Under emergency provisions no one could seek the assistance of any court in India to try and save his life, liberty and limb.
Supreme Court, 1976: Shashikant Shukla vs ADM Jabalpur case
1976 is a year the Supreme Court would like to forget because that is the year it reached its nadir. Legitimising Mrs. Gandhi’s imposition of Emergency, it ruled in Shashikant Shukla vs ADM Jabalpur that “under emergency provisions no one could seek the assistance of any court in India to try and save his life, liberty and limb.” In other words, a citizen did not have a fundamental right to life or liberty when emergency was declared. All habeas corpus petitions against the thousands of arbitrary arrests were dismissed. The four judges who authored this outrageous and disgraceful judgement duly received their reward as all of them subsequently became CJIs. The lone dissenting judge, HR Khanna, was superseded for the post of CJI and resigned, with honour, something which the other four will be denied forever by history.
In the forty years since then it seemed that the court was correcting itself and making amends for 1976 by standing up to the executive. But in the last five years or so we have once again begun to see the chinks in its armour when confronted by a rampaging executive: the Collegium is unable to enforce its recommendations (just today it has capitulated to the govt. and revised Justice Kureshi’s posting from Madhya Pradesh to Tripura), “sealed cover” communications between the government and the court has become the order of the day, enforcement agencies have run amuck with no check by the judiciary, senior and respected lawyers have made public the irregularities in the allotment of cases to various benches, a perception is gaining ground that the judiciary has become totally unaccountable, whether it is the quality of their judgments or their personal conduct. The politician smells blood: the BJP Delhi chief earlier this year defied the SC by breaking open a house sealed by the Court’s committee and got away scot free, last month the Law Minister, no less, dismissed the Collegium’s recommendations by asserting that his Ministry was “not a post office”, last week a UP Minister proudly boasted that “both the Ram Mandir and the Supreme Court are ours!”, and on the 17th of this month Mr. Subramaniam Swamy even pre-empted the court by announcing that the Ram Mandir judgment would be delivered before 15th November and it would be in favour of the Hindus. Displaying a tolerance and benevolence the common litigant rarely gets to see, the court has taken no action against any of these contemners.
And now we have the tragedy playing out in Kashmir over the past six weeks, and with every passing day of state repression the judiciary appears to be heading for a new nadir. In many ways the lockdown in the valley of Kashmir is worse than the Emergency – not just a few thousands but millions have been virtually imprisoned for six weeks now, schools are not functional, mobile network is cut, businesses are shut, troops occupy virtually every square foot of space, unknown thousands have been detained and no one knows what the charges against them are. Unlike in the Emergency, now only a particular people, a specific region is coming in for all this heavy handed state attention. One would have expected that the Supreme Court would not allow the ghost of ADM Jabalpur to rise again from the grave.
That expectation is being belied. It has been more than six weeks now and a large number of habeas corpus petitions, challenges to the shutting down of the media in the valley, and writs against the J+K Reorganisation Act have been filed. In a shocking expose by the Indian Express yesterday, it has been revealed that as many as 252 habeas corpus petitions have been filed in the J+K High Court since the 6th of August but not one has been decided. 147 of them are still at the admission stage and 87 are listed for orders. The state is routinely being granted time to file replies, as much as four weeks. This defeats the very purpose of a habeas petition. But the courts have shown no urgency in deciding them. The Reorganisation Act has been referred to a constitution bench which is yet to take up the matter. Only one habeas corpus case has been decided, that of the CPI leader Mr. Tarangini. God only knows where the others are languishing. Three or four well connected politicians have been allowed to visit Kashmir – why not the other citizens of the state, the hundreds of students stranded in other cities outside the state, running out of funds or news of their family? Why has the Kashmiri press not been unmuzzled yet? Why are no questions being asked about this extended suspension of the internet and mobile telephony, fundamental to the very concept of free speech and liberty ? Why is the Court accepting at face value the govt’s “national security” argument and giving it so much latitude to “restore normalcy”?
Contrast this with how the higher judiciary in the UK is conducting itself in the legal challenges to the suspension of the British Parliament by Mr. Boris Johnson on the 29th of August. Within a week of this, three High Courts (Scotland, Ireland and London) ruled on the matter, two upholding the govt’s action and one striking it down. The subsequent appeals have already been argued and heard in the country’s Supreme Court, which has announced that it will deliver its verdict next week. All signed, sealed and delivered in three weeks! This is how vital constitutional matters should be decided in mature judicial systems, this is how the courts should function as a bulwark between a rampaging executive and the defenceless citizenry, this is how genuinely autonomous institutions should function in a democracy.
It appears that the ghost of ADM JABALPUR is alive and kicking. Kashmir is the judiciary’s last opportunity to exorcise it – there won’t be a third chance.