The Supreme Court has admitted that a 1976 verdict it had passed endorsing an executive decision during the Emergency had “violated the fundamental rights of a large number of citizens”.
The bench of Justices Aftab Alam and A.K. Ganguly described as “erroneous” a majority decision by a five-member Constitution bench that had upheld a lower court’s verdict backing the suspension of a fundamental liberty.
The 1976 verdict came on a habeas corpus petition (asking that a detained person be produced) in the “additional district magistrate Jabalpur vs Shivakant Shukla” case. Only one apex court judge, Justice Khanna, had dissented.
The 4:1 majority opinion was that, in view of a Presidential order dated June 27, 1975, no one had the “locus standi to move any writ petition” before a high court for habeas corpus or to enforce “any right to personal liberty of a person detained under the then law of preventive detention”.
The two-judge bench said: “The instances of this court’s judgment violating human rights… may be extremely rare but it cannot be said that such a situation can never happen.”
It observed that human rights cases “admit of a certain degree of fluidity” and are “never really closed”.
The bench said Justice Khanna had rightly dissented, holding that Clause 8 of Article 226, under which high courts can issue writs of habeas corpus, was integral to the Constitution.
It said “no power has been conferred on any authority in the Constitution” for suspending high courts’ power to issue habeas corpus writs even during an Emergency.
The bench recalled former Chief Justice M.N. Venkatachaliah’s comment at last year’s Khanna memorial lecture that the 1976 decision be “confined to the dustbin of history”.
Justice Khanna’s dissenting opinion became law when, through the 44th Amendment, Articles 20 and 21 (dealing with personal liberty) were excluded from any possibility of suspension during an Emergency.
The two-judge bench’s observation came as the court, for the first time, commuted to life imprisonment a death sentence it had earlier upheld. It also set aside an earlier apex court verdict that the National Human Rights Commission was not empowered to recommend to a state governor that a death sentence be commuted once the court had upheld the penalty.
A Guwahati sessions court had awarded death to Remdeo Chauhan for murdering four people in 1992. The high court upheld the sentence and so did the apex court, which also rejected a review plea in May 2001. After the state government commuted the sentence on an NHRC plea citing doubts if Chauhan was an adult in 1992, the apex court slammed the NHRC in May 2009.