Arguments Presented by the Petitioner-

The emergency provisions applied during emergency give power to the executive to exercise
complete discretion over the state affairs, because during the emergency the considerations of the
state assume absolute importance.

The second contention was that the state shall not release the detenue even if the advisory board is
of the opinion that there lies no sufficient reason to detain. The detention is maintained under
pursuance of violation of Art. 22. The writ of Habeas Corpus shall not be enforced even after
considering Ar.22 to be a fundamental right itself. 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 an individual’s right to move any court for enforcing the right to life and personal liberty
under Art. 21 is a constitutional mandate and cannot be implied as absence of the Rule of Law.

Article 358, Article 359(1) and Article 359(1A) along with other emergency provisions are
constitutional mandates and are necessary for the maintenance of military and economic security of
the country.

Arguments presented on behalf of the respondents-

The first contention was that the object of Art.359 (1) was not to completely restrict the power of
the legislature but to leave the scope of making laws during emergency in violation of fundamental
rights as stated in the presidential order.

The only effect of Art.359 (1) was the prohibition to move the Supreme Court under Art.32 for the
enforcement of certain rights. This did not apply in case of Art.226 that is to say that 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 validity of the presidential order only extended with respect to the fundamental rights and did
not extend to natural law, common law or any statutory law.

The proclamation of emergency under Art. 352 limit the scope of executive powers of the state
nothing more than what has been mentioned under Art.162 of the Indian Constitution.

Article 21 is not the sole repository of right to life and personal liberty.

The presidential order cannot affect non – fundamental constitutional rights arising under Arts. 256,
265, 361(3), natural rights, contractual rights and other statutory rights.

The state and its officers hold the power of right to arrest only of the disputed act fulfils the
conditions mentioned under Section 3 of the MISA and if any of the conditions remains unfulfilled
then the detention shall be considered beyond powers of that Act.
The final urge made was that the Preamble of the constitution speaks of the sovereignty, democracy
and the republic nature and therefore the executive being subordinate to the legislature should not
be permitted to act beyond its power to the extent of causing prejudice of the citizen. It should be
permitted to act to the extent the laws validly passed by the legislature.

Final Judgment as per Majority (28th April, 1976)

(A.N. Ray C.J. M.H. Beg.,Y.V.Chandrachud and P.N. Bhagwati JJ.)-

In view of the presidential order dated on 27th June, 1975, it was held that no writ petition can be
moved in the HC under Art.226 for habeas corpus or any other writ or and other order or direction
challenging the detention order on the ground that either the detention is not fulfilling the Act or
that the Act is illegal or is based on extraneous conditions or is vitiated by malafide action of any
kind. Meaning there by that during the proclamation of emergency under Art. 359 (1) of the Indian
Constitution no person whether Indian citizen or a foreigner shall have a right to move the court for
the enforcement of fundamental rights except Arts. 20 and 21. These rights shall remain suspended
during the period of proclamation or for a period which is shorter as prescribed in the order.

The court upheld the constitutional validity of clauses 8 and 9 of Sec. 16 of the MISA, 1971.

Justice Chandrachud stated that all executive action must be performed in pursuance of the law
passed by the parliament.

The majority held that the court of law has no power to look into and decide the validity of a
detention order under the MISA, 1971 because the Act does give such powers to the court to review
the validity of a detention order.

Section 16 (A) 9 of the MISA is constitutionally valid and does not affect the writ jurisdiction of HC
under Art.226.

Art. 359 (1) does not create any difference between the treat to security caused by ‘external
aggression’ and threat to security of the nation caused by ‘internal disturbance’.

The majority decision cleared the difference between Arts. 358 and 359 which are summarized here
as under:

Art. 358 only suspends Art. 19 during a proclamation of emergency and the under its influence the
legislature can make laws contravening Art. 19 while the executive can take any action. Art.358 does
not suspend any fundamental rights. Therefore the executive is competent to take any action which
it is competent to take.

On the other hand Art.359 not only suspends the enforcement of any or all of the fundamental
rights (FRs) but can also suspend any of the proceedings pending for the enforcement of FRs.

Another important distinction is that Art. 358 provides for indemnity whereas no indemnity is
available under the proclamation of Art.359.

The Basic Structure theory cannot be used to build an imaginary picture within the constitution that
it creates a conflict with the provisions of the constitution.
Part III of the Indian Constitution needs to be viewed in both the negative and positive aspects.

The limits of judicial review should be co-extensive and in consonance with an individual’s right to
complain about the infringement of his rights.

Article 21 is sole repository of right to life and personal liberty.

Dissenting Judgement by Justice Khanna-

For those who fight for personal liberty, the laws relating to preventive detention on detention
without trial is an evil.

Justice Khanna denied that Art. 21 is sole repository of right to life and personal liberty and even if
Art.21 was not there in the constitution, the state has no discretion to deprive a person of his life
and liberty without the authority of law.

During the proclamation of emergency only the procedural power of Art. 21 is restricted but the
substantive power remains intact therefore a person cannot be deprived of his right to life and
personal liberty.

The sanctity of life and liberty needs to be maintained in order to understand the difference
between a society which is lawless and a lawful society.