Chapter 3: A.D.M Jabalpur v.

Shivkant Shukla

3.1: Facts of the case: On June 25, 1975, invoking authority granted by Article 352(2) of the
Constitution, the President declared a state of emergency, citing serious internal threats to
India's security. Subsequently, on June 27, 1975, utilizing powers bestowed by Article 359(1),
the President suspended the right of any individual, including foreigners, to seek recourse in
court regarding the rights guaranteed under Articles 14, 21, and 22.

During the period of emergency proclamation, both the Constitution and ongoing court
proceedings pertaining to the rights were suspended. Furthermore, a Presidential Ordinance
issued on June 27, 1975, clarified that this suspension was not only supplementary but also
applicable to any previous orders issued prior to the mentioned date in Article 359(1) of the
Constitution. Additionally, on June 29, 1975, through another decree, the President extended
the provisions of the June 27, 1975 order to apply to the State of Jammu and Kashmir.

The President issued Amendment Orders Nos. 1 and 7 of 1975, subsequently replaced by the
1975 Domestic Security Maintenance Act No. 39. This Act introduced a new Article 16A and
enacted Article 7, with some provisions effective from June 25, 1975, and others from June
29, 1975. Additionally, Section 18 was inserted into the Act, effective from June 25, 1975.

Further amendments were made on October 17, 1975, through an order that introduced
paragraphs 16(8) and (9) to Section 16A of the Maintenance of Homeland Security Act. On
November 16, 1975, Ordinance No. 22 of 1975 brought additional changes to the law on
internal security maintenance, including the insertion of paragraph 2A into Article 16A.
These amendments retroactively validated previous laws. These orders were officially
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) in conjunction with Article 3(2) of the Internal
Security Maintenance Act challenged the law in various superior courts. They contested the
constitutionality and operability of the law based on the President's order of June 27, 1975,
which declared it unconstitutional and ineffective, demanding the annulment of that order and
immediate release.

The legality of amendments to Articles 38 and 39 was also questioned. However, the
maintainability of the release requests on grounds of habeas corpus writ issuance was
preliminarily objected to by the plaintiff, arguing deprivation of personal liberty in violation
of due legal procedure.

Considering only Article 21 of the Constitution and the presidential order of June 27, 1975,
which suspended the right to seek enforcement of rights under this article, petitions could be
dismissed at the outset. While the superior courts of Andhra Pradesh, Kerala, and Madras
upheld the preliminary objection, several other courts including those of Allahabad, Bombay
(Nagpur Bench), Delhi, Madhya Pradesh, Punjab, and Haryana did not favor this view.
Discontented by the decisions of multiple superior courts, the state and central governments
appealed to the Supreme Court.

Chapter 3.2: Arguments-

Petitioner's Argument:

The petitioner contends that detainees are being unlawfully held by the State despite the
Advisory Council deeming their arrest unjustified, which violates the provisions of Article 22
regarding habeas corpus. Even though Article 22 itself is a fundamental right, the suspension
of the right to appeal to a court for enforcement of rights under Article 19, as ordered by the
President under Article 359(1), exacerbates this violation. Suspending the right to seek
judicial recourse for the protection of life and liberty, as allowed by constitutional provisions,
does not justify the State's actions as constitutional.

Respondent's Argument:

The respondents argue that the purpose of Article 359(1) is to enable the legislature to
function freely during an emergency, allowing it to enact laws that may temporarily infringe
upon fundamental rights as per the presidential order. They assert the existence of the
Maintenance of Internal Security Act of 1971, which governs pre-trial detention and
mandates compliance with its provisions for arrest warrants approved by the executive.
Additionally, they contest the notion that Article 21 alone safeguards the right to life and
personal liberty, pointing out that non-fundamental constitutional rights from Articles 256,
265, and 361(3), as well as natural, contractual, and legal rights to personal liberty, remain
unaffected by the presidential order. The respondents also argue that the preamble of the
Constitution establishes India as a sovereign democratic republic, implying that executive
authorities, subordinate to the legislature, cannot infringe upon citizens' rights beyond what is
permitted by law.
Chapter 3.3: Issue Involved-

The ADM Jabalpur vs Shivkant Shukla case, also known as the Habeas Corpus case, revolved
around the question of whether an individual's right to life and personal liberty, as guaranteed
by Article 21 of the Indian Constitution, could be suspended during a state of Emergency.
This case stemmed from the Emergency declared in India in 1975, during which civil liberties
and fundamental rights were curtailed.

Shivkant Shukla, a political activist, was arrested and held without trial under the
Maintenance of Internal Security Act (MISA) during the Emergency. Shukla's wife filed a
petition for a writ of habeas corpus, seeking his release and challenging the legality of his
detention. The key issue before the court was whether the judiciary had the authority to
examine the validity of Shukla's detention and whether Article 21's protection of the right to
life and personal liberty could be suspended during an Emergency.

In a split decision of 4-1, the Supreme Court ruled that during a state of Emergency,
individuals' rights to life and personal liberty could be suspended, and courts were not
empowered to interfere with detentions under preventive detention laws like MISA.

Chapter 3.4: Judgment-

After more than two months of deliberation, the Supreme Court finally reached a decision
after a sentencing application was filed. The court ruled, with a majority of four to one, in
favor of the government. Only Judge Khanna dissented, displaying courage in upholding
human rights and freedom. He anticipated the repercussions of his decision, understanding
that it might cost him his position as the President of the Supreme Court of India.

The judgment, delivered by the majority, concluded that due to the presidential order of June
27, 1975, no individual had the right to file an application for habeas corpus or any other
legal recourse contesting the legality of arrest warrants. Judge Khanna's dissenting opinion
reflected his commitment to justice and independence, quoting Judge Huges to emphasize the
importance of maintaining judicial independence even in the face of disagreement.

The other four judges, including Chief Justice A.N. Ray, Justice Beg, Justice Chandrachud,
and Justice Bhagwati, were perceived to have favored the government. Chief Justice Ray's
controversial appointment by Indira Gandhi and his close ties to her administration raised
concerns about his impartiality. Judge Bhagwati, though known for advocating individual
liberties, demonstrated a diplomatic approach that aligned with the government's position.

In retrospect, Judge Bhagwati admitted that the majority judgment was flawed,
acknowledging that he was initially inclined to support Judge Khanna's dissent. However, he
conceded to the majority opinion under pressure, regretting his decision as an act of
weakness. The trial, often regarded as a dark day in Indian democracy, drew parallels to
Hitler's rise to power and his authoritarian regime. The Emergency Proclamation during
Indira Gandhi's tenure curtailed fundamental rights, reminiscent of Hitler's use of decrees to
suppress opposition and consolidate power.

The demeanor of the judges during the trial reflected the political climate, with discomforting
questions regarding the Nazi holocaust and attempts to downplay its significance. Judge
Bhagawati later admitted his error, expressing regret for not aligning with Judge Khanna's
dissent, which he believed to be the correct stance.

In hindsight, Judge Bhagawati acknowledged the weakness of his decision and expressed
remorse for not standing firm in defense of justice and human rights.

Chapter 3.5: A.D.M Jabalpur v. Shivkant Shukla in the light of natural law and positive
law – the conflict:

The case of ADM Jabalpur vs Shivkant Shukla, commonly known as the Habeas Corpus case,
exemplifies the clash between natural law and positive law principles.

Natural law theory posits that certain moral principles are inherent in nature and universal,
transcending human laws. These principles form the basis for fundamental rights and are
immutable. In contrast, positive law refers to written laws enforced by the state, including
statutes and regulations.

In ADM Jabalpur, the Indian Supreme Court had to decide whether, during a state of
Emergency, the government could suspend an individual's right to life and personal liberty
guaranteed under Article 21 of the Indian Constitution. The court ruled that during an
Emergency, these rights could be suspended, and courts could not intervene in detentions
under preventive detention laws like MISA.
This decision conflicted with natural law principles, which assert that fundamental rights are
inherent and cannot be infringed upon by any authority. Critics argued that the court's
decision undermined these universal rights and allowed the government to violate them.

However, positive law principles prioritize the maintenance of order and security, especially
in exceptional circumstances like a state of Emergency. The Supreme Court's decision
reflected this, recognizing the authority of the state to suspend rights in the interest of public
welfare.

While natural law theory emphasizes moral principles, positive law acknowledges the
practical realities of governance. In ADM Jabalpur, the suspension of rights was deemed
necessary to ensure stability during a crisis. This case underscores the tension between
philosophical ideals and legal pragmatism in judicial decision-making.

Chapter 3.6: Social Contract and the Constitution-

The resolution to enforce natural rights within a society often lies in the adoption of a social
contract—a mutual agreement among the members of society to abide by certain norms. This
contract gives rise to the establishment of a political State, government institutions, and a
system of law and order, including police and armed forces.

Under this framework, the State assumes the responsibility to uphold the inherent rights of
individuals. However, it's crucial to recognize that while the origins of these rights lie outside
the social contract, their enforceability stems from it.

For independent India, the Constitution serves as its social contract. Adopted by the
Constituent Assembly, which comprised representatives indirectly elected by the populace,
the Constitution embodies the collective will of the people.

The Preamble of the Constitution emphasizes this aspect, serving as the enacting clause,
declaring, "WE, THE PEOPLE OF INDIA... ADOPT, ENACT AND GIVE TO OURSELVES,
THIS CONSTITUTION."

However, India's version of the right to life under Article 21 of the Constitution might be
perceived as inconsistent with the natural right to life. The natural right to life, inherent in
nature and independent of the State, is absolute and unconditional. In contrast, Article 21
allows for limitations on this right through just, fair, and reasonable laws.
This inconsistency creates a paradox. For instance, while Article 21 includes the right to
privacy, it may be restricted by proportionate laws, as established in the landmark case of
Justice K.S. Puttaswamy (Retd) & Anr. vs. Union of India & Ors. (2018).

Consider a hypothetical scenario where a law mandates the installation of CCTV cameras in a
village, deemed proportionate and compliant with Article 21. Despite its legality, such
legislation would still contravene the inviolable natural right to life, including privacy, which
exists independently of constitutional provisions. Thus, a conflict arises between the natural
right to life and Article 21, necessitating the prioritization of one over the other in legal
interpretation and application.

Chapter 3.7: Why ADM Jabalpur case was legally correct?

The overriding effect in determining rights should be conferred upon Article 21 of the
Constitution. This is because our social contract, embodied in the Constitution, has expressly
adopted a version of the right to life as articulated in Article 21. The inclusion of Article 21
signifies the deliberate choice within the social contract to exclude the operation of the
natural right to life.

Allowing the natural right to life to supersede Article 21 would render the latter ineffective,
as any legislation curtailing the right to life under Article 21 would be invalidated. This
principle is encapsulated in the legal maxim "expressio unius est exclusio alterius."
Consequently, Article 21 would lose all legal efficacy if absolute natural rights were invoked
using Article 226 to strike down laws.

Thus, our social contract must be viewed as a comprehensive source of enforceable rights,
with Article 21 being the chosen avenue for the enforcement of the right to life. This selection
does not negate the existence of the natural right to life. However, given that Article 21
expressly excludes the enforcement of the natural right to life, Article 226 cannot be utilized
for its enforcement.

Therefore, it is argued that the majority decision in ADM Jabalpur is correct in prioritizing
Article 21 over the natural right to life.
Chapter 3.8: The enduring importance of constitutionalism to justice-

Despite the argument for the legal correctness of the decision in ADM Jabalpur, it is
acknowledged that the ruling represented a low point for both the Constitution and the apex
court. Dr. B.R Ambedkar, Chairman of the Drafting Committee of the Constitution, often
emphasized the concept of Constitutionalism, which extends beyond the text of the
Constitution and embodies the practice of Constitutional ideals to uphold justice, equality,
and fairness in society. Dr. Ambedkar believed that a commitment to the principles of the
Constitution was essential for a functioning polity.

If Constitutionalism is lacking among the citizenry, even the most flawless Constitution is
susceptible to injustice. Conversely, if citizens embrace the ideals of Constitutionalism, a
nation can thrive despite imperfections in its Constitution.

Lawyers and judges, despite their legal duties, are first and foremost citizens. It is the spirit of
Constitutionalism that ultimately ensures justice. Therefore, there are occasions when it is
necessary to subject everything, including the law, to the principles of justice. The Supreme
Court has been called upon numerous times to adjudicate on significant issues affecting civil
and human rights, and in some instances, despite the letter of the law indicating otherwise,
the Court has practiced Constitutionalism to safeguard citizens' rights.

For instance, in Maneka Gandhi vs. Union of India (1978), substantive due process was
reintroduced in Article 21, despite textual indications against it. Similarly, in Vishaka & Ors.
vs. State of Rajasthan & Ors. (1997), the Court established detailed guidelines to protect
women from sexual harassment in the workplace.

In this context, ADM Jabalpur should be regarded as one of the darkest moments in the
history of the Supreme Court. Despite legal intricacies, the Court failed to embrace
Constitutionalism in its approach and attitude. It overlooked the fact that law serves as a
means to an end, rather than an end in itself.