ADDITIONAL DISTRICT MAGISTRATE, ... VS S. S. SHUKLA ETC.

(1976 AIR 1207, 1976 SCR 172)

PETITIONER:
ADDITIONAL DISTRICT MAGISTRATE, JABALPUR
Vs.
RESPONDENT:
S. S. SHUKLA ETC. ETC.
DATE OF JUDGMENT: 28/04/1976
BENCH:
RAY, A.N. (CJ)
KHANNA, HANS RAJ
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
BHAGWATI, P.N.

BACKGROUND –
April 28th, 1976 is considered to be the darkest day of the Indian Judicial System because on that
day the judgment for an infamous case of “ADM Jabalpur v Shivkant Shukla” was delivered.
This case is also known as the “Habeas Corpus case”. This case pertained to the time when the
emergency was proclaimed by the ruling government of Indira Gandhi who issued a Presidential
Order when the court declared her Prime Ministerial election as illegal. The case arose out of the
contention that whether a person has a right to approach the High Court or not when its
Fundamental Rights are being violated, especially Article 21 which relates to Right to Life and
Liberty, and also Article 14 which relates to the Right to Equality. The net result that came from
the judgment was harsh, as it was established that a person’s right to approach High court under
Article 226 for writ of Habeas Corpus or any other writ for challenging the legality of an order of
detention at the time of the proclamation of emergency will remain suspended. Moreover, the
person cannot move to High Court to seek remedy or justice. This was the main reason for
considering ADM Jabalpur as the darkest spot in the history of the Supreme Court.
FACTS –
On 25th June 1975, the President in the exercise of his powers which have been granted by
Article 352(1) of the Indian Constitution, declared that there was a grave emergency whereby the
security of India is threatened by the internal disturbances. On 27th June 1975, by exercising the
powers that are granted under Article 359 of the Constitution, it was declared that the right of
any person including the foreigners to move any court to enforce their rights which have been
granted to them under Article 14, 21 and 22 of the Constitution and also all the proceedings that
are pending in the court for the above-mentioned rights will remain suspended during the period
of proclamation of emergency which was made under Article 352 of Indian Constitution.
On 8th January 1976 by exercising the powers granted under Article 352 of the Constitution, the
President passed a notification declaring the right of any person to move to any court to enforce
the right which has been granted to them under Article 19 of the Constitution and also all the
proceedings that are pending in the court for the above-mentioned right will remain suspended
during the period of proclamation of emergency. Thereupon, several illegal detentions were
made including the detention of some most prominent leaders such as Jayaprakash Narayan,
Morarji Desai, Atal Bihari Vajpayee, and L.K. Advani was detained without any charges and
trial. Due to this many writ petitions were filed throughout the country. Nine High Courts gave a
decision in favor of the detunes by laying down that even if Article 21 cannot be enforced, still
the order of detention can be challenged as it was not in compliance with the Act or was mala
fide. Moreover, against these orders, many appeals were filed under the Supreme Court.

ISSUE –
The issue, in this case, was whether a writ petition can be filed or not under Article 226 of the
Constitution before the High Court to enforce the Fundamental Rights during the period of
proclamation of emergency.

ARGUMENTS OF PETITIONER –
The main contention of the state was that the sole purpose of providing the emergency provisions
in the Indian Constitution is that at the time of emergency the Executive can make complete
discretion over the implementation of laws of the country by exercising the special powers which
have been granted to them by the Constitution of India, but while exercising these powers the
state should be given supreme importance.
They also contended that the state does not release the detunes despite the opinion of the
advisory board that there is no sufficient cause for their detention. Hence, detaining them without
any cause violates their fundamental right which has been provided under Article 22 of the
Indian Constitution. Also, the detenus cannot approach any court for the enforcement of their
right under Article 19 of the Constitution, as it has been suspended during the proclamation of
emergency by the President under an order issued under Article 359(1) of the Indian
Constitution. The suspension of these rights is done under the provisions of the Constitution and
thus it cannot be said that the resulting situation would mean the absence of rule of law.
They further highlighted the fact that the Emergency provisions provided in the Indian
Constitution including Articles 358, 359(1), and 359 (1A) are Constitutional necessities as the
military and the economic security of the nation proceed with everything else. Therefore, the
validity of the Presidential Order under Article 359(1) cannot be challenged on the ground that it
is violating the Fundamental Rights of the citizens which have been suspended by the above-
mentioned article.

ARGUMENTS OF RESPONDENTS –
It was contended by the respondents that the purpose of Article 359(1) is to remove the
restrictions on the powers of the legislatures so that at the time of emergency it is free to violate
the fundamental rights of the citizens which have been granted to them by the Constitution of
India. They further argued that there is an act called the Maintenance of Internal Security Act
1971 which is there in force to govern pre-trial detentions. Therefore, Article 21 cannot be
considered as the sole depository of the right to life and personal liberty.
They also argued that the non-Fundamental rights which have been derived from the Articles
256, 265, and 361 (3), neither the natural or contractual rights and nor the legal rights to personal
liberty are unaffected by the Presidential order. These rights can be only taken away by the
statute and not by the Executive Department.
It was further argued that the state and its officers have the right to arrest only if the detention
fall under Section 3 of the MISA Act and also the conditions provided under the said section
were fulfilled. However, if any condition is unfulfilled then the detention will be considered
“beyond the powers of the Act”.

JUDGEMENT –

JUDGEMENT BY THE MAJORITY –

The judgment came in the ration of 4:1, Chief Justice A. N. Ray, M.H. Beg. J, Y.V
Chandrachud. J and P.N. Bhagwati. J was for the majority of the judgment and whereas H.R.
Khanna J. was for the descent. The four judges except Justice Khanna thought that during the
time of emergency if any action is taken by the government whether it is arbitrary or illegal, its
actions cannot be questioned. This is because in such circumstances the government safeguards
the life of the nation by using its extraordinary powers, and which are provided to them as an
emergency is also an extraordinary factor. Therefore, as liberty is a gift of the law, it can also be
forfeited by law.
The purpose and objective of Article 359 (1) were to prevent the enforcement of any
Fundamental Right mentioned in the Presidential order, which should be suspended during the
emergency. Even the application for Habeas Corpus under Article 491 of Code of Criminal
Procedure cannot be filed simultaneously before the High Court. Another purpose of Article
359(1) was not only to limit the actions of the legislative domain but also the actions of the
executive branch.

DISSENTING JUDGEMENT BY JUSTICE KHANNA –

Law of preventive detention, of detention without trial is a curse to all those who love personal
liberty. It is intended to balance the conflicting viewpoints that the framers of the Constitution
made express provisions for preventive detention and at the same time inserted safeguards to
prevent abuse of those powers and to mitigate the harshness of those provisions. There was a
dilemma for the framers of the constitution that whether they should prioritize the liberty of their
citizens or the security of the state and this dilemma was not laid to rest during the drafting of the
constitution. The state has got no power to deprive any person of their life and liberty without
the authority of law, even in the absence of Article 21. This is the basic assumption of the rule of
law and not of men in all civilized nations. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to have any
meaning.

CONCLUSION –
Such directives provide for a provisional ban on any judicial investigation into the validity of an
order denying the rights and liberty of any citizen, irrespective of how it started, either by an
order coordinating the imprisonment or by an order setting out the state of his incarceration.
Many of the views seen in the case of Shivkant Shukla is negated by the 44th amendment of the
Constitution and even by legal elucidation, and it is no longer a statute in these respects. In no
condition can the execution of Articles 20 and 21 be suspended at present and the Court has
observed that Article 21 binds the official as well as the assembly and consequently amends the
role of Justice Khanna that the suspension of Article 21 calms the legislative body of its
imperatives, but not the official who, without the expert of law and the expert of freedom, can
never deprive a man his life and liberty. After the repudiation of the declaration of the
Emergency in 1971 and 1975, in mid-1977, Articles 352 and 359 have not been summoned.
Similarly, the 44th amendment transformed “inside aggravation” into “outfitted defiance” and
not adding up to furnished insubordination would not be a basis for the crisis proclamation issue.
Numerous other provisions were made in the 44th Amendment for the announcement of
emergencies so that no administration would misuse this legislative arrangement that was
unlawfully deciphered by the Supreme Court in the future. The proclamation and discretionary
use of force by the state apparatus and the unceasing adoption of the human liberties of separate
persons alongside the judicial stamp can be seen as one of the most misguided decisions to date.
Incomparable Court, after facing feedback on the decision and damage it had done, went ahead
to extend the elucidation of Article 21 and familiarised Public Interest Litigation with increasing
transparent authenticity. The incorrect elucidation led to an invasion of constitutional rights on
instincts and on behalf of a political official who had to execute her plan.
Although the judgment is said to be an oversight in several occurrences by legal experts and the
Hon’ble Supreme Court, even in the aftermath of acknowledging the error, the ruling has not
been officially overruled. The offices of Justice Ashok Ganguly and Justice Aftab Alam noticed
this. Dicey’s Rule of Law, explained by Justice Khanna, has a considerably more influential push
than what it was in 1976 in today’s unusual circumstances. This decision must be overruled
unambiguously to justify the abstract existence of the Rule of Law alongside its applicability to
our legal system. In addition, more provisions should be made to ensure that the equity and value
of the nation’s people could not be controlled by a political strategy.