ADM(Additional District Magistrate) Jabalpur

v.

Shivakant Shukla

 

Bench-

Majority- A. N. Ray, M. H. Beg, Y. V.Chandrachud, P. N.Bhagwati,

Dissenting- H. N. Khanna.

Background of the case- The background and history of the case can be understood with the help of following pointers:

• June 12, 1975- Justice Jagmohansinha in State of Uttar Pradesh v. Raj Narain (1975 AIR 875) held Indira Gandhi convict of indulging into wrongful practices for election to Lok Sabha. Her election was held to be void, and as a consequence she was left deprived of contesting election or holds her office for upcoming 6 years. On appealing to SC the apex court granted her a conditional stay.

• June 26, 1975- on her request to declare emergency, the then president Fakruddin Ali in exercise of his powers conferred by Art. 352 (2) declared that a grave emergency existed whereby the security of India is threatened by ‘internal disturbances’.

• June 27, 1975- the exercise of power given by Clause (1) of Article 359 of the constitution were enforced on the people of India and the foreigners, within the right to approach the court to enforce Article 14 (right to equality), Article 21(protection of right to life and personal liberty) and Article 22(prevention against detention in certain cases), which are also available for a foreigner and all the proceeding that was pending related to above- mentioned article will remain suspended for the period of Emergency.

• June 29, 1975- by another order the President applied the ordinance of June 27^th on the state of Jammu and Kashmir.

• The resultant effect of the ordinance was that any person who was considered to be a political threat was to be held in custody under the laws of preventive detention, namely the Maintenance of the Internal Security (amending Act no. 39 of 1975). Many leaders from the opposition were detained under custody under the MISA as mentioned above, since they appeared to be a threat to Mrs. Indira Gandhi.

• Certain amendments were made from June 25, 1975 to January 26, 1976. These amendments were as follows:

• A new section 16A was added to the MISA and by the same Act sec. 18 was inserted.
• In Oct 27, 1975, sub clauses (8) and (9) were added to sec.16A under the ordinance 16 of 1975. As per clause (9) any person against whom an order of detention has been issued shall not be entitled the reason or ground of his detention, or disclosure of any document related to that.
• Another ordinance 22 of 1975 was issued on November 16, 1975 inserting clause 2 A to section 16 of the MISA.

The effect of these amendments was that many prominent politicians from the opposition were kept under preventive detention for infinite time without communicating them the sufficient reasons.

• Many of these leaders eventually filed writ petitions in various High Courts of the country challenging their detention and the said Act and the vires of the ordinance issued on June 27, 1975. And most of these petitions were answered in their favor leading Mrs. Gandhi to reach out to the Hon’ble SC, under the famous case to be known as ADDITIONAL DISTRICT MAGISTRATE JABALPUR v. SHIVAKANT SHUKLA. In the coming petitions the constitution 38^th and 39^th amendments Acts were also challenged.

 

Issue Involved- whether a writ petition under Art.226 is maintainable for enforcing the right to personal liberty under Art.21 of the Indian constitution, during a period of emergency declared under Art 359 (1). And if it is maintainable then what shall be the scope of judicial scrutiny in case of the presidential order.

 

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 (28^th 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 27^th 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.

 

Thus the judgment of ADM Jabalpur v. Shivakant Shukla is significant from the point of view that it had certain loopholes which needed to be rectified later on, like Art. 21 was misinterpreted in its true sense. The judgment opened ways to further developments and many other leading cases.