– V.D. Gyani*

Liberty is the Soul’s right to breathe and when it cannot take a long breathe,laws are girdled too tight, withoutliberty man is syncope.

-Henry Wark Beekar {Proverbs from Playmouth Pulpit}

It was this very right of soul which had been subjected to suffocation and at times, even strangulation, in the course of political history of nations; but there have always been people who stood firm not only for their own rights but rights of others as well,against tyranny, they served to protect us. Courage and heroism are not confined to battle fields alone, but to the selfless, dutiful, virtuous as wel,l fighting and strugglingagainst draconian laws, socialsystems, such as racialism, colour segregations (the blacks civil-rights movements) it is their moral courage, which has became a bench mark of heroism, a byward for steadfast courage against injustice. They are the heroes, Emerson wrote, “whoever is heroic willalways find crises to try their edge. But these heroes with their moral courage will get the edge on them by being heroic and overcome the crisis.” Times of heroism are generally times of terror but the day never shines in which this element may not work. This article is a humble tribute to such heroes who fought for saving the vanishing liberty and to keep its eternal flame ablaze.

Theemergence ofBangladesh is undoubtly amomentous event in recent history. The guerilla warfare in Bangladesh in its final phase was militant impassioned of the masses filled by nationalist fervour and sentiments that pushed the Bengali’s across the ground.GeneralYahya Khan,who was the Presidentof Pakistan,had in his marshallaw regime summarily postponed for an indefinite period,the proposed session of ConstituentAssembly scheduled to be held on 3rd March 1971, for an indefinite period. This announcement was made on 1st of March, and Dhaka was literary burning. Sheikh Mujibur-Rehman, the hero of themoment, demanded whether MarshalLaw applied only to the people of East Pakistan? Within a day the whole atmosphere was electrified. Demonstrations wereheld by group of students, millworkers, lawyers and even Government employees, who marched on street of Dhaka, carrying sticks and swords, holding banners, waving placards, proclaiming Independent Bengal. It was in this situation that Yahya Khan appointed his trusted Lieutenant General Tikka Khan, as Governor of East Pakisthan to crush the Bengali movement. Here comes the role of the judge – a Judge fearless to a fault and perhaps more heroic than any of the Generals of Yahya Khan. He declined to administerthe oath of office,to the newly appointed Governor. It was a judgment, notin alis with a cause title, buta judgmentin the annals of history. The name of this warrior judge may not be found in Law reports, he might not have rendered scholastic legal opinion on an intricate question of law but he has carved out a permanent place in thehearts of teeming millions of Bangladesh’s. This valiantwarrior was Justice Abu Sayem, the Chief Justice of Dhaka High Court.We salute him.

The caption ‘Vanishing Liberty’, I thankfully acknowledge, is borrowed from the writings of the distinguished jurist N.A. Palkiwala, who not only appeared before the Hon’ble Supreme Court on 23rd June 1975, for Prime Minister Indira Gandhi but also succeeded in obtaininga conditionalstay oftheAllahabad High Courtorder unseating her… But on imposition of emergency on 25th of June, he returned the brief and withdrew himself as a counsel from the appeal filed by Mrs. Gandhi. The Presidentialorder dated 27th June suspended the right to move the courts, for enforcement of fundamental rights guaranteeing equality before law,equalprotection of law, no deprivation of life and liberty except in accordance with procedure established by law(Article 21),no detention without informingthe grounds of detention. As was argued in A.D.M., Jabalpur V. Shivakant Shula’s case, by a senior counsel Mr. Anil Diwan, the nation was virtually reduced to a state of rightlessness. The politicalupheaval and the palpable peril to constitutionalfreedom,which had already materialized culminating in the above event had perhaps impelled and inspired Mr. Palkiwala to write “Our constitution Defaced and Defiled”. It is on the cover page of this book that “the saddest epitaph which can be craved in the memory of vanishing liberty…” is written.

“The saddest epitaph which can be carved in the memory of vanishing liberty is that it was lost because it possessors failed to stretch forth a saving hand while yet there was time. Mr. Palkiwala has been in the vanguard of the fight to preserve and protect individualliberty and arouse the people to their duty as keepers of the constitution. Few in India have taken as much pains to educate the nation and point out the dangers lurking behind the facadeof constitutionalamendments which have been passed in the name of the people”.

It was in this case A.D.M., Jabalpur V/s Shivakant Shukla

A.I.R. 1976 S.C. (page 1207) that a galaxy of legal luminaries, such as the then Attorney GeneralNiren De, Shanti Bhusan, Soli Sorabjee, Ram Jethmalani, C.K. Daftari,AnilDiwaland ahost of others appeared before a bench of five judges comprising of the Chief Justice A.N. Ray, Justice H.R. Khanna,Y.N. Chandrachud, P.N. Bhagwati& M.H. Beg in the Habeus Corpus case ADM Jabalpur vs. Shivkant Shukla AIR 1976 SC 1207. The hearing began on December 15th 1975 and lasted till 25th of Feb. 1976, consuming 37 working days; it was on 28th ofApril that the decision was given. Chief Justice & Justice Beg upheld the government of India’s petition; each judge wrote his own opinion, the four judge majority was that – no citizen has standing to move a writ of Habeas Corpus under constitution Article 226, in face of Presidential order of 25th June 1975, or to challenge a detention order as factually or legally malafide or based on extraneous consideration.

It was Justice Khanna’s alone who held that law of preventive detention or detention without trial is an anathema for allthose who lone personal liberty. The only redeeming feature of this case is the lonedissenting voiceof JusticeH.R. Khanna, reminiscent ofthe famous dissent of Lord Actin in Liversidge vs. Anderson 1942, A.C., P. 206, while the majority judgment remains an ugly pimple on the fair face of Indian judiciary. The heroes of both these judgments are the true saviours of’vanishing liberty’.

While delivering his remarkable dissenting address Justice Khanna concluded with – “A dissent in a court of last resort…. is an appeal to the brooding spirit of law, to the intelligence of future day, when a later decision may possibly correct the error into which the dissenting Judge belives the court to have been betrayed.”

Lord Atkin was called upon to interpret ‘reasonable cause’ and that too at a time of war of survival, such as England had never faced. The Emergency Power (Defence) Act, 1939, expressly authorized the makingof regulations providing forpreventive detention, thus removing the objection raised in Halliday case (R. vs. Halliday (1917)A.C. 260) that Regulation 148 was ultravires because the Act under which it was made did no expressly authorize preventive detention. The material words of theRegulation was – “If the secretary of the state has reasonable cause to believe any person to have been or to be of hostile origin or association or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm orin the preparation orinstigation of such acts and thatby reason thereof it is necessary to exercise controlover him, he may make an order directing that he be detained.”

It was in such conditions of mortal peril that the ‘reasonableness’ of cause’ to believe was to be interpreted and Lord Atkin held – “In this country, amidst the clash of arms, the laws aren’t silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the Principles of liberty for which on recent authority we are now fighting, than the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alerts to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the court of King’s Bench in the time of Charles I.”

Lord Scarman, while delivering a lecture on 10th January 1979 in Bombay University, referring to Court’s judgment as hermajority in Liversidge case said, “The House of Lord has put the Liversidge’s case where it belongs in a War Museum.” Within forty years, since the decision was given in Liversidge, the majority view has finally been interred and Lord Atkin’s dissent has finally been vindicated.

It would be significantly pertinentto note,that the dissent ofthe House of Lords has finally ruled in favour of Lord Atkin’s dissenting view, describing the majority decision as ‘beyond recall”, and saying that its ghost need no longer haunt the law. (IRC V/s. Ross Minster Limited (1980) 1 All E.R. 80)

Sadly enough we havestillto wait forsuch awelcome treatment of Justice Khanna’s dissent in ADM Jabalpur V/s. Shivkant Shukla. Both Justice Khanna & Lord Atkin are heroes in their own right, they deserve our respect, we salute them.

While wein MadhyaPradesh werebusy celebrating the Golden Jubilee of our High Court in 2006, the Americans around the same period in 2006 were celebrating the Golden Jubilee of landmark judgment in Brown V/s. Board of Education 347 US 483 (1954), decided on 17th May 1954, where unanimous Supreme Court found, “In the field of education the ‘doctrine of separate but equals’ has no placeand hold that segregation in public school denies Black children, the equal protection of laws guaranteed in the 14th Amendment.” Emphasizing the harmful effects of ‘segregation’ the Court held “Separation of white & coloured children in public school has a deter mental effect upon the coloured children. The impact is greater when

it has the sanction of law, for the policy of separatingthe races is usually interpreted as denoting the inferiority of Negro Groups. A sense of inferiority affects the motivation of child to learn. Segregation with the Sanction of law therefore had a tendency to retard the Educational & Mental development of Negro children and to deprive them of same of thebenefits they would receivein aracially integrated school system.” The hero of this battle againstsegregation was a Negro lawyer Thurgood Marshall, who captained a team of seven lawyers to fight against ‘segregation’ and won the battle. This lawyer Thurgood Marshall was the first African- American Negro who latter become a Judge of Supreme Court of USA.

It was an atmosphere surcharged with vehemence and revenge the world over against the terrorists after the 9/11 attack. But even in such a surcharged atmosphere Justice Sandra Day O’connor, the first woman to serve on Supreme Court of U.S.A., upholding in Hamidi V/

s. Ramsfield (Defence Secretary of USA) the Democratic constitutionalism, common commitment and values of constitution observed, “it would indeed be ironic if in the name of nationaldefence we would sanction the subversion of these liberties which make the defence of the nation worthwhile.” It was her sheer courage to make such an observation, which in theprevailing atmospherewould possibly be not made by anyone else.

I can perhaps do no betterthan to conclude with the evocation of the ‘Spirit of Liberty’ as was done by Judge Learnedhand – “Liberty lies in the heart of men and women; when itdies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it.”

These are deeds which should not pass away and names that must not Wither – Byran

– Virendra Dutt Gyani