Bhopal Encounter: Behind CM’s Comment Is the Ghost of Jabalpur ADM

Eliminating even the worst prisoner by an extra-judicial process is unconstitutional and opposed to Rajdharma.

(Photo: The Quint)

To the government of Madhya Pradesh, the ADM Jabalpur might be a minor district administrator. But in the lawyer world, ADM Jabalpur conveys a sense of horror and invokes an instinctive shudder of “never again”.

During the Emergency, the Supreme Court’s judgment in ADM Jabalpur v Shivkant Shukla saw the court’s craven surrender to an executive which argued that a citizen’s fundamental right to life and liberty flowed solely from the constitution.

When Judges Let the Nation Down

With fundamental rights being constitutionally suspended during an emergency, the argument urged was that the citizen had no remedy in the constitutional courts. During the hearing, one of the judges asked Niren De, the then Attorney General, whether it meant that a policeman could drag him away, shoot him and leave his survivors remediless.

Consistent with his argument, De submitted in the affirmative.

When judgment was delivered by a majority of 4-1, a horrified nation found its greatest judges Bhagwati & Chandrachud, joining Ray & Beg in holding that liberty was a gift of the Constitution that could be suspended by an Emergency declaration of the country’s rulers.

Justice Mirza Hameedullah Beg. (Photo: Supreme Court Of India)

About those detained and left remediless by the judgment, Justice Beg even went on to say: “We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal.”

(Photo: The Quint)

Justice Hans Raj Khanna, The Dissenter

Justice Hans Raj Khanna. (Photo: Wikipedia)

One judge dissented, despite knowing that his dissent would ensure his supersession for the job of Chief Justice of India.

Justice Hans Raj Khanna roared, “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.”

(Photo: The Quint)

About his dissent The New York Times wrote “ If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings...The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.”

History Repeating?

When the emergency was lifted, a new government was elected, which made sure by the Constitution’s 44th Amendment that life and liberty could never be suspended, even during an emergency.

As far as The New York Times’ prediction of a monument to Justice Khanna, the Supreme Court sought to expiate it's sin by unveiling his life-sized portrait in its Court Room No. 2, over which he last presided as a judge.

Even today, whenever I argue in that courtroom, I feel as though the portrait judges whether subsequent generations of lawyers and judges are attempting to live up to the very high standards set by Justice Khanna.

Why do I tell you this story from bygone times?

It is because a cold shudder passed over me when I read Shivraj Singh Chauhan, Chief Minister of Madhya Pradesh, justifying the deaths of eight undertrials in a police encountering Bhopal this week.

He is reported to have said that accused stay in jail for years before they are sentenced and “keep eating chicken biryani”.

(Photo: The Quint)

It takes years to sentence them. They keep eating chicken biryani (in jail)...They escape and indulge in more crimes and attacks....If we can have fast track courts for corruption cases, why can’t we have fast track courts for sentencing terrorists?

Shivraj Singh Chouhan

Dear Chief Minister, nothing prevents your three-term government from appointing more judges and building special courts with sufficient infrastructure to expedite criminal trials for those accused of terrorist offences.

Dear Chief Minister, please give the accused their day in court, a fair trial and a judicial application of mind to determine both guilt and sentence.

After that, you are free to execute court orders that deprive them of life or liberty, in a manner that is constitutional.

Dear Shivraj Singh Chauhan, Rule In A Manner Known To Law

Dear Chief Minister, if feeding them biryani indefinitely is the problem, please change the jail menu to dal sabzi or whatever you think fit.

However Mr Chief Minister, what you are not free to do is to order summary executions by policemen, even if the suspects have escaped from prison.

Even if they are suspected of having murdered a prison guard in the course of their escape.

A policeman is only justified in killing in the course of apprehending a suspect, if there is an immediate and clear danger to his or another's life.

(Photo: The Quint)

Shooting to kill eight suspects who, by all accounts did not present an immediate threat, is definitely culpable homicide, which may amount to murder.

Mr Chief Minister, you swore upon the constitution to rule in a manner known to law. Eliminating even the worst prisoner by an extra-judicial process is unconstitutional and quite simply, opposed to Rajdharma. The ghost of ADM Jabalpur cannot be allowed to again haunt the hallowed portals of the Supreme Court.

( Sanjay Hegde is a senior advocate at the Supreme Court. The opinions expressed in the article are the author’s alone. The Quint neither endorses nor is responsible for the same.)