It all started with a judgement delivered by the Allahabad High Court on June 12, 1975, by Justice

Jagmohan Lal Sinha. In State of Uttar Pradesh v. Raj Narain[1] the petitioner challenged the
election of Indira Gandhi to the Lok Sabha and the resultant victory from Rae Bareli constituency in
U.P. On 12 June, she was convicted by Justice Sinha, of having indulged in wrong practices and
declared her election void, that means she couldn’t contest any election or hold her office for the
period of next six years.She appealed to the supreme court and the Apex court only granted her a
conditional stay. Due to restraining her political power by the Apex court made her dysfunctional in a
matter of vote or speak in Lok Sabha.[2] In desperation to hold the chair of Prime Minister, she
requested then President Fakruddin Ali Ahmad to declare an emergency under Clause (1) of the
Article 352 of the Indian constitution which he did on June 26, 1975. The Government said, “a grave
emergency existed whereby the security of India was threatened by internal disturbances”.

The 1971 war with Pakistan was just ended and the 1972 drought were the reasons given by the
government for a declaration of emergency, as they were damaged the economic growth and blocked
the growth of the nation. On June 27 1975, the exercise of power given by Clause (1) of Article 359
of the constitution were enforced on the people of India and the foreigners, within the right to
approach the court to enforce Article 14 (right to equality), Article 21 and Article 22(prevention
against detention in certain cases), Which are also available for foreigner and all the proceeding that
was pending related to above- mentioned article will remain suspended for the period of Emergency.

Anyone who was considered to be a political threat to the authorities or anyone who could raise
his/her political opinion freely was taken into custody without trial under Prevention Detention Laws.
This caused led to arrest of many leaders from opposition such as Atal Bihari Vajpayee, Morarji
Desai, Jay Prakash Narayan, Lal Krishna Advani, under MISA (Maintenance of Internal Security
Act) because all these leaders were proving to be a political threat to the Indira Gandhi.

These people then filed petitions in various High Court in the country challenging the detainment.
Most of the high court gave their judgement in favour of these petitions which compelled Indira
Gandhi Government to approach Supreme Court for this issue and which became Additional District
Magistrate Jabalpur V. Shivkant Shukla. It is also called the Habeas Corpus (To Produce the Body)
Case because usually, this is a writ filed in a supreme court when someone is arrested. At the time
when Emergency was proclaimed, this writ was not considered as a fundamental right under article
21 remained suspended.[3]

The Arguments presented by the Petitioner:

1. The main contention of the State was that the sole purpose and aim of the emergency
provisions in the Constitution is that they guarantee special powers to the Executive to hold
complete discretion over the implementation of the laws and rights of the country. The reason
behind this was that during an emergency the considerations of the state assume supreme
importance.
2. The state does not release a detune despite the opinion of the advisory board that there is no
sufficient cause for his detention and thus keeps him in detention in fragrant violation of the
provisions of article 22, no habeas corpus petition would be maintainable and this would be
so even though article 22 itself is a fundamental right. The right to move a court for
enforcement of a right under article 19 has now been suspended by the President under an
order issued under article 359(1).
3. Suspending the right of a person to move any court for the enforcement of right to life and
personal liberty is done under constitutional provision and therefore it cannot be said that the
resulting situation would mean the absence of the rule of the law.
4. They highlighted the fact that Emergency provisions in Part XVIII of the Indian Constitution
including Article 358, Article 359(1) and Article 359(1A) are constitutional necessities and
imperatives of the Constitution as the military and economic security of the nation preceded
everything else.
5. The validity of the law as stated in the Presidential Order under Article 359(1) cannot be
challenged on the ground of violating a fundamental right which was suspended by the above
mentioned Article in the first place.

The Arguments on behalf of the Respondent:

1. According to the respondents, the limited object of article 359(1) is to remove restrictions on
the power of the legislature so that during the operation of the emergency it would be free to
make laws in violation of the fundamental rights specified in the Presidential order.
 2. The main aim of Article 359(1) was to prohibit moving the Supreme Court under Article 32
for the enforcement of certain rights. This prohibition by law has no effect on the enforcement
of common law and statutory rights of personal liberty in the High Court under Article 226 of
the Constitution.
3. The Presidential Orders imposed were valid only with respect to fundamental rights and did
not extend to Natural Law, Common Law or Statutory Law.
4. The Executive can act for and against its citizens only to the extent set by valid laws. Article
352 or the Proclamation of Emergency, at no point, increases the scope of the Executive
Powers of the State from what is enshrined under Article 162 of the Constitution and nothing
more
5. The argument proceeds, there being a valid law regulating preventive detention passed by the
Executive must conform to the conditions prescribed by that law.
6. The respondents’ arguments that article 21 is not the sole repository of the right to life and
personal liberty.
7. Non-fundamental constitutional rights like those arising under Articles 256, 265 and
361(3)ornaturalrightsorcontractualrightsorthestatutoryrightstopersonallibertyarenot affected
by the Presidential order. Statutory rights can only be taken away in terms of the statue and
not by executive flat.
8. The State and its officers only hold the Right to Arrest if the alleged act leading to detention
fell under Section 3 of MISA and its every condition contained within it is fulfilled. If any
condition remains unfulfilled the detention is considered ‘beyond the powers’ of that act.

Finally, it was urged that Preamble to the constitution speaks of a Sovereign, Democratic Republic
and therefore, the Executive which is subordinate to the Legislature cannot act to the prejudice of the
citizen save to the extent permitted by laws validly made by the legislature which is the chosen
representative of the people.[4]

By a Majority decision of the constitutional bench consisting of five Judges, the Supreme Court of
India in the case of Additional District Magistrate, vs S. S. Shukla Etc.,[5] on 28 April, 1976, held
that “In view of the Presidential order dated 27 June 1975 no person has any locus standi to move
any writ petition 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 consideration.”

Section 16A(9) of the Maintenance of Internal Security Act is constitutionally valid; the bench
headed by the then Chief Justice of India, Justice A.N. Ray, along with Justices M.H. Beg, Y.V.
Chandrachud and P.N. Bhagwati, delivered the Majority Ruling, whereas the fifth Judge, Justice H R
Khanna, however wrote a dissenting judgment.

The factual background of the case was that on June 26th 1975, the President of India under clause (1)
of Article 352 of the Indian Constitution declared a state of emergency citing reasons of internal
disturbances. This proclamation was followed by another proclamation on June 27 1975, and in
exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were enforced,
within which the right of any person including a foreigner to move to the court to enforce Article 14
(right to equality), Article 21 and Article 22 (prevention against detention in certain cases) of the
Constitution and all the proceedings pending in any court concerned with the enforcement of the
aforementioned articles will remain suspended for the period of Emergency.

In the above backdrop the Maintenance of Internal Security Act, (MISA) was enacted and under
which prominent political opponents to the Government of the day was kept under detention
indefinitely without communicating the grounds/reasons for such detention.

The preventative detention led to filing of several writ petitions all over the country. A few High
Courts allowed the writ of Habeas Corpus and ruled in favour of the petitioners stating that even
though Article 21 was not enforceable, a person could still demonstrate that their detention was not in
compliance of the law under which they were detained, or that the action by the State was mala fide
or that it was a case of mistaken identity.

The Government of the day decided to appeal against the decisions of the High Courts in the
Supreme Court, which later became famous and known as the Additional District Magistrate of
Jabalpur vs. Shiv Kant Shukla case or the Habeas Corpus case.
The main issue before their Lordship was whether, in execution of the Presidential Orders when a
person was detained, if the High Court can entertain a writ of Habeas Corpus filed by a person
challenging the ground for his detention?

In this case the four judges Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud
and P.N. Bhagwati has arrived at the same conclusion, which is that the writ of habeas corpus is not
maintainable in case of proclamation of emergency under article 359(1)which states Where a
Proclamation of Emergency is in operation, the President may by order declare that the right to move
any court for the enforcement of such of the fundamental rights conferred by Part III (except Article
20 and 21) as may be mentioned in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended for the period during which the
Proclamation is in force or for such shorter period as may be specified in the order. The four judges
said that the court has no authority or powers to challenge if the detention made under sec 16A(9)b
(which states no person against whom an order of detention is made or purported to be made under
Section 3 shall be entitled to the communication or disclosure of any such ground, information or
material as is referred to in clause (a) or the production to him of any document containing such
ground, information or material) as under the act it clearly states that the grounds of the detention
need not be disclosed hence the court cannot question the state or the executive body to validate the
detention. Hence the party does not have locus standi to movie to any court for maintain suit on
fundamental rights.

Justice Y. V. Chandrachud also said that the executive body must perform in accordance with the law
passed by the parliament as it is the basic principle that all action of the executive must have law
supporting its action. He further says that the precedential order issued under article 359(1)does not
give clarity regarding disobeying the parliamentary law. Therefore, the state need not furnish the
reason for dentation.

Justice Khanna had dissenting opinion on the point that during proclamation of emergency or
presidential order under article 359(1) even if the person cannot go to the court of law for the
enforcement of fundamental right under the constitutional remedy that does not restrain him from
exercising his legal remedy through statute. Also, he denied that article 21 is not the sole repository
of right to life and personal liberty even in absence of article 21 in the constitution the state cannot
deprive a person from his right to life and personal liberty as this formulates the basic postulate of a
civilized society. During the proclamation of emergency article 21 only loses the procedural power
but the substantive power of this article is very fundamental and the State does not have the power to
deprive any person life and liberty without the authority of law.

The Majority judgment held that a person cannot approach the court with the writ of habeas corpus or
of any other writ remedy. Also, the court of law does not have the power to look into the validity of
detention under Maintenance of Internal Security Act, 1971 as the statue does not give powers to the
court the review the validity of the detention.

The case of A.D.M Jabalpur v. Shivakant Shukla is one of the landmark cases in the history of Indian
legal system as it is one of those cases which paved the way for further developments in the legal
system by exposing the existing loopholes. Fascinatingly, at the same time, the case is also a dark
spot in the legal system and the judiciary. The reason for that is, in this case, the courts refused to
address and recognize the plights of the citizens of India by completely neglecting the rights
bestowed upon a person upon birth.

Upon the request of Indira Gandhi to the then President Fakhruddin Ali Ahmed, an emergency was
declared on June 26, 1975 under clause (1) of article 352 of the constitution of India. On June 27
1975, the exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were
enforced, within which the right of any person including a foreigner to move to the court to enforce
Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases)
of the Constitution and all the proceedings pending in any court concerned with the enforcement of
the aforementioned articles will remain suspended for the period of Emergency.

Upon an examination of the particular judgment of ADM Jabalpur v. Shivkant Shukla, one gets to
know that there are different perceptions, opinions and views on the given case. The Hon’ble
Supreme Court for this situation watched that Article 21 covers Right to Life and personal liberty
against its unlawful dispossession by the State and if there should arise an occurrence of suspension
of Article 21 by Emergency under Article 359, the Court can’t scrutinize the expert or lawfulness of
such State’s choice. Article 358 is significantly more extensive than the Article 359 because on one
hand all the fundamental rights are suspended as entire according to Article 358, but on the other
hand Article 359 does not suspend any rights. Notwithstanding being Emergency arrangements under
Article 359 (1) endow unique power and status on the Executive, it doesn’t undermine the
indispensable elements of the sovereignty of division of powers, prompting to an arrangement of
what is known to be a system of checks and balances and constrained authority of the Executive. The
nexus amongst State and Executive is flawed and the impact of suspension of such rights will emerge
in the form of additional energy in the hands of the legislature which may formulate laws against the
fundamental rights. This act ought not be considered as a “power” of the Executive or right of it.
There is a legal and reasonable degree to which a State can act in or against the people and for this
situation, it was high abuse of powers of individual political profit of a particular individual. Amid
Emergency, it is nowhere talked about that the authority of State “increases” from its original control
under Article 162. Additionally, the State just holds the privilege to arrest if the supposed act falls
under Section 3 of MISA and its each condition is satisfied. In the event that any condition is
unfulfilled then detention is past the powers of State. The verdict by the Supreme Court is said to be
the greatest incorrect judgment till date. The contradicting opinion of Justice Khanna still holds more
substance than the majority judgment including the then Chief Justice. The unjust objective of Indira
Gandhi’s government came to the surface when Justice Khanna asked the first troubling yet valid
question. “Life is also mentioned in Article 21 and would Government argument extend to it also?”
There was no way out. Without even a tinge of hesitation, the counsel for the government replied,
‘Even if life was taken away illegally, courts are helpless’. Before Proclamation of Emergency there
was rampant political instability in the Country after the election of Indira Gandhi was termed to be
as unlawful. This entire scenario was brought about in order to put resistance on the opposition and
amidst the procedure, even the hon’ble Supreme Court made significant mistakes in the judgment
and it can be said to be absolutely unlawful. Just the boldness of single judge is said to be worth
perusing and it was in consonance with humanity, freedom and liberty.

Justice Bhagwati was quoted as “I have always leaned in favour of upholding personal liberty, for, I
believe, it is one of the most cherished values of mankind, without it life would not be worth living. It
is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in
order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my
love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the
Constitution a construction which its language cannot reasonably bear.”[6] The day when the
judgment was delivered, was referred to as “darkest day of the democracy” and it was compared with
the principles and rise to power of Hitler. In fact, when the counsel for the people argued by citing
the example of the genocide of the Jews at the hands of Hitler and how, if the decision is given in
favor of the petitioner, will give rise to a similar scenario, was scolded and ridiculed by C.J. Ray.
Exceeding all that, this judgment did not even favor the rule of law. As a judge, the supreme focus is
on the benefit of the public or on something which is good for the citizens and the society as a whole
but this judgment, seemed to favor only five persons- Indira Gandhi and the other four judges
delivering this judgment, including the then Chief Justice of India- Justice A.N. Ray and we conclude
this from the fact that all the judges, with an exception of Justice H.R. Khanna, went on to become
Chief Justices. So much was the greed of power that even though Justice Khanna was the next in line
to become the Chief Justice, the throne was given to Justice Beg who was J. Khanna’s junior, after
which J. Khanna gave his resignation.

The judgment delivered in the case of ADM Jabalpur vs Shivkant Shukla can be compared to the
judgment delivered in the case of Raj Narain in which Smt. Indira Gandhi was given a clean chit by
the Hon’ble Supreme Court after being declared guilty by the Allahabad High Court. Without a
doubt, it can be said that the common man’s faith on the judiciary was shattered by these two
judgments which surfaced in quick succession.

Justice Khanna exclusively relied on the judgment delivered in the case of Makkhan Singh v. State of
Punjab[7] in which he specified: “If in challenging the validity of his detention order, the detenu is
pleading any right outside the rights specified in the order, his right to move any court in that behalf
is not suspended, because it is outside Article 359(1) and consequently outside the Presidential order
itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of
the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the
reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article
359(1) and tile right of the detenu to move for his release on such a ground cannot be affected by the
Presidential order”. Curtailment of Article 21 would in general terms mean that there occurs
deprivation of right to life and personal liberty, which is against the fundamental right ensured to
every citizen of India since birth, along with the Articles of Universal Declaration of Human Rights,
India is a part of which.

This particular case became an example of how four most able and experienced judges of the apex
court of the country made a blunder under the wrong influence of the wrong person. The Hon’ble
Supreme Court went against all the fundamental rights with this particular decision. It was the
darkest hour of Indian judiciary which struck at the very heart of fundamental rights. And, as
mentioned earlier, all four judges with the exception of Justice Khanna went on to become Chief
Justices of India. In 2011, Justice P.N. Bhagwati expressed remorse by saying: “I was wrong. The
majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in
that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my
colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I
was persuaded to agree with them. I was a novice at that time, a young judge. I was handling this
type of litigation for the first time. But it was an act of weakness on my part.” Such a revelation from
the judge shows how grave and critical the situation was back then and what an impact it left on the
nation. The apex court recalled the comment of former Chief Justice M N 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.”[8]

In a little while after the period of Emergency and all things which were done for it were rejected by
in 1977, the Supreme Court in Maneka Gandhi v. Union of India[9] changed the position and gave
fundamental character to the right in Article 21 by instituting a connection between Articles 14, 19
and 21 of the Constitution which was repudiated in the case of A.K. Gopalan v. State of
Madra[10] specifically with respect to Articles 19 and 21. Both these Articles cannot be split apart
and not exclusive of each other. It was further put forward that the very objective of the Presidential
order under Article 359 was to curb legal problems and that it was simpler to make laws against
fundamental rights. The responsibility of the government to act according to the rules laid down by
law and suspension of Article 21 did not by default demand the adjournment of rule of law. Shortly
after the Shivkant Shukla Case, the Hon’ble Supreme Court in the case of Union of India v. Bhanudas
Krishna Gawde[11]went another step ahead and gave out its judgment which was, Presidential order
issued under Article 359 are not restricted by any limitation and their validity and applicability is not
based on the fulfillment of any particular condition laid before.[12]

These orders establish a temporary prohibition on any and each judicial enquiry into legitimacy of an
order denying somebody of his freedom and liberty, regardless of how it began whether from an
order coordinating the detainment or from an order setting out the state of his arrest. Most part of the
opinions seen in the Shivkant Shukla case has been totally negated by 44th Amendment of the
Constitution and also legal elucidation and along these lines, it is not any more longer a law.
Presently the implementation of Article 20 and 21 can’t be suspended in any circumstance and the
Court watched that Article 21 ties the official as well as the assembly and subsequently amending
Justice Khanna’s position that suspension of Article 21 calms the lawmaking body of its imperatives
 however not the official which can never deny a man of his life and freedom without the expert of
law and such confinement can be tested on grounds demonstrated in Makhan Singh Case. Articles
352 and 359 have not been summoned since repudiation of Proclamation of Emergency in 1971 and
1975 in mid 1977. Likewise, 44th Amendment changed “inside aggravation” into “outfitted
defiance” and inward unsettling influence not adding up to furnished insubordination would not be a
ground to the issue of Proclamation of crisis. Numerous such arrangements in 44th Amendment for
announcement of Emergency were made so that no administration in future can abuse this
arrangement of Constitution which was deciphered illegally by the SupremeCourt.

The Proclamation and discretionary utilization of force by the State apparatus and taking ceaselessly
the individual freedom of various individuals alongside judicial stamp can be viewed as a standout
amongst the most mistaken judgment till date. Incomparable Court went ahead to expand the
elucidation of Article 21 and acquainted Public Interest Litigation with increase open authenticity
after it confronted feedback over the judgment and harm it had done. The wrong elucidation
prompted to encroachment of fundamental rights on impulses and favor of a political figure that had
her plan to satisfy. While the judgment is said to be an oversight on many events by legal scholars
and the Hon’ble Supreme court, the decision has not been overruled formally even in the wake of
conceding the mistake. This was noted by the seat of Justice Ashok Ganguly and Justice Aftab Alam.
In today’s unique circumstance, Dicey’s Rule of Law which was clarified by Justice Khanna holds
substantially more prominent drive than what it was in 1976. There must be an unmistakable
overruling of this judgment so that hypothetical nature of Rule of Law can be clarified alongside its
applicability to our judicial framework. Additionally, additional arrangements might be made to
guarantee that no political plan ought to dominate equity and value of the citizens of the nation.

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ADM Jabalpur v. Shivkant Shukla :

Case Comment.


Indian Legal Solution

 February 20, 2019

 Comments Offon ADM Jabalpur v. Shivkant Shukla : Case Comment.

Case Comment

ADM Jabalpur v. Shivkant Shukla

Citation:

(1976) 2 SCC 521; AIR 1976 SC 1207

Bench:

Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M. Hameedullah, Chandrachud, Y.V., Bhagwati, P.N.

Author : Vikram Nagpal, HNLU Shimla.

INTRODUCTION-

The said case pertains to the time of Proclamation of Emergency by the then ruling government of Indira
Gandhi and Presidential order of the same was issued when the election of Indira Gandhi was termed to be
illegal. The case arose out of contention that whether the right of a person to approach respective High Court
gets quashed when his fundamental rights are not given or suppressed, especially Article 14, and 21 during the
emergency and enforcement of such rights remain suspended for the period of Proclamation of Emergency in
force. The judgment was delivered on April 28th, 1976 by the Constitutional bench of five judges including the
then Chief Justice A.N. Ray, out of which four were in favour of the suspension of such right and liberty and
one dissenting rejected such contention. As far as majority of the judgment goes, it was established that a
person’s right to approach High Court under Article 226 of the Indian Constitution for Habeas Corpus or any
other writ challenging the legality of an order of detention at the time of Proclamation of Emergency remains
suspended and that person cannot approach any High Court for the remedy or get his right. This case was
infamously called as Habeas Corpus case. Till date, the decision taken by the Court holds badly on the ground
of equity, justice and good conscious. The Latin term Habeas Corpus means “you may have the body” and writ
of securing a person’s liberty is called Habeas Corpus.

HISTORICAL BACKGROUND

It all started with the election of Mrs Indira Gandhi, the then Prime Minister, which had been held to be invalid
by the Allahabad High Court. Indira Gandhi lost her election case on June 12, 1975 and on her appeal in the
Supreme Court she was only granted a conditional stay. As a result, she could neither vote nor speak in the
Lok Sabha. She became a dysfunctional Prime Minister. Wanting to cling to the chair at any cost, she chose to
declare an emergency as on 25thJune 1975 – the pretext being ‘internal threat’ to India. Any person who was
considered to be a political threat, or who could politically voice his opposition was detained without trial
under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security
Act).Immediately thereafter, on June 25, 1975, she proclaimed a state of internal Emergency. In a midnight
swoop, most of the prominent Opposition leaders including Jayaprakash Narayan, Morarji Desai, Atal Behari
Vajpayee and L K Advani were detained without charges and trial. The fundamental rights to life and liberty
(Article 21) and equality (Article 14) were suspended.
FACTS

On June 25th, 1975 the President in exercise of powers conferred by clause (1) of Articles 352 (Proclamation of
Emergency) of the Constitution declared that a grave emergency existed whereby the security of India was
threatened by internal disturbances. On June 27th, 1975 in exercise of powers conferred by clause (1) of
Articles 359 the President declared that the right of any person including a foreigner to move any court for the
enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all
proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for
the period during which the proclamations of emergency made under clause (1) of Article 352 of the
Constitution on December 3rd, 1971 and on June 25th, 1975 were in force. The Presidential Order of June 27,
1975 further stated that the same shall be in addition to and not in derogation of any order made before the date
of the aforesaid order under clause (1) of Article 359 of the Constitution.

On January 8th, 1976 there was a notification passed in the exercise of powers conferred by clause (1) of
Article 359 of the Constitution whereby the President declared that the right of any person to move any to
court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending
in any court for the enforcement of the abovementioned rights would remain suspended for the period during
which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on December
3rd, 1971 and on June 25th, 1975 were in force. Several illegal detentions were thereupon made across the
country, pursuant to which various writ petitions were filed throughout the country. Nine High Courts gave
decision in favour of detunes, holding that though Article 21 cannot be enforced, yet the order of detention was
open to challenge on other grounds such as that the order passed was not in compliance of the Act or was mala
fide. Against these orders, many appeals were filed before the Supreme Court. Disposing of all the appeals
together, the Supreme Court set aside that the decisions of the High Courts which had held the declaration and
the subsequent detentions as illegal and upheld the declaration and suspension of the said rights.

ISSUES

1. Whether a writ petition under art. 226 before a High Court is maintainable to enforce the right to
personal liberty during an emergency declared under clause (1) of art. 359 of the constitution?
2. If such a petition is maintainable, what is the scope of judicial scrutiny in view of presidential order?

JUDGEMENT:

In view of the Presidential order dated June 27, 1975, under Clause (1) of Art. 359, no person has locus standi
to move writ petitions under Art. 226 of the Constitution before a High Court for habeas corpus or any other
writ or order or direction to enforce any right to personal liberty of a person detained under the Maintenance of
Internal Security Act, 1971 on the grounds that the order of detention or the continued detention is for any
reason not in compliance with the Act or is illegal or male fide. In times of emergency, the executive
safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or
unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence
upon which the detention was ordered. Queen v. Halliday Ex ParteZadiq[1], referred. to. Liberty is confined
and controlled by law, whether common law or statute. 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 emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged.
The purpose and object of Art. 359(1) is that the enforcement of any Fundamental Right mentioned in the
Presidential order is barred or it remains suspended during the emergency. The scope of Art. 359(1) is not only
to restrict the application of the Article to the legislative field but also to the acts of the Executive. The object
of Article 359(1) is not only that the right to move this Court only is barred but also the right to move any High
Court the bar created by Art. 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned
in the Presidential order whether by way of an application under Art. 32 or by way of an application under Art.
226. An application invoking habeas corpus under s. 491 of the Code of Criminal Procedure cannot
simultaneously be moved in the High Court. Article 359(1) makes no distinction between the threat to the
security of India by war or external aggression on one hand and treat to the security of India by internal
disturbance to another hand. Powers of President U/A 352(1) and 359(1) of our constitution are immune from
challenge in courts even when the emergency is over. Section 16A(9) of maintenance of internal security act
(MISA), 1971is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction
of High Court under Art. 226.

Section 16A(9) of MISA enacts a genuine rule of evidence and it does not detract from or effect the
jurisdiction of the High Court under Article 226 of the constitution and hence cannot be successfully assailed
as invalid. Further section 18 of the MISA does not suffer from the vice of excessive delegation and is valid
piece of legislation. Part III of the constitution confers fundamental rights in positive as well as in negative
language. The limits of judicial review have to be co-extensive and commensurate with the right of an
aggrieved person to complain of the invasion of his rights. The theory of the basic structure of the constitution
cannot be used to build into the constitution an imaginary part which may be in conflict with the constitutional
provisions.

DISSENTING JUDGEMENT BY JUSTICE KHANNA

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty.It
is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express
provisions for preventive detention and at the same time inserted safeguards to prevent abuse of those powers
and to mitigate the rigour and harshness of those provisions. The dilemma which faced the Constitution
makers in balancing the two conflicting viewpoints relating to liberty of the subject and the security of the
State was not, however, laid to rest for good with the drafting of the Constitution. Even in the absence of
Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the
authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all
civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning.

It was held that in view of the presidential order dated June 27,1975 no person has any locus standi to move
any writ petition 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 was illegal or was vitiated by mala fides factual or legal or is based on extraneous
consideration.

ANALYSIS

Upon the analysis of the judgment, there are multiple observations on the given case. The Supreme Court, in
this case, observed that Article 21 covers right to life and personal liberty against its illegal deprivation by the
State and in case of suspension of Article 21 by Emergency under Article 359, the Court cannot question the
authority or legality of such State’s decision. Article 358 is much wider than the Article 359 as fundamental
rights are suspended as whole whereas Article 359 does not suspend any rights. Even being Emergency
provisions under Article 359 (1) grants special power and status to the Executive, it does not undermine the
essential components of the sovereignty of separation of powers, leading to a system of check and balance and
limited power of the Executive. The nexus between State and Executive is erroneous and the effect of
suspension of such rights will only result in extra power to legislature which might create laws against
fundamental rights. This act should not be considered as a “power” of the Executive or right of it. There is a
legal extent till which a State can act in or against the citizens and in this case, it was high misuse of power of
personal political gain of a single person. During Emergency, it is nowhere mentioned that the power of State
“increases” from its original power under Article 162. Also, State only holds the right of arrest if the alleged
act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is unfulfilled then
detention is beyond the power of State. The decision by the Supreme Court is said to be the biggest erroneous
judgment till date. The dissenting opinion of Justice Khanna still holds more value than the majority judgment
including the then Chief Justice. The wrong intent of Indira Gandhi’s government was seen when Justice
Khanna was to ask the first uncomfortable question. “Life is also mentioned in Article 21 and would
Government argument extend to it also?” There was no escape. Without batting an eyelid Niren De answered,
‘Even if life was taken away illegally, courts are helpless’. Before Proclamation of Emergency there was
strong political instability in the Country after the Lok Sabha election of Indira Gandhi was termed as illegal.
This whole exercise was to put opposition under pressure and during the process, even Supreme Court made
major errors in the judgement and it can be said to be purely unconstitutional. Only the courage of single judge
is said to be worth reading and it was in favour of humanity and liberty. Justice Bhagwati was quoted as “I
have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values
of mankind, without it life would not be worth living. It is one of the pillars of free democratic society. Men
have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think
it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on
the relevant provision of the Constitution a construction which its language cannot reasonably bear.” The day
when this judgment was pronounced, it was termed as “darkest day of the democracy” and it was matched with
the regime and rise of Hitler. On top of all, this judgment did not favour rule of law. As a judge, the focus is on
public benefit or on something which is good for the population but this judgment seemed to favour only one
person. The judgment in this case can be compared to the judgment of Raj Narain’s case where Indira Gandhi
was given a clean chit by the Supreme Court after being held guilty by Allahabad High Court. One can say that
common man’s trust on judiciary has been shaken by these two judgments which happened almost
simultaneously. Justice Khanna solely relied on the judgment of Makkhan Singh v. State of Punjab[2] in which
he noted: “If in challenging the validity of his detention order, the detenu is pleading any right outside the
rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside
Article 359(1) and consequently outside the Presidential order itself. Let us take a case where a detenu has
been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu
to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been
contravened. Such a plea is outside Article 359(1) and tile right of the detenu to move for his release on such a
ground cannot be affected by the Presidential order”. Suspension of Article 21 would simply mean deprivation
of right of life and liberty and this is against the basic right along with the Articles of Universal Declaration of
Human Rights of which India is a part. This single case became an example of how four able judges of the
apex court of the country made a blunder under the wrong influence of the wrong person. The Supreme Court
violated all fundamental rights with that decision. It was the darkest hour of Indian judiciary which struck at
the very heart of fundamental rights. All four judges with the exception of Justice Khanna went on to become
Chief Justices of India. In 2011, Justice Bhagwati expressed regret by saying: “I was wrong. The majority
judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would
agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was
not in favour of the majority view. But ultimately, I don’t know why I was persuaded to agree with them. I was
a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act
of weakness on my part.” Such acceptance from the judge means how grave the situation was that time and
what impact it left on India. The apex court recalled the comment of former Chief Justice M N 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”
AFTERMATH OF THE JUDGEMENT

After the period of Emergency and all things which were done for it were rejected by in 1977, the Supreme
Court in Maneka Gandhi v. Union of India[3] changed the position and gave fundamental character to the right
in Article 21 by instituting a connection between Articles 14, 19 and 21 of the Constitution which was
repudiated in the case of A.K. Gopalan v. State of Madra[4]specifically with respect to Articles 19 and 21.
Both these Articles cannot be split apart and not exclusive of each other. It was further put forward that the
very objective of the Presidential order under Article 359 was to curb legal problems and that it was simpler to
make laws against fundamental rights. The responsibility of the government to act according to the rules laid
down by law and suspension of Article 21 did not by default demand the adjournment of rule of law. Shortly
after the Shivkant Shukla Case, the Hon’ble Supreme Court in the case of Union of India v.Bhanudas Krishna
Gawde[5]went another step ahead and gave out its judgment which was, Presidential order issued under
Article 359 are not restricted by any limitation and their validity and applicability is not based on the fulfilment
of any particular condition laid before.

These orders establish a temporary prohibition on any and each judicial enquiry into the legitimacy of an order
denying somebody of his freedom and liberty, regardless of how it began whether from an order coordinating
the detainment or from an order setting out the state of his arrest. Most part of the opinions seen in the
Shivkant Shukla case has been totally negated by 44th Amendment of the Constitution and also legal
elucidation and along these lines, it is not any more longer a law. Presently the implementation of Article 20
and 21 can’t be suspended in any circumstance and the Court watched that Article 21 ties the official as well as
the assembly and subsequently amending Justice Khanna’s position that suspension of Article 21 calms the
lawmaking body of its imperatives however not the official which can never deny a man of his life and
freedom without the expert of law and such confinement can be tested on grounds demonstrated in Makhan
Singh Case. Articles 352 and 359 have not been summoned since repudiation of Proclamation of Emergency in
1971 and 1975 in mid1977. Likewise, the 44th Amendment changed “inside aggravation” into “outfitted
defiance” and inward unsettling influence not adding up to furnished insubordination would not be a ground to
the issue of Proclamation of crisis. Numerous such arrangements in 44th Amendment for an announcement of
Emergency were made so that no administration in future can abuse this arrangement of Constitution which
was deciphered illegally by the SupremeCourt.

CONCLUSION

The Proclamation and arbitrary use of power by the State machinery and taking away the personal liberty of a
number of people along with judicial stamp can be considered one of the most erroneous judgment till date.
Supreme Court went on to elaborate on the interpretation of Article 21 and introduced Public Interest
Litigation to gain public legitimacy after it faced criticism over the judgment and damage it had done. The
wrong interpretation led to infringement of fundamental rights on whims and fancy of a political figure that
had her agenda to fulfil. While the judgment is said to be a mistake on many occasions by jurists and apex
court, the ruling has not been overruled formally even after admitting the error. This was noted by the bench of
Justice Ashok Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which was explained
by Justice Khanna holds much greater force than what it was in 1976. There has to be a clear overruling of this
judgment so that the theoretical nature of Rule of Law can be made clear along with its applicability to our
justice system. Also, further provisions shall be made to ensure that no political agenda should overshadow the
justice and equity of citizens.
44 Amendment of the Constitution came in the year 1978 (to remember the year : 4+4=8,
hence 1978. Likewise, year of 42nd Amendment is 4+2=6, hence 1976). It was the first
amendment brought by Morarji Desai after his government was elected which defeated the
government of Indira Gandhi just after the National Emergency ended after 21 months.
There were a number of provisions in this and primarily it was brought to nullify the
amendments brought by the 42nd Amendment in 1976. Some of them are:

1. The 42nd Amendment brought during the National Emergency said that the union
government could use article 368 and amend the Constitution as per it's wish and even the
fundamental rights. The 44th amendment seeks to protect the people of India from such an
injustice as the fundamental rights are truly necessary.

2. It also said that right to property under article 31 of the Constitution is removed from the
fundamental rights and is made a legal right.

3. During emergency under article 352, the fundamental rights are suspended. But proper
safeguards should be provided to the citizens so that they do not suffer due to abuse of this
power. Hence right to life and personal liberty should exist during emergency.

4. Previously, the grounds for declaration of national emergency were external aggression
and internal disturbances but the 44th amendment replaced the word internal disturbances
with the word armed rebellion.

5. Article 134 A was added which provided for appeal in criminal cases from high courts to
the supreme court with certificate from the high court.

The origin of writs can be drawn from the English Judicial System and were created with the
development of English folk courts to the common law courts. The law of writs has its origin from the
orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king
in council and were considered as a royal order. Writs were a written order issued in the name of the
name of the king. However, with different segments writs took various forms and names. The writs
were issued by the crown and initially only for the interest of the crown later on it became available
for ordinary citizens also. A prescribed fee was charged for it and the filling of these writs were
known as Purchase of a Writ.

Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights
and for a judicial review of administrative actions, in the form of writs. It is a constitutional remedy
available to a person to bring his complaint or grievance against any administrative action to the
notice of the court. Safeguard of fundamental rights and assurance of natural justice are the most
important components of writ jurisdictions.

Writ jurisdiction is exercised by the Supreme Court and the High courts only. This power is conferred
to Supreme Court by article 32 and to high courts by article 226.
•Article 32(1) guarantee a person the right to move the Supreme Court for the enforcement of
fundamental rights guaranteed by part III of the constitution.

•Article 32(2) empowers the Supreme Court to issue direction or orders or writs in the nature of
Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-warranto for the enforcement of
fundamental rights.

•Article 226 empowers the state high courts to issue directions, orders or writs as mentioned above
for the enforcement of fundamental rights and for 'any other purpose'. i.e., High courts can exercise
the power of writs not only for the enforcement of fundamental rights but also for a 'non fundamental
right'

Thus the constitution provides the discretionary remedies on the High Court and the Supreme Court.
In the absence of the provisions of such remedies no one can enforce its rights given. Thus
wherever there is a right there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi
remedium.’ One of the principle makers of the constitution, Dr. Ambedkar has given the prime
importance to Article 32 among all other articles from the Indian Constitution. He has referred that, “It
is the very soul of the Constitution and the very heart of it, “It is the very soul of the Constitution and
the very heart of it .”

History of Habeas Corpus

The concept of habeas corpus dates back to 14th century England. It was first
expressed in the Magna Charta of 1215, which stated, “No free man shall be
seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way,
nor will we enter on him or send against him except by the lawful judgment of his
peers, or by the law of the land.” The philosophy made its way into English
common law in the 1300s, and eventually, common law courts began to issue
writs of habeas corpus to order the release of people held by royal courts.
This principal traveled with the colonists to early America, where it evolved to the
modern principal held dear by American citizens, that no person shall be
deprived of freedom without due process of law.
The writ was issued by American colonial courts and state governments
continued to recognize habeas corpus as a natural right. In 1789, the Judiciary
Act granted federal courts the authority to issue the writs to detainees in federal
custody. However, the same courts could not issue the writ for state or local
prisoners. Additionally, the Supreme Court held, in 1807, that federal courts had
no authority of habeas corpus over prisoners held by state or local governments,
as Congress had not given it that authority. This oversight was corrected by
Congress in 1833, with the enactment of the Force Bill.
The principle and application of habeas corpus continued to evolve and, in 1867,
the writ was made available to anyone deprived of his liberty in violation of the
U.S. Constitution. For the first time in history, writs of habeas corpus became a
remedy for individuals already convicted.