 Hello and welcome to NewsClick. The ADM Jabalpur case, seen as one of the most shameful incidents in the history of our Supreme Court, has now been explicitly overruled in the recently concluded judgement in the Puttaswamy case. For our younger viewers, a bit of background on the ADM Jabalpur case. When emergency was declared in 1975, all opponents of the government were arrested under draconian provisions of preventive detention laws known, for instance, as the Maintenance of Internal Security Act. Petitions were filed by these detainees against these patently abusive arrests. Now despite most high courts actually holding that the petitioners could challenge the detention even during emergency, the Supreme Court, in a 4-1 decision, held that no such powers to approach a court existed during the period of emergency. Essentially, the Supreme Court suspended the writ of habeas corpus during this period. Today we look back at the circumstances surrounding the ADM Jabalpur case and try and understand why the judgement in the Puttaswamy judgement is actually important. To discuss the matter, we're joined by Prabir Purkayastha, who was jailed during emergency and therefore has a fair few stories to share with us. Welcome Prabir. Now you were arrested under MISA in detainee Tehaar. What was the reason for your arrest? Well, as you yourself have said, preventive detention meant that there was really no specific reason. It meant that the state feared that we might do something in the future and our current conduct was the reason why they had such apprehensions. Therefore it was really predicting the future and predictions of the future as you know notoriously shall be answered. So, we were in your Jawaharlal Nehru University and there was a resistance going on at the time against emergency. There were strikes, for the few strikes that took place during the emergency in the university was in Jawaharlal Nehru University. I remember the second day of the strike, we were standing in front of the School of Languages, which is one of the schools in Jawaharlal Nehru University and Meenakur Gandhi had come to attend our class and Dev Prasad Pati, who was the Student Union President at the time and now the General Secretary of the NCP. He was there with me and was in Ani Mazumdar was also another student who was there with me. Three of us told her that there is a strike in the university and she should go back. So she went back, the consequence I am told, this is there in the Shah Commission hearings, she went and told Sanjay Gandhi what kind of emergency is it. So when Bhandar, who was at that point of time the DIG range and really looking after the emergency issues as it were, not the normal policing issues, so he used to go and meet Sanjay Gandhi every morning. So when he met Sanjay Gandhi, he said what is happening. So he came straight from the PM's house and went into one of the police stations which is Harj Khaas Police Station, took one of the officers' cars over there and came into the campus and literally kidnapped me in broad daylight with other police constables and SS, you know I think there was a DSP also involved and put me inside the car and took me to another police station, not the police station, Harj Khaas Police Station and took me to the RK Puram Police Station. But what was the specific or ostensible reason for your arrest? Well again, if you go to the history, Pradipta Ghosh was the ADM who signed Mambisa warrant, he said there is nothing on record for B to sign this warrant, he delayed signing of the warrant, again this came out in the Shah Commission hearings, till he got a call from his boss who is a divisional commissioner, I think Nikhil Kumar at that point, that was I think the person who was there saying the PM's house is involved, you will have to sign this and ADM at that time of Delhi South, Pradipta Ghosh testified in the Shah Commission saying that he really signed it under duress. So again, there was nothing at the point of time in the records to show that I could have done something and even if they wanted to say that, there was nothing that they could produce some record and that's why my detention under the maintenance of Internal Security Act was one of the cases that did come up in the Shah Commission because of this. So when it went before the courts, what specifically did the courts look at in terms of the various checks and balances in the law to prevent against its misuse? Was this ever even considered by the Supreme Court? Well, you know, let us be very honest, we were not people who were schooled in law. Of course, last 40 years I guess I have learned more about law than I did at that point of time. So we were really listening to the arguments that were coming in the courts that does do the courts have the ability to examine what the state of the government was doing and what the grounds on which our detention was being done, when the grounds such that the detention could be actually considered as preventive detention, it wasn't arbitrary. So therefore, the grounds could be there could have there could be judicial scrutiny on the grounds of the detention and that must be satisfied I presume was the legal proposition that is being put before the court. Now, we were clearly, you know, reading the papers because these proceedings were being reported in the papers and they were not censored, they were being reported and particularly the government's arguments were being reported in great detail. And I still remember Niren, they answering one of the judges that they, even if a constable shoots a person down for persons of enmity, reasons of enmity, that is also not the courts have no locus on that, the courts cannot do anything about it. So this was perhaps the most extreme interpretation that could have been given. Niren the later on says he wrote, he said this in order to the courts to really oppose what he was saying. And he was quite unhappy at the fact the courts had ruled in the favor of this rather outrageous argument. But whether it's an afterthought by that attorney general at that time Niren, or it was something that he's really what he thought, we don't know about that. Now, at the time of emergency, you were jailed along with a whole lot of activists and politicians from a range of political parties. How did this decision actually affect all of you in jail? Given that, of course, you didn't necessarily share the same political background either. See, of course, jail does produce a camaraderie during the period you are in jail, which quite often ends outside the gates of the jail. So that is one. But obviously, the fact that the judicial scrutiny going on was something we are hoping would work in our favor. And we were hoping and we felt that there was a good 50-50 possibility that three to two verdict in the favor that there could be judicial scrutiny. We also were quite clear that the verdict could go against us, but we thought maximum it would be two to three verdict against us. So we're quite surprised to find that the courts had ruled four to one and only Justice Khanna really stood up for what today's become claimed dissenting. Yeah, and it's claimed to be one of the three important judgments in the history of Indian Supreme Court and other being Fasal Ali, which incidentally was also more preventive detention. Union of India against a Gopal. Fasal Ali was a dissenting judgment. And other one was, of course, the Karak Singh judgment, which was the one you're talking about the Putuswami case, the privacy case. And the third was Justice Khanna's dissenting judgment, the three great dissenting judgments which are there. So we were disappointed the court had ruled against us, but we were more disappointed that to the four to one judgment, which didn't speak well of the Supreme Court judges at that point of time. Now, why do you think that the Supreme Court actually in a sense and it went out of its way to help the government out in this case? Because honestly, when you look at the prayers made by the government before the court, the court actually went beyond what the government was looking for in its in its dicta. What do you think played a role in this sort of almost I mean, in this extension that the Supreme Court. You know, it's a difficult question to answer because you're discussing about individuals and what goes in their minds. But don't forget two of them who we had hoped to give a more positive judgment also became Chief Justice Slater. So I guess all of this, the Chief Justice, the judges are as prone to personal ambitions and other issues as any other community. So I wouldn't really go into this in more detail because I don't think it's a legal issue. It was really a more personal issue. I don't think they acted out of fear. I don't think that was the issue, but they certainly acted in a way which would seem to indicate they put their personal ambitions ahead of what the judicial, you know, conscience demanded. I must tell you one more thing that happened is the consequence of the judgment when the judgment went against the detainees. We were in the heart jail. All the ones who had filed habeas corpus petitions are transferred out of the heart. We are under the plea that the heart was overcrowded, which it was, but then it always is, as you know, we are transferred to some of us to UP, for instance, and we are all put under solitary confinement, starting some for four days, five days. In our case, we were trying to transfer to central jail. We are put under solitary confinement for almost a month. So, this seemed to also smack of petty vindictiveness of the government, that they not only did win the case, but after winning the case, they wanted to take petty revenge on the detainees, but challenged them. Interestingly, there is another legal side right to this case, that when I was transferred in Agra Central Jail and we are under solitary, so I really know work to do except read books. It didn't take too much of time. So, I decided to write what I thought would be the right appeal. Ambiance Corpus petition challenging my transfer. Now, I didn't know enough about law, which I still don't, to not call it Ambiance Corpus, but call it something else. The Supreme Court in its wisdom decided, because it was not Ambiance Corpus, therefore they will not hear the petition. They did not do what most judges today do, go beyond the form and look at what was being challenged. It's also important to register that two of the judges who gave the judgment in favour of the state, the government actually apologised later and said that was a mistake, that judgment should not have been given. Bhagavati and Chandrachur, both of them actually have been record apologising for the judgment. So, I think that also should be now registered. No, so now why I asked the previous question was, do you feel that with the Puttaswamy judgment, however, that the Supreme Court is sort of re-establishing its institutional power independence, the fact that it is actually supposed to act as a check on governmental power and therefore setting aside a historical wrong, why do you think that is important today? I think you're quite right, because they didn't have to do this, because after the 44th Amendment, effectively this issue is over. I think they're doing it as a signal to themselves as well as to the country at large, that they would protect henceforth the rights of the people against overarching decisions of the government, to overreach of the government. Given what is happening in the country today, I think with the lynching that we are seeing, the mob violence which has been unleashed, the tacit connivance of the government in this, I'm told that in Haryana, it's not just the mob violence, but even the police participates by shooting. There is a virtual emergency and no protection of the law, because the police are conniving fully with a mob violence, so it's a combination of state and mobs which are doing its diktat. So given the situation, I think the courts are sending a signal that they would like to protect the rights of the people under such circumstances, so I do believe the privacy judgment as well as the triple talak judgment, the way it's framed, there is a worry in the court regarding the governmental overreach, particularly with respect to personal freedoms. That's either thing, the reason they picked on the dissenting judgment and said that we need to correct this historical wrong and Justice Khanna's judgment was a correct judgment in this case. Absolutely, and the Supreme Court was in fact scathing in its comments about the majority judgment in the ADM Jabalpur case. Now as we've therefore seen, the Puttaswamy case has numerous facets to it and how we interpret our constitution and the civil liberties that citizens enjoy. I'm sure we will come back to the issue in the various threads that sort of lie unraveled now because of this judgment. Thanks Prabhu for being with us today and thank you for watching.