Musings on the Supreme Court-III Narasimhan Vijayaraghavan

Musings on the Supreme Court-III
Narasimhan Vijayaraghavan

Adds Soli Sorabjee,

“The courage of Justice Khanna is admirable because he was aware of the governments’ habit of punishing judges who delivered judgments unpalatable to it. But he did not care about the consequences. He decided according to his conscience. Alas, he paid the price. He was vindictively superseded as Chief Justice of India.”

There is so much of history associated with ADM Jabalpur that it is tough to give it less value even at this distance of time. It is taint of the past. It is now untouchable. Justice Dhananjay Chandrachud made amends for his father Yeshwant Vishnu Chandrachud’s mistaken majority in ADM Jabalpur case. It is that kind of a legacy which is too overwhelming to be ignored or lost sight of.

42 Years On, Son Overrules His Father’s Supreme Court Ruling

As if this was not enough, even earlier on 19th Nov,2010 in Ramdeo Chauhan a two Judges’ bench of the Supreme Court went self-critical on ADM Jabalpur in this rather strong language.
“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 .We can remind ourselves of the majority decision of the Constitution Bench of this court in Additional District Magistrate Jabalpur v. Shivakant Shukla reported in (1976) 2 SCC 521.The majority opinion was that in view of the Presidential order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention{ Maintenance of Internal Security Act of 1971}, on the ground that the order is illegal or malafide or not in compliance with the Act.(See paras 78 and 136 of the report)

Justices Aftab Alam and A K Ganguly
The lone dissenting voice of Justice Khanna interpreted the legal position differently by inter alia holding “(8) Article 226 under which the High Courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question.”(Point 8 at page 777 of the report) There is no doubt that the majority judgment of this court in the ADM Jabalpur case (supra) violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be `confined to the dustbin of history.

The learned Chief Justice equated Justice Khanna’s dissent with the celebrated dissent of Lord Atkins in Liversidge v. Sir John Anderson reported in (1942) AC 206. In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency.”
With so much history and nostalgia associated with ADM Jabalpur and the Emergency, it was a sure surprise that Kasi judgment went the way it did. No wonder, the Supreme Court found little hesitation or difficulty to overturn Kasi, by pointing out
“We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such restriction in the order of this Court dated 23.03.2020.”

Excuse me, that was not all we set out to zero in on. The Supreme Court took note of the learned single judge in Kasi , duly taking note of the verdict of another learned single judge of Madurai Bench in Settu but choosing not to seek a reference for resolution of the differing views, by a larger bench. Supreme Court was surely not amused as they took note of Kasi and wrote in rather not so usual language. It is not every day such orders come about. One is reminded of a famous verdict of 1963 vintage from the apex court, which we shall surely visit in this context. But, before we do that, it may be apt to read what the Supreme Court said on 19th June,2020 in the context of Kasi vs Settu. We need to know who said what and who stands where.
Episodes of judicial tattling – court members calling one another out in writing – are nothing new. They have, however, become so frequent and visible of late that one blogger has coined a term for them “benchslapping.” One of the more striking things about Canning and Hobby Lobby, Supreme Court decisions handed down this past week, is that the two factions on the Court are “benchslapping” one another for engaging in virtually identical judicial behavior.
“Rajasthan High Court had occasion to consider Section 167 as well as the order of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the same conclusion that the order of this Court dated 23.03.2020 has no consequence on the right, which accrues to an accused on non-filing of charge sheet within time as prescribed under Section 167 Cr.P.C. Rajasthan High Court in S.B. Criminal Revision Petition No. 355 of 2020 – Pankaj Vs. State decided on 22.05.2020 has also followed the judgment of learned Single Judge of the Madras High Court in Settu versus The State (supra) and has held that accused was entitled for grant of the default bail. Uttarakhand High Court in First Bail Application No.511 of 2020 – Vivek Sharma Vs. State of Uttarakhand in its judgment dated 12.05.2020 has after considering the judgment of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 has taken the view that the order of this Court does not cover police investigation. We approve the above view taken by learned Single Judge of Madras High court in Settu versus The State (supra) as well as the by the Kerala High Court, Rajasthan High Court and Uttarakhand High Court noticed above.
Learned Single Judge in the impugned judgment has taken a contrary view to the earlier judgment of learned Single Judge in Settu versus The State (supra). It is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and another versus Devans Modern Breweries ltd. and another, (2004) 11 SCC 26, in paragraph 339 laid down following:-

“Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1 followed in Union of India Vs. Hansoli Devi, (2002) 7 SCC 273. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores (supra) and K.K. Narula (supra) both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be …
(Author is practising advocate in the Madras High Court)

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