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:
- 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.
- 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).
- 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.
- 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.
- 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:
- 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.
- 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.
- The Presidential Orders imposed were valid only with respect to fundamental rights and did not extend to Natural Law, Common Law or Statutory Law.
- 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
- The argument proceeds, there being a valid law regulating preventive detention passed by the Executive must conform to the conditions prescribed by that law.
- The respondents’ arguments that article 21 is not the sole repository of the right to life and personal liberty.
- 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.
- 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 26th 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.
Edited by Vedanta Yadav
Approved & Published – Sakshi Raje
[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
