EARLIER THIS WEEK, former Chief Justice of India P N Bhagwati died. He was 96. As most readers would have noted, most obituaries in the wake of his demise mentioned two notable things about the late judge – his role in giving us the tool of public interest litigation (PIL), and his role in the ADM Jabalpur (habeas corpus) case in April, 1976, the extremely shameful moment in Indian judicial and political history.
But equally notable was Justice Bhagwati's decision in 2011, 35 years after the ADM Jabalpur case, to apologise for that black verdict and plead guilty. He was 89 at the time.
"The Supreme Court should be ashamed about the ADM Jabalpur judgment. I plead guilty. I don’t know why I yielded…”.
Bhagwati's apology had come a year after the apex court itself had apologised for that ruling which had violated the fundamental rights of a large number of people in the country.
The New York Times had called the verdict the Indian Supreme Court’s "utter surrender” before the state that wanted to be absolutist.
As most readers would know, the Supreme Court was to decide in the ADM Jabalpur or the Habeas Corpus case whether it can entertain a writ of habeas corpus filed by a person challenging his detention. Various High Courts had already said yes, and had the top court decided to stick to that view, it would have given a jolt to Indira Gandhi's drunk-on-power regime, but the SC said the government had the right to suspend all fundamental rights during the Emergency.
Four judges sided with the government. One of them was Justice P N Bhagwati. The only judge who stood up for the country's citizens was Justice H R Khanna. In a better envisaged world, Punjabis, who have a history of fighting against oppression and standing up for innocent citizens, would have erected monuments to Justice Khanna in several chowks and on the university and school campuses. Unfortunately, the outgoing class of 2017 in Punjab’s institutions of higher education will know little about the great man, just like their predecessor cohorts who walked out of these colleges and universities with a degree in hand and often impressive ignorance.
When the BJP, hardly a torch-bearer of civil rights these days, attacks the Congress panellists on TV debates every night for Emergency or for October-November 1984 anti-Sikh massacres, one watches them squirm. If only the party had unequivocally apologised for these tragedies!
Instead of penning a routine obituary, I want to focus on two things: our engagement with the courageous stance of Justice H R Khanna, and Justice Bhagwati's apology for the habeas corpus Emergency case verdict.
Remember, that Punjabis were in the forefront of fighting Emergency, and that the Shiromani Akali Dal had led a vociferous and tenacious struggle against such state repression.
It is a sad commentary of our times that eventually, the same Akali Dal did not prove itself to be above using state repression, just like the Congress, and the Akalis rarely emerged as champions of the downtrodden and guardians of fundamental rights of citizens. Irrespective of what a self-styled holy man in Sirsa does otherwise, what explains the rabid opposition to his disciples’ right to practice their beliefs?
I am not sure if the editorial writer of the New York Times at that time had Punjabis in mind when he wrote: "If India ever finds its way back to 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."
We have seen Bhagwati's apology. We haven't seen Justice Khanna's monument.
Every single judge on that bench eventually rose to become the Chief Justice of India – except Justice Khanna. He should have become the CJI because of his seniority, but was superseded by Justice Beg.
It's a cost he paid to stand up for us. And we failed him.
Justice Bhagwati's brave mea culpa has not spurred the Congress party to apologise for Emergency. Till date, when the BJP, hardly a torch-bearer of civil rights these days, attacks the Congress panellists on TV debates every night for Emergency or for October-November 1984 anti-Sikh massacres, one watches them squirm. If only the party had unequivocally apologised for these tragedies!
Leading lights of Akali Dal and Congress can start by apologising to the families of farmers and farm labourers who have committed suicide because we failed them on policy formulation as well as implementation.
In its editorial comment on June 17, Saturday, The Indian Express hailed Bhagwati for being "upfront about his complicity in the court’s disgraceful compromise with the establishment."
"He didn’t shift blame or put it on the system. It was 'an act of weakness of my part', he said. Such unqualified confessions of guilt are rare in the Indian establishment," the Indian Express wrote. It is time for Punjab’s politicians to introspect what all they need to apologise for.
Leading lights of Akali Dal and Congress can start by apologising to the families of farmers and farm labourers who have committed suicide because we failed them on policy formulation as well as implementation. And then they can start retracing their steps backwards, stopping at every decision they need to apologise for their acts of omission and commission. It is the least Justice Khanna’s soul would want to see, and a monument, of course. Bhagwati’s death is merely another occasion for us to say mea culpa.
(Kamjaat Singh is an academic activist who also dabbles in journalism and writes under a pseudonym, with interests covering media, communications, academics, law, cinema and life. Kamjaat Singh, who will be regularly writing for Punjab Today, can be reached at email@example.com.)
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