The Indian judiciary has a long history of upholding human values and fundamental rights. Whenever the state crosses the ‘lakshman rekha’ it was the judiciary which interfered and put spokes in the path of the executive. But at times, the judiciary too failed in its duty in properly appreciating the facts and toed the line of the ruling elite, ignoring the plight of the common man. The ADM Jabalpur case is a classic example of the judiciary failing in its duty and kow towing the line of the then Rulers.
The judgment of the Madras High Court delivered on Monday in cases challenging the Prohibitory Orders under 144 Cr. P.C. is a case where the judiciary failed to uphold the fundamental rights as happened in the case of ADM Jabalpur vs Shivakant Shukla.
For the past seven months the people in and around the Indo-Russian Nuclear Plant at Koodankulam are continuously agitating against the commissioning of the plant. The ruling Jayalalitha government, which took a stand in support of the people and which wrote to the Union government that works should be stopped till the fears of the local population is allayed did a volte face and passed a cabinet resolution giving the go ahead to the works in the plant. Even before Jayalalitha’s cabinet resolution could be made public, huge posse of police men swamped the Radhapuram Taluk, and brought the entire taluk under their control.
An order under Section 144 Cr. P.C was promulgated and the passage to Idinthakarai – the site of the agitation was made inaccessible to the general public. Movement out of Idinthakarai was also curtailed and the police went to the extent of even preventing media persons from going to the site of agitation. Power supply was cut off, and supply of essential commodities like milk and water too were stopped by the police. The agitators who were running Diesel run generators were also denied Diesel due to the instruction of the police which shut down the nearby bunk.
Radhapuram Taluk was virtually cut off from the country and the rule of the police ran riot. 14 persons including Sivasubramanian, an Advocate, who went to ask the police about the reason for huge police force were arrested and slapped with charges of sedition and waging war against the nation. Another 190 people who were on their way to Idinthakarai were arrested and sent to various prison far off from Tirunelveli District. Newspapers reports indicated that prohibitory order under 144 was clamped in the entire Taluk of Radhapuram which consists of more than 50 villages and the order would be in place till 2nd of April.
Only under these terrorizing circumstances a Public Interest Litigation was filed in the Madras High Court challenging the promulgation of a blanket prohibitory order for the entire Taluk. When the matter was being heard by the First Bench comprising the Chief Justice M.Y.Eqbal and Justice Sivagnanam, two more similar writ petitions were also heard. Only at the time of hearing Advocate General produced a copy of the order of Tirunelveli District Collector. All the three counsels – M.Radhakrishnan, R.Vaigai and NGR.Prasad, who argued for the petitioners against the order under 144, stressed that the order promulgation of the prohibitory order was not done in accordance with established procedure, no material has been placed before the District Collector about any untoward incident and the protest for the past eight months was peaceful. It was further argued that while the nuclear plant is 15 kms away from the protest site, there was no need for such prohibitory order, and an order passed merely on presumption would be violative of Articles 19 and 21 of the Constitution.
While the Advocate General countered the arguments by saying that the order is to prevent anti-social elements from entering Radhapuram Taluk, surprisingly Additional Solicitor General Ravindran jumped into the fray and started arguing. When the Union government is not a party in any of the writ petitions, it was quite surprising how the court permitted the ASG to advance arguments and recorded his arguments in the judgment.
The crux of the judgment of the Chief Justice and Justice Sivagnanam is that
(i) the order is not against the entire world prohibiting anybody from entering the boundaries of Radhapuram Taluk and is against sections of persons who are categorized as assisting and helping the organization protesting against the nuclear plant. It is not violative of Article 19 and 21.
(ii) The District Collector has passed order after perusing the report of the Superintendent of Police dated 19.03.2012.
(iii) If the order is not available in public domain, it is for the aggrieved individual to seek for a copy of such order and it is for him to state that order was not served in accordance with Section 134 Cr. P.C.
(iv) This order cannot be questioned in a public interest litigation.
(v) If a person is aggrieved he can seek remedy under sub-section (5) of 144
(vi) The order is only a ‘regulation’ and not a ‘prohibition’ altogether for avoiding breach of peace.
The learned judges failed to properly analyse the prohibitory order for it is intended for the entire world. The order of the District Collector reads “Prohibitory Order under section 144 (1) of the Cr. P.C. is passed preventing “political parties, organizations, movements and others’ from entering the limits of Radhapuram, from 3 pm on 19.03.2012 to 3 pm on 02.04.2012, which helps the ‘people movement’ against atomic energy…”
The order explicitly prevents political parties, organizations, movements and others who are anti-KKNPP from entering Radhapuram Taluk. This is a classic case of violation of fundamental rights under 19. No authority in the country is empowered under the constitution to prohibit a person for expressing solidarity to a peaceful movement. ‘Help’ to a movement can be in the form of words, spoken or written. If a person who wants to offer help to the agitators, in any form is prohibited from entering Radhapuram is the crux of the order. The learned Judges failed to read the order in proper perspective and have come up with an erroneous finding that the order is not violative of Articles 19 and 21.
Regarding the second limb of the finding that the order has been promulgated based on a report of the District Superintendent of Police is a finding which should not have been endorsed by the Court. Unless the material is placed before the Court, Court could not have vouched for its certainty. It is pertinent to note that even the District Collector has not referred the report of the SP anywhere in the prohibitory order except marking the report as a reference. The Courts should have asked the Advocate General to produce the report of the SP and ascertained whether there was any real threat or apprehension.
The height of error of the High Court’s judgment is the third part of the finding. The judges say “if the order is not available in public domain, it is for the aggrieved individual to seek for a copy of such order and it is for him to state that order was not served in accordance with Section 134 Cr. P.C.” Unless and until the order is served in accordance with the procedure stipulated in 134 Cr.PC, any order promulgated under 144 Cr. P.C. is a void. Section 134 reads “(1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such a manner as the State Government, may, by rule, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.
The prohibitory order in this case was never available in the public domain. It was never displayed anywhere or published in the website. Even the State never disputed that the order was not served or displayed. The court should have treated the prohibitory order as void, when the procedure was not followed. The finding of the Madras High Court is as absurd as the finding of Justice Beg in the ADM Jabalpur case.
When detenues under preventive detention had challenged the illegal detention the Supreme Court dealt with the question whether there is a right to life for a citizen, when Emergency is proclaimed. Justice Beg who acted more loyal than the king himself, came up with a finding “It seems to me that courts can safely act on the presumption that powers of preventive detention are not being abused. Furthermore we understand that the care and concern bestowed by the State authorities upon the welfare of the detenues who are well housed, well fed and well treated is almost maternal. Even parents have to take appropriate preventive action against those children who may threaten to burn down the house that they live in.”
The findings of Justice Beg in the Jabalpur case is no different than the finding of the Madras High Court which suggests that individual affected by the prohibitory order should seek a copy !!!. According to the court’s direction, every anti-nuclear protestor or persons against nuclear power should individually seek copy of the prohibitory order !
The fourth part of the finding of the judges that this order cannot be questioned in a public interest litigation is more surprising. If such an atrocious, appalling draconian order cannot be questioned in a PIL, what else can be questioned ? If PILs are not to fight injustices and deprivation of fundamental rights what else are the PILs for ? In fact, any sane Judge with an understanding of the Constitution should have suo motu taken up this matter and pulled up the State for curbing the fundamental rights of a large section of the population.
Next the learned Judges suggest that the aggrieved person should apply to the concerned magistrate for lifting of the order. Only to remove such injustices the constitution has given unbridled wide powers under Article 226. If the Courts shy away and shirk their fundamental duty of upholding constitutional rights of a citizen, it is doomsday for democracy.
The last leg of the finding is not only absurd, but also hilarious. The Judges say that “The order is only a ‘regulation’ and not a ‘prohibition’ altogether for avoiding breach of peace.” The District Collector in his order clearly says, it is a ‘prohibitory order’. The judges had given a new meaning to the prohibitory order which even the
District Collector would not have thought of. The court’s anxiety to justify the order by any means and to overcome the arguments of the counsels could be seen in this finding.
The Court should have gone a step further and examined the situation in Radhapuram Taluk, which the arguing counsels narrated. No government would deploy 5000 policemen with rapid action force, special task force, etc. to implement a ‘regulatory order’. The court failed to read the allegation that essential commodities were prevented by the police in context with the prohibitory order.
Such attitude of the Judges was aptly illustrated by Lord Atkins. In a case of preventive detention at the time of second world war, Lord Atkins observed “I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive.”
History always remembers men for their uprightness, honesty and honour. History always reserves its dark pages to people who kill their conscience and condone injustices.
When Emergency was proclaimed and the whole country was subjected to draconian suppression – including the judiciary - there was a man who stood up and did what he felt was right. In the ADM Jabalpur case, a constitutional bench comprising Justices Ray, Chandrachud, Bhagavathi, Beg and Khanna except Khanna all the four toed the line of the government. The government emphatically asserted that under emergency there is no ‘right to life’. The Advocate General argued that the State can take away the life of a person walking in the street and the courts are helpless. In expressing his loyalty to Indira Gandhi, Beg went to the extent of comparing preventive detention to that of parental care.
It was Justice Khanna who rose to the occasion and acted with conscience. He dissented with his brother judges, in spite of tremendous pressure. He wrote “Even in the absence of Article 21 of the Constitution, the State had got no power to deprive a person of his life or liberty without the authority of law. This is essential postulate and basic assumption of the rule of law and not of men, in all civilized nations.
If the Courts abdicate their responsibility, the consequences could be that if any official, even a Head Constable, capriciously or maliciously arrests a person and detains him indefinitely, without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency.”
Justice Khanna made the country proud. He showed the mighty Indira Gandhi that he had spine. The New York Times in a glowing tribute to Justice Khanna wrote “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings… The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.”
Indira took vengeance on Khanna by making her stooge Justice Beg as CJI, superseding Justice Khanna. But, Justice Khanna is remembered even today for his courageous judgment, whereas Justice Beg remains as an ineffaceable blot on the Indian Judiciary.
It is very unfortunate that the Madras High Court has delivered a judgment upholding an illegal order which curbs the fundamental rights of lakhs of citizens in its 150th year of celebration. This judgment too would remain as an ineffaceable blot on the tradition of the Madras High Court.