30 October, 2020

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ADM Jabalpur And 20A: Now Or Never For Sri Lanka

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

Ask Indian lawyers what the worst judgment of the Indian Supreme Court has been and a large majority would surely say ADM Jabalpur (Additional District Magistrate, Jabalpur v S. S. Shukla, also known as the Habeas Corpus Case, reported in AIR 1976 SC 1207). Many of them would also point out that ADM Jabalpur was overruled 42 years later by Justice D.Y. Chandrachud, son of Justice Y.V. Chandrachud who was one of the judges in the 4-1 majority in the 1976 case.

Supreme Court validated fundamental rights suspension

Seen as one of the darkest spots in the history of the Indian Supreme Court, ADM Jabalpur validated the suspension of the writ of Habeas Corpus during the infamous Emergency under Indira Gandhi. Constitutional scholar Granville Austin observed in his book ‘Working a Democratic Constitution: A History of the Indian Experience‘: ‘The Habeas Corpus case captures the Emergency as nothing else’. Today, it is difficult to find someone who defends ADM Jabalpur.

The case concerned a Presidential Order issued on 27 June 1975 under Emergency provisions suspending the issue of the writ of Habeas Corpus or any other writ or order or direction to quash an order of detention on the ground that the order was illegal or was vitiated by mala fides, factual or legal, or was based on extraneous considerations. The majority of judges held that if extraordinary powers are given, they have been given because the Emergency is extraordinary, and were limited to the period of the Emergency. 

During the hearing, Justice Khanna asked Attorney General Niren De, if ‘supposing some policeman, for reasons of enmity not of state, kills someone, would there be a remedy?’. With the frankness expected from an Attorney General, De replied: ‘My Lord, not so long as the Emergency lasts.’ 

Justice Khanna, the lone dissenter, was emphatic that the purported suspension of the right to move a court for the enforcement of the right under Article 21 of the Indian Constitution (‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’) upon a proclamation of Emergency, would not affect the enforcement of the basic right to life and liberty through the writ of Habeas Corpus. He paid the price for it by being superseded to the office of the Chief Justice of India by Justice Beg (one of the Judges who constituted the majority), contrary to the convention of appointing the senior-most judge as the next Chief Justice. 

As a result of ADM Jabalpur, thousands of opponents of the Indira Gandhi regime who were arrested and detained under the MISA (Maintenance of Internal Security Act) were left without a remedy.

After the defeat of the Indira Gandhi regime, Justice Y. V. Chandrachud said in a speech he made on 22 April 1978: ‘I regret that I did not have the courage to lay down my office and tell the people, well, this is the law.’ He later became the Chief Justice of India.

Relevance to Sri Lanka 

The occasion to overrule ADM Jabalpur came in 2018 and it was Justice Y. V. Chandrachud’s son, Justice D.Y. Chandrachud who wrote the leading judgment for a unanimous seven-member Bench in Justice K.S. Puttaswamy (Retd.) v Union of India (AIR 2017 SC 4161). Justice Chandrachud (Jr.) described the judgments rendered by all the four judges constituting the majority in ADM Jabalpur to be seriously flawed.

What relevance has ADM Jabalpur to the 20th Amendment Bill (20A)? readers would ask. The relevance is in the difference between the constitutional provisions of India and Sri Lanka.

ADM Jabalpur was not related to a constitutional amendment, for sure. But it had much to do with an important constitutional issue, namely the right to challenge an executive act of detention by way of a Habeas Corpus application.

20A seeks to do more irreparable damage. It impinges on the sovereignty of the People—by reducing the powers of Parliament and of its effective leader, the Prime Minster; by removing checks and balances on the powers of the President; by taking away the citizens’ fundamental right to challenge illegal acts of the President—the list goes on. Much has been said about it and I will say no more.

Thankfully for the people of India, there has been no Emergency of the kind they saw in the 1970’s. No later government —Janata, Congress, Janata Dal or BJP—attempted Emergency rule. Hopefully, there will be no Emergency of the same type at least. And now, with ADM Jabalpur finally overruled, the suspension of writs would not be possible in the future, even if there would be another Emergency of the type or a constitutional amendment permitting its suspension during an Emergency.

Stop 20A—Now or Never

But what of 20A? Sri Lanka does not have post-enactment judicial review. If 20A is passed in its present form, the constitutional provisions that it would bring in can only be withdrawn by another two-thirds majority of Members of Parliament. A future Supreme Court would not have the power to revisit the issue and hold that the provisions inserted by 20A adversely impinge on the sovereignty of the People and are thus void. In India, provisions inserted by several constitutional amendments have been struck down years later as being against the basic structure of the Constitution. But that is not possible under the Sri Lankan Constitution. 

So, for Sri Lanka, it is now or never. 

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Latest comments

  • 28
    4

    Rajapaksas should know, if they’re Buddhists as they claim to be, that things change, and one day somebody else will be in power and they may have to flee the country because of 20A – or even go to jail.

    • 24
      2

      There is no problem with their fleeing to other countries, as they have family connections in all the leading countries.And with all the loots they have accumulated illegally and deposited overseas they have no worries. It is people like peraras and bandas have to face the music.

      • 6
        0

        … It is people like peraras and bandas have to face the music.
        ___________________________
        If only peraras and bandas would have been concerned about their cousins this fate would not have come to fall on them.

        • 0
          6

          N
          What should be the ‘cousins’ have been concerned about for what befell them— something a degree worse than what seems to have befallen ‘peraras and bandas’?

    • 16
      2

      I thought that Rajapakse would have learned a lesson after 2015. Most people also thought he had the opportunity to bring unity in 2009 but his greediness made him to be a corruptor and dictator. 18th amendment proved his greediness.Unfortunately, Ranil and Sirisena failed to take action against their crimes to teach a lesson. The Sirisena _ Mahinda 2018 plot against the country showed he cannot change and he proved that he can still cheat Sinhala Buddhist masses. I still believe that there is a significant relationship for them in the Easter Bombing. Everything works them on their way.
      You are right changes happen in no time. Nothing permanent. In Srilanka, Since Buddhism came into politics after 1970, two new constitutions, 19 amendments to the constitution, three large scale militant insurgencies/ war, several natural hazzards and the country was not in peace. I think Lord Buddha is punishing the country and more to come.

      • 1
        3

        What happened in 2015? Rajapaksas continued to run the country through their proxy – Sirisena. Minorities and India were totally fooled.

        After winning in January 2015 Sirisena contested the August 2015 parliamentary election with Rajapaksas!! Then in 2018 Sirisena had a pact with Rajapaksas SLPP not to contest in key LG areas. Couldn’t hide anymore – Sirisena appointed MR as PM in 2018!

        Rajapaksas have nothing to fear another Sirisena (2015). It’s fun!

  • 12
    1

    Only Covid19 can solve the problem.

    • 8
      0

      President Trump has it.

      • 12
        2

        Dont think that Gotabaya s excellance contained the spread in the country. Covid 19 is multifactorial. Even far poor countries succeeded in the containment of the spread of Covid. But most of them did nt try to capitalized it for their political gains. But srilanken criminals brothers did it knowing that majority in the country are thanakola eaters. ????????????????????????????

        • 3
          5

          Mr. LM (Loose Motion),
          .
          United States of America (USA).
          – US got their main presidential candidate infected while trying to hold presidential election.
          .
          Democratic Socialist Republic of Sri Lanka.
          – SL managed to hold parliamentary election during pandemic without getting a single election related infection.

    • 0
      4

      Ad
      Take it from me Covid-19 is just another flu, far less deadly than several of its predecessors but far more contagious.
      Overstating its danger benefits a wide range of interests (soap and detergent manufacturers, pharma, oppressive regimes etc.)
      It cannot kill even the nastiest politician or the greediest business tycoon.
      Hope for a massive meteorite if you want to wipe all of us out.

  • 6
    19

    Judging by the petitions to Supreme Court and other brickbats on social media by the yahapalana ‘rejects’, they seem to be throwing everything short of the proverbial ‘kitchen sink’ at 20A!
    \
    The more desperate ones like Jayampathi W. seem to have become totally irrational, and others like Dayan Jayathilaka seem to be suffering from a severe attack of verbal diarrhea.
    \
    After posing the obvious question, “What is the relevance of the 2007 case ‘ADM Jabalpur v S. S. Shukla’ to Sri lanka and 20A? , the writer has failed to explain it and goes on to say = “The relevance is in the difference between the constitutional provisions of India and Sri Lanka”.
    This is gobbledygook!
    \
    To suggest 20A plans to remove ‘the right to challenge an executive act of detention by way of a Habeas Corpus application’ is simply bullshit.
    [edited out]

    • 14
      1

      Or is it your shit —-Reconstituted ???

    • 14
      1

      “The relevance is in the difference between the constitutional provisions of India and Sri Lanka”.
      This is gobbledygook! So you say.

      Anyway for the record read the above : A future Supreme Court would not have the power to revisit the issue and hold that the provisions inserted by 20A adversely impinge on the sovereignty of the People and are thus void.

      This is the crux. In India you can revisit but SL Constitution does not have post-enactment judicial review.
      Hope you got it.

    • 2
      3

      That depends. How cunning!

      If a possible “LTTE” or “ISIS” “terrorist” (the definition by the ministry of defence which the court shall uphold or else) applies for a FR, etc. petition against the president, such a case shall be null and void.

      But if a “civilian” applies, it will be allowed.

      Since most “civilians” vote for Rajapaksas and most “terrorists” vote against them, most Sri Lankans will have no problem.

  • 4
    2

    Once again I stare that Sri Lanka in its present status quo as one of the top most members in the colony of beggars need first to cater to the needs of the peasants who are in the throes of all NOes.
    #
    They gave their votes to be rewarded within a time period of less than a year with no jobs no money no food no medicines everywhere no fertilizer no raw materials to run the factories no proper clothing to cover their nakedness no power at most hours of the day no vehicles to purchases the transportation industry in shambles and most of all no foreign exchange available for essential imports.
    #
    As the rajapukas are nothing but cheap dumbbell power crazy megalomaniac s all they want is to by hook or by crook pass the so called autocratic draconian piece of legislation called the 20th amendment.
    @
    If I was one of them I will look after the needs of my citizens firstly before greedily rushing around passing legislation that is not essential for the well-being of the said beggars colony.

  • 4
    14

    With false claims Tamil racism is on the rise. Busting it is the only justification for 20A. Otherwise it is useless.

  • 14
    3

    Forget about constitutions, judiciary and 2/3rds majority: Where is it written 2/3rds majority must be respected? Can’t they change it to 90% majority?

    See what the Indian judiciary has done about the culprits behind the destruction of the historical mosque? Let them go free! Pure and simple majoritarianism!

    Sri Lanka started on the wrong foot with “appe aanduwa” “Demala eppa” and now ending up with “mage aanduwa”

    • 6
      10

      Mr. Thiru,
      .
      Can you kindly show me an example where they need 90% for a amendment…..?

      • 11
        5

        S. C. Passqual

        “Can you kindly show me an example where they need 90% for a amendment…..?”

        The clan and its b***s carriers portray that as if an amendment to the constitution is the panacea to fix all problem without realising they are the real problem. New medicines are tested thoroughly through many stages to ensure 100% safety.
        Why not 100% scrutiny for better laws, constitutional provisions, enshrining most liberal democratic principle. This is not a cricket match where you toss a coin and decide.

        The point is you don’t allow the crooks, war criminals, murderers, liars, racists, disgraceful, dishonorable, disreputable, one sided, partial, parochial bigots, to frame or amend the constitution without 100% scrutiny.

        You should calm down.
        The clan and his ….. b***s carriers cannot decide with only 48% popular votes.

        • 3
          7

          Mr. Native Kudda,
          .
          We are very much calm my dear.
          .
          Because…….
          We are in control of Local Government…..
          We are in control of Presidentship…..
          We are in control of Parliament…..
          We will be in control of Provincial Councils….. (If and when we decide to hold it)…..
          We are in control of State Media…..
          We are in control of Privet Media…..
          We are in control of Military…..
          We are in control of Government/Public Service…..
          We are in control of Business Community…..
          We are in control of Social Media…..
          .
          Don’t you think it is not MORE THAN 100%

          • 6
            2

            Aiyo S. C. Passqual

            Gota and his b***s carriers may believe they are in control of Local Government……..to Social Media, I am sorry to tell you they are not in control of their own stupidity.

            Everywhere Gota and his goons visit he shouts, scream, rage, …………. and complain nothing is working.

            You seem to forget, the end of every great dictators, such as Saddam Hussein, Muammar al-Gaddafi, Nicolae Ceaușescu, Idi Amin, Adolf Heil Hitler, Benito Mussolini who also believed every one and everything was under control.

            Please go away, visit Dharamshala, meditate, stay there for the next 5 years, come back and tell us how much control Gota and his goons had over people.

    • 3
      4

      Does not matter even if it was changed to 90% which is stupid. No country has such a provision.

      Any law including the Constitution can be replaced by the people with a simple majority.

      Gota should have suspended parliament, drafted a constitution of his choice and put it to a referendum. Sovereignty of the country rests with the people (not parliament). Parliament only has delegated power from the people to make laws.

      I hate 20A but I agree that if 20A is put to a referendum it will win 59%.

  • 11
    0

    Re-Reconstituted
    “The relevance is in the difference between the constitutional provisions of India and Sri Lanka”.
    This is gobbledygook! So you say.

    Anyway for the record read the above : A future Supreme Court would not have the power to revisit the issue and hold that the provisions inserted by 20A adversely impinge on the sovereignty of the People and are thus void.

    This is the crux. In India you can revisit but SL Constitution does not have post-enactment judicial review.
    Hope you got it.

    • 1
      4

      Good point. But it depends. If a possible “LTTE” or “ISIS” “terrorist” (the definition by the ministry of defence which the court shall uphold or else) applies for a FR, etc. petition against the president, such a case shall be null and void.

      But if a “civilian” applies, it will be allowed.

      Since most “civilians” vote for Rajapaksas and most “terrorists” vote against them, Sri Lankan majority and their justice minister will ask if judicial review is something edible!!! The beauty of sovereignty of the People in SL.

  • 11
    1

    20A is going to pass. That doesn’t mean the fighting should be abandoned, because it is going to be futile. Further Dr. Jayampathy’s point also should be noted, “if not won at this point, 20A is permanent, no challenge will be entertained in future”. If the fight is lost, at least this fight should explain to Sinhala Buddhists “What democracy is”. October 2018 coup did not bring needed results as major players were only the Tamil lawyers Kanageswaran, Sumanthiran, no Sinhala Politicians like Ranil Vaalaiththodam, Anura…. ….. This time the fight has to be taken out of Dr. Jayampathy, Dr. NJ, Ivan, Prof, Uyangoda by CBK, Vaalaiththodam, Ranil, Anura, Mangala,…….. There is no activism in UNP as much as in SLFP against 20A.
    Already there are news that Rishard negotiated his brother’s release for 20A vote. If Hakeem is not going for, other party members will be voting for 20A under the leadership of Ahamed Nazeer. It looks like Hakeem will approve it without punishment.

    • 6
      10

      Mallaiyuran,
      You dumbos do not have to explain Sinhala Buddhists “What democracy is”. Sinhala Buddhists know what democracy is and they do not want democracy that gave the freedom to unruly minorities to play hell and ruin the country.

      “If the fight is lost, at least this fight should explain to Sinhala Buddhists “What democracy is”.”

      • 9
        0

        “You dumbos do not have to explain Sinhala Buddhists “What democracy is”. Sinhala Buddhists know what democracy is and they do not want democracy “
        All know sinhalayo buddhists are good at counting up to three and then
        එකක්, දෙකක්, තුනක්, බොහෝ
        ekak, dekak, tunak, bohō

        • 8
          3

          This bitch s son EAGLE eye does not know what he has been bubbling…
          .
          While saying that “Sinhala Buddhists know what democracy is and they do not want democracy that gave the freedom to unruly minorities to play hell and ruin the country.”
          :
          I think Eagle Eye should change his PUNNAKKU BRAND sooner than later.

          • 4
            0

            Lm
            @
            I have aptly renamed him eager less puntak buffalo who survives on punakku
            @
            In my humble opinion an ideal name for a demala eating racist maggot of a maggie.

        • 1
          9

          U
          Why do you insult a people for the folly of a few?
          The Sinhalese as a people are more graceful in their dealings than Tamils.

          • 6
            1

            SJ
            Did you understand the context under which such a statement was made.
            You must have had bad dealings with Tamils .Not all Tamils are anti-Chinese and pro Americans.

      • 11
        1

        Buddhist Philosophy is ultimate Democracy.
        “Do not believe in anything simply because you have heard it. Do not believe in anything simply because it is spoken and rumoured by many. Do not believe in anything simply because it is found written in your religious books. Do not believe in anything merely on the authority of your teachers and elders. Do not believe in traditions because they have been handed down for many generations. But after observation and analysis, when you find that anything agrees with reason and is conducive to the Good and Benefit of one and All, then accept it and LIVE up to it.”
        So instead of denigrating anyone’s outlook, think deep on each issue in a rational way by LISTENING to one another.

        • 10
          0

          So instead of denigrating anyone’s outlook, think deep on each issue in a rational way by LISTENING to one another to UNDERSTAND, instead of listening just to REPLY. .

    • 2
      6

      Wasn’t it democracy that created the citizenship act, Sinhala Only act, prevention of terrorism act, LTTE extermination promise in 2005, rewarding “war criminals” at 2010, 2019 and 2020 elections, etc.? If 20A is a obstacle to such divine great five star democracy, I oppose it with tooth and nail. How dare Rajapaksas take away such divine great five star democracy!

      But something tells me that is not the case looking at the views and ethnicity of those who oppose 20A! :))

      People of president’s ethnicity has a powerful tool – elections. If the president denies them their right, he is out at the next election. It is the others who fear 20A. That is their problem. Why should we!

      I think

  • 9
    11

    When Native Sinhalayo gave citizenship to descendants of Dravidians brought to Sinhale from Hindusthan by colonial rulers and to Muslims who were saved from persecution by Portuguese they would have assumed that these people will become loyal citizens of this country. But their assumption went wrong. Instead of being loyal to Sinhale/Ceylon/Sri Lanka, Demalu (Tamils after 1911) want to grab part of the country to create a separate State and Muslims want to create a caliphate. Both these communities produced terrorists who slaughtered Native Sinhalayo. Both these communities misused the freedom under the democracy prevailed in this country. Given such ungrateful hostile minorities often go after other countries, Sri Lanka need a strong President to ensure territorial integrity and security for the people.

    • 7
      3

      Eagle … ….. …..Eye

      “When Native Sinhalayo gave citizenship to descendants of Dravidians ……………………….”

      You are not kidding are you??????????????

  • 2
    2

    This comment was removed by a moderator because it didn’t abide by our Comment policy.

    For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 3
    3

    What about this argument brought forward by the AG that there is nothing new in 20A?
    Even if we grant that 19A was a vast improvement going back to previous set up relating to certain policies can’t be a life and death situation. Those provisions were also approved with 2/3 in Parliament. (I am pro 19A)
    Can someone explain this please?

    Soma

  • 6
    0

    19A enhanced sovereignty. No referendum is needed for that. But now that strengthened sovereignty is being weakened. 20A must be compared with the present Constitution and not the pre-2015 Constitution to see whether there has been a reduction of sovereignty. Very clear example is bringing back the immunity. Under 19A, any citizen could challenge an official act of the President by way of a fundamental rights applications. This was done when Sirisena dissolved Parliament in 2018. Now that right of the citizens is being taken away. Similarly, Parliament was strengthened by 19A and now 20A seeks to weaken it. That is why a referendum is needed. JR’s 1978 Constitution or JR/MR Constitution of 2010-2015 under 18A is not the yardstick. The yardstick is the present Constitution. Compared to the present one, 20A seeks to diminish sovereignty and therefore a referendum is needed.

  • 1
    0

    Reading between the lines, I am of opinion that law itself has no meaning/value. It depends on how a law is interpreted by different Judges at different times in different countries. Is it not possible for the author(s) of law to give their own interpretation/meaning at the time they drafted the laws, which should be consistent with what was in their mind at the time they drafted the law/constitution.

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