An analysis of the infamous and prejudiced Supreme Court ruling in the case of A.D.M. Jabalpur vs. Shukla during the Emergency of 1975-77. It denied anyone from moving to any court in India to challenge unlawful loss of life, liberty of limb as illegal detentions spread like wildfire propagated by the Indira Gandhi government.

The Latin phrase ‘Habeas Corpus’ translates into ‘you must have the body’, to put it simply. The history of this powerful writ appears to be traced to Anglo-Saxon common law roots; it’s precise mention occurring in the Magna Carta or The Great Charter of the Liberties of England in 1215. The oblique reference states “…no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” (para 29) The right to invoke this writ lies with the person detained or another person on his behalf to move to the court to object to the detainment. The person himself, or his representative, must prove that the authority/court ordering the detainment has made a factual or legal error. Clearly, the writ of Habeas Corpus remains the most powerful process by which any citizen may question the correctness of restraint on individual liberty. Article 21 of the Indian constitution guarantees the right to life and liberty to each and every citizen of the nation. Right to move to the court to enforce this article was suspended under Article 359 of the constitution when ‘internal’ emergency was imposed (1975-77).  The logical question that followed whether the writ of Habeas Corpus was enforceable in such a situation? The landmark Supreme Court case or the Habeas Corpus case attempted to answer this question, and was the reason for the 44th Constitutional Amendment in 1978. This amendment, passed unanimously, ensure that Article 21 cannot be suspended even during an Emergency.

Historical Background:

It all began by a judgment delivered on June 12, 1975 by Justice Jagmohan Lal Sinha of the Allahabad High Court. In State of Uttar Pradesh vs. Raj Narain, the petitioner challenged Indira Gandhi’s election to the Lok Sabha and consequent victory from the Rae Barelli constituency in Uttar Pradesh. On June 12, Justice Sinha convicted the then Prime Minister, of having indulged in corrupt practices and declared her election invalid, which meant she could not contest elections or hold office for six years. Her appeal to the Supreme Court only granted her a conditional stay. She could not vote or speak in the Lok Sabha rendering her dysfunctional. Upon increasing hostility by the opposition and in desperation to hold on to the chair of the PM, she requested the President Fakhruddin Ali Ahmed to declare a state of emergency under clause (1) of Article 352 of the Indian Constitution which he did so obediently on June 26 1975. The government cited ‘a grave emergency existed whereby the security of India was threatened by internal disturbances’. The war with Pakistan that had just ended (1971) and the drought (1972) were said to have damaged the economy greatly and paralyzed the nation. On June 27 1975, the exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were enforced, within which the right of any person including a foreigner to move to the court to enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases) of the Constitution and all the proceedings pending in any court concerned with the enforcement of the aforementioned articles will remain suspended for the period of Emergency.

What ensued was a string of illegal and hasty detentions without charge or trial, including those of the major leaders of the opposition party such as Moraji Desai, Atal Bihari Vajpayee, Jayprakash Narayan and L.K.Advani under the Maintenance of Internal Security Act, Preventive Detention Law (MISA). Consequently several writ petitions were filed all over the country. Records show that nine High Courts ruled in favour of the petitioners stating that even though Article 21 was not enforceable, a person could still demonstrate that their detention was not in compliance of the law under which they were detained, or that the action by the State was mala fide or that it was a case of mistaken identity. Highly perturbed the government decided to appeal against these decision in the Supreme Court, which became what is called the Additional District Manager of Jabalpur vs. Shiv Kant Shukla case or the Habeas Corpus case.

The case:

The main question of the case was whether, under Presidential Orders the High Court could entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention. The arguments in Supreme Court began on December 14 1975, before a bench consisting of Chief Justice of India A.N. Ray, Justice H.R. Khanna, Justice M.H. Beg, Justice Y.V. Chandrachud and Justice P.N. Bhagwati. They were considered the most respectable and wise judges of the Supreme Court at that time.  The Attorney General of India, Niren De began his arguments in his powerful voice, almost terrorising the court, much like the Government’s rule at that time. No questions were asked until Justice Khanna asked, ‘Life is also mentioned in Article 21. Would Government arguments extend to it also?’ Niren De didn’t seem to be hassled by this rather uncomfortable question and answered swiftly saying, ‘‘Even if life was taken away illegally, courts are helpless’.

Arguments on behalf of the State:

The main contention of the State was that the sole purpose and aim of the emergency provisions in the Constitution is that they guarantee special powers to the Executive to hold complete discretion over the implementation of the laws and rights of the country. The reason behind this was that during an emergency the considerations of the state assume supreme importance. The central argument put forth by the State was that once the right to move any court was suspended in context to Article 14, Article 21 and Article 22, the detained person had no right to approach a court regarding the same; by which logic their writ petitions would have to be dismissed. They highlighted the fact that Emergency provisions in Part XVIII of the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are constitutional necessities and imperatives of the Constitution as the military and economic security of the nation preceded everything else.  The validity of the law as stated in the Presidential Order under Article 359(1) cannot be challenged on the ground of violating a fundamental right which was suspended by the above mentioned Article in the first place.

Arguments on behalf of the Respondent:

There were seven major arguments put forth by the Respondents. The first argument interpreted the State’s argument as the non-existence of any right to life and liberty during an emergency. It went on to clarify that in this regard, Article 358 was more extensive as the fundamental right is suspended as a whole whereas Article 359 does not suspend any fundamental right. Secondly; the main aim of Article 359(1) was to prohibit moving the Supreme Court under Article 32 for the enforcement of certain rights. 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. Thirdly; even though Article 359(1) grants special and almost unlimited powers to the Executive for dismissing Part III of the Constitution, it does not undermine the essential component of sovereignty of the separation of powers, leading to a system of ‘checks and balances’ and limited power of the Executive. The suspension of fundamental rights and its enforcement was not meant to tip the scales in favour of the Executive vis-à-vis the individual. Fourthly; the Presidential Orders imposed were valid only with respect to fundamental rights and did not extend to Natural Law, Common Law or Statutory Law. Fifthly; the equation of the State and the Executive is highly erroneous. The only consequence of the suspension of fundamental rights or their enforcement is that the Legislature can create laws which go against said fundamental rights and the Executive can implement them. At no point, should this be interpreted as the right of the Executive to violate previous judicial decisions and legislative mandates. Sixthly; the Executive can act for and against its citizens only to the extent set by valid laws. Article 352 or the Proclamation of Emergency, at no point, increases the scope of the Executive Powers of the State from what is enshrined under Article 162 of the Constitution and nothing more (See fifth argument of respondents). Lastly, the State and its officers only hold the Right to Arrest if the alleged act leading to detention fell under Section 3 of MISA and its every condition contained within it is fulfilled. If any condition remains unfulfilled the detention is considered ‘beyond the powers’ of that act.

The decision:

The case was argued for over two months after which judgement was reserved. It was only after an application was moved for the pronouncement of judgement that the Supreme Court came out with the following conclusion:

“In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 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 is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”

The judgement ruled in favour of the Government with a four to one majority. Only Justice Khanna, had the courage to take the right decision in favour of human nature and liberty. He knew what was as stake. Records state that the night before the judgement was announced he told his sister that he had made up his mind and decision and knew that it would cost him the seat of the Chief Justice of India. He ended his judgment with a strong worded quote: ‘”As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort is appeals to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed.” He knew what the consequences of his actions were to be. His junior, Justice M.H. Beg superseded him and became the Chief Justice of India in his stead.

The four others: CJI A.N.Ray, Justice Beg, Justice Chandrachudh and Justice Bhagwati could not stop themselves from blatantly favouring the Government in power. A.N. Ray, with his controversial appointment as CJI by Indira Gandhi, superseding three senior judges in line, worshipped the very ground she walked on.  There are anecdotes narrated of how she used to telephone her and her personal secretary quite frequently to take advice even on the smallest of matters. Justice Bhagwati, held up the torch of personal liberty only to dampen it with the diplomacy of the correct reading of the Constitution.  Courtroom records read as him saying: “I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind, without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear.”

In 1979, after Indira Gandhi’s rise to power once again he wrote a letter to her that we all wish he didn’t. It read as ‘I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.’ He went on to become Chief Justice of India.
The High Court quietly compiled. Their senior had silenced them. That day has been referred to as the ‘blackest day in Indian Democracy’ and rightly so. There are several similarities between this judgement and Hitler’s way of functioning and his rise to power. The Proclamation of Emergency upon the request of Indira Gandhi bestowed upon her to rule by decree, suspend elections and curd fundamental rights. The most significant example in history of a ‘rule by decree’ is the Reichstag Fire Decree of 1933. Adolf Hitler convinced German President Hindenburg to issue a decree to suspend all basic civil rights indefinitely. This is what paved the way for the consequent Nazi suppression of its opposition and the one-party rule of the Third Reich. Niren De’s straight faced and calm answer to Justice Khanna’s uncomfortable question chimes of the Nazi holocaust. In one instance, CJI Ray went on to almost scold the counsel for the people detained who brought up Nazi gas chambers to prove their point. To everyone else except him, this was nothing but an act of desperation and defensiveness to keep the façade of ‘righteousness’ on.

The Supreme Court violated all fundamental rights with that decision. It was the darkest hour of Indian judiciary which struck at the very heart of fundamental rights. All four judges with the exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice Bhagwati expressed regret by saying:

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”

By Pallavi Prasad

Also see:
Indira Gandhi, The Lotus, And The Robot
Supreme Court Vs Durga Shakti Nagpal

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