GALGOTIAS UNIVERSITY

SCHOOL OF LAW

ADMINISTRATIVE LAW PROJECT

“ADM JABALPUR VS SHIVKANT SHUKLA”

SUB.TO- SUB.BY-
MR. TRIPURARI PATHAK KULSUM IMRAN
PROFESSOR OF ADMINISTRATIVE LAW BBA+LLB (HONS)
FACULTY OF LAW 15GSOL103102
DECLARATION

The reported in the project is the outcome of my own efforts and no part of this
report has being
copied in any unauthorized way and the no part in its has been incorporated
without due to
acknowledgement. Any part produced from any source has been duly cited proper
cited is given
to the concern person.

Kulsum Imran
CERTIFICATE

This work is undertaken by Kulsum Imran is genuine to the best of my knowledge.

Thus references used by the student has been cited and acknowledged to my
understanding. To my best knowledge, the matter embodied in the project has not
been submitted to any other university/ institute
Date – 01/11/2017

Project guide name – Mr. Tripurari Pathak

Designation – Faculty,School of Law
Name of the institute- Galgotias University
ACKNOWLEDGEMENT

I feel proud to present my project in the “Case Study- ADM Jabalpur VS Shivkant
Shukla”. This project would not have been possible without the proper guidance of
my subject teacher Hardwork has been put in this project to ensure that it proves
to be best . For this project “I want to thank my concern faculty Mr. Tripurari
Pathak without whom this project was not possible. I want to thank him for giving
me interesting tips and also help in showing a right path so that I can complete my
project easily . On the other hand, I also want to thank my friends who also helped
me in making of this project
ADM JABALPUR VS SHIVKANT SHUKLA
Citations : AIR 1976 SC 1201, 1976 SCR 172
PETITIONER: ADDITIONAL DISTRICT MAGISTRATE, JABALPUR
Vs.
RESPONDENT: S. S. SHUKLA ETC.
DATE OF JUDGMENT28/04/1976

Bench: Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M. Hameedullah,

Chandrachud, Y.V., Bhagwati, P.N.
INDEX
BRIEF FACTS
ISSUES
RULES
ANALYSIS
JUDGEMENT
CONCLUSION
Introduction-
The said case pertains to the time of Proclamation of Emergency by the then
ruling government of Indira Gandhi and Presidential order of the same was
issued when election of Indira Gandhi were termed to be illegal. The case
arose out of a contention that whether the right of a person to approach
respective High Court gets quashed when his fundamental rights are not
given or suppressed, especially Article 14, and 21 during the emergency and
enforcement of such rights remain suspended for the period of Proclamation
of Emergency in force. The judgment was delivered on April 28th, 1976 by the
Constitutional bench of five judges including the then Chief Justice A.N. Ray,
out of which four were in favour of suspension of such right and liberty and
one dissenting rejected such contention. As far as majority of the judgment
goes, it was established that a person’s right to approach High Court under
Article 226 of the Indian Constitution for Habeas Corpus or any other writ
challenging the legality of an order of detention at the time of Proclamation
of Emergency remains suspended and that person cannot approach any High
Court for the remedy or get his right. This case was infamously called
as Habeas Corpus case. Till date, the decision taken by the Court holds badly
on the ground of equity, justice and good conscious. The Latin term Habeas
Corpus means “you may have the body” and writ of securing a person’s
liberty is called Habeas Corpus
Facts-
In State of Uttar Pradesh v. Raj Narain, the election of Indira Gandhi from Lok
Sabha was challenged by petitioner on the grounds of corruption from her
constituency, Rae Barelli. On June 12, 1975, Justice Sinha held Indira Gandhi
guilty and declared her election invalid. After this judgment, Indira Gandhi
moved to Supreme Court and asked for conditional stay on the decision of
High Court. This made her handicapped on the floor of Parliament and she
was losing her political footprint. The opposition on the other hand became
powerful which made Indira Gandhi to declare Emergency under Clause (1) of
Article 352 of the Constitution through the then President Fakhruddin Ali
Ahmed and the Emergency was termed as serious due to “internal
disturbance”. During that period, India suffered a war with Pakistan and
faced drought which turned economy bad in shape. After the proclamation of
Emergency, the fundamental rights under Article 14, and 21 remained
suspended and proceedings pending in Court concerned with enforcement of
these Articles remain suspended for the period of Emergency. Any person
who was considered to be a political threat or anyone who could voice his
opinion politically was detained without trial under Preventive Detention
Laws. This situation led to arrest of several opposition leaders such as Atal
Bihari Vajpayee, Jay Prakash Narain, Morarji Desai and L.K. Advani under
MISA (Maintenance of Internal Security Act) because they were proving to be
a political threat to Indira Gandhi. These leaders then filed petitions in several
High Courts challenging the arrest. Many High Courts ruled in favour of these
petitions which made Indira Gandhi government to approach the Supreme
Court on this issue which infamously became Additional District Magistrate
Jabalpur v. Shivkant Shukla. It is also called as Habeas Corpus because usually
this is the writ filed in Court when a person is arrested. At the time of
Proclamation of Emergency, this writ was not entertained as Rights under
Article 21 remained suspended.
 Issues-
The issues in the said case were-

 Whether, under Proclamation of Emergency after President’s order, can the

writ of Habeas Corpus be maintained in High Court by a person challenging
his unlawful detention?
 Was suspension of Article 21 fit under rule of law?
 Does detenue hold locus standi in Court during the period of Emergency?

Rules-
Upon the issues, it was discussed by the State that the only purpose of
Emergency in the Constitution is to guarantee special power to the Executive
machinery which can hold discretion over the implementation of law and
whatever State considers, it shall be held valid. Filing writ petition in High
Courts under Article 226 are suspended and petitioners had no right to
approach the Court for the implementation of the same and this would have
logically dismissed such petitions. The fact that Emergency provisions in Part
XVIII of the Indian Constitution including Article 358, Article 359(1) and
Article 359(1A) are necessities in regard to economy and military security of
the State. The validity of the law under Presidential Order cannot be
challenged on the ground of violating fundamental rights which were
suspended by such order. This answers all the issues like “Whether, under
Proclamation of Emergency after President’s order, can the writ of Habeas
Corpus be maintained in High Court by a person challenging his unlawful
detention” for which the answer is No, one cannot approach the High Court
for restoration of his fundamental right under any Article of the Indian
 Constitution. Upon the issue of locus standi, the petitioner holds no ground
for any relief.

Judgment-
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 malafides factual or legal
or is based on extraneous consideration.

2. Section 16A (9) of the Maintenance of Internal Security Act is constitutionally

valid;
3. The appeals are accepted. The judgments are set aside;
4. The petitions before the High Courts are now to be disposed of in accordance
with the law laid down in these appeals.

The above said judgement was given by four out of five judges. They were
the then Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V.
Chandrachud and P.N. Bhagwati. The dissenting Judgment was given by
Justice Khanna who ended his judgment by saying “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.” He paid the price of his opinion
when his junior M.H. Beg was appointed as Chief Justice bypassing him in
seniority. In M.M. Damnoo v. State of J&K[2] the Court required the State
Government to produce the file confining the grounds of detention so that
the Court could satisfy itself That “the grounds on which the detenu has been
detained have relevance to the security of the State”. It would, therefore, be
seen that if there is a legislative provision which prohibits disclosure of the
grounds, information and materials on which the order of detention is based
and prevents the Court from calling for the production of such grounds,
information and materials, it would obstruct and retard the exercise of the
constitutional power of the High Court under Article 226 and would be void
as offending that Article.

Analysis-
Upon the analysis of the judgment, there are multiple observations on the
given case. The Supreme Court in this case observed that Article 21 covers
right to life and personal liberty against its illegal deprivation by the State and
in case of suspension of Article 21 by Emergency under Article 359, the Court
cannot question the authority or legality of such State’s decision. Article 358
is much wider than the Article 359 as fundamental rights are suspended as
whole whereas Article 359 does not suspend any rights. Even being
Emergency provisions under Article 359 (1) grants special power and status
to the Executive, it does not undermine the essential components of
sovereignty of separation of powers, leading to a system of check and
balance and limited power of the Executive. The nexus between State and
Executive is erroneous and the effect of suspension of such rights will only
result in extra power to legislature which might create laws against
fundamental rights. This act should not be considered as a “power” of the
Executive or right of it. There is a legal extent till which a State can act in or
against the citizens and in this case, it was high misuse of power of personal
political gain of a single person. During Emergency, it is nowhere mentioned
that the power of State “increases” from its original power under Article 162.
Also, State only holds the right of arrest if the alleged act falls under Section 3
of MISA and its every condition is fulfilled. If any condition is unfulfilled then
detention is beyond the power of State. The decision by the Supreme Court is
said to be the biggest erroneous judgment till date. The dissenting opinion of
Justice Khanna still holds more value than the majority judgment including
the then Chief Justice. The wrong intent of Indira Gandhi’s government was
seen when Justice Khanna was to ask the first uncomfortable question. “Life
is also mentioned in Article 21 and would Government argument extend to it
also?” There was no escape. Without batting an eyelid Niren De answered,
‘Even if life was taken away illegally, courts are helpless’. Before Proclamation
of Emergency there was strong political instability in the Country after the
Lok Sabha election of Indira Gandhi was termed as illegal. This whole exercise
was to put opposition under pressure and during the process, even Supreme
Court made major errors in the judgement and it can be said to be purely
unconstitutional. Only the courage of single judge is said to be worth reading
and it was in favour of humanity and liberty. Justice Bhagwati was quoted as
“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.” The day when this judgment was pronounced, it
was termed as “darkest day of the democracy” and it was matched with the
regime and rise of Hitler. On top of all, this judgment did not favour rule of
law. As a judge, the focus is on public benefit or on something which is good
for population but this judgment seemed to favour only one person. The
judgment in this case can be compared to the judgment of Raj Narain’s case
where Indira Gandhi was given a clean chit by the Supreme Court after being
held guilty by Allahabad High Court. One can say that common man’s trust on
judiciary has been shaken by these two judgments which happened almost
simultaneously. Justice Khanna solely relied on the judgment ofMakkhan
Singh v. State of Punjab in which he noted: “If in challenging the validity of
his detention order, the detenu is pleading any right outside the rights
specified in the order, his right to move any court in that behalf is not
suspended, because it is outside Article 359(1) and consequently outside the
Presidential order itself. Let us take a case where a detenu has been detained
in violation of the mandatory provisions of the Act. In such a case, it may be
open to the detenu to contend that his detention is illegal for the reason that
the mandatory provisions of the Act have been contravened. Such a plea is
outside Article 359(1) and tile right of the detenu to move for his release on
such a ground cannot be affected by the Presidential order”. Suspension of
Article 21 would simply mean deprivation of right of life and liberty and this is
against the basic right along with the Articles of Universal Declaration of
Human Rights of which India is a part. This single case became example of
how four able judges of the apex court of the country made a blunder under
the wrong influence of the wrong person. 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.” Such acceptance from the judge mean how grave the
situation was that time and what impact it left on India. The apex court
recalled the comment of former Chief Justice M N Venkatachalliah in the
Khanna Memorial Lecture on February 25, 2009 that the majority decision in
the Emergency case be “confined to the dustbin of history”.

Judgment-
Soon after the Emergency and all which was done for it were rejected by the
majority of population in 1977, the Supreme Court in Maneka Gandhi v.
Union of India changed the position and gave fundamental character to the
right in Article 21 by establishing a link between Articles 14, 19 and 21 which
was denied in A.K. Gopalan v. State of Madras particularly in respect of
Articles 19 and 21. Both these Articles cannot be separated and not exclusive
of each other. It was further contended that the object of Presidential order
under Article 359 was to remove legal problems and it was easier to make
laws against fundamental rights. The obligation of the government to act
according to the law and suspension of Article 21 did not automatically entail
the suspension of rule of law. Following Shivkant Shukla Case, the Supreme
Court in Union of India v. Bhanudas Krishna Gawde went one step further and
held that Presidential order issued under Article 359 were not circumscribed
by any limitation and their applicability was not dependent on fulfilment of
any condition laid before. These order impose a blanket ban on any and
every judicial enquiry into validity of an order depriving someone of his
liberty, no matter how it originated whether from an order directing the
detention or from an order laying down the condition of his detention. The
majority view in the Shivkant Shukla case has been completely negatived by
44thAmendment of the Constitution as well as judicial interpretation and
therefore, it is no more longer a law. Now the enforcement of Article 20 and
21 cannot be suspended in any situation and the Court observed that Article
21 binds not only the executive but also the legislature and thereby
correcting Justice Khanna’s stance that suspension of Article 21 relieves the
legislature of its constraints but not the executive which can never deprive a
person of his life and liberty without the authority of law and such detention
can be challenged on grounds indicated in Makhan Singh Case. Articles 352
and 359 have not been invoked since revocation of Proclamation of
Emergency in 1971 and 1975 in early 1977. Also, 44th Amendment changed
“internal disturbance” into “armed rebellion” and internal disturbance not
amounting to armed rebellion would not be a ground to the issue of
Proclamation of emergency. Many such provisions in 44th Amendment for
proclamation of Emergency were made so that no government in future can
misuse this provision of Constitution which was interpreted
unconstitutionally by the Supreme Court.

Conclusion-
The Proclamation and arbitrary use of power by the State machinery and
taking away the personal liberty of a number of people along with judicial
stamp can be considered one of the most erroneous judgment till date.
Supreme Court went on to elaborate the interpretation of Article 21 and
introduced Public Interest Litigation to gain public legitimacy after it faced
criticism over the judgment and damage it had done. The wrong
interpretation led to infringement of fundamental rights on whims and fancy
of a political figure that had her agenda to fulfil. While the judgment is said to
be a mistake on many occasions by jurists and apex court, the ruling has not
been overruled formally even after admitting the error. This was noted by the
bench of Justice Ashok Ganguly and Justice Aftab Alam. In today’s context,
Dicey’s Rule of Law which was explained by Justice Khanna holds much
greater force than what it was in 1976. There has to be a clear overruling of
this judgment so that theoretical nature of Rule of Law can be made clear
along with its applicability to our justice system. Also, further provisions shall
be made to ensure that no political agenda should overshadow justice and
equity of citizens.