By Dr. Jayampathy Wickramaratne
Ask Indian lawyers what the worst judgment of the Indian Supreme Court has been and a large majority would surely say ADM Jabalpur (Additional District Magistrate, Jabalpur v S. S. Shukla, also known as the Habeas Corpus Case, reported in AIR 1976 SC 1207). Many of them would also point out that ADM Jabalpur was overruled 42 years later by Justice D.Y. Chandrachud, son of Justice Y.V. Chandrachud, who was one of the judges in the 4-1 majority in the 1976 case.
Seen as one of the darkest spots in the history of the Indian Supreme Court, ADM Jabalpur validated the suspension of the writ of Habeas Corpus during the infamous Emergency under Indira Gandhi. Constitutional scholar Granville Austin observed in his book ‘Working a Democratic Constitution: A History of the Indian Experience‘: ‘The Habeas Corpus case captures the Emergency as nothing else’. Today, hardly any one defends ADM Jabalpur.
The case concerned a Presidential Order issued on 27 June 1975 under Emergency provisions suspending the issue of the writ of Habeas Corpus or any other writ or order or direction to quash an order of detention on the ground that the order was illegal or was vitiated by mala fides, factual or legal, or was based on extraneous considerations. The majority of judges held that if extraordinary powers are given, they have been given because the Emergency is extraordinary, and were limited to the period of the Emergency.
During the hearing, Justice Khanna asked Attorney General Niren De, if ‘supposing some policeman, for reasons of enmity not of state, kills someone, would there be a remedy?’ and De replied: ‘My Lord, not so long as the Emergency lasts.’
Justice Khanna, the lone dissenter, was emphatic that the purported suspension of the right to move a court for the enforcement of the right under Article 21 of the Indian Constitution—‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’—upon a proclamation of Emergency, would not affect the enforcement of the basic right to life and liberty through the writ of Habeas Corpus. He paid the price for it by being superseded to the office of the Chief Justice of India by Justice Beg (one of the Judges who constituted the majority) contrary to the convention of appointing the senior-most judge as the next Chief Justice.
As a result of ADM Jabalpur, thousands of opponents of the Indira Gandhi regime who were arrested and detained under the MISA (Maintenance of Internal Security Act) were left without a remedy.
After the defeat of the Indira Gandhi regime, Justice Y. V. Chandrachud said, in a speech, he made on 22 April 1978: ‘I regret that I did not have the courage to lay down my office and tell the people, well, this is the law.’ He later became the Chief Justice of India.
The occasion to overrule ADM Jabalpur came in 2018 and it was Justice Y. V. Chandrachud’s son, Justice D.Y. Chandrachud who wrote the leading judgment in Justice K.S.Puttaswamy (Retd.) v Union of India (AIR 2017 SC 4161). Justice Chandrachud (Jr) described the judgments rendered by all the four judges constituting the majority in ADM Jabalpur to be seriously flawed.
Readers would ask what relevance ADM Jabalpur has to the 20th Amendment Bill (20A). The relevance is in the difference between the constitutional provisions of India and Sri Lanka.
ADM Jabalpur was not related to a constitutional amendment, for sure. But it had much to do with an important constitutional issue, namely the right to challenge an executive act of detention by way of a Habeas Corpus application.
20A seeks to do more irreparable damage. It impinges on the sovereignty of the People—by reducing the powers of Parliament and its effective leader, the Prime Minster, by removing checks and balances over the powers of the President, by taking away the citizens’ fundamental right to challenge illegal acts of the President—the list goes on. Much has been said about it and I will say no more.
Thankfully for the people of India there has been no Emergency of the kind they saw in the 1970s. No later government—Janata, Congress, Janata Dal or BJP—attempted Emergency rule. Hopefully, there will be no Emergency of the same type at least. And now, with ADM Jabalpur finally overruled, the suspension of writs would not be possible in the future, even if there would be another Emergency of the type or a constitutional amendment permitting its suspension during an Emergency.
But what of 20A? Sri Lanka has no post-enactment judicial review. If 20A is passed in its present form, the constitutional provisions that it would bring in can only be withdrawn by another two-thirds majority of Members of Parliament.
A future Supreme Court would not have the power to revisit the issue and hold that the provisions inserted by 20A adversely impinge on the sovereignty of the People and are thus void.
In India, provisions inserted by several constitutional amendments have been struck down years later as being against the basic structure of the Constitution. But that is not possible under the Sri Lankan Constitution.
So, for Sri Lanka, it is now or never.