Citation: 1976 2 SCC 521
Case Type: Criminal Appeal
Case No: 279 of 1975
Appellants: A.D.M, Jabalpur
Respondents: Shivkant Shukla
Decided On: 28-04-1976
Statues Referred: Constitution of India,
- Queen V. Halliday
- Makhan Singh V. State of Punjab
Bench: A.N. Ray (CJ), H.R. Khanna, M.H.Beg, Y.V. Chandrachud, P.N. Bhagwati, JJ
Late SMT. Indira Gandhi’s election from Rae Bareli was challenged on the ground of corruption. Justice Jagmohan Lal Sinha on 12th June ruled that her election is void. Where after she applied to the Supreme Court and was given a conditional stay by the apex court.
So in order to reclaim her power as against the above judgement, she used the weapon of emergency as granted by the constitution by invoking article 352(2) of the Constitution.
The very next day the President by using Article 359(1) suspended the rights conferred by Article 14, 21, 22.
Now anyone who perceived to be a threat to authorities could be taken into custody without trail. Therefore eminent politicians like A.B. Vajpayee, Morarjee Desai etc were arrested under the Maintenance of Internal Security Act (MISA) which provided for custody without any trial.
Due to which the High Court of various States were flooded with writ petition contesting their detention. 9 High Courts gave their decision in favour of the detenus on the ground that although ART. 21 is suspended the detention orders can be challenged if it is mala-fide.
So the State and Central Government aggrieved such decision appealed to the Supreme Court.
Is a writ petition maintainable U/A 226 of the Constitution before the High Court to enforce the Fundamental Rights during the period when emergency provision are in imposition.?
A.N. Ray: “Liberty is confined and controlled by law. It is regulated freedom and not an absolute freedom. If extraordinary powers are provided by the Constitution then it is implied that such extraordinary power shall be used in extraordinary situation. Liberty itself is the gift of law and may by law be forfeited or abridge. In the period of public danger the protective law which gives every man security and confidence in times of tranquillity, has to give way to interest of the State.”
M.H. Beg: “Emergency provision are the extension of the individual’s right of self-defence, which has its expression in positive law, to the State, the legal organisation through which society as a whole is protected”.
Y.V. Chandrachud: “The liberty of the individual is the most cherished of human freedoms and even in the face of the gravest emergencies, Judges have played a historic role in guarding that freedom with zeal and jealousy, though within the bounds, the farthest bounds of Constitutional power”.
P.N. Bhagwati: “There are three types of crisis in the life of a democratic nation, three well defined threats to its existence both as a nation and a democracy. The first of these is war, particularly a war to repel invasion when a State must convert its peacetime political and social order into a wartime fighting machine and overmatch he skill and efficiency of the enemy.
The second crisis is to disrupt the life of the Country and jeopardize the existence of the Constitutional Government. The third crisis, one recognised particularly in modern times as sanctioning emergency action by the Constitutional Government, is breakdown or potential breakdown of the economy. 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 a free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it, 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 aon the relevant provision of the Constitution a construction which its language cannot reasonably bear”.
H.R. Khanna: “Law of preventive detention, of detention without trails an anathema to all those who love personal liberty. Such a law makes deep inroad into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. The vesting of power of detention without trail to the executive, has the effect of making the same authority both the prosecutor as well as the Judge and is bound to result in arbitrariness”.
The Presidential order dated June 27, 1975 whereby Art. 359(1) was invoked, suspends the right to submit petition U/A 226 of the Constitution of India to any Court. The effect of suspension is that the individual cannot move to any Court for the enforcement of Fundamental Rights.
No person has the locus standi to move any writ U/A 226 of the Constitution to enforce any right to personal liberty of a person who is detained on the grounds that the order for detention is illegal or mala fide.
Hence a prima facie valid detention order where the reason for detention are duly recorded which satisfy the detention of the petitioner under MISA, is a complete answer to the writ of Habeas Corpus. No Court can inquire upon such detention order. Such inroad upon the freedom of a person is sanctioned by the Constitution itself.
In a period of public danger the law which gives every person the security and confidence in times of tranquillity, has to give way to the larger interest of the State.
One of the objective of emergency provision is to ensure that the no trail is proceeded to enforce the rights against the Executive during the operation of the emergency.
Even if it is assumed that certain rights to personal liberty existed before the Constitution and remained in force after the Constitution, all the rights to personal liberty having same content as to Art. 21 would fall within the mischief of the Presidential order.
So if Presidential order demands for suspension of the right to move to the Court for the enforcement of right to personal liberty during emergency then the Courts will have nothing much to enforce. It is not unconstitutional and not interfering with the jurisdiction of the Court.
The Constitution is the mandate and it is itself the rule of law. So the emergency provision suspending the fundamental right are by themselves the rule of law.
Section 16-A of the Maintenance of Internal Security Act of 1971 (MISA) contains implied exclusion of the judicial review on the allegation of mala-fides. Therefore the Courts are not competent to decide whether the declaration U/S 16-A of the Act is mala-fide or not.
Section 18 of Maintenance of Internal Security Act is by way of abundant caution and is constitutionally valid.
The Apex Court’s bench(majority) comprising of A.N. Ray (CJ), M.H.Beg, Y.V. Chandrachud, P.N. Bhagwati, JJ, held the following:
When the emergency provision are in place, any action taken by the Government cannot be questioned. The reason being that the government then safeguards the life of the nation by using its extraordinary powers.
No person has locus standi to approach courts for the direction of writ U/A 226 or any other direction to challenge the legality of an order of detention in view of Presidential Order dated 27th June 1975.
The Court also upheld the Constitutional validity of Section 16A of Maintenance of Internal Security Act of 1971.
While Justice H.R. Khanna has dissenting view which was regarded later as the correct view, that art. 359 does not take away the right of the individual to approach the court for the enforcement of the statutory rights. He profounded that Art. 21 is not the repository of life and personal liberty. During emergency Art. 21 is only detached from the procedural law and not from substantive law.
The State does not have the right to deprive a person from right to life and liberty without the authority of law. “without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.”
This landmark case is also known as the Habeas Corpus Case which has received wide criticism for paramounting the Government over individual liberty. No sooner that the emergency ended than the Supreme Court deviated from its stance, giving permanent character to Art. 21 and linking it to Art. 14 and 19. Later J. Bhagwati too contented that the majority decision was not a god judgement.
As rightly remarked by Justice Venkatachaliah that “the majority decision in the Emergency case should be “confined to the dustbin of history. So the case was overturned by the Supreme Court in the landmark Puttaswamy Case in 2017.