ADMINISTRATIVE LAW

TOPIC:
CASE BRIEFING ON
“A.D.M JABALPUR V SHIVAKANT SHUKLA, A.I.R 1976 SC
1207”.
SUBMITTED BY:-

AMIT SIKHWAL

BCOM LLB SEM -V

ROLL NO. -02

GUIDED BY:-

MISS.BANDITA SENGUPTA

ASST. PROF OF LAW

Indian Institute of Legal Studies

Dagapur, Matigara, Siliguri, Darjeeling, West Bengal 734010

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 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thank
s to MISS.BANDITA SENGUPTA, Asst. Prof In Law, Indian Institute of Legal Studies,
for her invaluable guidance, sound advice and affectionate attitude during the course of
my studies.

I have no hesitation in saying that she molded raw clay into whatever I am through his
incessant efforts and keen interest shown throughout my academic pursuit. It is due to
his patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and
making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

________________

Teacher’s Signature Student’s Signature

Date: __/__/____ Date: / / ____

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 SYNOPSIS

1. INTRODUCTION
2. On June 25, 1975, the President, in exercising the powers conferred by Article 352(2)
of the Constitution, declared that there was a serious emergency for which the security
of India was threatened for internal problems. On June 27, 1975, in the exercise of the
powers conferred by Article 359(1), the President declared that the right of any person
(including foreigners) to be transferred to a court in order to respect the rights conferred
by Articles 14, 21 and 22.

2. RESEARCH METHODOLOGY
The research methodology used is completely doctrinal which includes books, and
websites.
3. OBJECTIVE OF THE STUDY
To do a case briefing of the ADM JABALPUR VS SRIKANT SHUKLA AIR 1976.
3.1 Scope of the study
To have a brief knowledge about the case of ADM JABALPUR VS SRIKANT SHUKLA
AIR 1976.
3.3 Data Collection Process
The research methodology used is completely doctrinal which includes books, and websites.

Websites

1. https://indiankanoon.org/search/?formInput=jabalpur%20v%20shukla&pagenum=2
2. https://lawtimesjournal.in/adm-jabalpur-vs-shivkant-shukla-1976-2-scc-521-case-summary/
3. https://www.quora.com/What-was-the-ADM-jabalpur-vs-shiv-kant-shukla-case
4. https://www.quora.com/What-was-the-ADM-jabalpur-vs-shiv-kant-shukla-case
5. https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/
6. https://lawtimesjournal.in/adm-jabalpur-vs-shivkant-shukla-1976-2-scc-521-case-summary/

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 CONTENT

S.NO TOPIC PG.NO.

01 FACTS OF THE CASE 05-06

02 FRAMING OF ISSUES 07

03 RATIO DECIDENDI 07-08

04 OBITER DICTUM 08-09

05 ANALYSIS OF JUDGEMENT 10-11

06 ARTICLE AND JURISDICTION 12-13

07 INTREPRETATION 13

08 CONCLUDING OBSERVATION 14

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 CHAPTER 1:- FACTS OF THE CASE
On June 25, 1975, the President, in exercising the powers conferred by Article 352(2) of the
Constitution, declared that there was a serious emergency for which the security of India was
threatened for internal problems. On June 27, 1975, in the exercise of the powers conferred
by Article 359(1), the President declared that the right of any person (including foreigners) to
be transferred to a court in order to respect the rights conferred by Articles 14, 21 and 22.

The Constitution and all proceedings pending before a court for the application of the
aforementioned rights will remain suspended during the period of proclamation of urgency.
The Presidential Ordinance of June 27, 1975, also specified that it would be additional and not
negligible to any order issued before the date of the order mentioned in Article 359 of Clause
(1) of the Constitution. On June 29, 1975, by another decree, the President made the order of
June 27, 1975, applicable to the State of Jammu and Kashmir.

The President promulgated Amendment Orders Nos. 1 and 7 of 1975 and replaced them with
the 1975 Domestic Security Maintenance Act No. 39, which introduces a new Article 16A and
gives effect to Article 7 of the law. Law in force on June 25, 1975, the other provisions that
came into effect on June 29, 1975. By the same Act, a new section 18 was also inserted with
effect from June 25, 1975.

On October 17, 1975, the order of September 16, 1975, In 1975, introduced new amendments
to section 16A of the Maintenance of Homeland Security Act, which introduced paragraphs 16
(8) and (9) of section 16A.

On November 16, 1975, Ordinance No. 22 of 1975 was enacted. It introduced some changes
to the law on the maintenance of internal security, also inserting paragraph 2A in Article 16A.
All the amendments made by the order had retroactive effect to validate all the previous laws.
The aforementioned orders were published on January 5, 1976, under the Maintenance of
Internal Security Act of 1971, 2014 (Law No. 14 of 1976).

Defendants detained under Article 3(IA)(ii) read with Article 3(2) of the Internal Security
Maintenance Act. The law has been challenged in several superior courts by virtue of the order
of the President of India on June 27, 1975, declaring it unconstitutional and inoperative and
invoking:

1. The annulment of that order, and

2. The pronouncement of His release immediate
In some cases, they questioned the validity of the amendments to the laws of Articles 38 and
39. When these hearing requests were filed, the plaintiff raised the preliminary objection of
maintainability for the fact that the request for release, a writ of Habeas corpus was issued. The

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accused alleged, in essence, to have been deprived of their personal liberty in violation of the
procedure established by law, whose motive was at their disposal.

Only Article 21 of the Constitution and taking into account the presidential order of June 27,
1975, which suspends the right to request the execution of the right conferred by this article,
the petitions could be rejected at the threshold. While the superior courts of Andhra Pradesh,
Kerala and Madras confirmed the preliminary objection, the present dispute has not been
favourably received by the superior courts of Allahabad, Bombay (Nagpur Bench), Delhi,
Madhya Pradesh, Punjab and Haryana. The state and the central government. Aggravated by
the decision of several superior courts, he appealed the decision of the Supreme Court of the
Kingdom.

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 CHAPTER 2:- FRAMING OF ISSUES

1 Whether a writ petition under art 226 before a high court is maintainable to
inforce the right to personal liberty during a emergency declared under clause (1)
of art 359 of the constitution

2 If such a issue is maintainable what is the scope of judicial scrutiny in view of

presidential order ?

CHAPTER 3 :-RATIO DECIDENDI

Given the presidential order of June 27, 1975, according to Clause (1) of Article 359, no one
has the right to submit petitions under Article 226 of the Constitution to a superior court of
habeas any other order or order to enforce any right to the personal liberty of a person detained
under the Maintenance of Internal Security Act of 1971 on the grounds that the warrant of arrest
or detention are for a reason not in accordance with the law, illegal or masculine. In case of
emergency, the executive protects the life of the nation.

Consequently, its actions, whether arbitrary or illegal, cannot be questioned, as security

considerations preclude the evidence on which it is based Queen v. Halliday Ex Parte Zadiq
[1917] AC 210. The freedom in question is limited and controlled by law, whether at common
law or in law.

The safeguarding of liberty is in the good sense of the people and in the system of representative
and responsible government that has developed. If extraordinary powers are granted, they are
granted because the urgency is extraordinary and limited to the emergency period. Freedom is
itself the gift of the law and perhaps the law lost or abridged.

The purpose of Article 359(1) is to prevent the application of any fundamental right mentioned
in the Presidential Order from being prohibited or suspended during the emergency period. The
purpose of Article 359(1) is not only to limit the application of this section to the legislative
domain but also to the actions of the executive branch.

The purpose of Article 359(1) is not only to prohibit the right to sit in this Court, but also to
remove any superior court that the jurisdiction created by Article 359(1) applies to the rights
mentioned in the presidential order, either by a request under Article 32 or by a request under
article 226. An application for habeas corpus under article 491 of the Code de criminal
proceedings cannot be filed simultaneously before the High Court. Article 359(1) makes no
distinction between the threat to the security of India resulting from war or external aggression
and treats India’s security by internal disturbances.

The powers of President U / A 352(1) and 359(1) of our Constitution are exempt from any
remedy in the courts, even when the emergency is over. Section 16A(9) of the Maintenance of

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Internal Security Act of 1971. It is not unconstitutional on the ground that it constitutes an
interference with the jurisdiction of the Superior Court itself, pursuant to Article 226.

Section 16A(9) of the Maintenance of Internal Security Act of 1971 states that issuing a true
rule of evidence and does not exempt or affect the jurisdiction of the High Court under section
226 of the Constitution and therefore can not be considered invalid. In addition, Section 18 of
the Maintenance of Internal Security Act of 1971 does not suffer from the excessive delegation
and is a valid piece of legislation. Part III of the Constitution confers fundamental rights in both
positive and negative language.

The limits of judicial review must be coextensive and consistent with the right of an aggrieved
person to complain about the invasion of their rights. The theory of the basic structure of the
constitution can not be used to construct an imaginary part of the constitution that might
conflict with constitutional provisions.

CHAPTER 4:-OBITER DICTUM

A.N.RAY

“Freedom is limited and controlled by law, whether at common law or in law, which is,
according to Burke, regulated freedom, not abstract or absolute freedom. the good sense of the
people and the system of representative and responsible government that has developed: if
extraordinary powers are granted, they are granted because the urgency is extraordinary and
we are limited to the period of emergency.”

H.R. KHANNA

The observations in the above-mentioned cases show that the validity of the warrant of arrest
could be annulled despite the presidential orders of 1962 and 1974 under section 359 if the
right was not covered by these presidential orders. The protection granted by the absolute
presidents was conditional and limited to abandoning the challenge of the arrest warrants and
other measures adopted under the provisions mentioned in these presidential orders with
respect to the violation of the articles specified in these presidential orders.

If the detention of a detainee did not comply with the provisions mentioned in the presidential
orders, the presidential orders did not have the effect of protecting the warrant of arrest and it
was permissible to question the validity of the detention at the prison. The reason was not made
under the specified provisions but in violation of those provisions.

M.HAMEEDULLAH BEG

We can say that the Constitution is dominated by the rule of law because its general principles
were, for example, the right to individual liberty or the right of public assembly. the rights of
private persons in special cases presented to the courts; whereas in many foreign constitutions
the security (as it is) conferred on the rights of individuals results or seems to result from the
general principles of the constitution.

P.N. BHAGWATI, J.
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There are three types of crisis in the life of a democratic nation, three well-defined threats to
its existence: a nation and a democracy. The first is war, especially a war to repel the invasion
when a “state must transform its political and social order in peacetime into a combat machine
in wartime and surpass the skills and efficiency of war. the enemy. ”

There may be a real war or a threat of war or preparations to deal with the imminent occurrence
of the war, which can all create a crisis situation of the most serious order. The need to
concentrate more power within the government and the contraction of normal political and
social freedoms cannot be discussed in such a case, especially when people face a horrendous
horror of national slavery.

The second crisis is a threat or presence of internal subversion intended to disrupt the life of
the country and endanger the existence of a constitutional government. This activity can have
various causes. Perhaps the most common is disloyalty to the existing form of government,
often accompanied by a desire for change through violent means.

Another cause may be strong dissatisfaction with some government policies. State applications
within the federal government for linguistic or religious lines may fall into this category. Or
the presence of powerful elements without law, perhaps without political motivation, but for
various reasons that go beyond the scope of the ordinary mechanism of law, can lead to this
problem.

The third crisis, recognized today as a measure of emergency sanction by the constitutional
government is collapsing or causing a collapse of the economy. It must be recognized that an
economic crisis is such a direct threat to the constitutional existence of a country at war or
internal subversion. These are three types of emergency that can normally endanger the
existence of constitutional democracy.

Y.V. CHANDRACHUD, J.

I must now consider a very important picture of the defendants’ argument that section 21 is not
the only depository of the right to life and personal liberty. This argument has been presented
to us in too many aspects to be mentioned and many cases have been cited in support. This was
to some extent unavoidable, as many councils defended the same argument and each had its
own particular and preferred accent. I will try to compress the arguments without, I hope,
sacrificing the thematic value.

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 CHAPTER 5:- ANALYSIS OF JUDGEMENT
The case was discussed for more than two months, after which the case was reserved. Only
after a sentencing application was filed did the Supreme Court reach the following conclusion:

“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 “.

The judge ruled in favour of the government with a four to one majority. Only Judge Khanna
had the courage to make the right decision in favour of human nature and freedom. He knew
what was at stake. The records indicate that the night before the announcement of the judgment,
he informed his sister that he had made a decision and that he knew that it would cost him the
seat of the President of the Supreme Court. from India.

The judgment ended with a firm quote: “As Judge Huges observed, judges are not there to
decide cases, but to decide them as they should, and even if they are regrettable that they can
not always agree, it is better that their independence is maintained and that unanimity is
guaranteed by their sacrifice.

“Disagreement in a court of last resort calls upon the meditative spirit of the law, to the
intelligence of a future day, when a subsequent decision may be just the mistake in which the
dissenting judge believes that the court was betrayed. “What would be the consequences of his
actions, his junior judge MH Beg replaced him and became president of the Supreme Court of
India?”

The other four: CJI A.N.Ray, Justice Beg, Justice Chandrachud and Justice
Bhagwati could not avoid the unscrupulous favour of the government in power. A. Ray, with
her controversial appointment as CJI by Indira Gandhi, replacing three high-ranking judges,
revered the same ground on which she walked. There are anecdotes about how he called her
and her personal secretary, often enough to advise him on the smallest questions. Judge
Bhagwati has lifted the torch of individual liberty only to add diplomacy to a correct reading
of the Constitution.

The minutes read as he said: “I have always been inclined to defend individual freedom,
because I believe it is one of the most valuable values of humanity, without which life The
pillars of a free and democratic society Men could easily lay down their lives on their altars to
secure, protect and preserve them, but I do not think it’s fair to let my love for personal freedom
to blur my vision or convince me to include in the relevant provisions of the Constitution an
interpretation that their language cannot reasonably support. “

In 1979, after Indira Gandhi came to power, he wrote her a letter that we all hope she does not
do. It reads as follows: “I am sure that with his will of iron and determination, an extraordinary

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vision and a dynamic vision, a great administrative capacity and a vast experience, a love and
affection overflowing with the people and, above all, a heart that identifies with the misery of
the poor and the weak, will be able to steer the ship of the nation safely toward its precious
purpose. “He later became the president of the Supreme Court of India.

The High Court compiled in silence. Their superior had silenced them. This day has been
called “the darkest day of Indian democracy” and rightly so. There are several similarities
between this trial and Hitler’s mode of operation and his accession to power. The Emergency
Proclamation, at the request of Indira Gandhi, granted him a decree by decree, suspended the
elections and limited fundamental rights.

The most significant example in the history of a “rule by decree” is the Reichstag Decree on
the Fire of 1933. Adolf Hitler convinced German President Hindenburg to issue a decree
indefinitely suspending all basic civil rights. This paved the way for the suppression of
opposition by the Nazis and the government of a single party of the Third Reich.

NirenDe’s calm and calm answer to the uncomfortable questions of Judge Khanna regarding
the Nazi holocaust. In one case, CJI Ray almost reprimanded the inmates’ lawyer who had built
Nazi gas chambers to prove their statements. For all the others, with the exception of him, it
was only an act of despair and defence to maintain the facade of “rectitude”.

The Supreme Court judge, Bhagawati has stated that

“I was wrong, the majority judgment was not good judgment, and if I was ready to make a new
decision, then I would agree with what Judge Khanna did. Initially, I was not in favour of the
majority opinion, but in the end, I do not know why they convinced me to agree with them, a
type of litigation for the first time. was an act of weakness on my part. “

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 CHAPTER 6:-ARTICLE AND JURISDICTION
ARTICLE 21

Protection of life and personal freedom. No person shall be deprived of his life or personal
liberty, except according to the procedure established by law. This Article 21 requires that the
following conditions be met before a person is deprived of the property:

1. There must be a valid law.

2. The law must establish a procedure.
3. The procedure must be fair, fair and reasonable.
4. The law must comply with the requirements of articles 14 and 17, that is, it must be
reasonable.
ARTICLE 358

Suspension of provisions of Article 19 during emergencies –

1. While an Emergency Proclamation states that the security of India or any part of its
territory is threatened by war or by external aggression, nothing is at stake. Article 19 it
will restrict the power of the State as defined in Part III to make any law or take any
executive action that the State would like, but the provisions contained in that Part
would be competent to do or take, but any law thus made, the extension of the
incompetence, will cease to have effect as soon as the Proclamation ceases to function,
except that incompetence respects things done or omitted before the law ceases to have
effect.
2. Provided that when said Emergency Proclamation is in force only in any part of the
territory of India, any such law may be made, or an executive action of this kind may
be taken under this article in relation to or in any territory of the State or Union in which
or in any part from which the Emergency Proclamation is not operational, if and to the
extent that the security of India or part of its territory is threatened by activities in or in
relationship with the part of the territory of India in which the Emergency Proclamation
is in operation.
3. Nothing in clause (1) shall apply (a) to any law that does not contain a recital in the
sense that such law is related to the Emergency Proclamation in effect when it is made,
or (b) to any executive action adopted from otherwise, by virtue of a law that contains
said recital.
ARTICLE 359(1)

Suspension of the execution of the rights conferred by Part III of the Indian Constitution during
emergencies

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 1. When an Emergency Proclamation is being executed, the President may, by means of
an order, declare that the right to transfer to any court for the execution of the rights
conferred by Part III of the Indian Constitution (except articles 20 and 21) as may be
mentioned in the order and all proceedings pending in any court for the enforcement of
the aforementioned rights will remain suspended for the period during which the
Proclamation is in force or for the shortest period specified in the order

CHAPTER 7 INTERPRETATION

CASE LAWS

Maneka Gandhi v. Union of India

Poona municipal corporation V. D.N.Deodher

Bharat Kala Bhandar v. Municipal committee

Indore municipality v. Niamatulla

Dwarkadas Shrinivas v. the Sholapur spg. And wvg company Ltd and Ors.

RECENT CASE LAWS

Unknown vs State Of West Bengal & Ors on 13 August, 2010

Girish Shukla vs State Of U.P. Through Prin. Secy. ... on 10 August, 2015

The Tata Power Company Limited ... vs Jharkhand Urja Vikas Nigam ... on 19
November, 2015

Tula Ram Shukla vs State Of U.P. Through Secy. Deptt. ... on 11 March, 2013

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 CHAPTER 8:-CONCLUDING OBSERVATION
Article 21 has been misinterpreted in this case. Indeed, the procedure that was not established
in accordance with the law was later. Whenever internal aggression occurs in a country, it
does not mean the government. They can take the lives of their citizens and strangers. It is
true that during the emergency, the president by order may suspend all fundamental rights,
but that order must have effect from the date on which it was approved, but it must not be
executed. from the previous date.

Amendment 44, tabled in 1978, was the result of the Supreme Court’s decision. In an
interview, Judge P.N. Bhagwati admits that the decision of the Supreme Court in ADM
Jabalpur was incorrect and pleads guilty to the same thing. The reason for joining the
majority (A. Ray, Y. V. Chandrachud and H.H. Beg) in this case was that he was persuaded
by his colleagues and admitted that it was an act of weakness on his part. He also said that “it
was against my conscience, this judgment is not the justice of Bhagwati.

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 BIBLIOGRAPHY
7. https://indiankanoon.org/search/?formInput=jabalpur%20v%20shukla&pagenum=2
8. https://lawtimesjournal.in/adm-jabalpur-vs-shivkant-shukla-1976-2-scc-521-case-summary/
9. https://www.quora.com/What-was-the-ADM-jabalpur-vs-shiv-kant-shukla-case
10. https://www.quora.com/What-was-the-ADM-jabalpur-vs-shiv-kant-shukla-case
11. https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/
12.https://lawtimesjournal.in/adm-jabalpur-vs-shivkant-shukla-1976-2-scc-521-case-summary/

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