The darkest hour of Indian history

by Anonymous | August 15, 2011

“The instances of the Apex court's judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen." A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.

Otherwise held unanimously as the messiah of the poor and the helpless, he, with his brother judge Hon’ble Mr. V. R. Krishna Iyer, fathered the Public Interest Litigation jurisprudence thereby reinvigorating and strengthening the roots of democracy in India. In one of the biggest paradoxes of modern India, Justice Bhagwati is also believed to have put the final nail in the coffin of democracy, that too at its darkest hour, by the said judgment.  (Retd.) Justice P.N. Bhagwati, Former Chief Justice of India, spoke with Rainmaker’s Aju John about the ADM Jabalpur case, and its impact on modern Indian legal history. This is the first part of the conversation. The second part is here.

The video is best viewed on full-screen. If your office or college has blocked access to YouTube, please scroll below to listen to the audio version of the conversation, or read edited extracts from the transcript of the conversation.

Click the play icon on the media bar below to listen to the audio version of the conversation:

Edited extracts from the transcript of the conversation:

The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important – how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”

Asked to discuss the Supreme Court’s attitude during the Emergency – what some advocates refer to as the “dark days” – Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”

Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there – I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”

(Retd.) Justice P.N. Bhagwati, who has served as the Chief Justice of India.

Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”

He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “

You can view the second part of this interview here.