Excellent study material for all civil services aspirants - begin learning - Kar ke dikhayenge!
SHARE:
CONCEPT – THE ADM JABALPUR CASE, 1976
Read more on - Polity | Economy | Schemes | S&T | Environment
- The story begins : It started with a judgement delivered by the Allahabad High Court on June 12, 1975, by Justice Jagmohan Lal Sinha. In State of Uttar Pradesh v. Raj Narain case, the petitioner challenged the election of Indira Gandhi to the Lok Sabha and the resultant victory from Rae Bareli constituency in U.P. On 12 June, she was convicted by Justice Sinha, of having indulged in wrong practices and declared her election void.
- Leading to Emergency : She couldn’t contest any election or hold her office for the period of next six years.She appealed to the supreme court and the Apex court only granted her a conditional stay. That made her dysfunctional in a matter of vote or speak in Lok Sabha. To hold the chair of Prime Minister, she requested then President Fakruddin Ali Ahmad to declare an emergency under Clause (1) of the Article 352 of the Indian constitution which he did on June 26, 1975. The Government said, “a grave emergency existed whereby the security of India was threatened by internal disturbances”.
- Preceding background : The 1971 war with Pakistan had just ended and the 1972 drought was debilitating. These were the reasons given by the government for a declaration of emergency. On June 27 1975, the exercise of power given by Clause (1) of Article 359 of the constitution were enforced on the people of India and the foreigners. That meant that people's right to have enforced the Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases) would remain suspended for the period of Emergency.
- Throw them in jail : Anyone considered a political threat or anyone who could raise his/her political opinion freely was taken into custody without trial under Prevention Detention Laws like MISA (Maintenance of Internal Security Act). Various petitions were filed in High Courts challenging the detainments. Most of the high court gave their judgement in favour of these petitions which compelled Indira Gandhi Government to approach the Supreme Court for this issue. Then arrived the infamous "Additional District Magistrate Jabalpur V. Shivkant Shukla" judgment. It is also called the Habeas Corpus (To Produce the Body) Case.
- Detentions begin, Matter reaches the SC : The detentions started when on June 26, five MPs, part of a parliamentary delegation to Bengaluru were picked up from the city under the controversial Maintenance of Internal Security Act. It was on September 1, 1975 that the SC decided to collect all the Habeas Corpus cases from High Courts and bunched them together to hear as one. The hearings started on December 15, 1975. The main issue before the SC was whether, in execution of the Presidential Orders when a person was detained, if the High Court can entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention?
- Verdict on 28 April, 1976 : By a majority decision of the constitutional bench, the Supreme Court of India in the case of Additional District Magistrate, vs S. S. Shukla Etc., on 28 April, 1976, held that “In view of the Presidential order dated 27 June 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 consideration.” The bench headed by the then Chief Justice of India, Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati, delivered the Majority Ruling, whereas the fifth Judge, Justice H R Khanna, wrote a dissenting judgment. (He was later punished as others superseded him for CJI post)
- Government's arguments : The government’s arguments were centred around how the political executive had rights in times of war or during an Emergency to restrict personal liberty. Several senior advocates including Shanti Bhushan, Soli Sorabjee, V N Tarkunde, argued the habeas cases and maintained that it was “appalling” that with the remedy of habeas denied, the securing of a citizen’s life and liberty was “dead”. Sorabjee went onto argue that right of liberty predated the Constitution. The ruling was 4-1 in favour of the government of Indira Gandhi. Four judges upheld the executive’s prerogative to detain people and so, a citizen had no right to move a habeas in a high court under Article 226 in the light of the Emergency. Justice Beg went on to speak of the “care and concern bestowed by the state authorities upon the welfare of detenus who are well-housed, well-fed and well-treated is almost maternal.” Only Justice H R Khanna dissented. Justice YV Chandrachud (father of J D.Y. Chandrachud, today's SC judge) maintained that he had read the law right, even if it was not right to follow it. Once the Janata Party government was in place after Indira Gandhi lost the elections, in a speech to FICCI on April 22, 1978, Justice Y V Chandrachud had said: “I regret that I did not have the courage to lay down my office and tell the people, well, this is the law.”
- Technicalities :
- Government said that no habeas corpus petition would be maintainable and this would be so even though Article 22 itself is a fundamental right. The right to move a court for enforcement of a right under article 19 has now been suspended by the President under an order issued under article 359(1). Suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of the law. 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.
- Respondents said that the limited object of article 359(1) is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified in the Presidential order. 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. The Presidential Orders imposed were valid only with respect to fundamental rights and did not extend to Natural Law, Common Law or Statutory Law. 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. The respondents’ arguments was that Article 21 is not the sole repository of the right to life and personal liberty. Non-fundamental constitutional rights like those arising under Articles 256, 265 and 361 are not affected by the Presidential order. Statutory rights can only be taken away in terms of the statue and not by executive flat. Finally, it was urged that Preamble to the constitution speaks of a Sovereign, Democratic Republic and therefore, the Executive which is subordinate to the Legislature cannot act to the prejudice of the citizen save to the extent permitted by laws validly made by the legislature which is the chosen representative of the people.
- Son ruling out father : J. DY Chandrachud ruled in favour of right to privacy in 2017, thereby annulling the ADM Jabalpur case.
- J Khanna's stark question : He had asked the attorney general, Niren De, if “supposing some policeman, for reasons of enmity not of state, kills someone, would there be a remedy?” De is said to have replied: “My Lord, not so long as the Emergency lasts.”
- Why did SC do what it did : On January 30, 1976, a resolution was moved in the Lok Sabha, recommending changes which would have resulted in significantly changing the Constitution to clip the wings of the judiciary, including the power of judicial review, writ jurisdiction of Courts and Parliament’s power to amend the Constitution. Legal scholars feel that had the Court acted differently in ADM Jabalpur, “it would have imperilled the Courts’ existence”.
- Justice H R Khanna, the dissenting hero : He was superseded by others for the CJI post, and resinged in protest. His dissent formed the grounds of the rejection of ADM Jabalpur in 2017. His portrait adorns court number two today. Each of the other judges on the bench went on to serve as Chief Justice of India!
- Summary : The ADM Jabalpur case captured the extent of the Emergency, its testing of consciences, degrees of courage among lawyers and judges and its evocations of judicial philosophy. The then government did not stop at Justice Khanna. From nine high courts, 16 judges who had anything to do with upholding personal liberties were swiftly transferred.
- Later developments : After the Emergency was over, and all things which were done for it were rejected by in 1977, the Supreme Court in Maneka Gandhi v. Union of India case changed the position and gave fundamental character to the right in Article 21 by instituting a connection between Articles 14, 19 and 21 of the Constitution.
* Content sourced from free internet sources (publications, PIB site, international sites, etc.). Take your own subscriptions. Copyrights acknowledged.
COMMENTS