Table Of ContentTHEEMERGENCY,FUTURESAFEGUARDS
AND THE HABEAS CORPUS CASE:
A CRITICISM
By
H. M. SEERVA I,
M.A., LL.B.,
Advocate-General of Maharashtra (1957-1974)
Author of the Constitutional Law of India .
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"Enough if something from our hands have power
To live, and act, and serve the future hour."
- W ordstborth.
N. M. TRIPATHI PRIVATE LTD.
BOMBAY
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@ H. M. SEERVAI 1978
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Printed by V. D. Limaye at the India Printing Works, 9, Nagindas
Master Road, Extension 1, Fort, Bombay, and published by A. S .
.Pandya for N. M. Tripathi Pvt. Ltd., 164, Samaldas Gandhi Marg,
Bombay 400 002.
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This book
is dedicated
•
to the victims
of the Emergency
.
whose sufferings
roused their countrymen
to sweep out of power
governments
which had caused
those sufferings
..
..
.
. , .
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My thanks are due : to my wife for going through the
manuscript of this book and making valuable suggestions,
which have been incorporated in it, and also for going through
'
the proofs; to my personal assistant Mr. M. P. B. Nair for
preparing an accurate typescript of the book for the press and
for preparing the table of cases, and to the India Printing
Works for its willing co-operation and the excellence of its
printing.
H.M.S.
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PREFACE
"They make a desert and call it Peace."
-Tacitus
On June 25, 1975, the President of India proclaimed an
emergency on the sole advice of Prime Minister Indira Gandhi,
for she had no authority from her Council of Ministers to
tender such advice. With every week that passed, the dark
pall of tyranny seemed to descend inexorably over India. In
this encircling gloom there was one kindly light. The High
Courts stood firm in upholding the Rule of Law. Nine High
Courts held, on petitions for writs of habeas corpus, that al
though the Presidential Order under Article 359 of our Con
stitution barred the enforcement of certain fundamental rights,
the petitions were maintainable if the ordel'!> of detention were
not authorised by law or were contrary to law or were mala
"fide. The High Courts thus upheld the vital principle that
though the emergency barred the enforcement of certain
fundamental rights it did not abrogate the rule of law, or the
obligation to obey the law. However, on April 28, 1976, in
A.D.M. Jabalpur v. Shivkant Shukla (the "Habeas Corpus
Case") Chief Justice Ray, and Justices Beg, Chandrachud and
Bhagwati reversed the nine High Courts - Justice Khanna
dissenting. The majority held, in effect, if not in intent, that
as to life and personal liberty, all laws in India were abrogated
during the emergency. Coming at the darkest period in the
history of independent India, it made the darkness complete.
The disastrous consequences of this judgment and the grave
public mischief it produced were known to a few and were
suspected by many more. However, a "draconian" censor
ship, backed by preventive detention - without reason
assigned and without redress - concealed from the public
gaze the magnitude of the mischief which the Supreme Court
judgement had in fact produced.
How the emergency came suddenly to an end is now a matter
of history. Confident of her hold on the people of India, and
probably believing the oft repeated slogan "India is Indira
and Indira is India", she ordered the dissolution of the Lok
Sabha and the holding of fresh elections on March 16, 1977.
The courage and resolution of the common men and women
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PREFACE
VUl
of India swept her out of Parliament and out of office,
and inflicted on her party a most crushing electoral defeat.
Fearing that the weapon of the emergency which she had
forged, and used, against her opponents might be turned
against her and her associates, .she advised the President to
withdraw the emergency before she left office.
But as the tale of misdeeds and crimes committed under
the cloak of the emergency began to unfold before Courts and
Commissions, particularly before the Shah Commission, the
full extent of the public mischief which the Habeas Corpus
Case had caused became known to the public. In his evidence
before the Shah Commission, a Dy. Inspector-General of
Police brought these injuries home to the public when he
said that he thought it necessary to bring "to the notice of the
Commission the view taken by the Supreme Court on the
plea of the Attorney-General that in the emergency, the
absolute right to life and liberty did not exist. Police officers
u.sed to discuss the attitude of cou.rts, to find ou.t .the lega.l
limitations on th~." (italics supplied)
It remains to add that in his dissenting judgment Mr. Justice
Khanna called attention to the Rule of Law which was
embodied in our Constitution and the consequences of equat
ing it with actions authorised by any enacted law. Millions
of people had been murdered in Nazi concentration camps
under the authority of an enacted "law". The publication of
Justice Khanna's judgment was banned by the censor, and
the judgment cost him the high office of the Chief Justice of
India. But he gained universal esteem in India for his courage
and inflexible judicial independence, and the unstinted praise
of responsible newspapers in the free world.
But apart from the legal problems raised · by the Habeas
Corpus Case, the popular reaction when the emergency was
over was one of surprise and incredulity. People began to
ask: How did it all happen? How came it that the barriers
erected by our Constitution against the abuse of power or
the exercise of arbitrary despotic power, were smashed ahnost
overnight? And what must we do in the future to prevent
such abuse of power and the gross misdeeds which were perpe
trated during the emergency? •I believe that the most pres
sing duty which lies upon Indians terday is to help in finding
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lX
appropriate answers. Politicians, political organizations, and
political theorists will make their own contribution to these
most pressing problems. And the historians will lay the
lessons of tli.e past before the future. But I believe that those
trained in the law have a special obligation to find the answers,
especially if their work lies in the field of constitutional law.
The present book is a lawyer's contribution to solving some
of the problems which the emergency has raised.
I believe it will help the reader if I indicate briefly the
scheme of thi~ book. It falls into two parts: the first part
consists of three Chapters. Chapter I deals with ''The
\ Judiciary and the Emergency". In Chapter Il, I have exa
mined at length the Habeas Corpus Case in language as plain
and non-technical as I can make it. For, the importance of
that case is not confined to lawyers and law courts: it entered
every home, every government office, and every police
station. Although the judgments in that case are cast in legal
language, the issues raised can be simply stated, because they
relate to some of the most important parts of our Constitu
tion, a correct understanding of which is necessary for the
proper functioning of our Constitution. I believe I have
established that the majority judgments are clearly wrong;
the public mischief they produced is now known to the whole
world. Consequently, both the conditions for the Supreme
Court overruling its own judgments are fulfilled, namely, that
the judgments are clearly wrong and are productive of grave
public mischief. I have therefore submitted that the judg
ments ought to be overruled at the earliest opportunity. My
examination of the majority judgments shows that the final
order is contrary to the position which at least three of the
majority judges accept in their judgments. But the majority
judgments suffer from much graver defects : the judgments
failed to ask the right question, failed to analyze the distinc
tion between a fundamental right and an ordinary right,
failed to appreciate that the "unconditional" Order issued by
the President under Art. 359 made no difference to the result
if the words "conditional" and "unconditional" were properly
understood and properly applied. However, the gravest
shortcoming of the judgments is their failure to realise
that Art. 21 did not contain the sole protection of life
and personal liberty because such protection was also
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secured by some other Articles conferring fundamental
m
righ'ts and by the ordinary laws of the land. Chapter deals
with preventive detention and the attitude of the Courts to
preventive detention, because preventive detention raises the
question of personal liberty in its most acute form.
So far I have considered the working of our Constitution
and the administra'tion of the law, as it actually existed when
the Habeas Corpus Case was decided. The remaining Chapters
do not look at the Constitution as it is; they consider the
changes which must be made in lfue Constitution if a recur
rence of what happened during the emergency is to be made
impossible as far as human foresight can make evil things
impossible. The matter is complicated by the Amendments
made during the emergency in circumstances which make
those Amendments a constitutional outrage. In the language
of the day, these Amendments were passed "to institutionalize
the emergency" and to consolidate Prime Minister Indira
Gandhi's position and power. In the last Chapter I have dis
cussed the 39th and the 42nd. Amendments, and I have showp
that even on their merits almost all those amendments require
to be repealed. The Janata Party, which is now the govern
ment in power, was pledged to repeal the 42nd Amendment
and the 39th Amendment made during the emergency, and
has now introduced a Bill for that purpose.
But even the total repeal of the 39th and the 42nd Amend
ments would not be enough to prevent a recurrence of all
that happened during the emergency. If such recurrence is
to be prevented, Amendments must be made to our Consti
tution as it existed before the emergency. However, in order
to make such amendments we must answer the groups of
questions set out below, and in Chapters IV to VI I have
tried to answer them.
The First Group of questions relates to the power to pro
claim an emergency during war or external aggression and
internal disturbance and the consequences which flow from
Articles 358 and 359. First, is there any need for enacting
these emergency provisions in our Constitution, especlally
when three Democratic Federal Constitutions like those of
the United States, Canada and Australia are able to get on
well without them? Secondly, is there any justification for
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PREFACE Xl
giving the power to declare an emergency on the nebulous
ground of "internal disturbance"? Thirdly, why is it neces
sary to confer updn the President the power to suspend the
enforcement of fundamental rights during an emergency,
when those rights are subject to reasonable restrictions in
the interest of public order, security of the State and the
like? Fourthly, why should the President have power to
suspend the enforcement of all fundamental rights, if he
chooses to specify all of them in his Proclamation under Art.
359? That the right to practise religion and to maintain and
establish religious institutions may be suspended if a church,
a temple or a mosque is occupied by the enemy, or affords
cover to the enemy is intelligible; but is it intelligible to
.suspend the right to practise religion even if conditions aris
ing out of war do not require such suspension? Finally, if
it is decided to retain the emergency powers in one modified
form or another, what steps must be taken to prevent the
abuse of continuing the emergency long after the need for it
has ceased to exist?
The Second Group of questions relates to preventive deten
tion. The indiscriminate use of prevehtive detention during
the emergency, and the preventive detention of eminent poli
tical leaders whose only crime was that they exercised their
right to differ from and oppose Mrs. Gandhi, has made it
imperative to consider the provisions of preventive detention
afresh. In Gopalan's Case, the judges rightly said that pre
ventive detention as a peace time legislative power did not
exist in any free democratic constitution and its inclusion in
the Chapter on fundamental rights was unfortunate. How
ever, if preventive detention is to be retained, the next
question is, what modifications are required in Art. 22? And
finally, if the theory of preventive detention, accepted by
English and Indian Courts, is that a person preventively
detained is not being punished, since there is no accusation,
no charge and no proof of guilt against him, what is the justi
fication for detaining him in jail and treating him as though
he were a criminal?
The Third Group of questions relates to the independence of
the judiciary. Our Constitution has made the judges of the
Supreme Court and the •High Courts as independent as is
practicable. But the attacks made on the judiciary during the
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Xll PREFACE
emergency raise the question whether judicial independence
does not require further safeguards. During the emergency,
two kinds of attacks were directed against the judiciary.
One was by transferring and threatening to transfer judges
from one High Court to another without their consent, if
their judgments were unwelcome to the government or, in
the popular jargon of the day, if the judges did not "toe the
line". The other attack was by ca1culated leakages of proposed
Amendments to the Constitution, which would deprive the
judiciary of its power of judicial review. That "judicial
powers were crippled to a large extent" has now been stated
by Mr. Justice Fazl Ali in State of Rajasthan v. Union of India
A.I.R. 1977 S.C. 1361 at p. 1438. The questions thus raised
get linked up with the question of the scope of the amending
power, and the fu.rther question whether the rule of law,
rightly understood, does not require a limitation on the
amending power, if, to use the words of Chief Justice Asthana
of the Allahabad High Court, the gh~t of Hitler is not to
:;talk over India.
The Fourth Group of questions relate to . the failure of
constitutional machinery. What steps must be taken to pre
vent an abuse of the power to impose the "President's Rule"
on a State? This power has gained importance because the
present government felt obliged to exercise it and its exercise
was upheld by the Supreme Court, and was confirmed by the
verdict of the people of nine States. ,
The Fifth Group: Should important safeguards necessary for
the working of our free democratic Constitution be left to be
provided by a law to be enacted by Parliament? Should those
safeguards not be written into the Constitution itself? A fair
report of Parliamentary proceedings - in the Pres.5 and on the
Radio and Television - is an essential safeguard for the satis
factory working of parliamentary government. During the
Emergency this safeguard was destroyed when Parliament
repealed the Parliamentary Papers Protection Act, 1957 and
the States repealed similar State laws.
The Sixth Group: The emergency has shown that the
provisions of our Constitution relating to the acquisition of
property [Article 31 (2)] are a source of grave abuse of power
io secure party political ends at all times, but more particularly
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