ADMINISTRATIVE LAW

LAW-314

“ADM JABALPUR

VS.

SHIVKANT SHUKLA”

Submitted by Shivansh Sood

Section L 1902
Roll no. A08
Registration 11917221
no.
Course BBA.LLB (Hons.)
Submitted To Mrs. Megha Birring

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 LOVELY PROFESSIONAL UNIVERSITY
School of Law Faculty of Law
Name of the faculty member Mrs. Megha Birring

Course Code: LAW314 Course Title: ADMINISTRATIVE LAW

Academic Task No:2 Academic Task Title: CASE STUDY
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Student Roll No: A08 Student Reg. No: 11917221
Term:7 Section: L1902
Max. Marks30 Marks. Obtained:30
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tasks)

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I declare that this Assignment is my individual work. I have not copied it from any other
students’ work or from any other source except where due acknowledgement is made
explicitly in the text,nor has any part been written for me by any other person.

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 ADM JABALPUR
VS.
SHIVKANT SHUKLA

Citations: AIR 1976 SC 1201, 1976 SCR 172

Date Of Judgment: -28/04/1976

Bench: Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M.

Hameedullah, Chandrachud, Y.V., Bhagwati, P.N.

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➢ INTRODUCTION

The ruling in the notorious case of "ADM, Jabalpur v Shivkant Shukla" was delivered on April
28th, 1976, and is considered the darkest day in the Indian judicial system. The "Habeas Corpus
case" is another name for this case. The emergency was imposed by Indira Gandhi's ruling
administration, which issued a Presidential Order after the Supreme Court deemed her Prime
Ministerial election to be unlawful. The issue originated from the question as to whether a
person has the right to go to the High Court if their Fundamental Rights are being violated,
particularly Article 21 of the Constitution, which deals with the right to life and liberty, and
Article 14 of the Constitution, which deals with the right to equality. The overall effect of the
decision was harsh, as it was determined that a person's right to petition the High Court under
Article 226 for a writ of Habeas Corpus or any other writ challenging the legitimacy of an order
of detention made during the proclamation of an emergency will be suspended. Furthermore,
the person cannot go to the High Court to seek redress or justice. This was the fundamental
reason why ADM Jabalpur was labelled "the darkest moment in Supreme Court history."

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 election of Indira Gandhi
was termed to be illegal. The case arose out of a 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 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

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➢ FACTUAL BACKGROUND

On the 25th of June, 1975, the President, exercising powers conferred by Article 352(1) of the
Indian Constitution, proclaimed a grave emergency in which India's security was threatened by
internal disturbances. On the 27th of June, 1975, using the powers granted under Article 359
of the Constitution, it was declared that the right of any person, including foreigners, to go to
any court to enforce their rights granted to them under Articles 14, 21, and 22 of the
Constitution, as well as all court proceedings pending for the above-mentioned rights, would
be suspended during the period of the proclamation of emergency. The President issued a
notification on January 8, 1976, using the powers granted under Article 352 of the Constitution,
declaring that any person may go to any court to enforce the rights granted to them under
Article 19 of the Constitution, and that all proceedings pending in the court for the above-
mentioned right will be suspended during the period of proclamation of emergency. Several
illegal detentions followed, including those of some of the country's most powerful politicians,
including Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee, and L.K. Advani, who
were held without accusation or trial. As a result, numerous writ petitions were filed around
the country. Nine High Courts ruled in favour of the detainees, stating that even though Article
21 could not be enforced, the detention order may still be challenged since it was not in
accordance with the Act or was made in bad faith. Furthermore, many appeals were filed at the
Supreme Court against these orders.1

1
https://indiankanoon.org/doc/1735815/ last visited on 4th Ocotber,2022.

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➢ ISSUES

The issues in the said case were-

❖ Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas
Corpus be maintained in High Court by a person challenging his unlawful detention?
❖ Was suspension of Article 21 fit under rule of law?
❖ Does detenue hold locus standi in Court during the period of Emergency?

➢ RULES

Upon the issues, it was discussed by the State that the only purpose of Emergency in the
Constitution is to guarantee special power to the Executive machinery which can hold
discretion over the implementation of law and whatever State considers, it shall be held valid.
Filing writ petition in High Courts under Article 226 are suspended and petitioners had no right
to approach the Court for the implementation of the same and this would have logically
dismissed such petitions. The fact that Emergency provisions in Part XVIII of the Indian
Constitution including Article 358, Article 359(1) and Article 359(1A) are necessities in regard
to economy and military security of the State. The validity of the law under Presidential Order
cannot be challenged on the ground of violating fundamental rights which were suspended by
such order. This answers all the issues like “Whether, under Proclamation of Emergency after
President’s order, can the writ of Habeas Corpus be maintained in High Court by a person
challenging his unlawful detention” for which the answer is No, one cannot approach the High
Court for restoration of his fundamental right under any Article of the Indian Constitution.
Upon the issue of locus standi, the petitioner holds no ground for any relief.2

2
https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/ last visited on 4th October,2022.

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➢ PETITIONER’S ARGUMENTS

The state's main argument was that the sole purpose of including emergency provisions in the
Indian Constitution is so that, in the event of an emergency, the Executive can exercise
complete discretion over the implementation of the country's laws by exercising special powers
granted to them by the Indian Constitution, but that the state should take precedence when
exercising these powers.

They also expressed dissatisfaction with the state's refusal to release the detainees, despite the
advisory board's conclusion that there is no valid reason for their arrest. As a result, holding
individuals without cause is a breach of their fundamental right guaranteed by Article 22 of the
Indian Constitution. Furthermore, the detainees are unable to seek judicial enforcement of their
right under Article 19 of the Constitution, which was suspended by the President via an order
made under Article 359(1) of the Indian Constitution during the proclamation of emergency.

The suspension of these rights is carried out in accordance with the Constitution; thus, it cannot
be stated that the resulting situation is devoid of the rule of law.

➢ RESPONDENT’S ARGUMENTS:

The respondents argued that the aim of Article 359(1) is to eliminate constraints on legislatures'
authority so that, in times of emergency, they are free to violate citizens' basic rights as
guaranteed by the Indian Constitution. They went on to say that there is a law in place called
the Maintenance of Internal Security Act 1971 that governs pre-trial detentions. As a result,
Article 21 cannot be regarded as the sole guarantor of the right to life and liberty.

They further claimed that the Presidential order has no effect on the non-Fundamental rights
derived from Articles 256, 265 and 361 (3), nor on natural or contractual rights, nor on legal
rights to personal liberty. Only the legislature, not the Executive Department, has the authority
to take away these rights. It was further argued that state and its officers have right to arrest only
if the detention fall under Section 3 of the MISA Act and also the conditions provided under the
said section were fulfilled. However, if any condition is unfulfilled then the detention will be
considered “beyond the powers of the Act”.3

3
https://lexforti.com/legal-news/adm-jabalpur-case-analysis/ last visited on 4th October,2022.

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➢ JUDGEMENT

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 malafides factual or
legal or is based on extraneous consideration.

2. Section 16A (9) of the Maintenance of Internal Security Act is constitutionally valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of in accordance with the
law laid down in these appeals.

The above said 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. The
dissenting Judgment was given by Justice Khanna who ended his judgment by saying “As
observed by Chief Justice Huges, 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&K4 the
Court required the State Government to produce the file confining the grounds of detention so
that the Court could satisfy itself That “the grounds on which the detenu has been detained
have relevance to the security of the State”. It would, therefore, be seen that if there is a
legislative provision which prohibits disclosure of the grounds, information and materials on
which the order of detention is based and prevents the Court from calling for the production of
such grounds, information and materials, it would obstruct and retard the exercise of the
constitutional power of the High Court under Article 226 and would be void as offending that
Article.

4
1972 AIR 963

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➢ DISSENTING JUDGEMENT BY H R KHANNA:

Justice Khanna was the sole dissenting voice and disagreed on the point that article 21 is the
sole repository of right to life & personal liberty as we can observe in para number 163 of the
judgement delivered and observed that “Sanctity of life and liberty was not something new when
the Constitution was drafted…the principle that no one shall be deprived of his life and liberty
without the authority of law was not the gift of the Constitution. It was a necessary corollary of
the concept relating to the sanctity of life and liberty; it existed and was in force before the
coming into force of the Constitution. The idea about the sanctity of life and liberty as well as
the principle that no one shall be deprived of his life and liberty without the authority of law are
essentially two facets of the same concept. 5He argued that because Article 226 is a component
of the Constitution, the right to examine and issue a writ of Habeas Corpus cannot be refused.
He went on to say that it's a means to ensure judicial review of executive orders and keep the
checks and balances in place, referencing Ambedkar's thoughts on the subject from the
Constituent Assembly debates.

Khanna J. was clearly drafting a dissent for the ages when he did so. He believed that life and
liberty are fundamental rights that are contained throughout the Constitution, not just in the
text of individual articles. In his opinion, Article 21 was just a representation of that right, and
even if its operation was halted, it was erroneous to believe that an individual's life or liberty
could be taken away by the authority of law. According to Khanna J., the right to not be
arbitrarily deprived of one's life or personal liberty did not arise because it was expressly
recognized in the Constitution.

The right stretches back well before the Constitution was written in 1950. The fact that the
writers of the Constitution included a portion of such a right in the list of essential rights did
not obliterate the right's autonomous character or make Article 21 the exclusive repository of
that right. The sanctity of life was recognised by Khanna J., who held that its foundation, worth,
and existence predate and extend beyond the wording of the Constitution.

5
https://blog-iacl-aidc.org/indian-young-scholars/2019/7/26/a-cloud-without-a-silver-lining-indias-justice-
khanna-his-resignation-and-a-constitution-in-crisis last visited on 4th October,2022.

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The fundamental idea of using the Constitution to defend the worth of human life and liberty
requires that every single member of the Court reach the same conclusion as J. Khanna.
Nonetheless, Khanna J.'s actions were revolutionary in the circumstances of the time. It was
truly radical and revolutionary to decide against the majority opinion, to sit on a Supreme Court
established by the Constitution, and to locate essential rights in moral principles outside of the
Constitution.

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➢ RATIO- DECIDENDI

Given the presidential order of June 27, 1975, according to Clause (1) of Article 359, no one
has the right to submit petitions under Article 226 of the Constitution to a superior court of
habeas any other order or order to enforce any right to the personal liberty of a person detained
under the Maintenance of Internal Security Act of 1971 on the grounds that the warrant of
arrest or detention are for a reason not in accordance with the law, illegal or masculine. In case
of emergency, the executive protects the life of the nation.

Consequently, its actions, whether arbitrary or illegal, cannot be questioned, as security

considerations preclude the evidence on which it is based Queen v. Halliday Ex Parte Zadiq
[1917] AC 210. The freedom in question is limited and controlled by law, whether at common
law or in law.

The safeguarding of liberty is in the good sense of the people and in the system of representative
and responsible government that has developed. If extraordinary powers are granted, they are
granted because the urgency is extraordinary and limited to the emergency period. Freedom is
itself the gift of the law and perhaps the law lost or abridged.

The purpose of Article 359(1) is to prevent the application of any fundamental right mentioned
in the Presidential Order from being prohibited or suspended during the emergency period. The
purpose of Article 359(1) is not only to limit the application of this section to the legislative
domain but also to the actions of the executive branch.

The purpose of Article 359(1) is not only to prohibit the right to sit in this Court, but also to
remove any superior court that the jurisdiction created by Article 359(1) applies to the rights
mentioned in the presidential order, either by a request under Article 32 or by a request under
article 226. An application for habeas corpus under article 491 of the Code de criminal
proceedings cannot be filed simultaneously before the High Court. Article 359(1) makes no
distinction between the threat to the security of India resulting from war or external aggression
and treats India’s security by internal disturbances.

The powers of President U / A 352(1) and 359(1) of our Constitution are exempt from any
remedy in the courts, even when the emergency is over. Section 16A (9) of the Maintenance
of Internal Security Act of 1971. It is not unconstitutional on the ground that it constitutes an
interference with the jurisdiction of the Superior Court itself, pursuant to Article 226.

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Section 16A (9) of the Maintenance of Internal Security Act of 1971 states that issuing a true
rule of evidence and does not exempt or affect the jurisdiction of the High Court under section
226 of the Constitution and therefore cannot be considered invalid. In addition, Section 18 of
the Maintenance of Internal Security Act of 1971 does not suffer from the excessive
delegation and is a valid piece of legislation. Part III of the Constitution confers fundamental
rights in both positive and negative language.

The limits of judicial review must be coextensive and consistent with the right of an aggrieved
person to complain about the invasion of their rights. The theory of the basic structure of the
constitution cannot be used to construct an imaginary part of the constitution that might conflict
with constitutional provisions.

➢ OBITER DICTA

a) A.N.RAY

“Freedom is limited and controlled by law, whether at common law or in law, which is,
according to Burke, regulated freedom, not abstract or absolute freedom. the good sense of
the people and the system of representative and responsible government that has developed:
if extraordinary powers are granted, they are granted because the urgency is extraordinary
and we are limited to the period of emergency.”6

b) M.HAMEEDULLAH BEG

We can say that the Constitution is dominated by the rule of law because its general
principles were, for example, the right to individual liberty or the right of public assembly.
the rights of private persons in special cases presented to the courts; whereas in many
foreign constitutions the security (as it is) conferred on the rights of individuals results or
seems to result from the general principles of the constitution.7

6
https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/ last visited on 4th October,2022
7
ibid

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➢ ANALYSIS

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 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

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of the most cherished values of mankind, without its 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
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 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 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

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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”.

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➢ CONCLUSION AND SUGGESTION

Article 21 has been misinterpreted in this case. Indeed, the procedure that was not established
in accordance with the law was later. Whenever internal aggression occurs in a country, it does
not mean the government. They can take the lives of their citizens and strangers. It is true that
during the emergency, the president by order may suspend all fundamental rights, but that order
must have effect from the date on which it was approved, but it must not be executed. from the
previous date.

Amendment 44, tabled in 1978, was the result of the Supreme Court’s decision. In an interview,
Judge P.N. Bhagwati admits that the decision of the Supreme Court in ADM Jabalpur was
incorrect and pleads guilty to the same thing. The reason for joining the majority (A. Ray, Y.
V. Chandrachud and H.H. Beg) in this case was that he was persuaded by his colleagues and
admitted that it was an act of weakness on his part. He also said that “it was against my
conscience; this judgment is not the justice of Bhagwati.

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 judgments till date. Supreme Court went on to elaborate 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 Allam. 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 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 justice and
equity of citizens.

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➢ REFERNCES

a) https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/

b) https://indiankanoon.org/doc/1735815/

c) https://en.wikipedia.org/wiki/ADM_Jabalpur_v._Shivkant_Shukla

d) https://lexforti.com/legal-news/adm-jabalpur-case-analysis/

e) https://timesofindia.indiatimes.com/readersblog/the-lawyers-
leaflet/adm-jabalpur-v-shivkant-shukla-an-analysis-44890/

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