SC judges and the ghost of Emergency: The other shameful chapter

The 'ADM, Jabalpur vs Shivakant Shukla’ judgement, better known as the Habeas Corpus case, delivered by a five-judge bench of the Supreme Court at the height of the Indira Gandhi government imposed Emergency, in 1976, is considered one of the most shameful chapters in the history of the apex court.

It would seem from the statements of the four Supreme Court judges, who raised the banner of revolt on Friday afternoon against the manner in which Chief Justice of India Dipak Mishra is assigning cases, at least they do not want posterity to remember them in the same breath as four of the five judges on the bench who on April 28, 1976, given the ‘Additional District Magistrate versus Shivakant Shukla’.

In that case, a division bench of Chief Justice AN Ray, and Justices MH Beg, YV Chandrachud, PN Bhagwati and HR Khanna had set aside nine High Court judgements, including ‘ADM Jabalpur versus Shivakant Shukla’, that had ruled in favour of enforcement of fundamental rights during the Emergency. Only Justice Khanna had dissented.

Their judgement had upheld the constitutionality of the draconian 'Maintenance of Internal Security Act', or MISA, under which thousands of political activists had been arrested across India during the Emergency. It had declared that the right to habeas corpus also does not stand during the Emergency. Justice Khanna was the seniormost judge after Chief Justice Ray, but was superseded by the Indira Gandhi government. In 1999, the Atal Bihari Vajpayee government had conferred on him the Padma Vibhushan.

On Friday afternoon, Justice J Chelameshwar said at the press conference: “We don’t want wise men saying 20 years from now that Justices Chelameswar, (Ranjan) Gogoi, (Madan Bhimrao) Lokur and Kurian Joseph sold their souls.” He also suggested if things continued the way they have democracy in India would be in peril.

Clearly, the ghost of ‘ADM Jabalpur vs Shivakant Shukla case’ continues to haunt at least some of the current Supreme Court judges, just as Justice Hans Raj Khanna continues to inspire them. Incidentally, Justice Gogoi is the next in line to be the Chief Justice of India.