A bench of Justice Aftab Alam and Justice Asok Kumar Ganguly in a judgment took a view that the majority decision of a five-member Constitution bench upholding the suspension of fundamental rights during Emergency in the additional district magistrate Jabalpur V Shivakant Shukla case (1976) was erroneous.
"There is no doubt that the majority judgement of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country," Justice Ganguly observed.
The judge made the observation while setting aside his own judgment of May 5, 2009 along with Justice Arijt Pasayat (since retd) wherein the apex court had upheld the death sentence of Remdeo Chauhan alias Rajnath Chauhan who murdered Bhabani Charan Das and three members of his family on Mar 8, 1992.
"The instances of this court's judgement violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.
"We can remind ourselves of the majority decision of the Constitution Bench of this court in additional district magistrate Jabalpur V Shivakant Shukla reported in (1976).
"The majority opinion was that in view of the presidential order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a high court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention (MISA) on the ground that the order is illegal or malafide or not in compliance with the Act," Justice Ganguly observed.
The bench pointed out that in the 4:1 ruling that it was Justice Khanna who rightly gave a dissenting judgment by holding that "under clause(8) Article 226 under which the high courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the high court to issue writs in the nature of habeas corpus during the period of emergency."
The apex court then recalled the comment of former Chief Justice MN Venkatachalliah in the Khanna Memorial Lecture on February 25, 2009 that the majority decision in the Emergency case be "confined to the dustbin of history".
In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th Constitutional amendment, Articles 20 and 21 (personal liberty) were excluded from the purview of suspension during Emergency.
The bench of Justice Alam and Justice Ganguly, giving a verdict on the second review petition filed by the convict, also set aside the apex court's earlier judgment that NHRC had no power to recommend to the Governor the commuting of the sentence to life imprisonment after the death penalty had already been upheld by it.
Chauhan was awarded death sentence by a sessions court in Guwahati for the murder of the four persons after holding that the incident fell under the "rarest of rare"category.
The Guwhati high court upheld the sentence. Later, a two-judge bench of Justices KT Thomas and RP Sethi of the Supreme Court had on July 31, 2000 upheld the death sentence.
All the three courts rejected the plea of Chauhan that he cannot be awarded the death penalty as he was only 16-year-old at the time of committing the crime.
The courts rejected the plea after extensively examining the medical evidence which indicated that Chauhan was over 20 years of age and hence not entitled to immunity from death penalty available to a juvenile under the Juvenile Justice Act of 2000.
A three-judge bench of Justice KT Thomas, Justice RP Sethi and Justice SN Phukan, hearing the review petition, had on May 10, 2001 by a majority decision dismissed his appeal, though one of the judges took the view that he could be awarded a life term since there was an element of doubt about his juvenile status.
However, following an article published in a journal, the NHRC intervened in the matter and asked the Assam governor to examine the case of Chauhan for commuting his sentence to life imprisonment in view of the fact that there was an element of doubt about his juvenile status. The state government accordingly commuted the death penalty to life imprisonment.
The family members of the deceased filed a fresh petition in the apex court.
The apex court by a judgment dated May 8, 2009, had slammed the NHRC for setting aside a judicial order and said the commission had no such powers to interfere.
However, Chauhan filed a second review petition challenging the apex court's judgment.
Upholding Chauhan's plea, the apex court said, "If we look at Section 12(j) of the 1993 Act, we find that it confers on NHRC such other functions as it may consider necessary for the promotion of human rights."
"One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed," Justice Ganguly said writing the judgment.