ADM Jabalpur v. Shivkant Shukla

 ADM Jabalpur v. Shivkant Shukla

AIR, 1976

 

Criminal Appeal No. 279 of 1975

ADDITIONAL DISTRICT MAGISTRATE, JABALPUR                                       ……Appellant

Versus

SHIVKANT SHUKLA                                                                                           ……Respondent

 

Criminal Appeal Nos. 355 and 356 of 1975

STATE OF UTTAR PRADESH                                                                                ……Appellant

Versus

V. K. S. CHAUDHARY AND OTHERS                                                               ……Respondent

 

Criminal Appeal Nos.1845-1849 of 1975

UNION OF INDIA                                                                                                    ……Appellant

Versus

ATAL BIHARI VAJPAYEE AND OTHERS                                                        ……Respondent

 

Criminal Appeal No. 1926 of 1975

STATE OF KARNATAKA AND OTHERS                                                            …… Appellant

Versus

N. K. GANPAIAH AND ANOTHER                                                                    ……Respondent

 

Judgement on 28 April, 1976

Supreme Court, New Delhi

 (Before A. N. Ray, C.J and H. R. Khanna, M. H. Beg, Y.V. Chandrachud and P.N. Bhagwati)

 

Abstract: This was a landmark case about the provisions and powers of the Emergency. Article 352 of the Constitution was challenged. It raised questions on Article 21, Article 32, Article 22 and Article 14. It was a case of writ petition- habeas corpus.

Introduction: On June 25, 1975, the then President Fakhruddin Ali Ahmad, in the exercise of the powers of Article 352 of the Constitution, declared that there is a serious emergency for which Indian security is threatened by internal disturbances.

The right to approach the Supreme Court to enforce Article14 (Right of equality), Article 21 (Right to life and personal liberty), and Article 22 (Protection against detention in certain cases) was taken away.

According to Dr. B.R. Ambedkar, the Indian federal system should use the emergency as a last resort and the government changes itself to a unitary system from a democratic one to save the constitution. This power to government is gained from the constitution itself.

Facts/Background:

When Smt. Indira Gandhi’s election was challenged before the Allahabad High Court. Justice Sinha convicted her of indulging in wrong practices and declared her election void, which in turn meant she was barred from contesting any election or holding her office for the following six years. She appealed to the apex court but was only granted a conditional stay.

Various people (A.B. Vajpayee, Jay Prakash Narayan, and Morarji Desai) detained under Section 3(1) of Maintenance of Internal Security Act (MISA) filed petitions in different High Courts for the issue of writ of Habeas Corpus. When those petitions came up for hearing, the Government raised objection to their maintainability on the ground that in asking for release by the issuance of writ of habeas corpus, the detenus were claiming that they had been deprived of their Personal Liberty, available to them through Article 21 of the Indian Constitution. The objection was rejected by various High Courts.

Then, the Article 352 was invoked by the President on the advice of the late Prime Minister Indira Gandhi.

Issues:

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?

Is Rule of Law suspended during an Emergency?

Whether Fundamental Rights can be enforced during an Emergency?

Is Section 16A (9) of the Maintenance of Internal Security Act valid?

 

Arguments from the Govt.:

• If the right to move any court for the enforcement of Article 21 is suspended by Presidential Order issued under Article 359(1), the detenus have no locus standi to file the writ petitions. Therefore, these petitions must be dismissed.

• If the MISA permits the non-disclosure of grounds, and prevents the disclosure, there is no question of inquiring into the grounds of detention and courts must accept it.

Arguments from Respondents:

• Article 359 (1) may remove fetters imposed by Part 3 but it cannot remove those arising from the principle of rule of law or from the principle of the limited power of the Executive under the system of checks and balances on separation of powers.

• The Obligation on the Executive to act in accordance with the law does not arise from any particular article of the constitution but from the inherent compulsion arising from the principle of rule of law which is a central feature of our constitutional system and is a basic feature of the constitution. The suspension of the right to enforce Article 21 does not automatically entail the suspension of the rule of law. Even during emergency the rule of law is not and cannot be suspended.

• The essence of the inquiry in a habeas corpus petition is whether the detention is justified by law or is ultra vires the law. Such an inquiry is not shut out by the suspension of the right to enforce fundamental rights.

 

Judgement: In view of the presidential order of June 27, 1975, no person has the right to make an application for summary judgment under section 226 to a superior court for habeas corpus or any other order or order tending to contest the lawfulness of an arrest warrant that the order is not in accordance with the law, is unlawful or is tainted with factual or legal defects or is based on strange considerations.

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 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 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 move to any court for maintain suit on fundamental rights.

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.

Inference: This case was a landmark case in India’s history. One should know that, there are different opinions and perceptions to this case. It was a dark and evil judgment made in favour of the government. It was the day when the honourable Supreme Court made the Indian citizens shameful. It let its people down. It was considered as a mistake.

If the natural right to life were to be allowed to override Article 21, then no legislation could be made that curtailed the right to life under Article 21 in any circumstance whatsoever. (A legal maxim that best explains this principal is the Latin phrase ‘expressio unius est exclusio alterius’) This would result in Article 21 turning into a dead letter with no legal effect at all, because Article 226 would be used to invoke these absolute natural rights to strike down any law.

In 2017, the Supreme Court in K.S. Puttaswamy v. UOI  overruled the decision of ADM Jabalpur. Justice D.Y. Chandrachud (writing with 3 other judges- Justice J.S. Khehar, Justice R.K. Agarwal, and Justice S. Abdul Nazeer) held that the ADM Jabalpur case was flawed.
Justice Nariman and Justice Kaul also categorically overruled the decision in ADM Jabalpur. The majority, in almost echoing J. Khanna, they observed, “No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognizing the right, the Constitution does not become the sole repository of the right.”

Conclusion: The judgement came in 4:1 ratio. This day of this judgement was a black spot on the Indian democracy and its constitutional framework. Justice H.R.Khanna was the only one who dared to go against the government. Later, he paid for it as he was not selected to be the Chief Justice of India. He was sidelined by one of his junior judges, who became the CJI. 

When we speak of National Emergency, this case comes to our memory. The daring attitude of Justice Khanna comes to our mind. Still for many young lawyers, advocates and judges Justice Khanna is a role model.