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'Violated' fundamental rights during Emergency: SC

January 02, 2011 17:12 IST

The Supreme Court has admitted that it had violated fundamental rights of citizens during the 1975 Emergency. The observation was made by the court which in an unprecedented move commuted to life imprisonment the death sentence, earlier upheld by it, of a man who murdered four members of a family.

A bench of Justices Aftab Alam and Asok Kumar Ganguly in a judgement took a view that the majority decision of a five-member Constitution bench upholding the suspension of fundamental rights during Emergency in the ADM Jabalpur V Shivakant Shukla case (1976) was erroneous.

"There is no doubt that the majority judgement of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country," Justice Ganguly observed.

The judge made the observation while setting aside his own judgement of May 5, 2009 along with Justice Arijt Pasayat (since retd) wherein the apex court had upheld the death sentence of Remdeo Chauhan alias Rajnath Chauhan who murdered Bhabani Charan Das and three members of his family on March 8, 1992.

"The instances of this court's judgement 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). 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 on the ground that the order is illegal or malafide or not in compliance with the Act," Justice Ganguly observed.

The bench pointed out that in the 4:1 ruling that it was Justice Khanna who rightly gave a dissenting judgement by holding that "under clause(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."

The apex court then recalled the comment of former Chief Justice M N Venkatachalliah in the Khanna Memorial Lecture on February 25, 2009 that the majority decision in the Emergency case be "confined to the dustbin of history".

In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th Constitutional Amendment, Articles 20 and 21 (personal liberty) were excluded from the purview of suspension during Emergency.

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