Scribd
Upload
256 views

ADM, Jabalpur v. Shivakant Shukla: Union of India v. Bhanudas Krishna Gawde

The document summarizes several important Supreme Court cases related to the suspension of fundamental rights during a state of emergency in India. It discusses how the courts initially legitimized the suspension of habeas corpus and judicial review of detentions during emergencies, but later cases established limitations and that certain fundamental rights could still be enforced. The document analyzes the shift in jurisprudence around the scope of rights suspension during emergencies over several decades of case law.

Uploaded by

sai kiran gudiseva
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
256 views

ADM, Jabalpur v. Shivakant Shukla: Union of India v. Bhanudas Krishna Gawde

The document summarizes several important Supreme Court cases related to the suspension of fundamental rights during a state of emergency in India. It discusses how the courts initially legitimized the suspension of habeas corpus and judicial review of detentions during emergencies, but later cases established limitations and that certain fundamental rights could still be enforced. The document analyzes the shift in jurisprudence around the scope of rights suspension during emergencies over several decades of case law.

Uploaded by

sai kiran gudiseva
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 4

ADM, Jabalpur v.

Shivakant Shukla1

“Facts:In 1975, the President on the advice of the Prime Minister declared Emergency under
Article 352 on the ground that the security of India was threatened by internal disturbance
and also issued an order under Article 359 suspending the right of access to the courts for the
enforcement of rights enshrined in Articles 21, 22 and 14. After that Parliament amended the
Maintenance of Internal Security Act, 1971 and conferred extraordinary powers on the
government to detain a person without trial.”

“Issue:A question arose whether the writ of habeas corpus under Article 226 could be issued
to release a detenu on the ground that his detention was inconsistent with the provisions of
the MISA or was mala fide?”

Contentions:

“It was contended that the object of the Presidential Order under Article 359 was to remove
fetters on the legislature so that during emergency it was free to make laws in violation of the
fundamental rights mentioned in the order; suspension of the right to enforce fundamental
rights could not confer any right on the Government to flout the law, be it Emergency or
peace time. It was further contended that the obligation of the Government to act according to
law stems from the inherent compulsion of the rule of law, and the suspension of Article 21
did not automatically entail the suspension of the rule of law.”

“The inquiry in a habeas corpus petition entails whether the detention is justified by law, and
it is not shut out by the suspension of the right to enforce fundamental rights, otherwise it
would necessarily mean that during the emergency no person has any right to life or personal
liberty.”

Judgement:

“The Supreme Court, legitimized the suspension of the writ of habeas corpus during the
period of Emergency on the basis of higher claims of national security. In other words, the
detenue had no locus standi to file the writ petition and question the reasons or grounds of
detention.”

Union of India v. Bhanudas Krishna Gawde2


1
AIR 1976 SC 1207
2
AIR 1977 SC 1027
“Following the Shivakant Shukla case, the Supreme Court in this case, went one step further
and held that the”

“Presidential Orders issued under Article 359 were not circumscribed by any limitation and
their applicability was not made dependent upon the fulfilment of any condition precedent. It
was further held that these orders imposed a blanket ban on any and every judicial inquiry or
investigation into the validity of an order depriving a person of his personal liberty no matter
whether it originated from the initial order directing the detention or from an order laying
down the condition of his detention.”

“The majority view in Shivakanth Shukla case3 has been completely negatived by the Forty-
fourth Amendment of the Constitution as well as judicial interpretation and therefore it is no
longer the law. Now the enforcement of Articles 20 and 21 cannot be suspended in any
situation and the Court has held that Article 21 binds not only the executive but also the
legislature thereby implying the correctness of Justice Khanna‘s minority view that
suspension of enforcement of Article 21 relieves the legislature of its constraints but not the
executive which can never deprive a person of his life or liberty without the authority of
law.”

Minerva Mills v Union of India4


“In this case it was held that there is no bar on judicial review of the validity of Proclamation
of emergency issued by president under Article 352(1), the courts power is however limited
only to examining whether the limitations conferred by constitution are observed or not.”

“The Court cannot go into the question of correctness or adequacy of the facts and
circumstances on which satisfaction of government is based upon.”

M.M Pathak v Union of India5

“The Supreme Court had an occasion to consider the effect of the expression “ the things
done o omitted to be done” in Article 358 for proclamation of emergency.”

“Settlement was made between LIC of India and its employees in 1971 under which LIC
agreed to pay in cash bonus to its employees, in 1977 however by LIC(Modification of
Settlement Act), 1976 was passed by parliament during emergency the settlement was done

3
AIR 1976 SC 1207
4
AIR 1980 SC 1789
5
AIR 1978 SC 803
ineffective and therefore the employees could not demand their bonus during the emergency
which was in force then.”

“Supreme Court held: The effect of Proclamation of Emergency on fundamental rights is that
rights guaranteed by Articles 14 and 19 are not suspended during emergency but only their
operation is suspended.”

“State of Maharashtra v. Prabhakar6 the Supreme Court held that if a person was mired of
his personal liberty not under the Defence of India Act, or any rule made Manda but the
contravention thereof, his right to move the said courts in that regard would not be
suspended.”

Ram Manohar Lohia v. State of Bihar7

“Court held the order of detention under the Defence of India Rules illegal on the the order of
detention was inconsistent with the conditions laid down in the Defence of India Rules. In
this case Dr. Ram Manohar Lohia was detained by an order of District Magistrate to whom
the power was delegated by the Government under Section 40 (2) of the Defence of India
Act, 1962. The order stated that the District Magistrate was satisfied that with a view to
prevent the petitioner from acting in any manner prejudicial to the” “public safety and the
maintenance of law and order” it was necessary to detain him. The expression used “for this
purpose” under the Defence of India Rules was “public safety and maintenance of public
order”.

“The Court held that the order of the President did not form a bar to all applications for
release from detention under the Act or the Rules. Where a person was detained in violation
of the mandatory provisions of the Defence of India Act his right to move the court was not
suspended.”

“The Court held that the order of the President did not form a bar to all applications for
release from detention under the Act or the Rules. Where a person was detained in violation
of the mandatory provisions of the Defence of India Act his right to move the court was not
suspended”

Mohd Yaqub v State of Jammu and Kashmir8

6
AIR 1966 SC 424
7
AIR 1966 SC 740
8
AIR 1968 SC 765
“The Supreme Court held that an order by the President under Article 359 (l) was not ‘law’
within the meaning of Article 13 (2) and therefore, its validity could not be challenged with
reference to the provisions of Part III, Thus if the order suspends the enforcement of Article
14, it cannot be challenged on the ground that it is discriminatory under Article 14.”

“The validity of the order cannot be tested under the very fundamental rights which can be
Article 14, which it is suspended.”

The Supreme Court thus overruled its own decision in Ghulam Sarwar v Union of India9

“Where it has held that Presidential Order under Article 359(1) could be challenged as being
discriminatory.”

9
AIR 1968 SC 1335.

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy