Before Kanhaiya, How the SC Curtailed Our Rights During Emergency

During the Emergency, a decision by the Supreme Court took away some of our basic rights.

During the Emergency between 1975-77, the judiciary suspended the writ of Habeas Corpus. (Photo: The Quint)

JNU Students’ Union President Kanhaiya Kumar has finally got bail. At his last hearing on 29 February, the Delhi High Court admonished the police and asked whether they did, in fact, possess video evidence of Kanhaiya’s alleged ‘anti-national’ activities.

The Delhi Police has no such evidence. Yet, Kanhaiya has now spent the better part of the last month in jail.

JNUSU President Kanhaiya Kumar in police custody. (Photo: AP)

Is the judiciary powerless to intervene, or at the very least, expedite the hearing of a case where the claims of the Delhi Police have already been brought under serious doubt?

In Kanhaiya’s and the other students’ case, it is clear that the prosecution is throwing the book at them. They are using standard delaying tactics and opposing his bail. The judiciary is not powerless and it has the discretion to act in favour of the accused. For now, though, they seem to be following the conventional path.

Sanjay Hegde, Senior Advocate, Supreme Court of India

By and large, our courts have stood up for the Constitution and the rights of the individual. However, there has been a time when they almost aided the suspension of our fundamental rights.

When Democracy Was in Peril, the Judiciary Stood By

The writ of Habeas Corpus translates to “you should have the body”. Broadly, any citizen can file a writ petition in the highest court of the land, challenging an illegal detention.

Indian Herald’s front page on June 26, 1975. (Courtesy: Twitter)

During the Emergency, arguably the greatest threat to Indian democracy, the Supreme Court ruled overwhelmingly in favour of suspending this basic protection against illegal detention. In effect, they suspended the Right to Freedom, as people could be detained without trial at the whim of the government.

On 28 April 1976, four out of five of the most senior judges in India, including Chief Justice PN Bhagwati, ruled in effect to abrogate the right of citizens to challenge their detention.

In view of the Presidential Order dated 27th June 1975 no person has any locus 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 malafides factual or legal or is based on extraneous considerations.

Supreme Court Ruling in Additional District Magistrate of Jabalpur v. Shiv Kant Shukla Case 

Hans Raj Khanna was the sole judge on the bench who wrote a dissenting opinion. His voice was one of the few that stood up for our Constitutional rights.

The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.

Justice Hans Raj Khanna’s dissenting opinion 

Repentance and Atonement

In 2011, nearly three decades after the judgement, PN Bhagwati, the Chief Justice during the Emergency, said he regretted the decision. He described it as an “act of weakness” in an interview to mylaw.net.

Soon after the Emergency ended in 1977, the Supreme Court began a phase of judicial activism that continues to this day. Public Interest Litigation (PIL) began in 1979 and Justice Bhagwati was among the first to admit PIL petitions in the Supreme Court. PILs have since then, become a way for the public to directly appeal to the judiciary, often against the excesses of the government, police and other branches of the executive.

The right to freedom has become a topic of debate once again since the controversy surrounding the raising of slogans at Jawaharlal Nehru University. It seems a good time to recall the lessons we have learnt from our past.