ADM Jabalpur v. Shivkant Shukla : Case Comment.

Case Comment

ADM Jabalpur v. Shivkant Shukla


(1976) 2 SCC 521; AIR 1976 SC 1207


Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M. Hameedullah, Chandrachud, Y.V., Bhagwati, P.N.

Author : Vikram Nagpal, HNLU Shimla.



The said case pertains to the time of Proclamation of Emergency by the then ruling government of Indira Gandhi and Presidential order of the same was issued when the election of Indira Gandhi was termed to be illegal. The case arose out of contention that whether the right of a person to approach respective High Court gets quashed when his fundamental rights are not given or suppressed, especially Article 14, and 21 during the emergency and enforcement of such rights remain suspended for the period of Proclamation of Emergency in force. The judgment was delivered on April 28th, 1976 by the Constitutional bench of five judges including the then Chief Justice A.N. Ray, out of which four were in favour of the suspension of such right and liberty and one dissenting rejected such contention. As far as majority of the judgment goes, it was established that a person’s right to approach High Court under Article 226 of the Indian Constitution for Habeas Corpus or any other writ challenging the legality of an order of detention at the time of Proclamation of Emergency remains suspended and that person cannot approach any High Court for the remedy or get his right. This case was infamously called as Habeas Corpus case. Till date, the decision taken by the Court holds badly on the ground of equity, justice and good conscious. The Latin term Habeas Corpus means “you may have the body” and writ of securing a person’s liberty is called Habeas Corpus.



It all started with the election of Mrs Indira Gandhi, the then Prime Minister, which had been held to be invalid by the Allahabad High Court. Indira Gandhi lost her election case on June 12, 1975 and on her appeal in the Supreme Court she was only granted a conditional stay. As a result, she could neither vote nor speak in the Lok Sabha. She became a dysfunctional Prime Minister. Wanting to cling to the chair at any cost, she chose to declare an emergency as on 25thJune 1975 – the pretext being ‘internal threat’ to India.  Any person who was considered to be a political threat, or who could politically voice his opposition was detained without trial under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security Act).Immediately thereafter, on June 25, 1975, she proclaimed a state of internal Emergency. In a midnight swoop, most of the prominent Opposition leaders including Jayaprakash Narayan, Morarji Desai, Atal Behari Vajpayee and L K Advani were detained without charges and trial. The fundamental rights to life and liberty (Article 21) and equality (Article 14) were suspended.



On June 25th, 1975 the President in exercise of powers conferred by clause (1) of Articles 352 (Proclamation of Emergency) of the Constitution declared that a grave emergency existed whereby the security of India was threatened by internal disturbances. On June 27th, 1975 in exercise of powers conferred by clause (1) of Articles 359 the President declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the proclamations of emergency made under clause (1) of Article 352 of the Constitution on December 3rd, 1971 and on June 25th, 1975 were in force. The Presidential Order of June 27, 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause (1) of Article 359 of the Constitution.

On January 8th, 1976 there was a notification passed in the exercise of powers conferred by clause (1) of Article 359 of the Constitution whereby the President declared that the right of any person to move any to court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights would remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on December 3rd, 1971 and on June 25th, 1975 were in force. Several illegal detentions were thereupon made across the country, pursuant to which various writ petitions were filed throughout the country. Nine High Courts gave decision in favour of detunes, holding that though Article 21 cannot be enforced, yet the order of detention was open to challenge on other grounds such as that the order passed was not in compliance of the Act or was mala fide. Against these orders, many appeals were filed before the Supreme Court. Disposing of all the appeals together, the Supreme Court set aside that the decisions of the High Courts which had held the declaration and the subsequent detentions as illegal and upheld the declaration and suspension of the said rights.



  1. Whether a writ petition under art. 226 before a High Court is maintainable to enforce the right to personal liberty during an emergency declared under clause (1) of art. 359 of the constitution?
  2. If such a petition is maintainable, what is the scope of judicial scrutiny in view of presidential order?



In view of the Presidential order dated June 27, 1975, under Clause (1) of Art. 359, no person has locus standi to move writ petitions under Art. 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Maintenance of Internal Security Act, 1971 on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fide. In times of emergency, the executive safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered. Queen v. Halliday Ex ParteZadiq[1], referred. to. Liberty is confined and controlled by law, whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged.

The purpose and object of Art. 359(1) is that the enforcement of any Fundamental Right mentioned in the Presidential order is barred or it remains suspended during the emergency. The scope of Art. 359(1) is not only to restrict the application of the Article to the legislative field but also to the acts of the Executive. The object of Article 359(1) is not only that the right to move this Court only is barred but also the right to move any High Court the bar created by Art. 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential order whether by way of an application under Art. 32 or by way of an application under Art. 226. An application invoking habeas corpus under s. 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court. Article 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and treat to the security of India by internal disturbance to another hand. Powers of President U/A 352(1) and 359(1) of our constitution are immune from challenge in courts even when the emergency is over. Section 16A(9) of maintenance of internal security act (MISA), 1971is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of High Court under Art. 226.

Section 16A(9) of MISA enacts a genuine rule of evidence and it does not detract from or effect the jurisdiction of the High Court under Article 226 of the constitution and hence cannot be successfully assailed as invalid. Further section 18 of the MISA does not suffer from the vice of excessive delegation and is valid piece of legislation. Part III of the constitution confers fundamental rights in positive as well as in negative language. The limits of judicial review have to be co-extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights. The theory of the basic structure of the constitution cannot be used to build into the constitution an imaginary part which may be in conflict with the constitutional provisions.


Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty.It is with a view to balancing 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 rigour and harshness of those provisions. The dilemma which faced the Constitution makers in balancing the two conflicting viewpoints relating to liberty of the subject and the security of the State was not, however, laid to rest for good with the drafting of the Constitution. Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised 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.

It was held that in view of the presidential order dated June 27,1975 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 was illegal or was vitiated by mala fides factual or legal or is based on extraneous consideration.



Upon the analysis of the judgment, there are multiple observations on the given case. The Supreme Court, in this case, observed that Article 21 covers right to life and personal liberty against its illegal deprivation by the State and in case of suspension of Article 21 by Emergency under Article 359, the Court cannot question the authority or legality of such State’s decision. Article 358 is much wider than the Article 359 as fundamental rights are suspended as whole whereas Article 359 does not suspend any rights. Even being Emergency provisions under Article 359 (1) grants special power and status to the Executive, it does not undermine the essential components of the sovereignty of separation of powers, leading to a system of check and balance and limited power of the Executive. The nexus between State and Executive is erroneous and the effect of suspension of such rights will only result in extra power to legislature which might create laws against fundamental rights. This act should not be considered as a “power” of the Executive or right of it. There is a legal extent till which a State can act in or against the citizens and in this case, it was high misuse of power of personal political gain of a single person. During Emergency, it is nowhere mentioned that the power of State “increases” from its original power under Article 162. Also, State only holds the right of arrest if the alleged act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is unfulfilled then detention is beyond the power of State. The decision by the Supreme Court is said to be the biggest erroneous judgment till date. The dissenting opinion of Justice Khanna still holds more value than the majority judgment including the then Chief Justice. The wrong intent of Indira Gandhi’s government was seen when Justice Khanna was to ask the first uncomfortable question. “Life is also mentioned in Article 21 and would Government argument extend to it also?” There was no escape. Without batting an eyelid Niren De answered, ‘Even if life was taken away illegally, courts are helpless’. Before Proclamation of Emergency there was strong political instability in the Country after the Lok Sabha election of Indira Gandhi was termed as illegal. This whole exercise was to put opposition under pressure and during the process, even Supreme Court made major errors in the judgement and it can be said to be purely unconstitutional. Only the courage of single judge is said to be worth reading and it was in favour of humanity 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.” The day when this judgment was pronounced, it was termed as “darkest day of the democracy” and it was matched with the regime and rise of Hitler. On top of all, this judgment did not favour rule of law. As a judge, the focus is on public benefit or on something which is good for the population but this judgment seemed to favour only one person. The judgment in this case can be compared to the judgment of Raj Narain’s case where Indira Gandhi was given a clean chit by the Supreme Court after being held guilty by Allahabad High Court. One can say that common man’s trust on judiciary has been shaken by these two judgments which happened almost simultaneously. Justice Khanna solely relied on the judgment of Makkhan Singh v. State of Punjab[2] in which he noted: “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”. Suspension of Article 21 would simply mean deprivation of right of life and liberty and this is against the basic right along with the Articles of Universal Declaration of Human Rights of which India is a part. This single case became an example of how four able judges of the apex court of the country made a blunder under the wrong influence of the wrong person. The Supreme Court violated all fundamental rights with that decision. It was the darkest hour of Indian judiciary which struck at the very heart of fundamental rights. All four judges with the exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice Bhagwati expressed regret 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 acceptance from the judge means how grave the situation was that time and what impact it left on India. 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”



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[3] 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[4]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[5]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 fulfilment of any particular condition laid before.

These orders establish a temporary prohibition on any and each judicial enquiry into the 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 mid1977. Likewise, the 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 an 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 arbitrary use of power by the State machinery and taking away the personal liberty of a number of people along with judicial stamp can be considered one of the most erroneous judgment till date. Supreme Court went on to elaborate on the interpretation of Article 21 and introduced Public Interest Litigation to gain public legitimacy after it faced criticism over the judgment and damage it had done. The wrong interpretation led to infringement of fundamental rights on whims and fancy of a political figure that had her agenda to fulfil. While the judgment is said to be a mistake on many occasions by jurists and apex court, the ruling has not been overruled formally even after admitting the error. This was noted by the bench of Justice Ashok Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which was explained by Justice Khanna holds much greater force than what it was in 1976. There has to be a clear overruling of this judgment so that the 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 political agenda should overshadow the justice and equity of citizens.

[1][1917] AC 210.

[2]1964 AIR 381, 1964 SCR (4) 797

[3]1978 AIR 597, 1978 SCR (2) 621.

[4]1950 AIR 27, 1950 SCR 88.

[5]1977 AIR 1027, 1977 SCR (2) 719.