On June 25, 1975, at the stroke of the midnight hour, when the world slept, India was hurled in darkness – resulting in political detentions and arrests. The High Courts exceeded themselves when the Supreme Court in appeal failed. Fifty years ago, today, on April 28, 1976, the infamous and now overruled judgment of ADM, Jabalpur was pronounced.
The habeas corpus petition of Shivkant Shukla, which was heard and allowed by Justices AP Sen and RK Tankha, held that the amendments to the Maintenance of Internal Security Act could not abridge the remedies under Article 32 and 226. It noted:
“Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its used by the Courts cannot, in our judgment, be constitutionally abridged by the executive or by the Parliament except in the manner provided by Article 368 of the Constitution.”
This judgment was, of course, reversed. Justice Sen was promptly transferred to Rajasthan on June 29, 1976. Pettiness was at its peak – prior to his transfer, his water connection was cut off! In February 1978, he became Chief Justice of the Madhya Pradesh High Court and was reluctant to be elevated to the Supreme Court – for he would have been the Chief Justice of the High Court for eight years. When he did accept Supreme Court judgeship in July 1978, he served with great distinction for a decade.
In Bangalore, opposition leaders like Atal Bihari Vajpayee, Lal Krishna Advani and Madhu Dandavate were detained and imprisoned. They filed habeas corpus petitions before the Karnataka High Court – which allowed their pleas and set aside their detention. The two judges who allowed the plea were not spared the sword of transfer. Justice DM Chandrashekar was transferred to Allahabad. He later became Chief Justice of the Allahabad High Court and declined an invitation to be a judge of the Supreme Court more than once. He was then transferred back to Karnataka, where he served as Chief Justice till his retirement in September 1982. The other judge - Justice Sadananda Swamy - was transferred to the Guwahati High Court, where he retired as Chief Justice in October 1977.
The Bombay Bar stood up against the Emergency in unison; and the Bench responded equally. One among them was Justice Jal Vimadalal, who fearlessly passed orders which were unpalatable to the government. He was promptly transferred to the Andhra Pradesh High Court in June 1976, and from where he retired in March 1977. One such judgment was that of Bhanudas Krishna Gawde, which was later upset in the Union’s appeal following the judgment in ADM, Jabalpur. The other judge which the system lost was Justice Umesh Lalit, who was an additional judge and part of the bench that quashed detention orders while sitting in the Nagpur Bench of the Bombay High Court. After his term as an additional judge, he was not confirmed despite favorable recommendation. It is another matter that he became one of the leading practitioners on the criminal side in the country. The Shah Commission found that there was absolutely no reason assigned his non-confirmation and “subversion of well-established convention and practices and amounted to abuse of authority and misuse of power”.
In a matter arising from the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), a difference of opinion between two judges on the validity of a detention order was referred to a Full Bench. One of the judges held that even if one of the grounds were vague, the whole detention order was liable to be quashed. This view was upheld by the Full Bench. The judge who took this view of the Gujarat High Court was Justice TU Mehta, who was transferred to the Himachal Pradesh High Court in July 1976. Chief Justice BJ Divan, who headed the Full Bench, was transferred to the Andhra Pradesh High Court as Chief Justice. Justice Mehta later became Chief Justice of the Himachal Pradesh High Court in February 1978, till his retirement in December 1979. Chief Justice Divan was transferred back to Gujarat. Notably, Justice DA Desai was elevated to the Supreme Court over Chief Justice Divan in 1978 despite being junior, leading to protests by the Gujarat Bar and the Supreme Court Bar. He was later offered elevation to the Supreme Court – which he declined and retired as Chief Justice in 1981.
The third judge from Gujarat to be transferred was Justice Sankalchand Sheth, who was sought to be transferred to Andhra Pradesh. In an unprecedented courageous move, Justice Sheth challenged his transfer before the Gujarat High Court and had it successfully quashed by the Full Bench. Justice Sheth was represented by HM Seervai. The Union appealed the Full Bench decision before the Supreme Court, but the Emergency was lifted and while the Constitution Bench headed by Chief Justice YV Chandrachud wrote a judgment holding that transfers ought to only be in public interest, the matter stood closed, since Attorney General SV Gupte stated that the Union would not seek a transfer of the judge.
Chief Justice S Obul Reddy of the Andhra Pradesh High Court was transferred to the Gujarat High Court in a swap with Chief Justice Divan on July 7, 1976. He was transferred back to the Andhra Pradesh High Court and retired as Chief Justice in April 1978. From Andhra Pradesh, two other judges who were transferred were Justice C Kondiah and Justice O Chinnappa Reddy, as both were seen in favour of civil liberties. The former was transferred to Madhya Pradesh in June 1976 and returned to Andhra Pradesh in October 1977, where he served as Chief Justice between March 1979 and July 1980. Justice Reddy was transferred to the Punjab and Haryana High Court in June 1976. When the Emergency was lifted, he opted to go back to Andhra Pradesh and served there till his elevation to the Supreme Court in July 1978.
Justice AD Koshal was transferred from the Punjab and Haryana High Court to the Madras High Court July 1976 when he objected to government interference in the appointment of district judges in the State and in administrative matters. After the Emergency, Justice Koshal was transferred back to his parent High Court in August 1977, before becoming the Chief Justice in November 1977. In July 1978, he was elevated to the Supreme Court and served till his retirement in March 1982. In 1986, he became the first Lokayukta of Karnataka.
The other judge transferred from the Punjab and Haryana High Court was Justice DS Tewatia, who routinely held against the government in detention matters. He was transferred to Karnataka in June 1976 and after the Emergency, he was transferred back to his parent High Court in July 1977, till his appointment as Chief Justice of the Calcutta High Court in 1987. He resigned in 1989 and set up a practice in the Supreme Court.
Justice DB Lal of the Himachal Pradesh High Court also suffered a similar fate. He was transferred to the Karnataka High Court in July 1976. After the Emergency, he was first transferred to the Punjab and Haryana High Court and then back to the Himachal Pradesh High Court, where he retired in April 1979.
Similarly, Justice CM Lodha was transferred from the Rajasthan High Court in June 1976 to Madhya Pradesh High Court, for the views that were not to the wishes of the government. He later became Chief Justice of the Guwahati High Court in 1978 and then became the Chief Justice of the Rajasthan High Court in 1979 before his retirement in 1980.
Justice SI Rangarajan of the Delhi High Court, whose Division Bench had quashed several detention orders, including that of 82-year-old former Governor Bhim Sen Sachar and of noted journalist Kuldeep Nayyar, was unceremoniously transferred to the Guwahati High Court in June 1976. After the Emergency, he was again transferred to the Delhi High Court, wherefrom he retired.
The other judge on the Division Bench - additional judge Justice RN Aggarwal – was not confirmed as a permanent judge despite recommendation from Chief Justice Tatachari. It was alleged that Aggarwal was involved with the RSS – something which was found to be false by the Shah Commission and an abuse of power by the incumbent government. Bhim Sen Sachar’s son Justice Rajinder Sachar was unceremoniously transferred from Sikkim to Rajasthan instead of being made Chief Justice of Sikkim. He later retired as the Chief Justice of the Delhi High Court in December 1985.
These transfers were said to be in public interest and for national integration, but that was far from the truth. It was a design of the government led by Law Minister HR Gokhale to subvert judicial independence. In fact, when Justice PN Mukhi was sought to be transferred from Bombay to Calcutta, he suffered a heart attack, prompting Gokhale to withdraw the transfer proposal. Soon thereafter, in September 1976, Justice Mukhi died.
Judicial independence is not a mere philosophy for academic discussion; it is the actual working of a judge “without fear or favour”. The principal object of this piece is to remember and celebrate the courage of those High Court judges Courts who bore the brunt of a disgruntled government – disgruntled with judicial independence, disgruntled with the inconvenience of judges not toeing the line. It was these judges who acted true to their judicial oath and judicial conscience, even during trying times.
Amit A Pai is an Advocate-on-Record at the Supreme Court of India.