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INTRODUCTION

On The 25th June 1975 a proclamation the President made declaring the existence of an internal
emergency. Soon after a number of persons were arrested under the MISA. They included most
of the opposition members of the Parliament. Fast on its heels two Constitution amendment bills
were introduced. They were passed and became incorporated in the Constitution on 1 st and 10th
August 1975. In brief, the effect of the Thirty Eighth Amendment was to place the satisfaction of
the President at the several places in the Constitution and in particular in Articles 352 and 356
beyond challenge and question by and in any court of law. It also introduced additional subarticles in Article 359 similar in terms with article 358. The effect of these amendments was to
make the declaration of emergency by the President conclusive and beyond question as also to
empower the legislature and executive to act and pass laws in conflict with such fundamental
rights as also mentioned in the Presidential order under Article 359(1).

PARADIGM OF THE CASE;


It may be thought and contended that what the Supreme Court held and decided in A.D.M.
Jabalpurs case was with reference to the Emergency provisions and in its context. The
emergency provisions now in the Constitution by reason of the 44 th Constitution amendment have
undergone a change. It might be argued that much of the relevance of the judgment has now
ceased to be good. The provisions relating to a proclamation of internal emergency have no
doubt been drastically amended. But there is no guarantee that they will remain in the same form
as long as the amendation power of the Parliament can reach basic features as is the present law
laid down in Keshvanand Bhartis case1. What are the basic features of the Constitution have so
far been only illustrated and not enumerated. What it decided as to the right of an individual to
liberty and the observance of the rule of law during the existence of a Presidential order under
Article 359 of the kind, which was promulgated and fell for consideration in that case. Its

AIR 1973 SC 1461.

significance lies in the question of incapacity of the courts to render assistance to a citizen and to
enforce the observance of the rule of law. The supremacy of the rule of law and a right to its
enforcement in a citizen has to be established independently.

HAS THE LEGAL POSITION AS SETTLED BY THE CASE UNDERMINED THE


CONSTITUTION?

The constitution forbids torture and summary killing in all circumstances, but creates emergency
exceptions to guarantees of due process, free speech, and other political liberties. When an
emergency threatens the life of the nation, a government may formally derogate from constitution
guarantees of due process, and use preventive detention within certain limits 2. The emergency
must be one that "threatens the life of the nation and one whose existence is officially
proclaimed3." The constitution, however, explicitly provides that during such emergencies there
cannot be any derogation of certain rights, including, but not limited to, the right to life and
freedom from torture4.

Originally, the Indian Constitution provided for the suspension of fundamental rights listed under
Article 19 during an emergency. Similarly, the President simply giving a declaratory order to that
effect could suspend the enforcement of other rights conferred by the Constitution during an
emergency5. The late Indira Gandhi, former Prime Minister of India, abused this constitutional
provision when she declared a national emergency 6. In Additional District Magistrate v. Shivkant
2

ILA Second Interim Report, art. 4, Para. 1 (allowing derogation "to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with their other obligations
under international law").
3
Id.
4
Id. art. 4, Para. 2.
5
See India Const. pt. XVIII, art. 352, reprinted in VII Constitutions of the Countries of the World, supra
note 7, at 1, 233-34 (stating that if the President believes a grave emergency threatens India's security, he
may, with discretion, declare a state of emergency).
6
India was under Emergency Rule from June 1975 to March 1977 because the late Indira Gandhi, who was
then Prime Minister, declared an Emergency, ostensibly to safeguard the country's integrity and security
from "internal disturbances;" however, in reality, the declaration was for purely personal and partisan
political ends. See Ved. P. Nanda, From Gandhi to Gandhi: International Legal Responses to the
Destruction of Human Rights and Fundamental Freedoms in India, 6 Denv. J. Int'l L. & Pol'y 1, 36 (1976)
(opining that "constitutional repudiation of a Prime Minister or a political party in power most certainly

Shukla7, the Indian Supreme Court unfortunately upheld Indira Gandhi's Emergency and refused
to issue a writ of habeas corpus for the enforcement of the plaintiff's constitutional rights 8.

Once the government revoked the Emergency in 1977, the Janata Party came to power and
there was a vociferous public demand for amending the Constitution's emergency provisions to
prevent future abuse. The Forty-fourth Constitution (Amendment) Act ensued9. This Act crucially
changed the provisions pertaining to the suspension of fundamental rights during an emergency.
Under this Act, there can be no suspension of the rights conferred by Articles 20 and 21 during an
emergency declared on any ground. Further, as a result of this amendment, laws unconnected
with an emergency can be challenged in a court of law during the emergency 10. These changes
have made the constitutional provisions consistent.

BACKGROUND OF THE CASE


does not comprise such a threat "to the life of the nation as required by the international community").
7
A.I.R. 1976 S.C. 1206.
8
India gained independence from British rule on August 15, 1947. See Sharad D. Abhyankar, India, in VII
Constitutions of the Countries of the World, supra note 7, at 1 (providing an overview of the history of
India). On attaining independence India was partitioned into two sovereign nations: India and Pakistan. See
Vijayashri Sripati, Human Rights in India: Fifty Years After Independence, 26 Denv. J. Int'l L. & Pol. 93,
96 n.17 (1997) (noting further that "what ensued was a panicky exodus of Muslims fleeing to Pakistan and
Hindus fleeing to India and a communal carnage in which about a million lives were lost.").
9
See India Const. pt. XVIII, art. 359, cl. 1, reprinted in VII Constitutions of the Countries of the World,
supra note 7, at 1, 238-39 n.8 (substituting "the President may by order declare that the rights to move any
court for the enforcement of the rights conferred by Part III" to "the President may by order declare that the
rights to move any court for the enforcement of such the right conferred by Part III (except Articles 20 and
21)...."); Sripati, supra note 14, at 107 n.107 (stating that as a result of the 44th Amendment, Article 21 can
no longer be suspended during the proclamation of an emergency).
10
See India Const. pt. XVIII, art. 358, cl. 2 (a), reprinted in VII Constitutions of the Countries of the World,
supra note 7, at 1, 238 (stating that "nothing in clause 1", which notes that nothing in Article 19 shall
restrict the power of the state to make any law during an emergency "shall apply to any law which does not
contain a recital to the effect that such law is in relation to the proclamation of emergency in operation
when it is made").

On 12th June the election petition filed by Shri Rajnarayan against Mrs. Indira Gandhi was allowed
by the Allahabad High Court On 24th June, 1975 her petition for stay of the order of the High Court
was rejected by the Supreme Court and only a conditional order of stay was passed.
The internal Emergency was proclaimed on 25 th June 1975 and continued till 21 st March 1977. In
the meantime the Parliament whose life was extended by a year was dissolved. Fresh elections
were ordered and held. The verdict of the elections swept the ruling Congress Party out of power
and placed the Janata Party in saddle. By an amendment to the Constitution, the 44 th
amendment, several amendments made by the 38 th and 42nd amendment of the Constitution were
replaced and changed. This is now a matter of history.

The Imposition of the Emergency saw some of the most draconian provisions of law being placed
on the statute book and widespread suppression of individual liberty in all its forms. No meetings
could be held and permissions were refused. Only such things could be published including
judgments of the High Courts and Supreme Court as the censor allowed. A very rigid control was
clamped on the news media. Thousands of people and may be nearly a lakh were detained,
without the slightest hint or knowledge to them of the reasons therefore. Most of them continued
to languish ni jails until the lifting of the emergency. Some of them were tortued, treated
inhumanly and some lost their lives without anyone knowing about them.

The MISA and the Constitution were so amended, and the Presidential order 11 so worded, as to
deny relief in any manner to anyone. The emergency had all the attributes of a brute dictatorial
regime without theyre being any evidence of the necessity of such a drastic oppressive recourse.
Indeed in free. India, it was the darkest and most oppressive period of nineteen months. After the
lifting of the Emergency and the Janata Government coming into power a commission headed by
the Ex-Chief Justice, Mr. J C Shah was appointed. It produced after a good deal of labour and
investigation a voluminous report cataloguing the dard and the darkest deeds of the regime
11

The Presidential Order referred to was the one issued during Emergency declaring that the right of any
person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 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 Proclamation of Emergency are in force.

during the emergency. Amongst some of its conclusions was the conclusion that numerous
people were harassed, imprisoned and troubled without any apparent justification and that the
imposition of emergency was not justified. The circumstances suggested that it was imposed at
the will of and to suit the then Prime Minister Indira Gandhi for her personal and political ends.

COMMENT
PRELIMINARY

ISSUES IDENTIFIED

The danger of the Constitution being subverted and the horrid experience of the 1975 variant
emergency notwithstanding the amendment to the Constitution being repeated in a more drastic
form has not altogether receded. It is, therefore, all the more necessary to examine and analyze
the correctness of the thesis of the A.D.M. Jabalpur judgment. The following 4 propositions seem
to be the mainstay and pillars upon which the judgment rests. They in turn raise questions, which
are also set along with.

1. In a national crisis absolute powers must be vested with the State and individual liberties
must be made subservient to the paramount national goal and requirement of survival.
Does this theory mean denial of even the primary concept of an orderly-society, of
obedience to the rule of law and the authority of the Court under the principle of ultra
vires?
2. Does the considerable and continued dependence on the English decision Rex v.
Halliday12 and Liver sidge V. Anderson13 and the application of the principles is proper in
different circumstances, situation and climate particularly when the authorities themselves
have become doubtful. Whether theyre like application in the absence of the safeguards
is justified?
3. The emergency provisions in the Constitution are themselves law and compliance with
them is compliance of the rule of law. If the emergency provisions and particularly the
Presidential Order under Article 359 (1) are tantamount to a declaration of martial law,
can a negation of law be law at all?
4. Article 21 is the sole repository of personal liberty and the principle of rule of law does not
stand apart from it and so far as personal liberty is concerned is either merged with it or
12
13

(1917 A.C. 262)


(1942 A.C. 206)

grouped with it. Does this no visualize a duel role, or law, at once an existence and nonexistence with regarded to the areas on which Arts. 358 and 359 have an impact?

DECISION

This case, decided during the 1975-77 state of emergency, arose out of appeals from eleven
high courts, which had held that, notwithstanding a presidential order under Article 359 of the
constitution suspending the right to enforce fundamental rights, the higher courts could, in
appropriate cases, entertain applications for habeas corpus. Rejecting that view, the Supreme
Court held that, as long as the presidential order was in force, the individual had no remedy
against detention, even in cases where he could show that the detention was vitiated by mala
fides or was ultra vires of the statute.

According to the court, Article 21 of the constitution was the sole repository of the right
to personal liberty and no other right could be invoked in support of a challenge to an order of
detention passed against an individual.

Although this judgment has not been overruled, its effect has been reduced substantially
by a 1978 amendment to the constitution, which made the rights to life and personal liberty
(Article 21) non-suspendable during emergencies.

JUDGES

In the Jabalpur case the question was simple: Despite the Presidential proclamation, can the
High Court entertain a writ of habeas corpus filed by a person challenging his detention? All High
Courts that had answered the question, had done so in the affirmative and had kept their doors
open to those unfortunate who dared risk the wrath of some petty governmental official. Against
the unanimous decision of the High Courts, four of the five senior most Hon'ble Justices of the
Supreme Court thought it fit to rule otherwise. They were the then Chief Justice A.N. Ray, along

with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme Court had
effectively ordered the High Courts to slam shut their doors and windows. The lone dissenting
voice was that of Justice H.R. Khanna of whom the New York Times remarked: 'surely a statue
would be erected to him in an Indian city'.

Justice

Khanna,

conscious

of

his

aloneness,

ended

his

judgment

with

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, to
use his words, is an appeal 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."

Justice Khanna paid the price for his dissent. He was next in line to become Chief Justice of
India. He resigned when his junior, Justice M.H. Beg, superseded him. That was justice Indira
Gandhi style

CATEGORICAL CRITIQUE OF THE A.D.M JABALPUR

The law has been increasingly considered as an instrument of social engineering. In that context
it has been many times advocated that the Courts have to take a more activist role and lend a
positive direction. The philosophy that the courts have merely to interpret the law and declare it
has been assailed. It has been argued and urged that courts have a positive role. A Judge can no
more be only a passive instrument or dispassionate spectator but has to assume an activist role.
The Ex-Chief Justice of India Mr. Gajendragadkar was a strong advocate of this positive role
and considered not only the law but also the law courts as dynamic engines of social justice. Mr.
Justice Patanjali Shastri described the role of the Supreme Court as a sentinel on the qui vive.
How far did the Supreme Court perform this role and fulfil its function in A.D.M. Jabalpur ? How
positivist was its role and how much as a sentinel it guarded the bastions of human rights are the
object of this examination.

The 44th amendment to the Constitution, so far as Article 359 14 is concerned takes away from the
Presidential power the right to suspend the operation of Articles 20 15 and 2116. But as stated
above the article can be amended. The question of the operation of rule of law decided by the
Court in A.D.M. Jabalpurs case is of far-reaching significance.

The imposition of internal emergency in June 1975 and its continuance till March 1977 and what
happened during its time only demonstrates how the provisions in the Constitution relating to
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359. Suspension of the enforcement of the rights conferred by Part III during emergencies.-

(1) Where a Proclamation of Emergency is in operation, the President may by order delcare that the right to
move any court for the enforcement of such of _330[the rights conferred by Part III (except articles 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.
_331[(1A) While an order made under clause (1) mentioning any of _330[of the rights conferred by Part III
(except articles 20 and 21)] is in operation, nothing in that Part conferring those rights shall restrict the
power of the State as defined in the said Part to make any law or to take any executive action which the
State would but for the provisions contained in that Part be competent to make or to take, but any law so
made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to
operate, except as respects things done or omitted to be done before the law so ceases to have effect:]
_332[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of
India, any such law may be made, or any such executive action may be taken, under this article in relation
to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not
in operation, if and in so far as the security of India or any part of the territory thereof is threatened by
activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in
operation.]
_333[(1B) Nothing in clause (1A) shall apply(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation
of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.]
(2) An order made as aforesaid may extend to the whole or any part of the territory of India:
_332[Provided that where a Proclamation of Emergency is in operation only in a part of the territory of
India, any such order shall not extend to any other part of the territory of India unless the President, being
satisfied that the security of India or any part of the territory thereof is threatened by activities in or in
relation to the part of the territory of India in which the Proclamation of Emergency is in operation,
considers such extension to be necessary.]
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House
of Parliament.
15

20. Protection in respect of conviction for offences.(1) No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
16

21. Protection of life and personal liberty.No person shall be deprived of his life or personal liberty except according to procedure established by law.

imposition of emergency and suspension of the rights of people could be subverted. It also
showed how far-reaching damage could be inflicted on individual liberty and the democratic
process abused. By the amendment to the Constitution it can be said that the peoples will has
been asserted and its has been established by the verdict of the people that these provision must
be so amended as to put them beyond abuse.

Besides, though the political verdict has been given and the provisions of Article 352 17 amended,
the judgment remains and until it is overturned, continues to remain the law and holds the field. It
may be that in future as long as the present amended Article 359 remains in the Constitution the
enforcement of the rights under Articles 20 and 21 remain incapable of being suspended. But that
does not mean that the relevancy of the judgment is gone for all times. The popular adage once
bitten twice shy is not to be easily forgotten. The wind of change must be felt in the judicial

17

352. Proclamation of Emergency.

(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of
the territory thereof is threatened, whether by war or external aggression or _308[armed rebellion], he may,
by Proclamation, make a declaration to that effect _309[in respect of the whole of India or of such part of
the territory thereof as may be specified in the Proclamation].
_310[Explanation.- A Proclamation of Emergency declaring that the security of India or any part of the
territory thereof is threatened by war or by external aggression or by armed rebellion may be made before
the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is
imminent danger thereof.]
_311[(2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such
Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime
Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be
issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall,
except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of
one month unless before the expiration of that period it has been approved by resolutions of both Houses of
Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is
issued at a time when the House of the People has been dissolved, or the dissolution of the House of the
People takes place during the period of one month referred to in this clause, and if a resolution approving
the Proclamation has been passed by the Council of States, but no resolution with respect to such
Proclamation has been passed by the House of the People before the expiration of that period the
Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the
People first sits after its reconstitution, unless before the expiration of the said period of thirty days a
resolution approving the Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six
months from the date of the passing of the second of the resolutions approving the Proclamation under
clause (4):
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is
passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further
period of six months from the date on which it would otherwise have ceased to operate under this clause:
Provided further that if the dissolution of the House of the People takes place during any such period of six
months and a resolution approving the continuance in force of such Proclamation has been passed by the
Council of States but no resolution with respect to the continuance in force of such Proclamation has been
passed by the House of the People during the said period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the People first sits after its reconstituion
unless before the expiration of the said period of thirty days, a resolution approving the continuance in
force of the Proclamation has been also passed by the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only
by a majority of the total membership of that House and by a majority of not less than two-thirds of the
Members of that House present and voting.

atmosphere also. Until however it does so and blows away the dark clouds of the A.D.M. Jabalpur
decision it cannot be said that it has ceased to be relevant.
It may be noted that seven High Courts took the view that notwithstanding the Presidential order
under Article 359 (i) of 27th June 1975 and 8th January 1976 the petitions of a writ of Habeas
Corpus could be maintained. The question before the Supreme Court was whether this decision
was right, or whether the Presidential order was an effective bar at the threshold itself. The
Supreme Court answered against the detenus overruled the decisions the decisions of the High
Court and held that the petitions were not maintainable and cannot be looked at.

The question in the ADM case was Is all law in relation to life and liberty abrogated in India
during emergency if the presidents order under Art 359(3) provides that the right to move to the
court for enforcement of right to life and personal liberty is to be suspended

To this learned Attorney-General contended that Article 21 is the sole repository of the right to life
and personal liberty and if the right to move any court for the enforcement of that right is
suspended by the Presidential Order issued under Article 359(1), the detenus have no locus
standi to file the writ petitions and therefore their petitions must be dismissed without any further
inquiry into the relevance of the material on which the grounds of detention are based or the

(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation
issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a
resolution disapproving, or, as the case may be, disapproving the continuance in force of, such
Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total number of members of the
House of the People has been given, of their intention to move a resolution for disapproving, or, as the case
may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a
Proclamation varying such Proclamation,(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session,
a special sitting of the House shall be held within fourteen days from the date on which such notice is
received by the Speaker, or, as the case may be, by the President, for the purpose of considering such
resolution.]
_312[_313(9)] The power conferred on the President by this article shall include the power to issue
different Proclamations on different grounds, being war or external aggression or _314[armed rebellion] or
imminent danger of war or external aggression or _314[armed rebellion], whether or not there is a
Proclamation already issued by the President under clause (1) and such Proclamation is in operation.
_315* * * * *

relevance of the grounds or the bona fides of the detaining authority. If the MISA permits the nondisclosure of grounds and indeed prevents their disclosure, there is no question of inquiring into
the reasons or grounds of detention and courts must accept at its face value the subjective
satisfaction of the detaining authority as recorded in the order of detention. There is no half-way
house" asserted the Attorney-General. But, not inconsistently with the basic submission that the
detenus have no locus to file the petitions for habeas corpus, he conceded that the court may
grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person
not authorized to pass it, or if it is passed for a purpose outside those mentioned in Section 3(1)
of the MISA or if it does not bear any signature at all.

To this Justice Beg replied:


A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer
authorized to make it, recording a purported satisfaction to detain the petitioner under the
Maintenance of Internal Security Act which is operative either before or after its confirmation by
the Government, is a complete answer to a petition for a writ of habeas corpus. Once such an
order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot
inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance
with any provision of the Maintenance of Internal Security Act in habeas corpus proceedings. The
preliminary objection of the State must be accepted in such a case

Where as to this Justice P.N. Bhagwati responded:


Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before
the court, it must be rejected straightway without even looking at the averments made in it. The
court would have to consider whether the bar of the Presidential Order is attracted and for that
purpose, the court would have to see whether the order of detention is one made by an authority
empowered to pass such an order under the Act; if it is not, it would not be State action and the
petition would not be one for enforcement of the right conferred by Article 21. On this view in

regard to the interpretation of the constitutional provision, it is unnecessary to go into the question
of construction and validity of Section 18 of the Act.

Therefore it could be stated that 3 out of 4 judges had the view that the detenu could successfully
maintain the writ in spite of presidents order. If the order passed are ex faci bad that is invalid or
void by the reason that it violates the requirements of the act or is been passed by an officer
without the authority to pass it. Therefore the final order passed by the judges was:
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 is illegal or is vitiated
by mala fides factual or legal or is based on extraneous considerations.

But this is in direct conflict with position accepted by them as it says other way round that the writ
is not maintainable on the ground that it is not in consonance with the provisions of the act. This
is the biggest contradiction between the final order and the judgment passed. C.J Beg is admitted
that the order was misleading and incorrect 18.

This also led to condition that:


1. The presidents order need not specify any law for detaining any person. This would
make the condition in which if the order passed were under no law then in that case it
would not be void on the ground that it is not in consonance with any law.

2. It was been said that the person cam not be deprive of his life and liberty under Art 21
without force of law would have no effect because in the present case the law need not
be there to detain a person.

18

1978) 2 S.C.R 581.

Thus it can be concluded that the emphasis of Art 358 and Art 359 is on law. The marginal note of
Art 358 is misleading it say suspension of provisions of Art 19
In fact it does not suspend the Art 19 without the action by the state. In the case of M.P v. Singh19
it was held that
The executive acting over the right conferred under part III should not be arbitrary in nature and
should be backed by the authority of law been passed under Art 358.

The main arguments advanced on behalf of the detenus can be set out as falling under the
following heads: (1) Article 359 (i) and order there under protects legislative action even though
violative of the fundamental rights mentioned therein and does not protect executive action. (2)
The executive wing of the State cannot act or take action except in conformity and in accordance
with the law whether made during emergency or otherwise. Compliance with the law and action in
accordance with law is the basic requirement of the rule of law. Rule of law is supreme in the
Constitution and is its basic feature. (3) Article 21 is not the sole repository of individual liberty.
Liberty is a concept, positive aspects of which are not enumerated and fixed. Operationally it is
negative in character meaning absence of its denial except in accordance with law. The common
law right to livery and pre-constitution rights to freedom cannot be suspended by order under
Article 359 (i) (4) If the executive does not acts in correct manner as provided by the act, the
detenus will have no remedy and the executive can take any action and yet not be answerable.
This will be a situation of total negation of any rule of law. (5) Section 16 A (a) of the MISA
encroaches upon the jurisdiction of the High Courts under Article 226 and is, therefore,
unconstitutional.

The heart of the matter therefore was whether in times of Emergency and the operation of a
blanket Presidential order suspending the right to enforce the rights enumerated in the order in a
court of law the executive was not obligated to follow any law relating to its actions like detention
in hat behalf. Whether the rule of law was paramount or subordinated to the exigencies of the

19

situation was at the base of the question. The obligation that all executive action must be under
the law and in consonance with the law and referable to some provision of law is the essence of
the requirement of the rule of law. Mr. Justice Khanna quoing from a series of Supreme Court
decisions in Bharat Singh20, Om Prakash21, Meenakshi Mills22, Bennett Coleman23 and other
cases pointed out that the prejudice of or detrimental to the right of an individual must have the
sanction of some law is a principle now Well settled in a chain of authorities24 of the Court. He
did not accept that it was a vague or nebulous principle and pointed out that at least two of its
aspects are certain, absence of arbitrariness, and the need of the authority of law for official acts
affecting prejudicially the individual.

This catena of decisions was the foundation of the arguments built for the response that any
executive action prejudicial to the individual like his detention must accord some law and
authority. Apart from the right to liberty and freedom, which may be suspended, the individual was
entitled to have the court examine whether there has been compliance with this principle. The
majority Judges gave different answers to this contention and repelled the attack. It may be
stated that some of them were parties to the decisions relied upon. According to Ray C.J., the
question was is the Presidential order subject to the rule of law 25 He however in Para 85 framed
the question differently visz., whether the rule of law overrides the presidential order. With
respect the question really is not whether the one overrides the other, but whether the
Presidential order suspends the operation of the principle. The Chief Justice disposed of the four
cases relied on the ground that no question of enforcement of fundamental rights mentioned in
the Presidential order arose therein. In other words the acts complained of in those cases did not
involve the infringement of any of the rights under part III and therefore there could be no
question of the Presidential order operating as a bar. This is open to doubt.

20

AIR 1967 SC 1170


AIR 1969 SC 33
22
AIR 1974 SC 366
23
AIR 1973 SC 106
24
A.I.R. 1976 S.C. 1207 (P. 1261)
25
A.I.R. 1976 S.C. 1207. (P. 1224 Para 30).
21

The other answer, which he gave, was unusual. According to him when the order, the emergency
provisions in the constitution, suspends the fundamental rights themselves become the law
during that period. There cannot be any rule of law other than the constitutional law. This seems
to say that if the provisions of part XVIII of the constitution permit, Government or Governance by
no law then that is the law. This may be said to be an extreme position.

According to Mr. Justice Charndrachud (as he then was) Article 359 (1) does not provide that
the executive is free to disobey the laws made by the legislature (P.1331). It merely, according to
his Lordship, suspends the right of an individual to move a court for the assertion of his rights.
Basing himself upon this interpretation, though he was of the opinion that the argument that
executive action prejudicial to an individual must have the authority of law that argument was
valid only in normal times. He observed, That rule of law must prevail in normal times. But it is
necessary to clear a misconception. Even though the compulsion to obey the law is compulsion
of normal times Article 358 takes in those cases only in which the executive purports to act under
the authority of law. It does not envisage that the executive can act without the authority of law
(P. 1332). Though he noted that the contention that the Presidential order under Article 359 (1)
cannot ever suspend the rule of law found support in the case of Bharat Singh26, Ibrahim & Co27.,
Bennett Coleman28, Meenakshi Mills29 and Om Prakash30, he had this to say the rule of law
argument like the Basic feature argument is intractable If the true construction and effect of
Article 359 (1) is as I have sated it to be, it is impossible to hold that such a construction violated
the rule of law (P. 1334).

Mr. Justice Bhagwati held that the constitutional principle of rule of law as enunciated by the
Privy Council decision in Eshughavi Elekos case31 was equally applicable and was a preconstitution principle. However, according to him it ceased to have a separate and distinct
26

AIR 1967 SC 1170


AIR 1970 SC 1275
28
AIR 1973 Sc 106
29
Supra FN 22
30
AIR 1969 SC 33
31
AIR 1931 PC 248
27

existence after the constitution and got merged in Art, 21. It is difficult to comprehend how it could
continue to have a distinct and separate existence independently and apart from this article
(Article 21) in which it has been given this constitutional vesture (page 1366-para 531). To hold
that it continued to have an independent existence and it therefore free from the mischief of
Article 359 (1), he felt would defeat the object of constitution markers in imposing the limitation
under Article 359 clauses 1 and 1A, and make a mockery of that limitation (page 1366). That
wold reduces to futility Article 359. He dealt with the cases relied upon and felt that the
obligation of the executive to act according to law and not to flout or disobey it is
unexceptionable, but that the same obligation was expressly recognized and enacted in Article
21 of the constitution, so far as the personal liberty aspect o its was concerned. If the
constitution, so far as the personal liberty aspect of its was concerned. If the constitution
permitted its suspension it would be defeating that intention to hold its continued existence
independently.

Mr. Justice Bhagwati also referred to the implied recognition of imposition of Martial Law in the
Constitution. It was argued that if that was contemplated by the constitution, then that result
cannot be brought about except by the Presidential order under Article 359 (1), a reasoning
parallel to that of Mr. Justice Beg. It would thus be seen that the answer given by Mr. Justice
Bhagwati is different and a departure and may appear to be in conflict with the decisions in the
cases from Bharat Sing and onwards.

It is implicit in the above view of the matter that it should have been held that Article 21 is the sole
repository o personal liberty. Though not directly in effect Justice Bhagwati held so. Referring to
the majority and minority opinions in Kharak Singhs case32 as to the meaning of the expression
personal liberty that Article 19 (1) deals with specific attributes of personal liberty while that
there is no carving out but that both are independent rights respectively, that in view of R.C.
Coopers case33 he pointed out that the minority view must be regarded as correct. In his
32
33

AIR 1963 SC 1295) : (1963 (2) Cri LJ 329


AIR 1970 SC 564

opinion Article 21 conferred a distinct right to personal liberty. But distinctly and separately from it
no right existed which could be enforced (Para 556 page 1383). Mr. Justice Beg noted his
conclusion in the following manner producing the same result. He felt from what may have been
before common law or natural rights some basic aspects have been selected to confer upon
them an elevated stature of fundamental rights and any other co-extensive rights, outside the
constitution are necessarily excluded by their recognition as or merged with fundamental rights
(P 1293).

Mr. Justice Chandrachud did not directly answer the question. According to him when the right
to liberty is put in action there is nothing to distinguish it from Article 21 and a pre-constitution
right. If that was not to be so he felt it seems rightly that even it the Presidential order mentions
Article 21 no action to enforce personal liberty can come within it mischief. According to him also
the right to personal liberty along with certain other rights was elevated to the status of a
fundamental right (Page 1336 Para 451). Though he seems to concede the existence of such a
right to personal liberty existing even before eclipsed nor merged in the right conferred under Part
III according to him all rights to personal liberty having the same content as the right conferred by
Article 21 would fall within the mischief of the Presidential order (Page 1358).

Chief Justice Ray however expressed himself emphatically. He seemed to see clearly that the
Presidential order would not be a bar unless Article 21 was the sole repository of the right to
personal liberty (Para 50). He, therefore, firmly observed, the only right to life and liberty is
enshrined in Art. 21. Following Kharak Singhs case34 (majority sidue of the right to personal
liberty other than those specific attributes covered by Article 19 (1). He merely reiterated it.
According to him the pre constitution right to liberty with the same content was incorporated in
Part III. Though he does not clearly say that there is merger, he still felt The pre existing right
and the fundamental, fundamental right conferred by the constitution (Page 1229).

34

F.N.28

The attorney General had argued that Article 21 was the sole repository of right to personal
liberty. Therefore, since the Presidential order under Article 359 (1) mentioned it, the individuals
right to enforce it stood suspended. But it was also conceded that if this contention was not right,
then the petitions were maintainable. Justice Khanna did not accept this argument and did not
consider it to be so. He pointed out that the right to life and personal liberty is the most precious
right of human beings in civilised societies governed by rule of law (Page 1253). Apart from that
and apart from the Constitution he was of the opinion that the state has 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. Without such sanctity of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning (Page 1255).

The consequences of the view held by the court and the direct result of it was that during the time
a proclamation of emergency existed, and the Indian experience was that these had been
unjustifiably too long, that the individual would be without the protection of any law whatsoever.
The executive will have unbridled, unmitigated power over men and their belongings and there
cannot be any relief or redress to them. A stand by captive Parliament could always produce a
law of indemnity if need be. The horrifying consequences of such a decision and the warning that
nobody on earth can be trusted with power without restraint 35 remained unheeded. Its judgment
signaled to the executive that Article 359 (1) and the Presidential order can vest it with Martial
Law powers without declaring one, a bewildering result probably undreamt of and contemplated
by those who imposed that order.

It is not as if the court was not aware of what the situation meant and how it can be conducive of
inflicting torture, hardships and untold misery on the people. That any person could be arrested
and he will never know why. It was said for the Union by the Attorney General that even if a
detenu is shot out of hand he could have no remedy. It is not as if the court did not visualize the
consequences. The counsel for the respondents in fact graphically painted them before it. But the

35

Page 297 Law & Orders Allen 3rd Edn

of sense of justice in those who wielded the power. Secured in its secluded position, protected
from the current of events, it would well think so. It dismissed these as extreme flights of
imagination or if the law was like that there was no help to it. Thus Ray C.J. observed that there
is no record of any life of an individual being taken away either in our country during emergency
or in England or America. It can never be assumed that such a think will happen (P. 1223)
Referring to the arguments based on instances he observed that such instances are intended to
produce a kind of terror and horro and are horatative in character. He felt that if there is power
extreme example will neither add to the power nor rob the same. (Para 28 P. 1223). One cannot
help thinking that the examples of consequences in England and America are totally unjustified,
and the real question is whether there is such an extreme power.

The Ray C.J. pointed out that the courts interpret the Constitution and the laws in accordance
with law and judicial conscience and not with emotion (P. 1225). Chandrachud J. felt that the
approach of the High Courts in the impugned judgments was one of distrust of the executive. Mr.
Justice Beg stated, Courts must presume that executive authorities are acting in conformity with
both the spirit and the substance of the law (P. 1300). He branded that counsel as advocates of
gloom when they painted pictures of possible consequences of the Courts ruling and considered
it as not responsible advocacy or performances of patriotic or public duty in conjuring up
phantoms of fear. He even went to the extent of saying of course on prepared and well fed
reports that the care and concern bestowed upon detenus was almost material.

Though Chandrachud, J. appeared to moan the muting of the law during emergency, cherished
a fond hope that the people of this country are entitled to expected when they go to the ballot
box that their chosen representatives will not willingly suffer an erosion of the rights of people.
He held a lofty hope of faith in democracy of the powers that be that greater powers will not lead
to greater abuse (P. 1347). He ended on a tone which could hardly have been more out of tune
with times by saying that the fear of the counsel that detenus may be whipped, stripped and even
shot was unfounded. Such misdeeds have not tarnished the record of never come to pass (P.

1349). Mr. Justice Bhagwati added a warning to the general feelings about material Government
care and an untarnished image that the executive must guard against misuse or abuse of power,
for though such misuse or abuse may yield short term gains, it is a lesson of history which should
never be forgotten that ultimately means have a habit of swallowing up ends. (P. 1384).

These opinions were delivered on 28-4-1976. Within a period of one year the futilities of the hope
and the justification of the fears was vindicated when a commission was appointed to investigate
into the excesses committed during emergency, the justification and circumstances of it. It clearly
proved that the peoples chosen representatives had suffered the eclipse of the rights of the
people. Indeed some of them contributed to it and vied with each other to praise and support it.
There were mass detentions, which had not a vestige of justification. Preventive detention was
abused into a monster. Any social or political therapeutic claim on its behalf was wholly exposed.

The judgment had indicated that this was really undeclared material law. This had only one
solution and that was a peoples revolution. That revolution came luckily through the ballot box.
The people mercilessly and in a hurricane like fury disregarded and trampled upon the doctrine of
national crisis justifying assumption by the State of all powers and depriving the people of all their
rights. The people chosen representatives who had suffered an eclipse of the peoples freedom
and rights were thrown into the dustbin. The wisdom of the decision had been completely
disregarded and disapproved. This was a popular overruling of the verdict of the Supreme Court.

CONCLUSION
The judiciary is the weakest body of the state. It becomes strong only when people repose faith in
it. Such faith constitutes the legitimacy of the Court and of judicial activism. Courts must
continuously strive to sustain their legitimacy. Courts do not have to bow to public pressure, but
rather they should stand firm against public pressure. What sustains legitimacy of judicial activism
is not its submission to populism, but its capacity to withstand such pressure without sacrificing
impartiality and objectivity. Courts must not only be fair, they must appear to be fair. Such
inarticulate and diffused consensus about the impartiality and integrity of the judiciary is the
source of the Court's legitimacy.

This one case is a glaring example of how the four wise Judges of the Supreme Court tried to
outdo themselves in being more loyal to the throne than the king himself. The final order goes
way beyond what was demanded of them by the plea of the Union of India. All the individual
judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extensio the
submissions of the Attorney-General on behalf of the government wherein he made the claim that
the detenue had no right to approach the Court to challenge his detention.

They also record the concession of the Attorney-General to the effect that despite this general
ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it is
passed by a person not authorized to pass it, or if it is passed for a purpose outside those
mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney General

had thus handed over to the Supreme Court the same key with which all High Courts had earlier
used to keep ajar their doors for the detenues to squeeze through and enter. The Supreme Court,
instead, preferred to throw away this key to their own self-respect. The majority judgment, literally
taken, and as understood thereafter by all High Courts, clearly directed that detenues were to be
stopped at the doors if not in the corridors of the halls of Justice.

Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do
really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency
and the condition of those detained Justice Beg has this to say: "We understand that the care and
concern bestowed by the State authorities upon the welfare of detenues who are well housed,
well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy
when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the
emergency, the executive may whip and strip and starve the detenue and if this be our judgment,
even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a
diamond-bright, diamond-hard hope that such things will never come to pass."
Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the
nazi gas chambers. He voiced his belief that people who have faith in themselves and in their
country will not paint pictures of diabolic distortion and mendacious malignment of the
governance of the country.

A special mention must be made of Justice Bhagwati the man who had a knack with words and
who knew how to use them to play to the gallery. Though Justice Khanna had held high the
torch of freedom, it was Justice Bhagwati who spoke grandiosely about liberty. It was Mark
Anthony updated for the occasion telling us how much he loved liberty, but, how much more he
loved the law. Let us read his own words: "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."
Yes, his intense love for the Constitution could not permit him to read into it things which were not
there. Yet, all this he did, and much more a little later in the case of Indira Gandhi's daughter in
law, Maneka Gandhi, when the Janata Government had impounded her passport. When it came
to the then famous daughter-in-law's case, Justice Bhagwati read the Constitution like a
visionary and prophet finding within its pages and between the lines the famous principle that
laws have to be 'right, just and fair, and not arbitrary, fanciful or oppressive'. He also brought in
the theory that the soul of natural justice was fair play in action.