ADM JABALPUR V. SHIVKANT SHUKLA

 

CASE COMMENT

ADM JABALPUR V. SHIVKANT SHUKLA

By Shweta Nair

 

Petitioner- Additional District Magistrate

Respondent- Shivkant Shukla

Citation- 1976 (2) SCC 521; AIR 1976 SC 1207

Date of Judgement- 28^th April 1976

Judge Bench- A.N. Ray, Hans Raj Khanna, Mirza Hameedullah Beg, Y.V. Chandrachud, P.N. Bhagwati

 

INTRODUCTION

 

This case is well known as the ‘Habeas Corpus’ case. But it has a murky side to it. This case had arisen due to an emergency which was executed by the then Prime Minister of India- Mrs. Indira Gandhi through a declaration made by the President of India Mr. Fakhruddin Ali Ahmad on 25^th June 1975 under the power conceded by Article 352 of the Constitution of India. Mrs. Indira Gandhi had delivered a Presidential Order when her Prime Ministerial Election was avowed as unlawful by the court. Whether an individual has the right to approach High Court when there is violation of fundamental rights especially with regards to Article 21- Right to Life and Personal Liberty and Article 14- Right to Equality. This was the major dispute behind the case. However, it was held that during proclamation of emergency, the right of an individual to move the High Court under Article 226 including other writs will remain deferred.

 

FACTS OF THE CASE

 

On 25^th June, 1975, the President with the help of his powers,approved by Article 352(1) of Indian Constitution, professed that there was a crucial emergency whereby the security of India is endangered by the internal turbulences. On 27^th June, 1975 , by exerciseof the powers that are bestowed under Article 359 of the Constitution, it was avowed that the right of any individual including those of theimmigrants to approach any court for imposing their rights which have been bestowed to them under Article 14, 21 and 22 of the Constitution and also all the proceedings that are incomplete in the court for the above stated rights will remain deferred during the period of proclamation of emergency which was made under Article 352 of Indian Constitution.

 

On 8^th January, 1976 with the help of the powers provided under Article 352 of Constitution, the President approved a notification affirming that right of any individual to approach any court for enforcing the right, provided to them under Article 19 of the Constitution and also all the proceedings that are undecided in the court for the aforementioned right will remain deferred during the period of proclamation of emergency. Thereupon, several unlawfulconfinements were made including the custody of some most bulbous leaders such as Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee and L.K. Advani who were imprisoneddevoid of any charges and trial. Owing to this,several writ petitions were filed all over the country. Nine High Courts decided in favour of the detunes by holding that even if the Article 21 cannot be imposed, yet the order of confinement can be verified as it was not in compliance of the Act or was malafide. Moreover, against such orders,several appeals were also filed under the Supreme Court.

 

CONTENTIONS OF THE PARTIES

 

PETITIONER’S CONTENTIONS:

 

The key contention of the state was that the main aim of granting the emergency provisions in the Constitution of India is that during emergency, the Executive will have the power to make a complete will over the operation of laws of the state by exercising the exclusive powers bestowed to them by the Indian Constitution, but while exercising these powers, the state should be given greatest significance.

Further, they also asserted that the state does not release the detenues notwithstandingthe view of the advisory board that there is no adequate cause for their confinement. Hence, keeping them in custody without any reason is abreach of their fundamental right which has been granted under Article 22 of the Constitution of India. Additionally, the detenues 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 delivered under Article 359(1) of Indian Constitution. The deferment of these rights is through the provisions of the Constitution and therefore, it cannot be stated that the subsequent situation would denote dearth of rule of law.

Additionally, the fact that the Emergency provisions granted in the Constitution comprising of Articles 358, 359(1) and 359 (1A) are Constitutional requirements as the military and the economic security of nation advance everything else. So, the legitimacy of Presidential Order under Article 359(1) cannot be dared on the ground that it is infringing the Fundamental Rights of the citizens which has been deferred by the aforementioned article.

RESPONDENT’S CONTENTIONS:

It was asserted by the respondents that the point of Article 359(1) is to eliminate the limitations on the powers of the legislatures so that during emergency, it is permitted to disrupt the fundamental rights of the inhabitants which have been provided to them by the Indian Constitution. They additionallycontended that there is an act termedas Maintenance of Internal Security Act 1971 which is in force to regulate pre-trial detentions. Hence, Article 21 cannot be believed as the solitarybank of the right to life and personal liberty.

They also claimed that the non-Fundamental rights which have been resulting from the Articles 256, 265 and 361 (3), neither the natural or contractual rights and nor the legal rights to personal liberty are unpretentious by the Presidential order. Such rights can be only taken away by the statute and not by the Executive Department.

It was additionallycontended that state and its officers have right to arrest only if the imprisonment falls under Section 3 of the MISA Act and also the conditions provided under the said section were satisfied. However, if any conditionis unsatisfied then the confinement will be deemed“beyond the powers of the Act”.

ISSUES INVOLVED

The issues in the said case were-

·       Whether, during Proclamation of Emergency after President’s order, can the writ of Habeas Corpus be preserved in High Court by an individualchallenging his unlawful detention?

·       Was deferment of Article 21 appropriate under rule of law?

·       Does detenue hold any locus standi in Court all through the phase of Emergency?

 

 

JUDGEMENT OF THE HONOURABLE COURT

 

The Presidential order on 27 June 1975 stated that no individual has a locus standi to move any writ petition before a High Court under Article 226 for habeas corpus or any other writ or order or direction to contest the validity of anorder of imprisonmentdue to the fact that the order is not in acquiescence with the Act or is unlawful or is corrupted by malafide, factual or legal or is based on superfluouscontemplation.

The judgement was given by four out of five judges. They were the then Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. It was Justice Khanna who gave the dissenting judgementand who ended his judgment by saying “As observed by Chief Justice Hughes, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.” He paid the price of his opinion when his junior M.H. Beg was appointed as Chief Justice bypassing him in seniority. In M.M. Damnoo v. State of J&K, the Court needed the State Government to generate the file limiting the grounds of imprisonment so that the Court could content itself that “the grounds on which the detenu has been imprisoned have bearing to the security of the State”. It would, then, be seen that if there is a legislative provision which forbidsrevelation of the grounds, info and materials on which the order of detention is based and averts the Court from calling for the production of such grounds, information and materials, it would hinder and retard the exercise of the constitutional power of the High Court under Article 226 and would be annulled as offending that Article.

CONCLUSION:

The Declaration and capricious use of power by the State machinery and taking away the personal liberty of the people along with judicial stamp can be deliberated one of the most blemished judgments till date. Supreme Court went on to explain the interpretation of Article 21 and presented Public Interest Litigation to advance public legitimacy after it met withdisapproval over the judgment and harm it had done. The incorrect interpretation resulted in violation of fundamental rights on whims and fancy of a political character that had her plan to achieve. While the judgment is said to be anerror on several occasions by judges and apex court, the ruling has not been overruled officially even after acknowledging the mistake. This was observed by the bench of Justice Ashok Ganguly and Justice Aftab Alam. There has to be a clear overruling of this judgment so that theoretical nature of Rule of Law can be made clear along with its applicability to our justice system. Also, further provisions shall be made to ensure that no dogmatic agenda should outshine justice and equity of citizens.