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- 28th 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 25th 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 25th 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 27th 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 8th 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.
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