Musings on the Supreme Court-II Narasimhan Vijayaraghavan If the learned single judge had stopped in his tracks, in Kasi, with this distinction, probably the embarrassment that arose

Musings on the Supreme Court-II
Narasimhan Vijayaraghavan
If the learned single judge had stopped in his tracks, in Kasi, with this distinction, probably the embarrassment that arose from the top court may have been saved.
“Judges are also human beings. They have their strengths and weaknesses and human failings. Judge them not by different standards for they were you and me, before they became a Justice”
said Justice Cardozo.

Lord Denning

Lord Denning was made of different mettle. He was a man of his own making and ‘stood tall despite all his despicable dissents’, wrote a tabloid The Sun once. Read what Lord Denning wrote on. Denning was in the Antonin Scalia mould. They were real characters who were admired of what they were whether one liked what they said and stood for or not. That was them.

“It seems to me that when a particular precedent even of your Lordships’ House-comes into conflict with a fundamental principle, also of your Lordships’ House, then the fundamental principle must prevail. This must at least be true when, on the one hand, the particular precedent leads to absurdity or injustice and, on the other hand, the fundamental principle leads to consistency and fairness. It would, I think, be a great mistake to cling too closely to particular precedents at the expense of fundamental principle.” (London Transport Executive v Bretts).

Honestly,
‘without such slip ups and disciplining from above, life on the Bench would be a chore and a bore’
said Lord Denning. He knew a thing or two for the House of Lords came down on him like a tonne of bricks, more than once. We shall surely visit them too as the House of Lords of then, is the United Kingdom Supreme Court of today.
Back to Settu and Kasi. In Settu, the learned single judge concluded that the Suo Motu order dt.22.03.2020 of the Supreme Court was confined to those cases where limitation applied to suits, appeals etc. There was no hint or warrant to extrapolate it to the case of a ‘default bail’. However, the learned single judge in Kasi chose to read the apex court order was of wider amplitude taking within it even issues as ‘default bail’. This is how the Supreme Court dealt with Kasi.

“If the interpretation by learned Single Judge in the impugned judgment is taken to its logical end, due to difficulties and due to present pandemic, Police may also not produce an accused within 24 hours before the Magistrate’s Court as contemplated by Section 57 of the Code of Criminal Procedure, 1973. As noted above, the provision of Section 57 as well as Section 167 are supplementary to each other and are the provisions which recognises the Right of Personal Liberty of a person as enshrined in the Constitution of India. The order of this Court dated 23.03.2020 never meant to curtail any provision of Code of Criminal Procedure or any other statute which was enacted to protect the Personal Liberty of a person. The right of prosecution to file a charge sheet even after a period of 60 days/ 90 days is not barred. The prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C. Following observations of Madras High Court in the impugned judgment are clearly contrary to the order dated 23.03.2020 of this Court: -“…The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under Section 167(2) of the Code of Criminal Procedure also…”

Both the learned single judge in Kasi and the Supreme Court on it, were not finished yet. The learned single judge chose to hold that the viral Pandemic times were akin to an Interim Emergency and Financial Emergency as contemplated under Art.352. The Supreme Court has ruled that this stretch, flies in the face of the law of the land. The Supreme Court alluded to the famous or infamous verdict in ADM Jabalpur case (the dissent which brought Justice H R Khanna plaudits and even an editorial in the New York Times and a statute inside the portals of the apex court) and pointed out that edifice of ADM Jabalpur was knocked out not only by the 44th amendment to the Constitution, but if any vestiges of it survived, then the decision in Justice K S Puttaswamy (in seven judges’ bench in the Right to Privacy case) has eviscerated it, for all times to come. Now read,

“When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”
“ADM Jabalpur must be and is accordingly overruled. We also overrule the decision in Union of India v. Bhanudas Krishna Gawde”

Senior Advocate Soli Sorabjee
It could not get more specific. How did the learned single judge miss it in Kasi ? Read what Senior Advocate Soli Sorabjee wrote on ADM Jabalpur on Nani Palkhivala’s and his response, when they heard the verdict in Court.
“Regrettably, the worst excess during the Emergency was committed by the Supreme Court by its majority judgment in the ADM Jabalpur case. The majority held that during the operation of the Emergency no person can move a writ petition before a high court for habeas corpus on the ground that the order of detention is illegal or even mala fide. I may mention an incident in connection with the judgment. I was in Bombay at a conference with the late Nani Palkhivala at the Taj Mahal hotel. One of the lawyers at the conference mentioned that the ticker carried the news that the Supreme Court had by a majority of 4 to 1 pronounced its judgment on the habeas corpus petitions. Both of us assumed that the petitions were allowed and the judgment was in citizens’ favour. We had given up Chief Justice A.N. Ray and Justice M.H. Baig,taken Justices Y.V. Chandrachud and P.N. Bhagwati for granted to decide in our favour. We asked: “What about Justice Khanna?” The messenger lawyer interrupted our speculation by saying, “Sorry sir,the Supreme Court has decided in favour of the government and dismissed habeas corpus petitions.”

There was a stunned silence. Nani and I exchanged glances which showed our disbelief and pain. It was impossible to believe that our apex court had ruled that a detention order tainted by mala fide could not be challenged during the Emergency. Justice H.R. Khanna boldly dissented. He ruled that “even during Emergency the State has got no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilised society. The courage of Justice Khanna is admirable because” …..

(Author is practising advocate in the Madras High Court)