If it is impossible to do justice, courts should at least try to empathise and ameliorate hardships. An incident that occurred in Justice DM Chandrashekhar’s court illustrates this principle, writes JUSTICE YATINDRA SINGH, former Chief Justice of the Chhattisgarh High Court.
IN Soar Rather than Sulk, I wrote about how law and justice are not the same things. One should try to do justice, soar with the law rather than sulk with it. But often, law or circumstances are such that it is not possible. In that case, one should try to empathise and remove hardships. I witnessed this in the court of Justice DM Chandrashekhar, but before I tell you about it, here is his brief biographical sketch.
Justice Chandrashekhar was born on 26 September 1920. He was initially schooled in Bangalore [now Bengaluru], completed his graduation in 1940, and got a law degree in 1942 from Mumbai. He then received a Masters in Economics in 1944 from the Benaras Hindu University, where he stood first.
Initially, he joined government service but resigned in 1946 to practice law. He started in Bengaluru. He was appointed judge of the Mysore [now Karnataka] High Court on 20 September 1963.
When an internal Emergency was proclaimed on 25 June 1975, he was a senior judge of the Karnataka High Court.
OPPOSITION LEADERS ARRESTED
Top Bharatiya Janata Party leaders, including Atal Bihari Vajpayee and LK Advani, had gone to Bengaluru for a parliamentary committee meeting. As soon as the Emergency was declared, they were arrested. They filed a Habeas Corpus petition before the Karnataka High Court. The government wanted to avoid the Karnataka High Court for its strong attitude. It adopted a novel procedure to make their petitions infructuous but did not succeed.
The leaders were released and rearrested, and except Vajpayee (he had been operated upon and the doctor refused permission), all were taken to prison in Rohtak, Haryana. Therefore, their Habeas Corpus petition became infructuous. Once again, they filed a Habeas Corpus petition in the Karnataka High Court. This time, a bench presided by Justice Chandrashekhar passed bold orders which were not to the liking of the then government.
The court overruled preliminary objections regarding territorial jurisdiction as their illegal detention began as soon as they were rearrested in Bengaluru. They were ordered to be present in the court. The government took another preliminary objection regarding the maintainability of the petitions due to the suspension of Article 21 during the Emergency.
On 28 November 1975, the court negated the challenge to the proclamation of Emergency but overruled the preliminary objection regarding the maintainability of the petition. The government took the matter to the Supreme Court where it was taken up along with other similar cases.
When Emergency was proclaimed on 25 June 1975, Justice Chandrashekhar was a senior judge of the Karnataka High Court. Top BJP leaders including Atal Bihari Vajpayee and LK Advani had gone to Bengaluru for a parliamentary committee meeting. They were arrested as soon as an Emergency was declared. They filed a Habeas Corpus petition before the Karnataka High Court.
Unfortunately, on 28 April 1976, the Supreme Court upheld the objections of the government regarding the maintainability of the petition, in ADM Jabalpur vs Shiv Kant Shukla (also known as the Habeas Corpus Case). In the meantime, Advani was elected to the Rajya Sabha and the High Court directed that he be taken to the Parliament for taking the oath. However, this order was also stayed by the Supreme Court.
GOVERNMENT REACTS WITH A TRANSFER
After the decision of the Supreme Court, the Habeas Corpus petitions came up for final orders, and the bench passed orders for their presence in court. This was too much for the government. It could take no more lying down and wanted to teach Justice Chandrashekhar a lesson for passing independent and bold orders. Therefore, he was transferred to the Allahabad High Court. He was elevated as its Chief Justice on 9 May 1977. He enjoyed his stay at Allahabad but then because of an unforeseen situation (see endnote) he decided to return to Karnataka. He was the Chief Justice of Karnataka High Court from 22 March 1978 to 25 September 1982. It was during his tenure at Allahabad that I needed to appear before him on numerous occasions.
The pending habeas corpus petitions were listed for hearing before the bench presided over by him. Given the Supreme Court decision, nothing could be done, they had to be dismissed. But most of these petitions were from jail and no lawyer was prosecuting them. Even in those cases where lawyers were appearing, they withdrew their vakalatnama. This was done on purpose. Soon, a question arose whether they should be dismissed without hearing or should the detenus be summoned and heard?
NATURAL JUSTICE CRUCIAL
We were submitting that the detenus must be summoned and heard. The State was pressing hard that they should be dismissed without being heard: bringing them to Allahabad would not only entail expenses but would be inconvenient for the State. I distinctly remember his words in negating the submissions of the State. He observed the “principles of natural justice are not an empty formality. We have to hear the detenus. If you arrest them, you have to bear the expenses.”
The detenus were produced. The court heard them patiently and regretfully dismissed their Habeas Corpus petitions.
Justice Chandrashekhar knew very well that these detentions were illegal but could not allow the petitions. His hands were tied; he was a prisoner of the Supreme Court order. But he did empathise with the detenus and did his best to ameliorate their suffering. He provided them an opportunity to breathe some fresh air, see the open skies, and most importantly, meet their relatives and friends. These were important, for they add the humane touch to the administration of justice. That is how a judge should be.
But one thing surprises me—why was such an intelligent, independent judge never taken or persuaded to go to the Supreme Court? Had he been there, the colour of the judiciary would surely be different today.
Justice Chandrashekhar knew these detentions were illegal but could not allow the petitions. He was a prisoner of the Supreme Court order. But he empathised with the detenus and did his best to ameliorate their suffering. That is how a judge should be, bringing a humane touch to the administration of justice.
Endnote: This happened because a senior judge of the Allahabad High Court resigned and took back his resignation only when Justice Chandrashekhar offered to go back. This instance shows that in personal matters, one should never be one’s counsel, nor attached to any goal.
(Justice Yatindra Singh is a former Chief Justice of the Chhattisgarh High Court and Senior Advocate at the Supreme Court. The views expressed are personal.)