarantee for such rights are a given under the constitution; however, it does not extend so far as to compulsorily giving an oral hearing in every case where a review is sought by a condemned convict. The reasoning, sound in its own right, as provided is as follows.

1.    Barring the contingency contemplated under Article 134, the makers of the Constitution did not even think it fit to provide an appeal to the Supreme Court even in cases of death penalty.

2.  In cases other than that are bought as matter of right under Article 134, the Court’s jurisdiction is discretionary. Therefore, Article 137 of Constitution does not confer any right to any person to seek a review, rather it recognises the authority of Supreme Court to review its own judgements.

3.   The rule of audi alteram partem do not take within its sweep the right to make oral submissions in every case. It all depends upon the demands of justice in a given case.

It is interesting in the way in which the Supreme Court has opened up the avenue to a limited extent for the death penalty cases while at the same time it tries in every possible way not to open the gates of oral hearing in any manner for other cases. How much ever generous it may sound to be, for providing a leeway for death penalty cases, one fact has been firmly established in both the cases even in the dissent that was written in them no one has entertained the possibility of giving the opportunity for an oral presentation of the case. Some feel that it not fair for a person to be deprived of the advantage a party will get because of the oratorical skills of an advocate and also mere practical consideration, that most of review that were filed are futile, cannot outweigh the rights of a person. Rightfully said. The fundamental rights are never intended to be protected in degrees like in this case where death penalty is given preference over others. It is weird that it is the same court that talked about procedural fairness all through its judgment ending it with a conclusion that such a right cannot be vested in all cases in a review. If at all there is a problem, it is merely systemic that must be rectified through other means, rather than curtailing the rights of a person. Imposition of exemplary costs, though it fails to deter most of the parties or rather the advocates, limiting the time granted for oral arguments and so on. Looking back at the history of Supreme Court and its exemplary activism, this is in fact surprising. Maybe with changing needs of the time the perception of freedom has changed too.

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[1] AIR 1980 SC 808

[2] (1967) 2 SCR 14

[3] (2014) 9 SCC 738