PART: 2
April 28th 1976 is remembered as a black day in the history
of Indian democracy. The very foundations of democracy were murdered on this
day when the Supreme Court pronounced its judgment in ADM Jabalpur Vs Shukla.
The decision of Supreme Court in ADMJabalpuer Vs shukla had greatly
disappointed the Indians who loved the pledges of justice and liberty incorporated
in the preamble of our constitution.
FACTS OF THE CASE
The germs of this case were to be found in the election of
Mrs Indira Gandhi (the then prime minster of India) which had been held to be
invalid by the Allahabad High Court. In her desire to stick to the chair of
prime minster she chose to declare a national emergency on 25th June 1975 on
the ground of 'internal threat' to the security of India. As a result of the
emergency censorship was imposed on the press on 25th June 1975 itself. On 5th
August 1975, Maintenance of Internal Security Act (MISA) was approved by the
parliament and a number of opposition leaders were detained under this law. Any
person who was considered to be a political threat or who could raise the voice
of opposition was detained without trial under the MISA. According to Amnesty
International, 1, 40,000 persons were arrested without trial during the
emergency period. Many of the detained persons challenged their arrest through
writs before the High Courts under Article 226 of the constitution of India. As
a result of these writs the state governments in many of the High court's
raised the issue that, whether such writs were maintainable on the ground that
under the presidential order declaring emergency the right to file such writ
was taken away. All the High court's declared that despite the suspension of
fundamental right of a detained person, he could show that his detention was
not in accordance with the law under which he was detained or that there was a
mistake of identity.
The government being unsatisfied with this decision appealed
to the Supreme Court and thus the most controversial case of ADM Jabalpur Vs
Shukla came before the Supreme Court for hearing.
The then attorney general Niren De contended that the writ
petitions would necessarily be dismissed since the right to move any court had
been suspended and the detenue had no locus standi.
ISSUE
The main issue before the Supreme Court in this case was: -
Whether the high courts can entertain a writ of habeas corpus
filed by a person challenging his detention, during the emergency period?
DECISION OF SUPREME COURT
"In view of the presidential order dated 27th June 1975
no person has any locus standi to move any writ petition under Article 226
before a high court for habeas corpus or any other writ or order or direction
to challenge the legality of an order of detention on the ground that the order
is not under or in compliance with the Act or is illegal or is vitiated by mala
fides factual or legal or is based on extraneous grounds ".
This was the judgment delivered by four senior, most judges
of the Supreme Court including chief justice ANRay. The dissenting judgment was
that of justice HRKhanna. His contentions were opposed to that of the majority
judgment. Justice Khanna made a significant quote in his judgment which runs as
follows: -
"As observed by CJ, Huges, judges were not there simply
to decide cases, but to decide them as they think they should be decided, and
while it may be regrettable that they cannot always agree, it is better that
their independence should be maintained and recognized than that unanimity
should be secured through its sacrifice. A dissent in a court of last resort,
to use his words, is an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possibly correct the
error into which the dissenting judge believes the court to have been betrayed
".
CRITICAL ANALYSIS
The chief reason behind the filing of this writ petition was
the political unrest during that period. Opponents had long made allegations that
the congress party had taken recourse to electoral frauds to win the 1971
election. Cases of election fraud and misuse of state machinery for election
purposes were lodged in the Allahabad High Court against Indira Gandhi by Raj
Narain who had been defeated in the parliamentary election by Indira Gandhi.
The Allahabad High Court in its judgment declared Indira Gandhi's election as
void and also unseated her from the Lok Sabha. This decision in course of time
became the primary reason for the imposition of the 1975 emergency.
On 26th sept. 1975, the 39th amendment to the constitution
was made so as to place the election of prime minster beyond the judicial
scrutiny. This was an intelligent step by Indira Gandhi to safeguard her seat.
A close study of the facts behind the filing of this writ
petition reveals that it was in fact a case for assertion of political powers
by one party over the other.
Further during 1975, another National emergency was also in
operation on the ground of war with Pakistan. But before the imposition of
national emergency on 1975 an amendment was made and a new provision was added
in the constitution which provided for imposition of more than one national
emergency under Article 352 at the same time. This was done to overcome any
legal difficulty which may arise from the simultaneous operation of two
national emergencies at the same time. This was in fact another intelligent
step by Mrs Indira Gandhi to legalize the imposition of 1975 emergency.
As a matter of fact it is evident that the majority judgment
of Supreme Court in ADM Jabalpur Vs Shukla is to a great extent influenced by
the political circumstances prevailing at that time. The supreme court even
refused to follow the ruling in Makhan Singh Vs state of Punjab (1964) wherein
the supreme court had pointed out that if a detenue challenged his detention on
the ground that it violated statutory provision or the detention is vitiated by
mala fides the challenge could not be barred because of the presidential order
under Article 359 (1),
However, the lone dissenting voice of justice Khanna was paid
due respect in the year 1978 when the constitution 44th amendment Act was passed.
Justice Khanna had paid the price for his dissent. He was supposed to be the
next chief justice of India but unfortunately he had to resign before he could
become the chief justice of India.
Before the 44th amendment the national emergency provision
under Article 352 (1) was as follows: - 'the president can proclaim emergency
when he is satisfied that a grave emergency exists whereby the security of
India or any part of the territory thereof is threatened by ( a) war; or (b)
external aggression; or (c) internal disturbances'
The words "internal disturbances" was in fact
responsible for the successful imposition of the 1975 emergency. The words
"internal disturbance" is a vague one and it is difficult to
ascertain the situations covered under this words. However the 44th amendment
to the constitution has substituted the words "armed rebellion" for
the words "internal disturbances" and thereby narrowed the scope of
emergency situations.
The constitution 44th amendment Act has a great significance
in the Indian legal history. It has made the proclamation of emergency under
Article 352 (1) so complex that after 1975 no emergency has been proclaimed
till today under Article 352 (1). The 44th amendment has placed a number of
significant safeguards to check the misuse of Article 352 (1) in future.
Thus in conclusion it is clear that the 1975 national
emergency was a pre planned drama of the Indira Gandhi govt. in order to secure
certain political objectives.
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