By Shanmugham D. Jayan and Raghul Sudheesh

In an interview with myLaw.net Justice P.N. Bhagwati (Pictured) confesses that the Supreme Court decision in ADM Jabalpur was wrong and he pleads guilty for the same. The reason attributed for him joining the majority (Justices A. N. Ray, Y. V. Chandrachud, and M.H. Beg) in the case was that he was persuaded by his colleagues and he admits it was an act of weakness on his part. He also says that “It was against my conscience...That judgment is not Justice Bhagwati’s”. Further he goes on to mention that post emergency period, he realized the mistake and he practically rewrote Part III and Part IV of the Constitution; particularly Articles 14, 19, 21 and 32.

In the Minerva Mills judgment he accepts thus: “Unfortunately we could not be ready with our judgment and hence on  May 9,1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later”. Though he owes it to the paucity of time, a judge expressing his unwillingness to adduce reasons for a judgment is a trend alien to common law system where precedents form binding law.

Justice Bhagwati has praised Indira Gandhi government during the emergency and later criticized her during the tenure of Janata government. Later on when Indira Gandhi came back to power; he wrote a letter congratulating her.

An excerpt from the letter Justice Bhagwati wrote after Indira Gandhi was re elected:

“May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as the Prime Minister of India...I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

These letters show his diplomatic approach towards the executive. Justice H. R. Khanna was superseded by another judge (Justice M. H. Beg) and he did not become the Chief Justice of India, as he dissented in the ADM Jabalpur case and came down heavily against the then Indira Gandhi government. Justice Bhagwati would also have met with the same fate of Justice H R Khanna had he dissented. Justice Bhagwati’s diplomatic stand in ADM Jabalpur case saved him from losing his chance of being the Chief Justice of India.

Though it was Justice Verma who created the Collegium system; the reference was first made by Justice Bhagwati in the First Judges Case (the SP Gupta case). In this case Justice Bhagwati wrote: “there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge”. Justice Bhagwati’s mind has now changed and he says he is against the collegium system in toto.  

The First Judges’ case was criticised by noted Jurist H.M. Seervai as “null and void”. The 214^th Law Commission of India report has recommended the reconsideration of the Three Judges’ case (SP Gupta, AOR vs. UOI, In re Presidential Reference).

On Justice Bhagwati’s judgment in Ajay Hasia’s case and Justice Krishna Iyer’s judgment in Som Prakash’s case, both on ‘Other Authorities’ under Article 12, H. M. Seervai has observed thus in his book on Constitutional Law of India (Volume I, 4^th edn. at p.387, fn. 75):

“The judgement in Hasia's case was delivered on 13th Nov. 1980 by Bhagwati J. for a Constitution Bench which included Krishna Iyer J. On 13 Nov, 1980, Krishna Iyer for himself and Reddy delivered the judgement in Som Prakash vs. Union.....Krishna Iyer J. propounded five tests for determining when an agency or instrumentality of the state can be considered to be an "authority" within the meaning of Article 12 and therefore, "the State". It appears likely that the judgement of Krishna Iyer J. was available to Bhagwati J. before he delivered the judgement in Hasia's Case, because except for the test set out in (b) in para 7.94 above, the remaining five tests laid down by Krishna Iyer J. appear to have been  re-arranged and bodily incorporated by Bhagwati J. except for an incorrect insertion of "the" in  test (c) para 7.94.”

Though Justice Bhagwati entirely agrees ADM Jabalpur was wrong, he is not ready to accept that it was a disgrace to the Supreme Court. He says it is something for which Supreme Court should be ashamed. Justice Bhagwati says that in ADM Jabalpur case he yielded to his colleagues and the judgment was against his conscience. Article 145(5) states: “No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion”.

A quote from New York Times summarized the effect of ADM Jabalpur and praised Justice H.R. Khanna (pictured left), sole dissent voice in ADM Jabalpur: 

“If India ever finds its way back to the 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 in dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings...The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender.”

Did Justice Bhagwati not have a constitutional right to dissent? Justice H.R. Khanna had exercised this in the ADM Jabalpur case; Justice Bhagwati could also have done the same.

In the interview Justice Bhagwati also says he used to wake up at five in the morning and write judgments. Recently in an interview given to TOI Justice Bhagwati said: “Sai Baba, my god, dictated my every single judgment”. Did Sai Baba and God say not to dissent but to concur with the majority?

Another interesting claim that Justice Bhagwati makes, “I practically rewrote the Constitution”. One of the cardinal principles of Jurisprudence is that Judges are to interpret the law and not to make laws. Justice Bhagwati as he claims is the Father of Public Interest Litigation. He has brought in concepts like New Doctrine in Equality under Article 14 and also brought in Due Process into the Indian Jurisprudence.

H. M. Seervai has found Justice Bhagwati's description of the classification theory as faulty "doctrinaire", because, "there is nothing unpractical about a doctrine which effectively secures equal protection of law to persons by declaring the law based on impermissible classification to be void while leaving to the State a wide field for making laws based on permissible classification".

He further challenges the validity of the new doctrine itself: "The new doctrine hangs in that air because it propounds a theory of equality without reference to the terms in which Article 14 confers rights to equality." H.M. Seervai has further stated that the new doctrine suffers from "fallacy of undistributed middle". 

Drafters of Indian Constitution had huge debate over “Procedure Established by Law” and “Due Process of Law”; and chose the former. They must have avoided using “Due Process” considering it to be the legal foundation of capitalism and they did not want it to be applied in a socialist economy like Indian economy. In Manekha Gandhi’s case Justice Bhagwati introduced ‘Due Process of Law’ into Indian Jurisprudence without any farsightedness.

An appraisal of all the above mentioned facts clearly indicates that Justice Bhagwati is a celebrity judge and the jury is out on whether he contributed positively to the growth of Indian Jurisprudence.

Shanmugham D. Jayan is a lawyer practising before the High Court of Kerala and he is also a visiting faculty at NUALS, Cochin. 

Raghul Sudheesh is Associate Editor at Bar & Bench. You can follow him on Twitter. 

Views expressed are personal of the authors and does not reflect the views of Bar & Bench.

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