Justice P.N. Bhagwati, who passed away on Thursday at the age of 95, believed that the job of a judge was not just to interpret law but also to make law. It is, perhaps, this streak of activism that influenced him to pave the way for public interest litigation (PIL) in India. In Bandhua Mukti Morcha v. Union of India & Others, Bhagwati turned a post card from an activist into a petition and gave a landmark ruling that freed hundreds of bonded labourers. The PIL became an important ally of social activists across the country in their battles against systemic oppression and structural violence. As External Affairs Minister Sushma Swaraj tweeted, Bhagwati will be remembered as a people’s judge.
If the introduction of the idea of PIL marked the pinnacle of his judicial career, Bhagwati had his low point during the Emergency. He was one of the five judges in the Supreme Court bench that ruled in the ADM Jabalpur (habeas corpus) case in April, 1976. The SC upended the high court ruling in the case and held that the right to life ceased to exist under the Emergency provisions, a ruling that remains a stain on the otherwise stellar record of India’s highest court. Justice H.R. Khanna was the lone dissenter; that act of superior wisdom and integrity cost him the CJI’s post, but history earmarked him as a hero of modern India. In 2011, Bhagwati, now 89, pleaded guilty. He said: “The Supreme Court should be ashamed about the ADM Jabalpur judgment. I plead guilty. I don’t know why I yielded…”. A year earlier, the SC itself had apologised for the 1976 ruling, which, it said, violated the fundamental rights of a large number of people in the country.
The apology, indeed, came late in the day. But Bhagwati was upfront about his complicity in the court’s disgraceful compromise with the establishment. He didn’t shift blame or put it on the system. It was “an act of weakness of my part”, he said. Such unqualified confessions of guilt are rare in the Indian establishment.