ADM JABALPUR V. SHIVKANT SHUKLA, AIR 1976 SC 1207

ADM JABALPUR V. SHIVKANT SHUKLA, AIR 1976 SC 1207

 

FACTS

1. On 25 June 1975, Emergency was proclaimed by Mrs Indira Gandhi’s Government on account of “internal disturbances”. By virtue of Article 358 of the Constitution, the citizens’ seven classic freedoms under Article 19 stood automatically suspended. On 27 June, the President of India issued an order under Article 359 suspending the enforcement of Articles 14, 21 and 22 also.
2. On the night of 25 June and thereafter a large number of persons (mainly political leaders of opposite parties) were detained under MISA. Many of them were not even informed of the grounds for their detention. Some of them filed writ petitions in different High Courts challenging the detention orders as illegal and unconstitutional and praying for the issue of a writ of habeas corpus.
3. When those petitions came up for hearing, the government raised a preliminary objection as to maintainability of the petitions on the ground that in asking for release by writ of habeas corpus, the petitioners (detenus) were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law; but that was a plea available to them only under Article 21 of the Constitution and since enforcement of Article 21 was suspended by the Presidential Order of 27 June 1975, the petitions were liable to be dismissed at the threshold.
4. The preliminary objection was overruled for one reason or the other by various High Courts. The governments of the States concerned (e.g. the Madhya Pradesh Government through the Addl. District Magistrate, Jabalpur) and the Indian Government filed appeals in the Supreme Court against the decisions of those High Courts.
5. The case was heard by a five-judge Constitution Bench consisting of Ray CJ and Khanna, Beg, Chandrachud and Bhagwati JJ.

 

ISSUE

Whether there was any “rule of law” in India apart from and irrespective of Article 21 of the Constitution?

 

RATIONALE

The majority of the Bench (Ray CJ, Beg, Chandrachud and Bhagwati JJ) observed: The Constitution is the mandate. The Constitution is the rule of law. There cannot be any rule of law other than the constitutional rule of law. There cannot be any pre-Constitution or post-Constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the time of Emergency. Article 21 is our rule of law regarding life and liberty. No other rule of law can have a separate existence as a distinct right. The rule of law is not merely a catchword or incantation. It is not a law of nature consistent and invariable at all times and in all circumstances.

 

Khanna J, however, did not agree with the majority view. In a powerful dissent, his Lordship observed:

“Rule of law is the antithesis of arbitrariness. [It is accepted] in all civilised societies. [It] has come to be regarded as the mark of a free society. It seeks to maintain a balance between the opposite notions of individual liberty and public order. 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. Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations…Absence of rule of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws.”

 

HELD

In this case the four judges Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati arrived at the same conclusion, which is that the writ of habeas corpus is not maintainable in case of proclamation of emergency under article 359(1) which states- Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the fundamental rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

The four judges said that the court has no authority or powers to challenge if the detention made under sec 16A(9)(b) which states no person against whom an order of detention is made or purported to be made under Section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material as under the act it clearly states that the grounds of the detention need not be disclosed hence the court cannot question the state or the executive body to validate the detention. Hence the party does not have a locus standi to move to any court for maintaining suit on fundamental rights.

 

COMMENTARY

It is respectfully submitted that the minority view of Khanna J is correct, sound and in consonance with law. It is further submitted that the majority judgment in the Habeas Corpus case is clearly erroneous, unjust and contrary to the doctrine of rule of law. In the opinion of the authors, the majority failed to consider in its proper perspective the most important fact that Article 21 (i.e. the written Constitution) did not confer a right to life or personal liberty. The said right inheres in the body of every living person and Article 21 or for that purpose any written Constitution is not the sole repository of the right to life and personal liberty and as such, that right can never be taken away by the Executive. (It may, however, be stated that after 44th Amendment of the Constitution, the right to life and liberty cannot be taken away by the Executive even during an emergency).