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PUCL Bulletin, August 2006

ADM Jabalpur case: A Supreme mistake

-- By Rajindar Sachar

[ Also see, K. G. Kannabiran's response: The court has always held against liberty ]

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 versus Anderson (House of Lords, 1942) 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.

Many politicians, journalists, and social activists were arrested by Ms Indira Gandhi under the Maintenance of Internal Security Act (MISA) on non-existent or frivolous grounds after Emergency was declared in 1975. The detentions were challenged, but they were met with the government’s plea that Article 21 was the sole repository of liberty, and that as the right to move for enforcement of that right had been suspended by the Presidential order of June 27, 1975, petitions were liable to be dismissed at the threshold. This objection having been overruled by nine high courts, the appeal was heard by a five-judge bench in the Supreme Court. Only one of them, Justice Khanna, showed courage in negating this totalitarian claim. Two of them, Justices Chandrachud and Bhagwati (who it was generally assumed would side with the liberties of citizens), however, wilted and joined Chief Justice Ray, and Justice Beg (who in any case no one expected to go against the government) in dismissing the habeas corpus petitions. It was to take another 21 months and people’s simmering anger to get rid of Emergency.

There are still reasons as to why Chandrachud and Bhagwati decided as they did. For their conclusion, they relied on the single most important case of Liversidge vs Anderson (1942), 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.

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.

But 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 Radcliffe (1951) (HL) said that “it would be a very unfortunate thing if Liversidge’s case were regarded as laying down any general rule.”

In 1963 Lord Reid (HL) 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. A review available in Law Quarterly Review (1970) clearly spelled out how embarrassing the decision in Liversidge was becoming for the English judiciary. 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.”

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014