By – Mohd Ashraf
The Latin term “habeas corpus” means ‘you must have the body’ and a writ for securing the liberty of the person was called habeas corpus . The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government.The one single item which had affected the people most, over the entire country was the manner in which the power under the amended MISA was misused at various levels. Maintenance of Internal Security Act (MISA) was an Act for preventive detention and detentions made there under were held valid. A.D.M. Jabalpur Vs Shiv Kant Shukla (Commonly known as the Habeas Corpus case) was to a large extent, responsible for this. Writ of Habeas Corpus has been described as ‘a key, which unlocks the door to freedom and as the case dealt with its maintainability, it has come to be known as the Habeas Corpus Case. Seervai rightly says,‘The High Courts reached their finest hour during the emergency; that brave and courageous judgments were delivered … the High Courts had kept the doors ajar which the Supreme Court barred and bolted.’
The Supreme Court in his majority judgment held that Article 21 of the Constitution was the sole vault of appropriate to life and freedom and consequently, the suspension of it suggested that every one of the cures ensuring this directly under whatever other law should likewise be suspended. The Court while understanding Article 21 as the sole vault of life and individual freedom denied all accessible solutions for the detenus on any ground that any test to the detainment arrange for the implementation of the privilege to individual freedom under Article 21 couldn’t be so done because of the presidential request suspending it being in drive. The lion’s share additionally held that even the request of confinement couldn’t be tested even on whatever other ground, regardless of the possibility that the detainment arrange was passed malafide, rendering the detenu with no cure even against an unlawful confinement.
- 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.
This one case is a glaring example of how the four astute Judges of the Supreme Court attempted to exceed themselves in being more faithful to the position of royalty than the lord himself. The last request goes path past what was requested of them by the supplication of the Union of India. All the individual judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extension the entries of the Attorney-General for the benefit of the legislature wherein he made the case that the detenue had no privilege to approach the Court to challenge his detention.They likewise record the concession of the Attorney-General such that in spite of this general boycott the Courts may concede alleviation if the detainment arrange is on the substance of it awful, as, in the event that it is passed by a man not approved to pass it, or on the off chance that it is passed for a reason outside those specified in Section 3(1) of the MISA or in the event that it doesn’t bear signature by any stretch of the imagination. The Attorney General had in this way gave over to the Supreme Court a similar key with which every High Court had before used to keep slightly open their entryways for the detenues to press through and enter. The Supreme Court, rather, liked to discard this key to their own sense of pride. The lion’s share judgment, actually taken, and as saw from there on by every single High Court, plainly coordinated that detenues were to be halted at the entryways if not in the passages of the corridors of Justice.Another stunning part of A. D. M. Jabalpur is that it sets up certain our Judges do truly live in ivory towers absolutely absent of the ground substances. In talking about the Emergency and the state of those kept Justice Beg has this to state: “We comprehend that the care and concern offered by the State specialists to the welfare of detenues who are all around housed, very much encouraged and all around treated, is practically maternal.” Justice Chandrachud went advance in his tribute when he finished his Judgment expressing: “a great many counsels communicated the dread that amid the crisis, the official may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such wrongdoings have not discolored the record of Free India and I have a jewel brilliant, precious stone hard expectation that such things will never come to pass.”Chief Justice Ray had the boldness to reprimand guide for the detenues who inferred the nazi gas chambers. He voiced his conviction that individuals who have confidence in themselves and in their nation won’t paint pictures of malevolent contortion and duplicitous malignment of the administration of the country.A extraordinary specify must be made of Justice Bhagwati the man who had a skill with words and who knew how to utilize them to play to the exhibition. In spite of the fact that Justice Khanna had held high the light of opportunity, it was Justice Bhagwati who talked pretentiously about freedom: “I have dependably inclined for maintaining individual freedom, for, I trust, it is a standout amongst the most esteemed estimations of humankind, without it life would not be worth living. It is one of the mainstays of free popularity based society… But I don’t think it would be ideal for me to enable my adoration for individual freedom to cloud my vision or to induce me to put on the important arrangement of the Constitution a development which its dialect can’t sensibly hold up under.”
Justice Khanna, conscious of his aloneness, finished his judgment with a quote:”As saw by Chief Justice Huges, Judges are not there essentially to choose cases, but rather to choose them as they think they ought to be chosen, and keeping in mind that it might be deplorable that they can’t generally concur… A contradiction in a Court of final resort, to utilize his words, is an interest to the agonizing soul of the law, to the insight of a future day, when a later choice may conceivable right the blunder into which the disagreeing Judge trusts the court to have been deceived.”
The New York Times remarked,”If India ever discovers its way back to the flexibility and majority rules system that were pleased signs of its initial eighteen years as an autonomous country, somebody will without a doubt erect a landmark to Justice H R Khanna. It was Justice Khanna who stood up courageously and articulately for flexibility this week in contradicting from the Court’s choice maintaining the privilege of Prime Minister Indira Gandhi’s Government to detain political rivals voluntarily and without court hearings… . what’s more, the Indian Supreme Court’s choice seems near absolute surrender.”
The proclamation of Emergency being the start of the darkest period in Indian democracy and we should never forget that during this dark period, the 28th April, 1976, was its blackest day. It is all the more important to remember this day since we the people of India have grown accustomed to being ruled by preventive detention laws where thousands are being jailed without trial. If we, the people of India, forget this, we will be condemning ourselves sooner or later to history repeating itself.Dubbed as “a scar on Indian Judiciary”, the judgment exposed the dangers facing the Constitution (read total anarchy) if the judicial wing was unwilling to stand firm and intolerant to violation of constitutional mandate.
Photo credit: http://philippinesreport.com/writ-habeas-corpus-important/