ADM JABALPUR VS SHIVKANT SHUKLA, (1976) 2 SCC 521

PETITIONER:
ADDITIONAL DISTRICT MAGISTRATE, JABALPUR
Vs.
RESPONDENT: S. S. SHUKLA ETC. ETC.
DATE OF JUDGMENT28/04/1976 BENCH: RAY, A.N. (CJ)
BENCH: RAY, A.N. (CJ) KHANNA, HANS RAJ BEG,
M. HAMEEDULLAH CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION: 1976 AIR 1207 1976 SCR 172
1976 SCC (2) 521

1. On June 25, 1975 there is a serious emergency declared for

which Indian security is threatened by internal
disturbances. In the exercise of the powers mentioned in
clause (1) of article 352 of the Indian constitution, the
president declared that right of any person to approach a
court for the enforcement of rights is conferred. The
constitution and all proceedings pending before a court will
remain suspended during the period of urgency.
2. The president promulgated amendment orders no’s 1 and 7
of 1975 and replaced them with the 1975 Domestic security
Maintenance Act no. 39 which introduces a new article 16A
and gives effect to article 7 of the law.
3. There were arguments by the petitioner that state does not
release any detainees while the Advisory Council opinion
was that there was no sufficient reason for his arrest and
continued to detain him in violation of the provisions of
Article 22.
4. According to respondents the limited purpose of Article
359(1) is to remove the restrictions on the legislature’s
power so that it is free to legislate to violate fundamental
rights.
5. Issues raised in the case is that the maintainability of any
writ petition under Article 226 for the issuance of a writ of
habeas corpus, to ensure personal liberty.
6. The state argued that in a situation of emergency, it is the
state interest that takes supremacy overall and the
executive is given powers by the constitution to take over
the implementation of laws.
7. It was 5 judges constitutional bench who heard this case:
a) The majority was of the view that when there is an order
of emergency, no person has locus standi to move any
writ petition under Article 226 before the High Court for
habeas Corpus or any other writ.
b) Also the court upheld the validity of Section 16A of
maintenance of internal security act.
c) The court held that respondents' view was correct and
that Article 21 is not the sole repository of the right to life
and personal liberty. Article 21 loses its procedural power
during the emergency but the substantive power does not
go away and that there is no way a state can deprive a
person of his life and liberty except with authority by law.