On 25 April 1973 something unprecedented had happened in India&’s judicial history. Prime Minister Indira Gandhi had the audacity to supersede as many as three senior judges of the Supreme Court – JMS helat, KS Hegde and AN Grover– and instead appointed the fourth senior judge Ajit Narain Ray to succeed Justice SM Sikri as the next Chief Justice of India. The unfortunate development was widely criticized and called the “blackest day in Indian democracy.”
Former Chief Justice Mohammad Hidayatullah observed that this was an attempt to produce “not forward looking judges but judges looking forward to their future.” Former Attorney General CK Daphtary commented on this development saying:“The boy who wrote the best essay won the first prize.”I was then working in the Indian Law Institute. The walls of ILI shook with the shock of this unexpected situation but the problem was that as the new Chief Justice Ray had become ex officio President of the Institute.
There were murmurs and whispers but no loud critiques. The new Chief Justice turned out to be a committed judge and a few months before his retirement in early 1977 gifted to the nation the infamy of the so-called ‘Habeas Corpus’ case [ADM Jabalpur]. The issue to be decided, in short, was whether during the Emergency then in force in the country people illegally detained could move the court with a habeas corpus petition.
With three other judges – MH Beg, YV Chandrachud and PN Bhagwati– Ray gave a ruling in favour of the government which made India an object of severe criticism all over the world and deprived the nation of the services of one of the ablest judges of the 20th century, Justice HR Khanna – the lone dissenter in the case. The facts regarding the background of this case and the way the court decided it are too well known to be mentioned here.
Concurring with the Chief Justice, Justice MH Beg had virtually issued a certificate to the government, with an obvious encomium to its lady head, saying that “The care and concern bestowed by the state authorities upon the welfare of deten us who are well housed, well fed and well treated, is almost maternal.” As a reward, he was selected by the government to succeed Justice Ray as the next Chief Justice, superseding Justice HR Khanna.
After demitting office he was appointed to the Chair of the Minorities Commission and held the position for seven long years during which Prime Minister Indira Gandhi constituted the famous Gopal Singh Committee to study the problems of minorities, thus providing an alibi to the Minorities Commission to keep away from its assigned responsibilities. The next two Chief Justices of
India, YV Chandrachud and PN Bhagwati, were on AN Ray&’s side in the notorious ruling of 1976.Bothhowever realized the blunder later and washed away the blot by their future performance and pronouncements.
Chandrachud built a good reputation through his decision in the celebrated Minerva Mills case of 1980 relating to the 42nd Amendment of the Constitution which purported to undo Kesvananda Bharti (1973) by empowering Parliament to amend each and every provision of the Constitution and putting Directive Principles of State Policy above the Fundamental Rights.
That was his way of silently disowning the majority ruling in Habeas Corpus case. Like Beg and Chandrachud, Bhagwati too had concurred with Chief Justice AN Ray&’s ruling.This was particularly astonishing in view of his earlier highly appreciable judgment in Khudiram Dascase (1975) involving issues relating to detention under Article 22of the Constitution of India and the Maintenance of Internal Security Act 1950.
After demitting office Bhagwati became a committed promoter of human rights and was elected to the United Nation&’s Human Rights Committee and gradually became its Chair. In 2006 he and I attended an international human rights conference in Malaysia during which I asked him if he still supported the Habeas Corpus ruling of 1976. He was visibly disturbed but kept quiet. The learned judge took another five years to say that the ruling was wrong. In September 2011, speaking to the Indian Express, he said “I was wrong.
The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did.” The 1976 decision was severely criticized everywhere then, and continues to be criticized till this date as a dark spot in India&’s political, legal and judicial history.
On the silver jubilee of the decision in April 2001 the People&’s Union for Civil Liberty remembered the day as “aday, which produced a judgment so shameful that even Hitler would have blushed had he the opportunity to peruse it.” Delivering the Justice HR Khanna Memorial Lecture in2009 former Chief Justice Venkatachaliah said that the 1976 decision deserved to be “confined to the dustbin of history.”
In December 2010, Justice AK Ganguly of the Supreme Court referred to the 1976 decision in one of his judgments and held that the “erroneous” decision violated the people&’s Fundamental Right to personal liberty [Ramdeo 2010].”But will such acknowledgements of guilt and remorse wipeout that blot on the judicial history of India?
ADM Jabalpur and its aftermath will remain an inerasable chapter of the nation&’s record of injustices inflicted on the people with the blessings of committed judiciary. We hope this history will never be repeated. Thos who are currently restructuring the mechanism for the appointment of judges must keep it in mind and find ways and means to ensure absolute independence of the judiciary from the direct or indirect influence of the executive organ of the State.