2BL308 Jurisprudence

Semester III B.A. LL.B (Hons.)

Division A

2016-17

CASE ANALYSIS

Additional District Magistrate, Jabalpur

Vs.
Shivakant Shukla

The Habeas Corpus Case

Submitted to: Submitted by:

Ms. Anubhuti Dungdung Adimesh Lochan 15BAL001
Assistant Professor Prafull Bhardwaj 15BAL006
Institute of Law, Nirma University Division-A Semester III
Institute of Law, Nirma University
 Table of Contents

Introduction ................................................................................................................................ 3

Brief Facts .................................................................................................................................. 4

Judgments .................................................................................................................................. 5

MAJORITY JUDGMENT ..................................................................................................... 5

1. Chief Justice A.N. Ray................................................................................................... 5

2. Justice M.H. Beg ............................................................................................................ 5

3. Justice Y. V. Chandrachud............................................................................................. 6

4. Justice P.N. Bhagwati .................................................................................................... 6

MINORITY JUDGMENT ..................................................................................................... 6

 Justice H.R. Khanna .................................................................................................... 6

LINK WITH POSITIVE SCHOOL ........................................................................................... 8

 BENTHAM ..................................................................................................................... 8

 MILL ............................................................................................................................... 9

 AUSTIN .......................................................................................................................... 9

 HART ............................................................................................................................ 10

CONCLUSION ........................................................................................................................ 11

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 Introduction

Habeas Corpus The Latin term "habeas corpus" means 'you must have the body' and a writ
for securing the liberty of the person was called habeas corpus. The writ affords an effective
means of immediate release from an unlawful or unjustifiable detention whether in prison or
in private custody. The writ is of highest constitutional importance being a remedy available
to the lowliest subject against the most powerful government.

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. Wanting to cling to the chair at any cost, she
chose to declare emergency as on 25th June 1975 the pretext being 'internal threat' to India
(read INDIRA). Censorship muzzled the Press, which could not publish the numerous arrests
of vast sections of people. 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).

Many who had been arrested challenged their detention by filing writs of habeas corpus under
Article 226 in various High Courts. In most High Courts, the State Governments had raised the
issue as to whether such writs were maintainable on the ground that in light of the Presidential
Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra
Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all
rejected the Government's argument. The case was up with the Supreme Court.

Against the unanimous decision of the High Courts, four of the five senior most Hon'ble
Justices of the Supreme Court thought it fit to rule otherwise. They were the then Chief Justice
A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme
Court had effectively ordered the High Courts to slam shut their doors and windows to such
illegal detenus. The lone dissenting voice was that of Justice H.R. Khanna of whom the New
York Times remarked: 'surely a statue would be erected to him in an Indian city'.

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 Brief Facts

The President of India declared emergency on the ground of internal disturbance, as specified
in Article 352 of the Constitution. Under Article 359 (1), Articles 14, 21 and 22 were suspended
with respect to all possible acts of the State, i.e., an unconditional suspension was made unlike
the previous emergencies when the rights were suspended only with respect to the Defence of
India Ordinance. In 1962, a Presidential Order was declared under Defence of India Rules. In
1975, the emergency was declared. Consequently, the Maintenance of Internal Security Act
(hereinafter, the Act) was passed and many individuals were detained unlawfully. Many
individuals challenged their detention under Section 3 of the Maintenance of Internal Security
Act and moved the High Courts for issuance of a Habeas Corpus writ. The common grounds
for questioning the detention orders were the violation of the Right to life and liberty under
Article 21 of the Constitution and the malafide nature of the orders. All the nine High Courts
to whom the appeals were made ruled that judicial scrutiny of prevention orders under the Act
was within judicial purview and whoever illegally detained under such Act have the right to
move the High Court under Article 226. Appealing such decisions, the Union government
appealed on one of the cases in which such a decision was made, to the Hon’ble Supreme
Court. This was the case of ADM Jabalpur vs. Shivakant Shukla.

The court had to decide whether a writ petition under Article 226 to enforce Article 21 in case
of a detention order under MISA was maintainable and if yes, then what was to be the extent
and scope of judicial scrutiny in such an appeal.

The case was heard by a 5-member constitutional bench of Chief Justice A.N. Ray, Justice
H.R. Khanna, Justice M.H. Beg, Justice P.N. Bhagwati and Justice Y.V. Chandrachud. In a
ruling of 4 – 1, with the dissenting judgement being of Justice Khanna, the Supreme Court
held that Article 21 is the sole repository of the right to life and liberty. Thus, the constitution
itself is the full and complete source of any claim to the right to life and liberty in India.

Further, since the Presidential order of June 25, 1976 clearly suspended Article 21 under
Article 359(1) of the Constitution, it was held that no person has any locus standi to move the
High Court under Article 226 (or the Supreme Court) to enforce any right to personal liberty
if detained under the Act even on grounds that the detention orders given under the Act were
illegal, non – compliant with the Act or malafide.

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 Judgments

MAJORITY JUDGMENT
The majority judgment was given by Chief Justice A.N. Ray, Justice M.H. Beg, Justice P.N.
Bhagwati and Justice Y.V. Chandrachud. The sole dissenting judge with the minority
judgment was given by Justice H.R. Khanna.

1. Chief Justice A.N. Ray

CJI A.N. Ray stated that,
“The effect of the Presidential Order suspending the enforcement of
fundamental right amounts to bar the locus standi of any person to move the
court on the ground of violation of a fundamental right”.
Justice Ray held that any relief on malafide orders passed under the Act when the detenu
had committed no legal offence was only available to him after the emergency was over,
as in the Habeas Corpus Suspension Act in England.
The judgement in the case of Liversidge vs. Anderson, 1956 was cited by Justice Ray to
emphasize this point. In this case, the Appellate Committee of the House of Lords ruled that
the Home Secretary’s order to detain a person called Robert Liversidge for having ‘hostile
associations’ under Regulation 18B of the Defence General Regulations, 1939 could not be
challenged on grounds of the basis of his decision to order the detention.

2. Justice M.H. Beg

Justice M.H. Beg states that,
“The only Rule of Law which can be recognised by Courts of our country is what is
deducible from our Constitution itself. The Constitution is, for us, the embodiment
of the highest “positive law”
It may be that many moral and natural obligations exist outside the Constitution and even
outside any positive law–this is not denied by the learned Attorney General at all–but, their
existence is not really relevant for purposes of petitions for writs of Habeas Corpus which
lie only to enforce legally enforceable rights.

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3. Justice Y. V. Chandrachud

Justice Chandrachud noted that the drive of Article 359 is against the individual and not
against the court. He was of the view that Emergency provisions contained in Part XVIII of
the Constitution which are designed to protect the security of the State are as important as
any other provision of the Constitution.

4. Justice P.N. Bhagwati

In his judgement, Justice Bhagwati rejects the notion of Article 21 being a negative right,
and hence not being covered under Article 359(1) since it only denotes an area of free action,
thus:
“The words rights conferred by Part III cannot be read in isolation, nor can
they be construed by reference to theoretical or doctrinaire considerations…
It is true that Article 21 is couched in negative language, but it is axiomatic
that to confer a right it is not necessary to use any particular form of language.
It is not uncommon in legislative practice to use negative language for
conferring a right. That is often done for lending greater emphasis and
strength to the legislative enactment”
Justice Bhagwati had stated in his opinion that Article 21, lays down substantive
law as giving protection to life and liberty inasmuch as it says that they cannot be
deprived except according to the procedure established by law. Justice Bhagwati
pointed out that it means that before a person can be deprived of his life or liberty,
as a condition precedent there should exist some substantive law conferring
authority for doing so and the law should further provide for a mode of procedure
for such deprivation.

MINORITY JUDGMENT

Justice H.R. Khanna

Justice H.R. Khanna strongly supported the view of Justice Gajendragadkar in the case of
Makhan Singh v. State of Punjab wherein it was said that “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

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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. Justice Khanna
also stated the importance of Article 21 and said that “The right to life, and personal: liberty
is the most precious right of human beings in civilized societies governed by the rule of
law”. He hast also stated certain examples from England that in England right to life is
absolute. Justice Khanna has also warned the state for their increasing autonomy. Another
important aspect of Justice Khanna’s judgement brings out the distinction between the
illusion of rule of law and the reality of law. As seen earlier, the majority held that since the
total suspension of Articles 19, 21 and 22 was done under Article 359(1), this suspension
and the bar on judicial scrutiny was entirely consistent with Rule of Law. However, this is
called by Justice Khanna as a mere illusion of the Rule of Law since it expressly sanctions
by means of an enacted law, the use of administrative arbitrariness and misuse of power.

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 LINK WITH POSITIVE SCHOOL

There were many jurisprudential aspects visible in the case and its judgments. This, being a
judgment which upheld the political sovereignty of the state finds many links in the positive
school of sovereignty. The majority judgment upheld on the supremacy of the presidential
order not considering rationality and reasonability in the provisions of the MIS Act.

The many jurisprudential links in the judgment will be discussed below with reference to the
jurist who put forth those theories and ideas.

Hard and Soft Positivists: According to the Hard Positivists, law is just a political fact
which was clearly seen in the case as the legislation made by the legislature was a political
fact without any reasonableness in it.

On the other side it is contrary to the soft positivists that the law will be judged by its content
and moral merit

 BENTHAM

Bentham has postulated four elements of law:

i. Law is the product of legislature’s will.

ii. Law should be known to the citizens and officials
iii. Law lays down a certain course of actions and demands.
iv. It relies upon the use of sanctions

The first point of law being the legislature’s will was quite overtly visible in this case; as this
MIS Act being passed by the legislature dictated the rules of the land. Furthermore, Bentham
had said that law could be in the form of

i. Commands
ii. Prohibition
iii. Permission to forbear
iv. Permission to act

The first two; commands and prohibition were covered by the MIS Act.

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Out of the 13 canons as enlisted by Bentham, the point of series of offences was covered in the
judgment by the Supreme Court.

 Series of offences: Punishment should be such that for every part of that offence/mischief,
there may be a motive to restrain that offender from doing it again. The government while
bringing out such law had the sole motive to curb down on the internal disturbances. Hence,
the aim of the move was to restrain the offender from doing it again which could be
accomplished by keeping the offender under detention unless the emergency period got
over.

Bentham was of the view that the main object of punishment was to bring deterrence to the
society. In the case also, the act of detaining the offenders until the emergency got over was
done with the motive to bring about a deterrence effect in the society.

 MILL

Mill has said that government cannot and should not interfere in two rights. They
should consider individual rights that will serve the long run purpose this principle was seen
contrary with the judgement and legislation of this case. The dissenting opinion of Justice
Khanna was not considered and majority opinion became dogma here as strictly warned in
the principle of Mill.

 AUSTIN

Austin’s view of law was that ‘law is the command of the sovereign’ and that the
sovereign is absolute. He was of the view that law and morality should be separated while
administration and governance. This view of Austin was quite visible in the judgment when
even if the steps taken by the government were immoral, the SC upheld the acts. In this
context, he also said that the law will exist irrespective of its acceptance and liking by the
people governed by it. Furthermore, the people need to follow the law even if it seems to be
bad or immoral.

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  HART

According to Hart the decision in the present case seems appropriate.

 It is not connected with morals

 It is the command of human being

 Separated from sociological and historical analysis.

According to Hart, the judgment given by the judge is already predetermined by law and
logic and hence it is valid in closed legal system

Hart’s theories and conceptions that are visible in the current judgment are mainly covered
under the ‘secondary laws’ that he talked about. Under secondary laws, there are

i. Rules of Adjudication: With this Hart referred to the judgments made by the
court while solving the disputes between two parties.
ii. Rules of Change: Rules of change include special provisions and procedure as is
said by the state from time to time in order that the ends of justice are met.
iii. Rules of Recognition: Rules of recognition are the powers upon the judiciary to
test and establish the validity of the laws put forth by the legislature or the
executive.

These two rules of change and recognition were quite visible in the judgment as a special act,
the MIS Act, was passed and an appeal was made to the Supreme Court to establish the
validity of the said act respectively.

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 CONCLUSION

While the Supreme Court judgement in this case is widely acknowledged to be a mistake, the
ruling has not been formally overruled by the Supreme Court even though it has admitted its
error. This was noted by a bench of Justices Aftab Alam and Ashok Kumar Ganguly on
January, 2011.

After demitting office Justice Bhagwati became a committed promoter of human rights and
was elected to the United Nation’s Human Rights Committee and gradually became its Chair.
The learned judge took another five years to say that the ruling was wrong. In September 2011,
speaking to the Indian Express, he said “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.”

The 1976 decision was severely criticized everywhere then, and continues to be criticized till
this date as a dark spot in India’s political, legal and judicial history.

On the silver jubilee of the decision in April 2001 the People’s Union for Civil Liberty
remembered the day as “a day, which produced a judgment so shameful that even Hitler would
have blushed had he the opportunity to peruse it.”

Delivering the Justice HR Khanna Memorial Lecture in 2009 former Chief Justice
Venkatachaliah said that the decision (of 1976) deserved to be “confined to the dustbin of
history.”

In December 2010, Justice AK Ganguly of the Supreme Court referred to the 1976 decision in
one of his judgments and held that the “erroneous” decision violated the people’s Fundamental
Right to personal liberty. However, the question still looms, that will such acknowledgements
of guilt and remorse wipe out that blot on the judicial history of India? ADM Jabalpur and its
aftermath will remain an inerasable chapter of the nation’s record of injustices inflicted on the
people with the blessings of committed judiciary. In times when there are long debates on the
restructuring the mechanism for appointment of judges, there should be found means and ways
to ensure complete and absolute independence of the judiciary from any direct or indirect
influence of the executive or legislative organ of the State.

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