National Anthem: Singing not compulsory!

National Anthem of India

Obligation to sing National Anthem:

Three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other. They refused to sing the National Anthem: ‘Jana Gana Mana’ because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the National Anthem-but the singing of it. They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung. A Commission was appointed to enquire and report, and it reported that the children were “law abiding” and that they showed no disrespect to the National Anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school.

Freedom under Constitution of India:

Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the said right. Art. 25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise and propagate religion, subject to order, morality and health and to the other provisions of Part III of the Constitution. Art. 51-A(a) of the Constitution enjoins a dub on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

While on the one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial political or secular activity which may be associated with religious practise or to provide for social welfare and reform.


Disrespect to National Anthem:

The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.

There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung.

 Prevention of Insults to National Honour Act, Section 3:
It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act.
Source: Bijoe Emmanuel vs. State (Supreme Court of India)
See also: Board of Education v. Barnette, 319 US 624 (1943) 

Definition of Bill of Entry, Lading and Delivery Order

Bill of Entry, Bill of Lading and Delivery Order:

The terms like Bill of Entry, Bill of Lading and Delivery Order create confusion. Often these terms are used as if these are synonyms. But they are not. Each term has its precise definition and legal connotation.

Bill of Lading:

Bill of Lading was defined as: “any instrument signed by the owner of a vessel or his agent, acknowledging receipt of the goods described therein and undertaking to deliver the same at a place and to a person mentioned or indicated therein” in Indian Stamp Act, 1879 but that Act was repealed by Stamp Act of 1899 which contained no definition of Bill of Entry.
A cargo at sea while in the hands of the carrier is necessarily in-capable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognized as its symbol, and the endorsement and delivery of the bill of lading operates as a symbolical delivery o cargo. Property in the goods passes by endorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass just as under similar circumstances the property would pass by an actual delivery of the goods. And for the purpose of passing such property in the goods and complete the title of the endorse to full possession thereof, the bill of lading until complete delivery of the cargo has been made on shore to some one rightfully claiming under it, remains in force as a symbol, and carries with it not only the full ownership of the goods, but also all rights created by the contract of carriage between the shipper and the shipowner. It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed,in which the goods may chance to be. ( See Sanders Bros. v. Maclean & Co, (1883) 11 QBD 327, at Pg. 341)
A bill of lading is “a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading”. It is well-settled in commercial world that a bill of lading represents the goods and the transfer of it operates as a transfer of the goods. (See J.V.Gokal & Co. (P) Ltd. v. Asst. Collector of Sales Tax, AIR 1960 SC 595)

Bill of Entry:

‘Bill of entry’ is distinct and different from the ‘bill of lading’ or delivery order, copies of which are to be enclosed with the ‘bill of entry’.

According to Bombay High Court “bill of entry is an innocuous matter and it does not create any obligation or liability on the maker thereof and no civil consequences flow from a mere filing of bill of entry. Upon filing of such bill of entry, the Customs authorities proceed to decide the question about the necessity or otherwise of payment of customs duty and in this fashion, bill of entry merely starts the ball rolling for customs duty.” (See  Union of India v. Chowgule & Co. P.Ltd., [1985] 20 ELT 57) But this does not define the Bill of Entry.

Gujarat High Court considered following question:

Whether ‘bill of entry’ for that purpose can be said to be a deliver order in respect of goods i.e. an instrument entitling any person to the delivery of any goods?

Presentation of ‘bill of entry’ merely on clearance of goods is given for home consumption or for warehousing, and is distinct and different from that of delivery of goods…. The function of the State requires creation or generation of documents such as:

[i] Intimation of arrival of ship issued/signed by Customs House Agent of the importer;
[ii] Import General Manifest signed by the person in charge of the vessel declaring, inter alia, cargo and goods carried by the vessel;
[iii] ‘Bill of entry’ signed by the importer/consignee declaring particulars in respect of goods, namely, the quantity, numbers of packages, value, vessel’s name, country of origin relevant heading of the Customs Tariff under which the goods are classifiable etc. and
[iv] ‘Bill of lading’ or delivery order etc. But all of such documents will not be an instrument of delivery order for the purpose of Entry 24

Delivery Order:

Post amendment, with effect from 1.4.2006, Entry 24 of Stamp Act (of India) was as under:

“Delivery order in respect of goods, that is to say, any instrument entitling any person therein named or his assigns or the holder thereof, to the delivery of any goods lying in any dock or port, in any warehouse in which goods are stored, or deposited on rent or hire, or upon any wharf, [when such goods exceed in value one hundred rupees]”

Gujarat High Court has held that a Bill of Entry is not an order of delivery, therefore, it cannot be held that ‘bill of entry’ is an instrument entitling a person named therein or assigns or holder thereof to get delivery of any goods lying in any dock or port or in any warehouse. It is one of the documents, which is required to be produced before the Customs authorities for clearance of goods for home consumption under Sec. 47 of the Customs Act. For the purpose of clearance, entry of goods of importation is required under Sec. 46 enabling the importer of goods to present to the proper officer a bill of entry for home consumption or warehousing. But it does not automatically become delivery order as distinct and different from the clearance of the goods.


Democracy: Meaning of.

Democracy is government by the people:

Democracy is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude,marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. “the right of election is the very essence of the constitution” (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair election periodically held, based on adult franchise, although social and economic democracy may demand much more.

[Source: Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 85: 1978 SCR (3) 272: 1978 SCC (1) 405. (Supreme Court of India)]

Participatory Democracy:

Participatory democracy means the participation of residents of this State in the development of public policy and in the improvement of the operation of government at all levels.

[Source: Nevada Revised Statutes Chapter 225.220 or NV Rev Stat § 225.220 (2013) ]

Challenging task of conducting elections in India:

Conducting free and fair elections in a country like India, 73 crores people of which country constitute electoral bank, is by no means an easy task. India is the largest democracy in the world. Because of number of factors i.e. different culture, different languages, diverse territories with different ecology and climatic conditions, the high rate of illiteracy and poverty as well as different societal norms, the challenges faced by the Election Commission of India in this country are unique and unparallel.
[Source: Dr. Subramanian Swamy vs Election Commission Of India (Supreme Court of India)]

Right to campaign for election:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.
The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect
against corruption or the appearance of corruption.
At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

Many people might find those latter objectives attractive: They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such
spectacles cause—it surely protects political campaign speech despite popular opposition.

Indeed, as we have emphasized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.

[Source: ROBERTS, C. J in McCutcheon v. Federal Election Commission, (Supreme Court of USA) relying upon Buckley v. Valeo, 424 U. S. 1, 26–27 (1976) (per curiam); Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24–25); Texas v. Johnson, 491 U. S. 397 (1989); Snyder v. Phelps, 562 U. S. ___(2011); National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam) and Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).]

Right of speedy justice in India

Justice delivery system in India:

Delay in justice:

Justice delivery system in India is notorious for delay. Presently no procedural changes are seen in action to change that except a little strict attitude of Supreme Court. But with very large number of pending litigation, it appears to be only nostalgic. These are observations of Supreme Court:

In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentially, encapsulates and sings in glory of the values of liberty, equality and justice In accordance with law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that the collective collegiality can never be regarded as an alien concept to speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
… is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be herculean, the same has to be performed with solemnity, for faith is the ‘elan vital’ of our system.
…..Coming to the proceedings before the High Court from the date of presentation of the second appeal till the date of admission, the manner in which it has progressed is not only perplexing but also shocking. We are inclined to think that the Court should not have shown indulgence of such magnitude by adjourning the matter when the counsel for the appellant was not present. It is difficult to envision why the Court directed fresh notice to the appellant when there was nothing suggestive for passing of such an order. The matter should have been dealt with taking a recourse to the provisions in the Code of Civil Procedure. It is also astonishing that the lawyers sought adjournments in a routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. From the Registrar General’s communication it is perceptible that some disciplinary action has been initiated against the erring official. That is another matter and we do not intend to say anything in that regard. But the fact that cannot be brushed aside is that there is enormous delay in dealing with the case. Had timely effort been made and due concern bestowed, it could have been avoided. There may be cases where delay may be unavoidable. We do not intend to give illustrations, for facts in the said cases shall speak for themselves. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality. Long back, Francis Bacon, in his aphoristic style, had said:

“Hope is good breakfast, but it is bad supper”. 

[Source: Noor Mohammed vs Jetha Nand (Supreme Court of India)]

Inspection of place of offence by Magistrate

Local Inspection by Magistrate:

Considerations for local inspection of the place of offence by Magistrate himself:

Section 310 of Criminal Procedure Code 1973 (corresponding to  Section 539 of Criminal Procedure Code) provides about inspection is as under:

310. Local inspection. (1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.

Scope of power of local inspection:

If a Magistrate makes use of knowledge derived from a local inspection without affording the accused an opportunity to cross-examine or to explain the points against him, he acts with material irregularity sufficient to vitiate the trial. It was also held that a local inspection of the Magistrate is permitted for the purpose of properly appreciating the evidence in this case and cannot take the place of evidence itself. [Source: Tirkah v. Nanak AIR 1927 All. 350]

In another case the Magistrate visited the spot on the evening and came to the conclusion that there was sufficient light to enable anybody to mark closely the features of a stranger. The High Court held that the learned Magistrate assumed that the condition of the light and atmosphere were the same on the night that he went to the spot as they were at the time of the occurrence. It was held that the Magistrate had gone beyond the scope of Section 539(b) and result of such inspection could not be made the basis of conviction. [Source: Sheik Badasah v. Emperor, (1939) 40 Crl. Law Journal 624]

The only purpose of local inspection being to properly appreciate the evidence given at the trial and it is only reasonable that the local inspection should, as a rule, come after all the evidence is recorded…. Even that should be resorted to very sparingly, the Court taking special precautions to prevent itself becoming a witness unconsciously. On some occasions, it is practically impossible for the Court to make a local inspection, and not import new materials collected by it. The moment the Court collects new materials it becomes a witness, and as it cannot cross-examine itself, it cannot try the case.

[Source: Dwaraka Prasad v. Ram Nath Modi, AIR 1951 Vindhyapradesh 1]

Code provides for the Judge making a local inspection himself. That inspection can be used by him for properly appreciating the evidence in the case and for no other purpose. It cannot be used for preparation of the background for appreciating the evidence of the witnesses because preparation of the background has to be made by the parties themselves by letting in evidence forthat purpose and the Judge is not expected to supply that lacuna in evidence. Preparation of the background to appreciate the evidence of witnesses is not the same as “properly appreciating the evidence’contemplated by the Section.  …If the impressions gained by the Judge on controversial matters are allowed to get in without being tested by cross-examination there is the likelihood of miscarriage of justice resulting from it.

[Source: State of Kerala v. Chandran 1973 KLT 625 DB: 1974 Crl. Law Journal 52.]

In Pritam Singh v. State of Punjab a three Judge Bench of the Supreme Court held that a Magistrate is not entitled to allow his views or observations to take the place of evidence because such view or observation cannot be tested by cross-examination.

A local inspection may be made for the purpose of properly appreciating the evidence given during the trial. The magistrate should not, in making the local inspection, do any thing which would reduce him to the position of a witness.

In the present case, it is seen from the notes of the learned Magistrate pertaining to his local inspection, that he did not stop merely at observing the spot where the occurrence is alleged to have taken place, He seems to have conducted some sort of an investigation at the spot to find out whether a hole in the ground was or was not of recent origin. He also seems to have taken certain measurements. He appears also to have made enquiries of the people there, including the accused and the complainant. That he did all these things can be seen, from his notes pertaining to his local inspection.
He has repeatedly referred in his judgment to a sketch prepared by him. That sketch does not appear to have been put into evidence at all; but the learned Magistrate has not hesitated to make liberal use of that sketch. It does not appear to have been in the mind of the learned Magistrate that the local inspection should have been confined only to the purpose of properly appreciating the evidence on record.

What Section 539-B contemplates is the local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on record.

[Source: State of Uttar Pradesh v. Het Ram and Ors. AIR 1976 SC 2124]

Normally a Court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. In the present case the Sessions Judge by making a local inspection converted himself into a witness in order to draw full support to the defence case by what he may have seen. By doing so the Sessions Judge exceeded his jurisdiction.

[Source: Keisam Kumar Singh and Anr. v. State of Manipur ]

…the local inspection envisaged under Section 310 Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by the trial Judge has to be appreciated in conjunction with the evidence already recorded. Any omission and/or commission in the memorandum recorded by the trial Judge by itself would not constitute material irregularity, which would vitiate the prosecution case.

[Source: State of H.P. v. Mast Ram (Supreme Court of India)]

The Magistrate has power to conduct a local inspection that can only be for the purpose of appreciating the evidence on record and that shall not be done in a manner so as to reduce the Magistrate as a witness.

[Source: Sr. Abaya vs Unknown,  2006 CriLJ 3843, 2006 (2) KLT 1001 Ker.]

Scope of Writ Appeal

Scope of Intra Court Appeals:

Gavel with a watch.

Letter patent appeal:

High Courts in India have same powers to issue the prerogative writs which English Law provides. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court, popularly called as Letters Patent Appeal. Scope of this intra court appeal has been circumscribed by Supreme Court of India in following words:

“While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.”

[Source: Wander Ltd. v. Anton India Pvt. Ltd. (1990 (Suppl) SCC 727)]
The scope of intra-court appeal was considered by Supreme Court of India (in Baddula Lakshmaiah v. Sri Anianeya Swami Temple (1996) 3 SCC 52), and it was indicated that a Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a court of Error.
It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.


Comment: It appears that jurisdiction of court in writ appeal is more akin to review than an appeal. Review is tethered to discovery of new facts or an apparent error of record but appeal is entirely a rehearing of the case. Therefore a writ appeal is not a rehearing but merely an exercise to correct an apparent error not to substitute opinion of division bench with the opinion of single judge.

Suspension of Habeas Corpus in India.

None shall be condemned without Due Process of Law.

(ADM Jabalpur v. S.S. Shukla’s case: Analysis and Review)

Due process is the right to be treated fairly by law:

Right of Personal Liberty to a common man who is neither Nobel, Aristocrat, Royal or Rich was conferred very late in the west. Following is the earliest known concept to England:

“That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law. ( See: Liberty of Subject (1354) CHAPTER 3 28 Edw 3. The STATUTE of The Twenty-eighth Year of King Edward III.)

Original text of 28 Edw. 3; borrowed from:

Bill of Rights:

On December 16, 1689, after death of King James-II, the Parliament of England passed a law called ‘Bill of Rights’ which not only dealt with civil liberties of people but also proclaimed supremacy of Parliament in various matters. These matters are:

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. 3. That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious. 4. That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law. 8. That election of members of parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament. 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.

Evolution of Habeas Corpus clause:

Please take note of clause 5 which covers Habeas Corpus. In 1772 an Englishman Mr. Stewart bought a black slave in Jamaica and brought him to England. The name of slave was James Somerset. Once in England, the James refused to go back with Stewart. The slave was taken by force to the ship lying in river Thames and was placed in iron chains. The slave then applied for a writ of habeas corpus complaining illegal restraint on personal liberty. (See 20 State Trials 1-82 & Somerset v. Stewart (1772) Lofft 1-19 and wiki link here) Chief Justice of King’s Bench, Lord Mansfield who heard the writ observed that in the absence of any positive law (by Parliament), slavery can not be recognised in England. He ordered the slave to be free with following observation:

“Every man who comes into England is entitled to the protection of English Law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.”

Habeas Corpus in Constitution of United State:

The aforesaid principle was incorporated in following words in the Constitution of United States in 1791 as Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Supreme Court of United States has held that Fifth Amendment not only protects the procedural due process but also Substantial due process(SDP) which means that a duly enacted law can be struck down if it violates certain Constitutionally recognised principles. (Which is euphemism for stating that law which curtailed the liberties too far beyond the limits found reasonable by Supreme Court) On 12th June 2008 the Supreme Court of United States, speaking about the right of aliens to invoke Habeas Corpus held:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. There-fore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

However 4 years after the above judgement, Supreme Court has refused to hear appeals from seven of the 169 men being held in the military prison at a U.S. naval base in Cuba. The District Court quashed their detention holding that government’s intelligence report was unreliable. But Court of Appeal set aside this decision relying upon the secret intelligence report holding that there was presumption about its authenticity as it was an official act which is presumed to be regularly performed. The Supreme Court of USA has refused to intervene in the matter without assigning any reason. It appears that Supreme Court of USA is passing through its darkest hour which perhaps started with Bush v. Gore, 531 U.S. 98 (2000) wherein the court first stopped the recount of ballots and then ruled in favour of Bush on the ground of insufficient time to complete the counting of ballot. The relevant question in respect of persons incarcerated is: How long these people termed as alien combatants would remain in custody? Forever? Do they get opportunity of producing the witness to disprove the secret intelligence reports? Even though the law does not and can not insist on negative proof.

Right to life, Habeas Corpus and Due Process Clause in India:

In India relevant provision is article 21 of Constitution which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

It was way back, in 1955 the Supreme Court of India held that even an alien/foreigner is also entitled to protection of above provision (see Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta (AIR 1955 SC 367):

Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty except according to procedure established by law”, and article 22 prescribes the minimum that the procedure established by law must provide. There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period without the authority of a magistrate. The only exceptions are (1) enemy aliens and (2) “any person who is arrested or detained under any law providing for preventive detention”.

Emergency and suspension of habeas corpus in India:

In 1975 the Government of the day, under the leadership of Mrs. Indira Gandhi had already declared State of Emergency and suspended fundamental rights. The Supreme Court of India in its ignoble judgement titled ADM Jabalpur v.S.S. Shukla, interpreted that not only the fundamental rights were suspended, by implication right of High Courts under article 226 to issue prerogative writs also stood suspended:

Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.

And mocked at the prospect of possible abuse of powers by torture in custody:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or the people were otherwise murdered. Such instances are intend to produce a kind of terror and horror and are exhortative in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country. Quite often arguments are heard that extreme examples the given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

They could may also have relied upon the Peso’s Justice and ordered execution of the detainee to make the point but they were compassionate. Instead it was observed:

Article 21 is not a common law right. There was no pre-existing common Law remedy to habeas corpus. Further, no common law right which corresponds to a fundamental right can exist as a distinct right. apart from the fundamental right. (at p. 234)

Erroneous interpretation by Supreme Court of India:

The above para is factually incorrect. The constitution had saved all preexisting laws in force at the time of commencement of Constitution. And as a British dominion the laws of India were same as any British Colony. Due process which was the law enacted in 1354 and writ of Habeas Corpus was in force prior to Constitution, under Bill of Right, was saved by Letter Patent of each High Court. and in fact Habeas Corpus was a statutory remedy in Criminal Procedure Code of 1898 (replaced with Cr.P.C. of 1973 without this provision) which could be exercised by District Court. Further how misunderstood the subject was or how intellectually incapable the judges were, is visible from following passage which ignores even the Fifth Amendment to American Constitution, extracted here in above:

In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.

It appears these judges had never heard the maxim let justice be done though the heavens fall (Fiat justitia ruat caelum). This judgement also held that an order of detention without trial under the Act could not be subjected to Judicial Review like any other order to test its validity, with following twisted reasoning:

An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order. Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty. The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right. The expression “for any other purpose” in Article 226 means for any purpose other than the enforcement of fundamental rights. A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal. An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.

Thus an order of incarceration without trial could not be challenged like an ordinary executive order on the grounds of Wednesbury unreasonableness. Which means that even if order of arrest is for John but the Patrick has been arrested, he has no judicial remedy. They may as well have ordered that all court rooms in the country be locked up, till further orders, to save unnecessary expenses. Justice Khanna delivered dissenting judgement (and subsequently resigned from the Supreme Court) with following eloquence:

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

ADM Jabalpur case, no longer good law?

It is unfortunate that majority decision in ADM Jabalpur case has not been expressly overruled. But recent sheepish comments from the Supreme Court by way of obiter dicta indicate that they are ready to treat this shameful judgment ‘no longer good law’. See following two excerpts:

“In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency. (Ramdeo Chauhan vs Bani Kant Das) The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. (I.R.Coelho vs State Of Tamil Nadu)”

We are not aware what those subsequent decisions were which overruled the ADM Jabalpur case; as believed to be existing, in above Coelho decision rendered by a Nine Judge Bench. But the ld. Chief Justice who delivered that above Coelho order himself had passed one such order not about the life or liberty but sealing of property of people, which smacked of arbitrariness if not martial law. But that is another matter. Several later judgements relied on above ADM Jabalpur case. (See K. Anandan Nambiar v. Chief Secretary, Govt. of Madras) Another constitution bench expressly left it’s validity open.( See Attorney General For India vs Amratlal Prajivandas)

Ignorance is such a bliss. Humanity is on the threshold to evolve right principles to restore human liberties and to ensure that it is not trampled upon only on suspicion, secret reports, nationality or religion or attire alone. Those who are its custodians should not shriek their responsibility on petty short term goals. This article has been compiled for the benefit of students of law in India especially those who find this subject of Habeas Corpus and due process, confusing. Further more events taking place all over globe makes it to be right subject to remind us of; for we may not trample upon the liberties which are not ours. For more history on civil (properties and assets) liberties read Magna Carta.