RWM Dias, in his classical work 'Jurisprudence', discusses aspects of justice in part II of the book. The second chapter in the said part is titled ‘The Problem of Power.’

The celebrated jurist narrates two connotations of the concept of power. One is about physical power whereas the other is on the legal capacity to alter jural relations. The chapter is a multidimensional narrative, not limited to the problem of power but also about the relevance of control of power.

In that context, the larger discussion is about how law can be a tool for usurping power, thereby defeating the purpose of the rule of law itself.

The discussion therein is largely concerned with the need to control of power in the lawmaking process.

Power belongs to the legal concept of right, in its wider sense.

As per the Hohfeldian representation, the presence of power in one creates liability in another and also robs the other of immunity. Thus, the control of power is definitely a significant aspect of justice.

The problem of power and the relevance of controlling it has a place of import in the working of the judiciary as well. The improper use of power by the legislative or the executive impairs distributive justice. However, in the context of corrective justice, even the non-use of power will result in a miscarriage of justice.

In a literal narrative, it is not even a miscarriage of justice but rather the prevention of justice

Traversing the history of the functioning of the Supreme Court of India brings out certain instances that indicate the prevention of justice. The case of ADM Jabalpur v. Shivkant Shukla, more popularly known as the Habeas Corpus Case, is a typical example of the non-use of power by the Supreme Court.

That judgment contains certain reasonings and factual narratives that takes one to his wit's end.

One quote runs as follows,

“Even in Emergencies, provided the power of the Court to so test the legality of some executive act is not curtailed, Courts will apply the test of legality, 'if the person aggrieved brings the fiction in the competent Court'. But, if the locus standi of the person to move the Court is gone and the competence of the Court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action or their relationship with the power to act, it is no use appealing to this particular concept of the Rule of law set out above. It is just inapplicable to the situation which arises here. Such a situation is governed by the emergency provisions of the Constitution. These provisions contain the Rule of Law for such situations in our country.”

Another quote reads,

“Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated is almost maternal.”

Yet another quote reads,

“Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”

The detention resulted in extreme torture and even death of many detenues including instances of where the even the body of the detenues could not be traced.

The decision was rendered by the Supreme Court while setting aside bold positions taken by various High Courts with respect to the protection of liberty of the individual. At the said point of time, the might of the executive under the then Prime Minister was at its crescendo.

The sole judge of the Supreme Court who tried to protect the liberty of the litigants was bypassed and the judges who sided with the executive were protected and rewarded. The sole dissenting voice, Justice HR Khanna, demonstrated his boldness by resigning from judgeship.

Perhaps accepting the idea of better late than never, the Supreme Court overruled the decision in the Habeas Corpus Case after a few decades.

What has been stated above is not merely a narration of history, but carries takeaways for the future.

Presently, the Supreme Court has a number of applications in connection with bail that are pending before it. Many of the said matters are substantially old.

The provocation for this article is two specific incidents with respect to the grant of bail by the Supreme Court.

On November 9, 2020, the bail application of a very well-known journalist was denied by the Bombay High Court and on November 10, 2020, the said order was challenged before the Supreme Court. The very next day, that is on November 11, 2020, the same was heard by the top court and bail was granted.

More recently, an attempt was made by the authorities to arrest a prominent member of the opposition party. The same day, an application was moved before the Supreme Court. The Court interfered and ordered the jurisdictional court to grant bail the very same day.

The quick action on part of the lawyers representing the parties and the seriousness with which the Supreme Court protected the liberty of the individual is definitely worth appreciating.

However, the reason why bail was secured by these two persons without delay in comparison to the usual time taken through the court process, requires analysis from a jurisprudential perspective. The relevance of power and its impact on justice comes into picture at this point.

When the Habeas Corpus Case was decided, the executive was in a very powerful position. The Supreme Court could have at least hesitated from overruling the bold decisions of the High Courts so that the liberty of the subjects were protected. However, only one of the judges was bold enough to do that.

It is imperative to note that subsequent events at the time exposed the reason for such non-exercise of power by the Supreme Court. The power of the executive was so extreme that any response by the judges would have affected even the existence of the judges who were bold to do so. The judges who were parties to the majority decision played it safe, thereby ensuring their existence by not displeasing the executive.

In other words, the executive did not rein in its power and the judiciary did not exercise its power. The result was non-prevalence of justice.

The litigants in the said case belonged to the category of Justice Have-nots because they lacked power. On the other hand, in the two recent decisions with respect to bail cited above, both of the litigants held power. The nature of the power they commanded is uncertain. Nevertheless, from a layman’s perspective, they were powerful.

A good number of bail applications pending before the Supreme Court are of those persons who are not so lucky or, rather, do not have the power to open the doors of the law so as to get justice and are in indefinite waiting before the law, as narrated by Kafka.

The two petitioners who secured bail are among the Justice Haves. It is interesting to note that the cases of Justice Haves, as well as Justice Have-nots, happened after a document came into force in 1950 and which deals with the ruling of the land to which they are subject.

That document is the Constitution of India.

The concept of rule of law, which is supposed to have been achieved as per the Constitution, continues to remain a theory alone for the Justice Have-nots.

The exhortation of RWM Dias, with respect to the problem of power and the need for controlling power for the purpose of justice continues to remain a theory without doubt.

The columnist is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.

Views expressed are of the author and do not necessarily reflect the views of Bar & Bench.