AMITY INSTITUTE OF ADVANCED LEGAL STUDIES:

[AIALS]

“ADM JABALPUR CASE: BEFORE AND AFTERMATH OF CASE”

Submitted To: Submitted By:

Mr. Arun Upadhyay Angad Pahwa

Constitutional Law II Constitutional Law

AIALS A0342619002

BATCH 2019-20

AMITY UNIVERSITY: AIALS

NOIDA

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 TABLE OF CONTENT

I. INTRODUCTION…………………………………………………………………..3

II. HISTORY BEHIND THE CASE…………………………………………………..4

III. TYRANNY OF THE CASE………………………………………………………..5

IV. ANALYSIS…………………………………………………………………………8

V. AFTERMATH OF THE CASE…………………………………………………….9

VI. CONCLUSION…………………………………………………………………….11

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 INTRODUCTION

“The one single item which had affected the people most, over the entire country was the manner
in which the power under the amended MISA was misused at various levels”

Maintenance of Internal Security Act (MISA) was an Act for preventive detention and detentions
made there under were held valid. A.D.M. Jabalpur v. Shivakanth Shukla (Commonly known as
the Habeas Corpus case) was to a large extent, responsible for this. Writ of Habeas Corpus has
been described as ‘a key, which unlocks the door to freedom and as the case dealt with its
maintainability, it has come to be known as the Habeas Corpus Case.

The term "habeas corpus" means 'you must have the body' and a writ for securing the liberty of
the person was called habeas corpus. The writ affords an effective means of immediate release
from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of
highest constitutional importance being a remedy available to the lowliest subject against the
most powerful government.

The concerned topic and project would highlight in brief the history and outcome of the
judgment given in the aforesaid mention case by the apex court which was deemed to be the
darkest day of the Indian Judiciary.

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 HISTORY BEHIND THE CASE

In the year 19501 with the decision of the Supreme Court in the favor of legislature created a
backdrop for Indian Constitution. The principle or rule that prevailed was that, ‘there was no
guarantee in our constitution against the arbitrary legislation encroaching upon right to personal
liberty’. The opinion of the majority of the Supreme Court in the aforesaid case was that the
expression ‘procedure established by law’ under article 21 of the Constitution had embodied the
English Rule in terms of personal liberty than that of America’s “Due Process”

Embodiment of such opinion emphasized on the presence of supremacy of legislature over

judiciary in our Constitution. In furtherance, if a competent authority of legislature determines to
deprive an individual of its personal right to life and liberty, than it is valid, if done under the
procedure established by law. Such law could not be challenged of being unreasonable and
unfair in the court of law.

The misuse of such power in the hands of legislature without any check and balance was
observed in the tenure of the Indira Gandhi’s Government. The declaration of emergency during
1971 and 1975 through presidential orders was mostly considered as a political agenda rather the
need of maintenance of internal peace in the nation. Off the records the judgment of the High
Court of Allahabad against the Indira Gandhi and following of the crisis from such judgment was
considered as the reason of proclamation of emergency of 1975.

How the declaration of emergency led to the creation of the darkest hour in the history of the
Indian Judicial System is followed up by the following parts.

1
A.K. Gopalan v. State of Madras, 1950 SC

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 THE TYRANNY OF ADM JABALPUR CASE2

 BRIEF FACTS OF THE CASE

The writ of habeas Corpus was filed in the Supreme Court of India, against the detention made
by the state by the ambit of proclamation of emergency. On June 25th, 1975 the President in
exercise of powers conferred by clause (1) of Articles 352 of the Constitution declared that a
grave emergency existed whereby the security of India was threatened by internal disturbances.
The proclaimed emergency declared that the right of any person including a foreigner to move
any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of
the Constitution and all proceedings pending in any court for the enforcement of the above
mentioned rights shall remain suspended for the period during which the proclamations of
emergency made under clause (1) of Article 352 of the Constitution on December 3rd, 1971 and
on June 25th, 1975 were in force.

On January 8th, 1976 a notification was passed by the President in the exercise of his power
under Article 359 of Constitution declaring, that the right of any person to move any to court for
the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings
pending in any court for the enforcement of the abovementioned rights would remain suspended
for the aforesaid period.

Several illegal detentions were made across the country, pursuant to which various writ petitions
were filed throughout the country. Against these writ petitions majority High Court declared the
act of State to be valid, thus, appeals were filed to the Supreme Court against such decisions of
the High Courts. The apex court clubbed all the appeals and disposed off by the following
judgment.

 JUDGMENT OF SUPREME COURT

Ratio Decidendi

2
AIR 1976 SC 1207

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In view of the Presidential order dated June 27, 1975, under Clause (1) of Art. 359, no person has
locus-standi to move writ petitions under Art. 226 of the Constitution before a High Court for
habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a
person detained under the Maintenance of Internal Security Act, 1971 on the grounds that the
order of detention or the continued detention is for any reason not in compliance with the Act or
is illegal or male fide. In times of emergency, the executive safeguards the life of the nation and,
therefore, its actions either on the ground that these are arbitrary or unlawful cannot be
challenged in view of the fact that considerations of security forbid proof of the evidence upon
which the detention was ordered. Queen v. Halliday Ex Parte Zadiq, referred to Liberty is
confined and controlled by law, whether common law or statute. The safeguard of liberty is in
the good sense of the people and in the system of representative and responsible Government
which has been evolved. If extraordinary powers are given, they are given because the
emergency is extraordinary and are limited to the period of emergency. Liberty is itself the gift
of the law and may by the law forfeited or abridged.

The purpose and object of Art 359(1) is that the enforcement of any Fundamental Right
mentioned in the Presidential order is barred or it remains suspended during the emergency. The
scope of Art 359(1) is not only to restrict the application of the Article to the legislative field but
also to the acts of the Executive. The object of Article 359(1) is not only that the right to move
this Court only is barred but also the right to move any High Court the bar created by Art. 359(1)
applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential
order whether by way of an application under Art 32 or by way of an application under Art 226.
An application invoking habeas corpus under section 491 of the Code of Criminal Procedure
cannot simultaneously be moved in the High Court. Article 359 (1) makes no distinction between
the threat to the security of India by war or external aggression on one hand and treat to the
security of India by internal disturbance to another hand. Powers of President U/A 352(1) and
359(1) of our constitution are immune from challenge in courts even when the emergency is
over. Section 16A (9) of maintenance of internal security act (MISA), 1971 is not
unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of
High Court under Article 226.

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Section 16A(9) of MISA enacts a genuine rule of evidence and it does not detract from or effect
the jurisdiction of the High Court under Article 226 of the constitution and hence cannot be
successfully assailed as invalid. Further section 18 of the MISA does not suffer from the vice of
excessive delegation and is valid piece of legislation. Part III of the constitution confers
fundamental rights in positive as well as in negative language. The limits of judicial review have
to be co-extensive and commensurate with the right of an aggrieved person to complain of the
invasion of his rights. The theory of the basic structure of the constitution cannot be used to build
into the constitution an imaginary part which may be in conflict with the constitutional
provisions.

Obiter dicta: DISSENTING OPINION BY KHANNA J.

Law of preventive detention, of detention without trial is an anathema to all those who love
personal liberty. It is with a view to balancing the conflicting viewpoints that the framers of the
Constitution made express provisions for preventive detention and at the same time inserted
safeguards to prevent abuse of those powers and to mitigate the rigor and harshness of those
provisions. The dilemma which faced the Constitution makers in balancing the two conflicting
viewpoints relating to liberty of the subject and the security of the State was not, however, laid to
rest for good with the drafting 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 civilized nations. Without such sanctity of life and liberty, the distinction between a
lawless society and one governed by laws would cease to have any meaning.

It was held that in view of the presidential order dated June 27, 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 was illegal or was vitiated by mala
fides factual or legal or is based on extraneous consideration.

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 ANALYSIS

1. The decision of the apex court ruled out the possibility of judicial review of the any
action of the state during the period of proclamation of emergency.
2. It reflected the prevalence of arbitrary rule of the government.
3. It set out a drawback for the judicial system, reflecting the supremacy of legislature over
the safeguarding body of the Constitution i.e. Judiciary.
4. It was later observed that all judges except Khanna J. were promoted to the designation of
the Chief Justice. This is however is a failure of the doctrines of the Separation of Power
and Independence of Judiciary.
5. The opinion of Khanna J. later on was emphasized by the Supreme Court in the case of
Maneka Gandhi v. Union of India and ruling out the majority decision of the court in the
ADM Jabalpur Case.

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 AFTERMATH OF JUDGMENT

The opinion of the Supreme Court was followed up later in the case of Union of India v.
Bhanudas Krishna Gawde3 where the court in support of its opinion said that ‘the presidential
order made under the ambit of Article 359 is not restricted by any limitation and is thus, not
based on any requirement of fulfillment of any underlying or previous consideration needed’.

However, the judgment given by the 7 judge bench in the case of Maneka Gandhi v. Union of
India4 upheld the dissenting opinion of judges in the case of Ak Gopalan and ADM Jabalpur and
dismissed the majority judgment of the mentioned cases.

It was stated that, ‘passing of presidential order under article 359 does not adjourn the concept of
rule of law, natural justice and common law. There lies a great nexus between article 14, 19 and
21 which cannot be ignored and specifically the tie between article 19 and 21 cannot be splinted
apart and exclusively from each other’. In furtherance to this, certain propositions were laid
down by the court which is as follows5:

a) Article 19 and 21 are not water-tight compartments. On the other hand, the expression of
‘personal liberty’ in article 21 is of the widest amplitude, covering a variety of rights of
which some have been included in article 19 and given additional protection. Hence,
there may be some overlapping between article 19 and 21.
b) In the result, a law coming under article 21 must also satisfy the requirements of article
19. In other words, a law made by the state which seeks to deprive a person of his
personal liberty must prescribe a procedure for such deprivation which must not be
arbitrary, unfair and unreasonable.
c) Once the test of reasonableness is imported to determine the validity of a law depriving a
person of his liberty, it follows that such law shall be invalid if it violates the principle of
natural justice.

The Supreme Court also stated that the right to life as enshrined under article 21 means of
something more than a survival or animal existence and would include the right o live with

3
AIR 1977 SC 1027
4
1978 SCR (2) 621
5
“INTRODUCTION TO THE CONSTITUTION OF INDIA”, D.D. Basu, Pg 122

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Human Dignity. Thus adopting liberal interpretation of article 21 by the Supreme Court in the
landmark judgment of Maneka Gandhi case has included a number of rights which are to be
guaranteed by the ambit of the right to life and personal liberty. Some of them are as follows:

 Right to livelihood
 Right to good health
 Right to privacy
 Right to legal aid
 Right against delayed execution
 Right to decent environment, etc.

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 CONCLUSION

The decisions in Gopalan case, Habeas Corpus case and Maneka Gandhi case are some of the
glaring examples of the fact how the change in the society, brought about by the law and order
situation, political situation, Human Right situation and many other factors, can influence the
judicial pronouncements with respect to life and personal liberty.

The prevailing law and order situation and the concern for the security and integrity of the new-
born Nation had definite impact on the judiciary because of which it gave very restricted and
conservative view with respect to the term "personal liberty" and the expression "procedure
established by law" under Article 21.

Thus, from the above brief explanation, we find that judicial pronouncement on right to life and
personal liberty has varied not only due to social change but also due to the desire of bringing
about required change in the society for the purpose of achieving the constitutional goals and
objectives, especially with regard to Human Right situations. Of course, it will be not
inappropriate to sum up that while the variation in judicial pronouncements from Gopalan to
Maneka has primarily been influenced due to change in the society as a result of law and order
situation, political situation and other factors, the post-Maneka variation of judicial
pronouncements has been mainly due to the desire of bringing about required change in the
society so as to achieve constitutional goals and objectives declared in the Preamble and detailed
in the Part III and Part IV of the Constitution of India.

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