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NEW DELHI:  The Supreme Court has admitted that a 1976 verdict by it endorsing the Emergency had violated fundamental rights of a large number of people in the country.

SC admits it ‘violated’ fundamental rights during Emergency

NEW DELHI:  The Supreme Court has admitted that a 1976 verdict by it endorsing the Emergency had violated fundamental rights of a large number of people in the country.

A majority decision of a five-member Constitution bench upholding the suspension of fundamental rights during he Emergency in the ADM Jabalpur Vs Shivakant Shukla case (1976) was “erroneous”, a bench of Mr Justice Aftab Alam and Mr Justice Asok Kumar Ganguly said in a judgment.
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.
“There is no doubt that the majority judgment of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country,” Mr Justice Ganguly observed.
The judges set aside the court’s own judgment of May 5, 2009 wherein it 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 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 Vs 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 (MISA) on the ground that the order is illegal or malafide or not in compliance with the Act,” Mr Justice Ganguly wrote in the judgment.
The bench pointed out that in the 4:1 ruling that it was Mr Justice Khanna who rightly gave a dissenting judgment 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 Mr 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.
The bench of Mr Justice Alam and Mr Justice Ganguly, giving a verdict on the second review petition filed by the convict, also set aside the court’s earlier judgment that NHRC had no power to recommend to the Governor the commuting of the sentence to life imprisonment after the death penalty had already been upheld by it.
Chauhan was awarded death sentence by a sessions court in Guwhati for the murder of the four persons after holding that the incident fell under the “rarest of rare” category.
The Guwhati High Court upheld the sentence. Later, a two-judge bench of Mr Justice K T Thomas and Mr Justice R P Sethi of the Supreme Court had on July 31, 2000 upheld the death sentence.
All the three courts rejected the plea of Chauhan that he cannot be awarded the death penalty as he was only 16-year-old at the time of committing the crime.
The courts rejected the plea after extensively examining the medical evidence which indicated that Chauhan was over 20 years of age and hence not entitled to immunity from death penalty available to a juvenile under the Juvenile Justice Act of 2000.
A three-judge bench of Mr Justice Thomas, Mr Justice Sethi and Mr Justice S N Phukan, hearing the review petition, had on May 10, 2001 by a majority decision dismissed his appeal, though one of the judges took the view that he could be awarded a life term since there was an element of doubt about his juvenile status.
 

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