THE HABEAS CORPUS CASE

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. 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 Bihari Vajpayee, and L.K Advani, were detained without charges and trial. The fundamental right to life and liberty (Article 21) and equality (Article 14) were suspended. The Press was gagged and censored, orders were passed not to report unfavorable court judgments. Many people were detained and habeas corpus petitions were presented for their release on the ground that such orders were ultra vires and beyond the statute, or were mala fide.

A Bench of five judges of the Supreme Court (Chief Justice A.N. Ray, Justice Khanna, M.H. Beg, Y.V. Chandrachud, and P.N. Bhagwati) heard what has come to be known as the habeas corpus case (A.D.M. Jabalpur v. Shiv Kant Shukla). The only 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, were issued with mala fide, or were not in accordance with law.

On April 28, 1976, four judges decided in favour of the government, holding that the petitions were not maintainable. Justice Khanna was the lone dissenter. The government’s argument was accepted by the majority. The Supreme Court by a majority closed its door to the citizens and there was no remedy against illegal detentions, unauthorized demolitions, official tyranny, torture, murder, and mayhem. The Supreme Court sanctioned “The rule of Lawlessness.”

H.M. Seervai later commented: “The four judgments were delivered in the darkest hour of India’s history after independence, and they made the darkness complete. Ordinary men and women would understand Satan saying ‘Evil be thou my good’, but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.’”

Before delivering this opinion, Justice Khanna mentioned to his sister, “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India”.

True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in January 1977. This was against legal tradition and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day. After his resignation Bar Associations all over India, in protest, abstained from the courts and took out black-coat processions, though to no avail. However, his was the last supersession in the history of the Supreme Court, and eventually the judiciary even wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993 (also known as the Second Judges Case).

A prolific writer, he also held lectures regularly and many of his lectures were later published in book form. Among the books he has authored, few are- Judicial Review or Confrontation (1977); Constitution and civil liberties (1978, based on the B. R. Ambedkar memorial lectures); Making of India’s Constitution (1981, based on the Sulakshani Devi Mahajan lectures); Judiciary in India and Judicial Process (1985, based on the Tagore Law Lectures); Liberty, Democracy, and Ethics; and Society and the Law, which mainly deals with Indian laws and the constitution.