ADM Jabalpur v. Shivkant shukla by Pratigya Darpe

• Habeous corpus case – MISA act during emergency
• Title of slide
• Constitution of India since its Adoption in 1950 , has provided the citizens some fundamental rights and citizens enforce their guaranteed rights through the supreme court.
• The Most serious challenge to the Independence and integrity of the judiciary in general and Supreme Court in particular, came when the late Prime Minister Smt. Indira Gandhi decided to impose an emergency , through a proclamation by the then president fakharuddin ali ahmed under clause (1) of article 352 of the Constitution . MISA accitvated.
• Index
• Background
• MISA act
• Facts
• Issues
• Bench
• Arguments
• Judgement
• Putaswami case 2017
• Background
• In 1975, National Emergency under Article 352 of the Indian Constitution was imposed by President Fakruddin Ali, on the advice of the then-Prime Minister Indira Gandhi, on the ground of internal disturbances. Fundamental Rights under Article 14, 20 and 22 of the Constitution were suspended for the period of Emergency, by a Presidential Order under Article 359(1).
• Many political leaders who could prove to be a political threat were arrested without any trial.
• These persons, including A.B. Vajpayee, Jay Prakash Narayan, and Morarji Desai, were arrested under the draconian Maintenance of Internal Security Act (MISA) which provided for custody without any trial.
• Many people arrested under MISA approached various High Courts to challenge their detention and some of them even got favourable orders.
• The government became concerned with these High Court orders and approached the Supreme Court in the case of ADM Jabalpur v Shivkant Shukla.
• MISA act
• MISA Act –the Maintenance of internal security act, (1971 -1978) it was 2nd preventive detention act. India’s first preventive detention act as from ( 1950 – 1969 ) .
• This act gave Authority to ADM and DM to arrest anyone under preventive detention upto 3 months only. For exceeding the time of arrest only advisory board gave the judgement .
• In advisory board 3 person in each board 3 person were high court advocate over 10 years experience + 1 magistrate compulsary . Decision of the board taken by majority win.
• By the 39th amendment some clause added in MISA act, important clauses are – 16 (A) MISA is activated at the time of emergency. –17 ( A) arrest at the time of emergency by ADM & DM , permission of authority board was not needed. The arrest time was extended 3 months upto 2 years but not more then 2 years. — 18 right to personal liberty article 21 was detain at the time of emergency including personal liberty of natural law & common law also detain.
• Facts
• On 25th June, 1975, the President in exercise of his powers which have been granted by Article 352(1) of Indian Constitution, declared that there was a grave emergency whereby security of India is threatened by the internal disturbances.
• On 27th June, 1975 , by exercising the powers that are granted under Article 359 of the Constitution, it was declared that the right of any person including the foreigners to move any court in order to enforce their rights which have been granted to them under Article 14, 21 and 22 of the Constitution and also all the proceedings that are pending in the court for the above mentioned rights will remain suspended during the period of proclamation of emergency which was made under Article 352 of Indian Constitution.
• When National emergency Implemented under article 352 , article 358 activate automatically under which article 19 suspended , MISA is activated.
• Title of slide
• several illegal detentions were made including the detention of some most prominent leaders such as Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee and L.K. Advani who were detained without any charges and trial.
• Due to this many writ petitions were filed throughout the country.
• Nine High Courts gave decision in favor of the detunes by laying down that even if the Article 21 cannot be enforced, still the order of detention can be challenges as it was not in compliance of the Act or was mala fide. Moreover, against these orders many appeals were filed under the Supreme Court.
• Issue
• The issue in this case was whether a writ petition can be filed or not under Article 226 of the Constitution before the High Court in order to enforce the Fundamental Rights during the period of proclamation of emergency..?
• Bench
• , this case, was laid down by a 5-judge bench consisting of :-
• A.N. Ray,
• Hans Raj Khanna,
• Mirza Hameedullah Beg,
• Y.V. Chandrachud,
• P.N. Bhagwati
• Arguments
• The State argued that the purpose of emergency powers under the Constitution was to grant the executive broad powers whereby it can take over the implementation of laws, reason being, the interests of the State assume supreme importance during the invocation of emergency. The State further contended that the rights of the individuals to approach the Court have been curtailed under a constitutional provision i.e. Article 359 (1) and thus, it does not amount to the absence of law and order as was argued in various High Court petitions in this respect. The State also reminded the court that emergency powers laid down in the Constitution were drafted so that the economic and military security of the country will take precedence over everything else.
• The respondents stated that 359 (1) prohibited the right to approach the Court under Article 32 but such prohibition does not affect the enforcement of common law as well as the statutory rights of personal liberty in the High Court under Article 226 of the Indian Constitution. Therefore, the Presidential orders were valid only to the extent of fundamental rights and did not apply to Common Law, Natural Law, or Statutory Law. Respondents also stated that the argument of the petitioners that powers of the Executive increase due to the emergency are highly misplaced as the extent of the powers of the executive are already provided in the Constitution. It was argued that even though Article 21 laid down the Right of life and personal liberty as a fundamental right, the said Article is not the sole repository of this right. The respondents also urged the Court to consider the fact that the Executive taking over the role of the legislature goes against the basic constitutional principles .
• Judgement
• The majority ruling was pronounced by four judges while Justice Khanna delivered a powerful dissent.
• The Court held – Given 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 Court also upheld the constitutional validity of Section 16A (9) of MISA.
• Justice H.R. Khanna in his dissent stated that invoking Article 359(1) does not take away the right of an individual to approach the Court for the implementation of statutory rights.
• He added that Article 21 is not the sole repository of life and personal liberty.
• He further stated that during the proclamation of emergency, Article 21 only loses the procedural power but the substantive power of this article is very fundamental and the State does not have the power to deprive any person of life and liberty without the authority of law.
• There was so much political pressure during that particular hearing that this dissent cost Justice Khanna his chance of becoming the Chief Justice as he was the second in line to the Chair of CJI at that time.
• Even Justice Bhagwati expressed his regret later for siding with the majority by saying that he was wrong not to uphold the cause of individual liberty.

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