December 4, 2022

Case Comment: ADM Jabalpur vs Shivkant Shukla

This Article is written by Sharayu Paranjape, LLM Nmims K.P.Mehta School of Law, Mumbai.

“Suspension of Court proceedings” Under Article 359(1)

Abstract:-

In ADM Jabalpur v. Shivkant Shukla, the supreme court interpret article 359(1) as it is suspending the court’s proceedings related to fundamental rights or no person has the right to move to the court for filing a petition under article 226 of the Indian constitution. According to the supreme court, “The freedom in question is limited and controlled by law, whether at common law or in law”. The case revolves around article 359(1) and prevents the application of fundamental rights mentioned in the presidential order or suspension during an emergency. The case also knows as “Habeas Corpus”. The researcher examines the court’s approach to the “Suspension of fundamental rights”.

Introduction:-

The emergency of 1975 is known as one of the darkest moments or times for India or Indian peoples as the emergency lasted of 21 months(1975-1977)the reason for the emergency was internal disturbance but according to most people, an emergency applied in India just for political gain and the government at that time works according to their own whims. The case comes up when the judiciary wants to adjudicate all the serious matters which is already in front of the court.

Also, the case is famous for its judgment, as the bench of five judges gives the judgment with a majority of 4:1, justice H.R.Khanna was the only one who is against the decision of the other four judges and explained the importance of fundamental rights even in an emergency and the remaining judges are in the favor of a suspension of fundamental rights as long as the emergency will last. According to the scholars, “this judgment is a blot on the judiciary”.

The emergency was imposed under Article 352 of the Indian constitution by President Fakhruddin Ali Ahmed on the advice of then prime-minister Mrs.Indira Gandhi. Article 14,20 & 22 of the constitution was suspended under order article 359(1) which is presidential order. Many political leaders or we can say many opposition party leaders just because they are considered a threat. Many petitions were filed before different high courts all over the country and the union government.

The case is also known as the “Habeas Corpus” case as all the petitioners asked for relief, the term habeas corpus means “to Produce the body” which means to produce the detained person before the court of law and explain the reason behind the detention.

Why the case came up??

On June 25, 1975, then-President Fakhruddin Ali Ahmed declared a serious emergency for the security of India as the reason for the emergency was an internal disturbance and the emergency was imposed under the article or power conferred by the president under article 352(2).on the same day the president declared suspension of the right conferred by articles 14,21 and 22 in the exercise of the power vested under article 359(1). also, this order is applicable to the state of Jammu & Kashmir also.
The new amendments take place in the domestic security maintenance act as Articles 38 & Article 39. there is a question of validity that arise in some cases as the case was filed for the release of the accused under habeas corpus and the plaintiff had an objection over the maintainability of the fact of release. “Only Article 21 of the Constitution and taking into account the presidential order of June 27, 1975, which suspends the right to request the execution of the right conferred by this article, the petitions could be rejected at the threshold”.

Suspension of fundamental rights during emergency as per article 359 (1):

Ratio Decidendi

According to presidential order given under article 359 (1) on June 27, 1975, “no one has right to move to the court or to file petitions under article 226 of the Indian constitution for habeas order or for any other order related to fundamental rights or related to personal liberty of the person arrested under the maintenance of internal security act,1971”.any order or warrant given under these conditions will remain illegal and if an emergency arises executives will handle it.

In Queen vs. Halliday Ex Parte Zadiq [1917]AC 210, stated that any action taken by the court of law whether it is arbitrary or illegal cannot be questioned as its considered evidence. “The freedom in question is limited and controlled by law, whether at common law or in law”.

Extraordinary powers have been given to the government only on an urgent basis or only for extraordinary reasons and for a limited period. Otherwise, all the powers rest in the hands of sensible people and the developed government, and also the government has developed itself with such situations.

Purpose of the article 359(1) is to “prevent the application of any fundamental right mentioned in the Presidential Order from being prohibited or suspended during the emergency period. The purpose of Article 359(1) is not only to limit the application of this section to the legislative domain but also to the actions of the executive branch, Article 359(1) is not only to prohibit the right to sit in this Court but also to remove any superior the court that the jurisdiction created by Article 359(1) applies to the rights mentioned in the presidential order, either by a request under Article 32 or by a request under article 226”.Even the habeas corpus application made under article 491 of de criminal proceeding cannot be filed before the high court.
“The powers of President U / A 352(1) and 359(1) of our Constitution are exempt from any remedy in the courts, even when the emergency is over”.

Judges Opinion:-

The case was also famous for its judgment. The judgments have been given by the five judges with a majority of 4:1. justice H.R.Khanna is the only judge who has given the dissenting judgment and supports the importance of fundamental rights even in an emergency situation. Other remaining judges are in the favor of a suspension of fundamental right during the emergency period however long it lasts.

  • Opinions of the judges for the case:-
    • A.N.Ray:- “Freedom is limited and controlled by law, whether at common law or in law, which is, according to Burke, regulated freedom, not abstract or absolute freedom. the good sense of the people and the system of representative and responsible government that has developed: if extraordinary powers are granted, they are granted because the urgency is extraordinary and we are limited to the period of emergency.”
    • H.R.Khanna:- The case shows the validity of the arrest warrant which could be invalid despite the orders given by the president in the years 1962 and 1974 under section 359 if the right was not covered by the orders. “If the detention of a detainee did not comply with the provisions mentioned in the presidential orders, the presidential orders did not have the effect of protecting the warrant of arrest and it was permissible to question the validity of the detention at the prison. The reason was not made under the specified provisions but in violation of those provisions”.
    • M.Hameedullah Beg:- Indian constitution has influenced of UK constitution and inspire by rule of law. In India, the right of the private person in special cases is given to the Courts, or we can say suspended by the courts, but in many foreign constitutions, the nation’s security is conferred on the right of individuals which is their general principle.
    • Y.V.Chandrachud:- “I must now consider a very important picture of the defendant’s argument that section 21 is not the only depository of the right to life and personal liberty. This argument has been presented to us in too many aspects to be mentioned and many cases have been cited in support. This was to some extent unavoidable, as many councils defended the same argument and each had its own particular and preferred accent. I will try to compress the arguments without, I hope, sacrificing the thematic value”.
    • P.N.Bhagwati:- justice Bhagwati stated that there are three types of crises in the life of a democratic nation, which are war, internal subversion and the third is emergency respectively. The third crisis is created by the constitution of the country and collapsing and causing a collapse of the economy. “It must be recognized that an economic crisis is such a direct threat to the constitutional existence of a country at war or internal subversion”.

Related Cases:-

  1. Maneka Gandhi vs. Union of India
  2. Poona municipal corporation vs. D.N.Deodher
  3. Bharat kala bhandar vs. Municipal Committee
  4. Indore Municipality vs.Niamatulla
  5. Dwarkadas Shrinivas v. the Sholapur spg.and wvg company Ltd and ors.

Decision:-

The case was discussed for more than 2 months and then the decision has been made by the bench. The court reached the conclusion:-

“In view of the presidential order of June 27, 1975, no person has the right to make an application for summary judgment under section 226 to a superior court for habeas corpus or any other order or order tending to contest the lawfulness of an arrest warrant that the order is not in accordance with the law, is unlawful or is tainted with factual or legal defects, or is based on strange considerations “.

The judgment was passed with a majority of 4:1, all four judges acted in favor of the government and only justice H.R.Khanna acted in favor of human nature and also knowing that it will cost them a seat as president of the supreme court of India. The high court kept silent in overall this matter just because the apex court silenced them. This the emergency period also known as “the darkest day of Indian Democracy” and the reason behind is all the trials or we can say courts are acted in Hitler’s way and used their power in the same way. The emergency was imposed on the advice of Mrs.Indira Gandhi, just to
suspend the elections.
The judgment ends with, “As Judge Huges observed, judges are not there to decide cases, but to decide them as they should, even if they are regrettable that they cannot always agree, it is better that their independence is maintained and that unanimity is guaranteed by their sacrifice”.
Most importantly and lastly, Justice Bhagawati stated that “I was wrong, the majority judgment was not good judgment, and if I was ready to make a new decision, then I would agree with what Judge Khanna did. Initially, I was not in favor of the majority opinion, but in the end, I do not know why they convinced me to agree with them, a type of litigation for the first time. was an act of weakness on my part”.

Conclusion:-

All the fundamental rights & all the court’s proceedings has been suspended in 1975 during the period of emergency just for personal gains and the union government acted with their own will and whims, for the first time in Indian democratic history government, doesn’t care about their own citizen. It is true and right to suspend all the fundamental rights during the period of emergency and the orders will be executed from the effective date but this time all the orders are in effect before the date of execution.


Even if the judgment is in the majority but maybe it’s not worth the Indian legislation and where only justice H.R.Khanna gave dissenting judgment but in the later interview justice P.N.Bhagwati also said the same and supported justice Khanna’s view, so how can we say the justice is delivered in the right manner?
I think this is true saying that, “this judgment is a blot on the Indian Judiciary”.


The views expressed in this article are solely that of the writer and do not necessarily represent the views of theLawmatics.