Title of the case – 

ADM Jabalpur vs. Shivkant Shukla

Petitioner – Additional District Magistrate, Jabalpur

Respondent- S.S Shukla etc

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

Court – Supreme Court of India

Bench – P.N.Bhagwati , A.N.Ray, Hans Raj Khanna, Mirza Hameedullah Beg,

Y.V.Chandrachud,

Introduction

One of the most serious challenges over the independence and integrity of judiciary
was faced when the then Late Prime Minister Smt. Indira Gandhi imposed
‘emergency’ through a proclamation by the then President Fakhruddin Ali Ahmad
under Article 352(1) of the Constitution. In this situation, the government declared
that a grave emergency existed wherein the security of our country was threatened
by internal disturbances.

This imposition of emergency was not at all a sudden decision. This entire scenario
started when Smt. Indira Gandhi’s election to the Lok Sabha was challenged before
the Allahabad High Court. Justice Sinha, at that point in time, convicted her for
indulging in unfair practices and declared her election void. This simply meant that
from now onwards she will not be able to hold her office for the next six years.

Indira Gandhi appealed to Supreme Court but was only granted a conditional stay.
Further, in order to reclaim her power which was refrained by the aforesaid
judgment, she decided to invoke the Constitution and impose an emergency on
26th June 1975.

With this move of hers, the power under Article 359(1) was invoked and with
this the right to approach the Apex Court to enforce Article 14 which talks
about the Right to Equality, Article 21 which talks about the Right to life and
personal liberty and Article 22 which talks about Protection against detention
in certain cases were suspended.

As soon as these provisions were invoked the people who were considered to be
political opponents or critics were being taken into custody.
A.B. Vajpayee, Jay Prakash Narayan and Morarji Desai were amongst the
people who were arrested under the Maintenance of Internal Security Act
(MISA) which provided for custody without trial.

Many people who got arrested under the MISA Act approached various High
Courts under the provisions of Article 226 of the Constitution which guarantees the
Right to Constitutional Remedies to secure the liberty of their near and dear ones
by way of using the Writ of Habeas Corpus which provides relief when someone
is unlawfully detained, some even got favourable orders.

The then government became concerned with these High Courts and approached
the Supreme Court of India in the case of ADM Jabalpur v. Shivkant Sharma.

Contention of Petitioner

It was argued by the state that the main aim of provision of emergency was to vest
special powers in the executive so that it holds complete control over the law and
order of the nation since the situation of emergency is of extreme importance when
the situation is fragile.

Further, it was argued that when a person is detained, the order of detention could
not be challenged as wrong stating that there were no strong reasons to detain a
person. When an emergency is declared a person forfeits Article 19 of the
Constitution and if a person is held in contravention to Article 22, the same cannot
be questioned in the proceeding of Habeas Corpus since the option to file a petition
in the court is closed during the situation of an emergency.

It was held that the curtailment of such a right was done under the President’s
order and accordingly it could not be questioned. A Presidential Order made
under Article 359 is done under special circumstances and the court is not
empowered to question the rationale behind the same and entertain a Habeas
Corpus petition.

Contention of Respondent

Respondents argued that the very objective of Article 359 was to remove any type
of power of legislature from legislating at the time when an emergency is imposed.
The article prohibits moving to the Apex Court for enforcement of certain rights
but there isn’t any prohibition on moving to the High Courts of India regarding
enforcement of statutory rights of personal liberty under Article 226. 
It was contended that this presidential order was against the principle of natural
law and other underlying fundamental principles of law. When a law on preventive
detention has been introduced then the same should conform to the conditions set
by the law.

Moreover, it was also contended that Article 21 is not the only torchbearer of the
Right to life and personal liberty, there are rights that are not fundamental rights
but are statutory or natural rights, these rights were not affected by presidential
order and couldn’t be taken away. 

In addition, it was further argued that when the state has made a law for making
detention then that detention should be very much within the ambit of the statute. If
the conditions are not met then it would go beyond the power of the statute.

Main Issue

 The main issue was that when an Emergency is imposed and Articles

14, 21 and 22 get suspended, then can a writ of Habeas Corpus be
maintainable in front of the court and then can relief be granted to an
individual.
 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?
 If such a petition is maintainable, what is the scope of judicial scrutiny in
view of presidential order?

Judgement

This case was heard by a five judges bench. Four out of five judges ruled in favour
of the state and held that during an emergency the fundamental rights guaranteed
by the Constitution of India to the citizens shall not be available. All rights shall
stand extinguished in the light of presidential order.

Moreover, it was held that none of the citizens of the country shall have the option
of moving the High Court for writ of Habeas Corpus if the Presidential Order said
so and along with that all other proceedings of the court shall remain suspended till
the emergency continues.

However, Justice Hans Raj Khanna gave a dissenting judgment and this dissenting
judgment paved the way for the future development of law. He was of the view
that Article 21 which talks about the right to life and personal liberty are the basic
tenets of society and the state cannot deprive a citizen of his/her life and personal
liberty without due authority of law.  

Analysis

The judgement in the Habeas Corpus case has been widely criticised for
favouring the State instead of standing up for individual liberty.
HM Seervai termed the judgement so bizarre that if Justice Khanna was arrested
for giving the dissent he would not have had any remedy to secure his liberty.

Whenever any internal aggression takes place in a country, it does not mean
that the Govt. can takes away the life of their citizens and the foreigners.

It is correct that during the emergency, U/A 359(1), president by order can suspend
all the fundamental rights, but such order should have effect on or from the date on
which it was passed, but should not be enforced from the prior date.

44th amendment which was made in the year 1978 was the result of the
decision which was held by the Hon'ble Supreme Court.

Immediately after the emergency ended, the Supreme Court changed its stance by
giving Article 21 a permanent character in addition to linking the right provided in
Article 21 with the rights provided in Articles 14 and 19. The majority judgement,
in this case, is guilty of aiding and abetting the lust of power that the State
apparatus at that time displayed. Commenting on the majority ruling in this case,
Justice Venkatachaliah in his Khanna Memorial lecture of 2005 stated that the
majority decision in the Emergency case should be “confined to the dustbin of
history” and it is very hard to argue with his assessment.

The ADM Jabalpur case was overturned by the SC landmark Puttaswamy

Case (Right to Privacy case ) ( citation - (2017) 10 SCC 1 ) in 2017.