In pursuit of justice
The petition filed by five eminent persons against the arrests of the activists aims to highlight the gross abuse of police power intended at stifling independent voices.
ON SEPTEMBER 6, AS A THREE-JUDGE BENCH of the Supreme Court comprising Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud resumed hearing a petition filed by Romila Thapar and four other eminent persons on behalf of five human rights activists arrested by the Pune Police, the counsel for Maharashtra, Additional Solicitor General Tushar Mehta, began by questioning the locus standi of the petitioners.
In plain English, he asked how the petitioners could file a case on behalf of the activists because the petitioners, not being activists themselves, had not suffered any personal injury at the hands of the state. Nor were they related to the activists to claim that their rights also suffered as a result of their incarceration.
The four eminent persons who joined Romila Thapar in knocking on the doors of the Supreme Court were Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Daruwala.
The bench, however, told Mehta that the arrested activists wanted to be made parties to the case. Senior counsel Indira Jaising, appearing for the petitioners, disclosed that the wife of one of the arrested persons had already filed an impleadment motion and had sought the court’s permission to produce some additional documents pertaining to the arrests of other activists made in June.
Mehta, however, argued that support for arrested persons could not wipe away the lack of locus standi and urged the court to decide the issue before examining the merits of the case.
In the infamous habeas corpus case of 1975, the Supreme Court’s five-judge bench, with the sole dissent by Justice H.R. Khanna, had reached the following conclusion in A.D.M. Jabalpur vs Shivkant Shukla:
“In view of the Presidential Order dated June 27, 1975, no person has any locus to move any writ petition
ROMILA THAPAR.
under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”
The Presidential Order referred to was the one issued after the declaration of the Emergency, suspending the right of any person to move any court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above-mentioned rights for the period during which the Proclamation of Emergency was in force.
Nine High Courts had declared that they could entertain a writ of habeas corpus filed by a person challenging his detention during the Emergency. They held that des-