The Supreme Court Repents for ADM Jabalpur

As several newspapers have reported, the Supreme Court in Remdeo Chauhan v. Bani Kant Das, has admitted that its notorious Emergency-era decision, ADM Jabalpur, may have violated several persons’ human rights. Welcoming this finding, the Deccan Herald argues that the Court has succeeded in “wip[ing] out Emergency era blot.” According to the Hindustan Times, the Court has finally acknowledged its gross injustice to the Emergency’s victims. Interestingly enough, Remdeo Chauhan was decided on November 19 last year by a two-judge bench comprising Justices Asok Kumar Ganguly and Aftab Alam. Yet, legal commentators and journalists seem to have woken up to its significance only this past weekend.

There are probably many reasons why Remdeo Chauhan went unnoticed. The Court’s remorse about Jabalpur was buried in the middle of a lengthy judgment. The underlying matter in Remdeo Chauhan involved a capital offence,; it was not a preventive detention case like Jabalpur. But these are’nt convincing justifications for why the mainstream media or the legal commentariat overlooked Remdeo Chauhan (yes, this blog must also share the blame). In fact, the decision would have been largely ignored if the political controversy over who is to blame for Emergency had not erupted.

The November decision was actually the Court’s fourth ruling involved Remdeo Chauhan, who was sentenced to death for murdering one Bhabani Charan Das and three family members. The case first reached the Court in 1999 as an appeal from the Guahati High Court’s decision upholding Remdeo Chauhan’s death sentence. A key issue before the sessions court was whether Chauhan was under sixteen when he committed the murders, and consequently subject to the Juvenile Justice Act of 1986. After examining the medical evidence, the trial judge concluded that Chauhan was not below sixteen years when he killed Das and his family. Contrary to what several newspapers have reported, the question was apparently not re-litigated in the High Court appeal. And the Supreme Court bench, which confirmed the High Court’s verdict, also did not discuss this issue.

Facing the gallows, Chauhan asked the bench to review its judgment apparently citing, among other things, the age issue. The bench comprising Justices KT Thomas and RP Sethi declined to reopen the conviction. But it agreed to let a larger bench review whether Chauhan’s juvenile status ought to be reconsidered. A larger bench was duly constituted by adding Justice SN Phukan, and he heard the matter together with Thomas and Sethi. This three-judge bench split two-to-one in upholding the sentence in May 2001. Based on the evidence, Sethi and Phukan held that the death sentence should not be disturbed with Sethi firmly insisting that Chauhan was no child when he committed the murders.

Thomas, who had originally voted to convict Chauhan, dissented in the review decision. He was no longer convinced by the medical evidence, and wondered whether Chauhan could be hung even though it had not been “positively established” that he was older than sixteen. This medical uncertainty, Thomas concluded, was grounds for substituting Chauhan’s death sentence with life imprisonment. Although Phukan joined Sethi in upholding the death sentence, he seemed persuaded by some of Thomas’s reasoning. Accordingly, he advised Chauhan to file a petition for mercy or commutation based on Thomas’s views.

Chauhan’s lawyers had already considered that option and asked the Governor of Assam to intervene even before the Court’s May 2001 review decision was handed down. The matter was also brought before the National Human Rights Commission based on a law professor’s article, which argued that a juvenile could not be executed. The Commission waited until the Court delivered its May 2001 review decision. Relying heavily on the Thomas dissent, the Commission (comprising three former Supreme Court judges) issued “recommendations” in support of Chauhan’s plea for commuting his sentence.

In January 2002, the Governor commuted Chauhan’s sentence to life imprisonment without a detailed explanation (he did not mention whether he had relied on the Commission’s recommendations). This action set off a third round of litigation for relatives of Chauhan’s victims promptly challenged the commutation in an Article 32 petition before the Supreme Court. Somewhat surprisingly, the Court allowed the petition in May 2009 and set aside Chauhan’s commutation. In its writ decision, the bench pointedly criticized the Commission for intervening in the case without proper jurisdiction. Through a second review petition, Chauhan asked the Court to reconsider its writ decision on the ground that he did not have an opportunity to present his position. It was in this decision on second review that the Court apologized for its earlier Jabalpur decision.

In their judgment, Justices Ganguly and Alam reject Chauhan’s claim of inadequate representation. They point out, somewhat unconvincingly, that Chauhan’s legal-aid counsel had filed a counter-affidavit in the Article 32 proceedings, although they acknowledge, without additional comment, that the lawyer had not participated in the oral arguments. The bench then discusses whether there are other grounds to entertain the second review. After carefully reviewing applicable case law, the bench considers whether the Court erred in admonishing the Commission for intervening on Chauhan’s behalf. Ganguly notes that an underlying assumption of the May 2009 decision was that the Supreme Court cannot violate human rights. This assumption, he argues, is not correct, as it often has to correct errors by lower courts and tribunals that breach the parties’ human rights. Ganguly then goes on to state:

The instances of this Court’s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen. 

Ganguly argues that Jabalpur was one such situation where there is “no doubt that the majority” violated the fundamental rights of a larger number of people. He then cites Chief Justice Venkatachalliah’s 2009 Khanna lecture and concludes that Justice HR Khanna’s dissent in Jabalpur became the “law of the land” after the Forty-Fourth Amendment.

That Jabalpur was wrongly decided is no breaking news. This fact has been acknowledged by the Court itself, most recently in Coelho v. Tamil Nadu. Speaking for a nine-judge bench, Chief Justice Sabharwal conceded that that Jabalpur‘s restrictive reading of Article 21 is no longer good law. But neither Remdeo nor Coelho discuss the real human impact of Jabalpur. Reversing several courageous high court judges, Jabalpur harshly denied thousands of Emergency detenues the right of habeas corpus. It was our Korematsu moment, but only much worse. Not only did the government single out political opponents and activists for arrest and incarceration, it tortured and illtreated several of them. The Court turned a blind eye to these abuses. For that reason, just as Alexander Bickel condemned America’s Dred Scott, India’s Jabalpur was a “ghastly error.” The decision left an indelible blot on our Court’s constitutional jurisprudence, and a dark haunting stain on our national imagination and pride.

Even today, it is impossible to read Chief Justice Ray’s majority opinion in Jabalpur without an enveloping feeling of disgust. “Liberty is confined and controlled by law, whether common law or statute,” Ray wrote blithely. Dismissing the possibility of human rights abuses during the Emergency, he admonished the petitioners for raising phantom claims:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a thing will happen. 

These lines reveal the degree to which Ray’s ideological fervour and allegiances interfered with his ability to effectively reason, let alone impartially adjudicate. With Jabalpur and other decisions, the pliant Ray converted a functioning apex court into the government’s rubber-stamp. He needlessly capitulated to Indira Gandhi’s totalitarian impulses with no concern for the freedoms and liberties of those he was sworn to protect. Indeed, there are few judges whose very name still incites so much rage and anger among lawyers and activitists.

But other members of the Jabalpur majority must also share the taint of Jabalpur. Justice Beg breezily endorsed the government’s phoney claims about the “maternal care” with which the detenues were “well housed, well fed and well treated.” And Justice Chandrachud naively chided detenus’ counsel for fear mongering that the government could “whip and strip and starve the detenue and . . . even shoot” them. Sadly, there were several documented cases of human rights abuses during the Emergency, including the infamous Rajan episode in Kerala, in which police officers committed exactly those atrocities. 

Ganguly in Remdeo Chauhan seems to attribute Jabalpur’s demise to the Forty-Fourth Amendment, which he says, vindicated Khanna’s dissent. In this respect he does not follow Coelho, which holds that Jabalpur has been “impliedly overruled by various subsequent decisions.” Perhaps, this is because Coelho does not tell us what those decisions are and ignores another nine-judge decision, Attorney General v. Prajivandas where Jabalpur’s correctness was expressly left open. Whether it was the Forty-Second Amendment or the Court’s own decisions that, in fact, overturned Jabalpur is a question worth examining further. We must also attempt to better understand why, inspite of Coelho, several high courts continue to cite Jabalpur in their opinions, as if it were still good law.

While we ponder those questions, it is important to celebrate the Court’s unvarnished acceptance that Jabalpur violated several persons’ basic human rights. This is especially because the Court has never before admitted its own institutional culpability in fostering and enabling the Emergency. Remdeo Chauhan is a late, but welcome, act of contrition in that respect. Through it, the Court seeks to make amends for having failed the Indian people when they needed it the most. Asking for forgiveness is sometimes the best way to demonstrate that its decisions are always final, but never infalliable.

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1 comment
  • Some commentators have also suggested that post ADM-Jabalpur development of PIL jurisdiction and sincere intervention in the cases of human rights violation is a sort of catharsis that the Supreme Court underwent.