When Judges Got It Wrong

The ‘ADM Jabalpur’ judgment in the backdrop of Emergency remains a blot.

Written by Tahir Mahmood | Updated: June 28, 2016 12:25:04 am

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Appointed out of turn, the new chief justice turned out to be a committed judge and a few months before his retirement in 1977 gifted to the nation the infamy of ADM Jabalpur.

“The care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal” — wrote Supreme Court judge Hameedullah Beg in his separate judgment in the ADM Jabalpur case (1976) on the issues if citizens’ fundamental rights could be suspended during the Emergency. The allusion in the word “maternal” to the lady prime minister of the time who had imposed the infamous Emergency on the country, was too obvious to be disavowed. And the child got his due reward from the mother. Beg was appointed the next chief justice of India, superseding the legendary judge H.R. Khanna, who had bravely dissented from the majority judgment. If The New York Times saluted the dissenting judge saying “if India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna”, so what? Nehru’s daughter never had any remorse for what she had done.

This was the second time Indira Gandhi had superseded a senior judge to appoint a CJI of her choice. Before this, in April 1973, Ajit Nath Ray, junior to three judges in the apex court, had superseded all three to become the chief justice. Former Chief Justice Mohammad Hidayatullah had called it an initiative to produce “not forward looking judges but judges looking forward to their future”. Former Attorney General for India C.K. Daphtary had remarked “the boy who wrote the best essay won the first prize” — the reference being to Ray’s dissent in the cause célèbre called Kesavananda Bharati, delivered just two days before he took over as the CJI.

Appointed out of turn, the new chief justice turned out to be a committed judge and a few months before his retirement in 1977 gifted to the nation the infamy of ADM Jabalpur. Four of the five judges on the bench deciding this case — Ray, Beg, Chandrachud and Bhagwati — had gone in government’s favour; poor Khanna was the lone dissenter. Ray demitted office in 1977 and Beg, perhaps judged as the “runner up” in Kesavananda Bharti, succeeded him as the next CJI.

Ray was not rewarded further after his retirement and spent the rest of his life in ignominy, but Beg’s reward did not end with out of turn appointment as CJI. After his retirement, Indira Gandhi appointed him chairman of the Minorities Commission. As against the prescribed three-year term, he headed the Commission for seven years and was decorated with Padma Bhushan.

The majority decision in ADM Jabalpur was severely criticised everywhere then, and continues to be criticised till this date, as a dark spot in India’s legal history. On the silver jubilee of the decision in April 2001, the People’s Union for Civil Liberties remembered it as “a judgment so shameful that even Hitler would have blushed had he the opportunity to peruse it”. In his Justice Khanna Memorial Lecture of 2009, former Chief Justice M.N. Venkatachaliah said the decision deserved to be “confined to the dustbin of history”.

Delivering the next lecture in the series to honour Khanna, former Attorney General Soli J Sorabjee recollected his response to the Ray-Beg ruling: “I never cry or show my emotions after losing a case. But, that day, sitting with Nani Palkhivala in Mumbai discussing the case, I cried.” In a 2010 judgment, Justice A.K. Ganguly of the Supreme Court admitted that “the instances of this court’s judgment violating human rights of citizens may be extremely rare, but it cannot be said that such a situation can never happen. We can remind ourselves of the majority decision of the Constitution Bench of this court in ADM Jabalpur.” In a press interview given in 2011, nonagenarian P.N. Bhagwati said: “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.”

Though too late in the day, these judicial confessions of guilt must have pleased the noble soul of Hansraj Khanna who had sacrificed his chance of being CJI to save the nation’s pride.

The author is a former Chair of National Minorities Commission and ex-member of Law Commission of India

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