Citation: AIR 1976 SC 1207; (1976) 2 SCC 521
Date of Judgment: 28th April 1976
Bench: Ray, A.N. (CJ), Khanna, Hans Raj, Beg, M. Hameedullah, Chandrachud, Y.V., Bhagwati, P.N.
Petitioner: Additional District Magistrate, Jabalpur
Respondent: S.S. Shukla and Ors.
The instant case pertains to the period of Proclamation of Emergency by the then ruling government of Indira Gandhi and the presidential order of the same was issued when the election of Indira Gandhi was termed to be illegal. The date of delivery of the judgment of this case, also known as the ‘Habeas Corpus Case’, is considered to be the darkest day Indian Judicial System. The basic contention which gave rise to this case was whether a person had the right to approach the High Court in case of violation of his fundamental right, especially, the right to life and liberty under Article 21 and right to equality under Article 14 of the Constitution of India. The decision was rather a harsh one that stated that during an emergency, a person’s right to approach the High Court under Article 226 of the Constitution of India for a writ of Habeas Corpus, or any other writ, for challenging the legality of an order of detention, shall remain suspended. Hence, this judgment is regarded as a ‘dark spot’ in the History of the Hon’ble Supreme Court.
On 25th June 1975, the President proclaimed an emergency under Article 352(1) of the Constitution of India owing to the threatening of security of India due to internal disturbances. Following this, on 27th June 1975, it was declared that as per provisions of Article 359 of the Constitution of India, the right of any person (including foreigners) to move any court for enforcing any fundamental right enumerated under Articles 14, 21 and 22 of the Constitution, and all proceedings that were pending in the Courts with regard to such fundamental rights shall remain suspended during the period of the proclaimed emergency under Article 352.
The President, on 8th January 1976, exercising his power under Article 359(1) of the Constitution, passed a notification declaring that the right to move any court for the enforcement of rights provided under Article 19 and all proceeding pending in any court for the enforcement of such rights shall remain suspended for the period of proclamation of emergency. Subsequently, several illegal detentions, including that of famous leaders like Morarji Desai, Atal Bihari Vajpayee, Jayaprakash Narayan, L.K. Advani, were made and were detained without charges and trial. This led to various writ petitions being filed across the country. Nine High Courts of India gave their decisions in favor of detunes, holding that Article 21 cannot be enforced, yet the order of detention could be challenged on grounds of non-compliance with the Act or mala fide intention. Many appeals were filed against these orders and the Supreme Court, dismissing all the appeals, set aside the orders of the High Courts that held the declaration and subsequent detention as illegal and upheld the declaration and suspension of the said rights.
Whether a writ petition before a High Court under Article 226 is maintainable for the enforcement of fundamental rights, during an emergency, declared under Article 352(1) of the Constitution of India?
The decision was given in the ratio of 4:1, wherein Chief Justice A.N. Ray, M.H. Beg J., Y.V. Chandrachud J., and P.N. Bhagwati J. were for the majority of the judgment and H.R. Khanna J. gave a dissenting judgment.
It was held that given the Presidential Order dated 27th June 1975, under Article 359(1), no one shall have the right to submit writ petitions under Article 226 before a High Court or any other Court for the purpose of enforcing the right to personal liberty of a person detained under the Maintenance of Internal Security Act, 1971 on the grounds that the order of detention was inconsistent with the provisions of the Act, or was illegal, or was malafide. During an emergency, the executive protects the life of the people of the nation, and hence executive actions cannot be challenged due to the fact that “considerations of security forbid proof of the evidence upon which the detention was ordered”. The Court referred to the case of Queen v. Halliday Ex Parte Zadiq[i] and held that liberty is confined and controllable by law and that the safeguard of liberty is in the good sense of the people and in the system of the evolved representative Government. The emergency is an extraordinary situation and hence extraordinary powers are conferred to the executive, which are limited to the period of emergency.
The main objective of Article 359 (1) of the Constitution is to prevent the application of any fundamental right is to prohibit or suspend the enforcement of any fundamental right mentioned in the presidential order for the period of emergency, and it bars the right to move the Supreme Court under Article 32 of the constitution of India or any High Court under Article 226 for enforcement of such fundamental rights. The scope of application of this Article is not restricted to the legislative field but also to the acts of the Executive. In fact, application for Habeas Corpus cannot simultaneously be moved in a High Court under Section 491 of the Code of Criminal Procedure. The power of the President under Articles 352(1) and 359(1) are immune to challenge in the Court even after the expiry of the emergency.
Section 16A(9) of the Maintenance of Internal Security Act, 1971, was held not unconstitutional on the ground that it encroaches upon the writ jurisdiction of the High Court under Article 226. This Section lays down a genuine rule of evidence and does not affect the writ jurisdiction of High Courts. Further, Section 18 of the Act was also held valid and was held to not suffer from the flaw of excessive delegation.
Part III of the Constitution of India bestows fundamental rights to persons in both positive and negative language. The limit of judicial review has to be coextensive and consistent with the right of an aggrieved party to complain about the infringement of his rights. The basic structure doctrine cannot be used to create an imaginary part of the constitution in conflict with its own provisions.
Dissenting Judgment by Justice Khanna:
The Law of preventive detention, of detention without trial is a curse to all those who love personal liberty. It is with the purpose to balance the disagreeing perspectives that the framers of the Constitution made express provisions for preventive detention and simultaneously inserted safeguards to prevent exploitation of those powers and to diminish the rigidity and harshness of those provisions. The dilemma that the framers faced in balancing the two conflicting perspectives relating to the liberty of the subject and security of the State, was not, however, laid to rest for good with the drafting of the Constitution. The State has no power to deprive a person of his right to life and liberty, even in the absence of Article 21 of the Constitution. The sanctity of the right to life and liberty has to be maintained by the State, failing which, there would remain no difference between a lawless society and a society governed by laws.
It was held that the order dated 27th June 1975, preventing a person to move the Court for enforcement of fundamental rights and to challenge illegal detentions, was not in compliance with the Act and was based on extraneous consideration.
Certain observations have come to light upon analysis of the judgment:
1. The Supreme Court has observed that Article 21 of the Constitution covers the right to life and personal liberty against its illegal deprivation by the State and the Court cannot question the authority of the State’s decision for suspension of such right under Article 21 in case of emergency as per Article 359 of the Constitution. Here, it is important to note that Article 358 is much broader than Article 359 as the former suspend fundamental rights as a whole whereas the latter does not provide for any suspension of rights. In addition, the suspension of Article 21 would amount to a deprivation of the basic human right enumerated under Articles of Universal Declaration of Human Rights, 1948.
2. The key purpose of Article 359(1) of the Constitution is to prohibit the referral to the Supreme Courts under Article 32 for the enforcement of certain rights. This prohibition, proclaimed by the presidential orders during the emergency situation, cannot have an effect on the application of natural law, common law and statutory rights to personal liberty before the High Court under Article 226.
3. In case of an Emergency, the extraordinary powers given to the state executives to revoke fundamental rights, under Article 359(1) of the Constitution, cannot overpower the basic concepts of sovereignty and separation of powers, leading to a system of checks and balances, and limitation of powers of the executive. The nexus between the State and the Executive would essentially lead to laws against fundamental rights. The powers of the State cannot “increase” during an emergency, from its original power as per provision under Article 162 of the Constitution. The executive can, at no time, have the right to violate court decisions and previous legislative mandates. In fact, the suspension of fundamental rights was not intended to prioritize the powers of the executive over individual rights.
4. The State has the right to arrest only if the alleged act of detention fulfills all the conditions as having been laid down in Section 3 of the Maintenance of Internal Security Act, 1971. Even if one condition remains unfulfilled, the detention has to be considered “beyond the power” of the Act. The most important objective of constitutionally entrenching constitutional rights is to make them enforceable against the State through the Courts.
In the majority judgment of the case, there has not been a correct interpretation of Article 21 of the Constitution. The wrong interpretation led to the severe infringements of fundamental rights of persons on the whims and fancies of political figures for the fulfillment of their agenda. During an emergency situation due to internal disturbances, the President does have certain powers under the Constitution to order the suspension of fundamental rights, but those powers cannot be executed unless the order is approved. The proclamation and arbitrary use of power by the State and taking away basic personal liberties of individuals along with judicial stamps has to be one of the most erroneous judgments of the Supreme Court to date. No wonder the delivery of the judgment was compared with the regime and the rise of Hitler.
In the present context, Dicey’s Rule of Law that was explained by Justice Khanna in his dissenting judgment holds much greater force than in 1976. Most parts of the opinions in this judgment have been negated by the 44th Amendment of the Constitution, 1978. Presently, Articles 20 and 21 of the Constitution are exempted from being suspended even during the proclamation of an Emergency. In an interview, Justice Bhagwati admitted that the decision was incorrect and that he had to join the majority judgment, despite his unwillingness, because of persuasion by his colleagues. He pleaded guilty and admitted that it was an act of weakness on his part, saying “it was against my conscience this judgment is not the justice of Bhagwati”.
This judgment got formally overruled in the recent landmark judgment of K.S. Puttaswamy v. Union of India[ii], which is commonly known as the right to privacy judgment. The Bench in Puttaswamy held that the judgment in the case of ADM Jabalpur was a deeply flawed judgment. While the ADM Jabalpur case has been held to be per incuriam, it serves as a lesson to the Indian judicial system.
[i] Queen v. Halliday Ex Parte Zadiq, (1917) AC 210
[ii] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
Student, School of Law and Justice, Adamas University
The author is currently pursuing B.Sc. LL.B. (H) from the School of Law and Justice Adamas University, Kolkata. She has completed her plus two with 98% marks in the ISC. She is a regular mooter and article-writer. Her area of interest mainly includes Constitutional Law and Criminal Law. However, she also takes a keen interest in Human Rights issues. Public speaking is her passion, and her ardour for penning down her opinions has not been dampened. With an additional benefit of belonging to the legal fraternity, she has a passion for the discipline, and also understands the need for legal research and legal education in the country.