After a lapse of 24 years the Supreme Court of India has admitted that the Apex Court’s decision during the Emergency was erroneous and violated the Fundamental Rights of a large number of people in the country. Setting aside one of the Court’s own judgments on May 8, 2009, in which it had upheld the death sentence of a person who murdered four people, Justice Alam and Justice Ganguly did not rule out instances of violating the human rights of the citizens though they may be extremely rare. The bench referred to the majority decision of the Constitution Bench of Supreme Court in 1976, which became infamous as the Habeas Corpus case, in which four judges went with the then Congress Government view that even right to life stood abrogated during Emergency.
The bench also pointed out that it was Justice Khanna who rightly gave a dissenting judgment by holding that issue of writs of Habeas Corpus by High Courts is an integral part of the Constitution and no power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. The Apex Court then recalled the comment of former Chief Justice M N Venkatachalliah in the Khanna Memorial Lecture on February 25, 2009 that the majority decision in the Emergency case be "confined to the dustbin of history".
Following an article published in a journal, in 2009, the National Human Rights Commission (NHRC) intervened in the matter of one Mr. Chauhan and asked the Assam Governor to examine his case in view of a doubt about his juvenile status. The State Government accordingly commuted the death penalty to life imprisonment. The family members of the deceased filed a fresh petition in the Apex Court. In a judgment on May 8, 2009, the Apex Court slammed the NHRC for setting aside a judicial order and said the commission had no such powers to interfere. However, Chauhan filed a second review petition challenging the judgment. Upholding Chauhan’s plea, the Apex Court now said, that, the 1993 Act, confers on NHRC such other functions as it may consider necessary for the promotion of human rights.
The Supreme Court of India, the highest judicial body established by the Constitution is the guardian of the Constitution and the highest court of appeal. However, the independence of judiciary was severely curtailed during the 1975-1977 Indian Emergency of Indira Gandhi regime. The constitutional rights of imprisoned persons were restricted under Preventive detention laws. In the above said Habeas Corpus case (Additional District Magistrate Jabalpur Vs Shivakant Shukla), a bench of five senior most judges of Supreme Court- Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg-ruled in favor of state's right for unrestricted powers of detention during emergency, while the only dissenting opinion was from Justice H. R. Khanna.
Justice Khanna said, detention without trial is an anathema to all those who love personal liberty... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible to correct the error into which the dissenting Judge believes the court to have been betrayed.
It is believed that before delivering his dissenting opinion, Justice Khanna had mentioned to his sister that he has prepared his judgment, which is going to cost him the Chief Justice-ship of India. When the Central Government was to recommend one of Supreme Court Judges for the post of Chief Justice in January 1977, Justice Khanna was superseded despite being the senior most judge at the time and thereby Government broke the convention of appointing only the senior most judge to the position of Chief Justice of India. He resigned from Judicial Service. Justice Khanna remains a legendary figure among the legal fraternity in India for this decision.
The New York Times wrote at the time, that, “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 of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom 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... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender”.
After Indira Gandhi lost the elections of 1977, Justice Khanna was for a short while, Chairman of the Law Commission. In 1979, he was inducted in the cabinet as Law Minister by Charan Singh, but the ministry fell within six months. He was also for many years the chairman of the Press Trust of India. In 1982 Khanna was nominated for President of India, as a combined opposition candidate supported by Charan Singh. However, he lost to Giani Zail Singh. He died at the age of 95 years on February 25, 2008.
In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th Constitutional Amendment, Articles 20 and 21 (personal liberty) were excluded from the purview of suspension during Emergency.
In exercise of the powers conferred by the Constitution, the President of India on November 16, 1974, declared that, the right to move any court with respect to orders of detention which have already been made or which may be made in future for the enforcement of the rights conferred by the Constitution shall remain suspended for a period of six months from the date of issue of the order or the period during which the proclamation of emergency is in force. On June 20, 1975, the President of India amended the above order by substituting 12 months for '6 months' in the order. On June 25, 1975, the President declared that a grave emergency exists whereby the security of India is threatened by internal disturbances. The President also declared that the right of any person to move any court for the enforcement of the rights conferred by the Constitution shall remain suspended for the period during which the proclamation of emergency made on June 25, 1975.
Petitions came up for hearing, by the issuance of a writ of habeas Corpus, claiming that the petitioners have been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under the Constitution, in view of the Presidential order dated June 27 1975, suspending the right to move for enforcement of the right conferred by the Constitution. High Courts took different views. Some High Courts broadly took the view that despite the Presidential order it is open to the detenues to challenge their detention on the ground that it is ultra vires. Some of these High Courts have further held that the detenues can attack the order of detention on the ground that it is mala fide. The matter was brought before the Apex Court.
The majority of the Supreme Court consisting of Chief Justice M.H. Beg, Justices A.N. Ray, Y.V. Chandrachud and P.N. Bhagwati held that, in view of the Presidential Order no person has any locus stand to move any writ petition before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order.
Commenting on scope of judicial review in emergency the Court said that, “in times of emergency the executive safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered. Liberty is confined and controlled by law, whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged.
“The argument that jurisdiction and powers of this Court and of the High Court’s are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect. No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus stand of the detune to move any court for the enforcement of Fundamental Rights for the time being, the jurisdiction and powers of this Court and of the High Court’s remain unaltered”.
Supreme Court majority order said that, in view of the Presidential order no person has any locus stand to move any writ petition 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 malafides factual or legal or is based on extraneous consideration. Maintenance of Internal Security Act is constitutionally valid.
Now after two decades the Supreme Court admitted that the same Apex Court violated Fundamental Rights of a large number of people by endorsing Emergency during Indira Gandhi regime.
Fundamental Rights is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as Habeas Corpus. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.
Let us hope that such dark days of Emergency never to be repeated again! Let us also hope that Governmental and non-Governmental Human Rights’ bodies are alert all the time to safe-guard the rights of citizens. (End)
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