SUPREME COURT OF INDIA

ADDITIONAL DISTRICT MAGISTRATE OF JABALPUR VS SHIVKANT

SHUKLA (AIR 1976)

BENCH:
A. RAY, A.N. (CJ)
B. KHANNA, HANS RAJ
C. BEG, M. HAMEEDULLAH
D. CHANDRACHUD, Y.V.
E. BHAGWATI, P.N.

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 26 th 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.

[References]

[1]1975 AIR 865

[2]A.D.M. 1975-77 and A.D.M. 1975-77, ‘A.D.M. Jabalpur Vs. Shukla And The Emergency Of 1975-77’
(India Opines, 2017) accessed 24 February 2017.
 [3]ADM jabalpur vs shiv kantshukla[1976] SC, AIR (SC).

[4] Ibid.

[5]1976 AIR 1207

[6]http://www.sunday-guardian.com/news/verdict-violated-fundamental-rights-during-emergency

[7]1964 AIR 381, 1964 SCR (4) 797

[8]https://timesofindia.indiatimes.com/india/Supreme-Court-regrets-Emergency-era-
verdict/articleshow/7206252.cms

[9]1978 AIR 597, 1978 SCR (2) 621

[10]1950 AIR 27, 1950 SCR 88

[11]1977 AIR 1027, 1977 SCR (2) 719

[12]http://www.sunday-guardian.com/news/verdict-violated-fundamental-rights-during-emergency