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ADM JABALPUR v. SHIVKANT SHUKLA, (1976) 2 SCC 521; AIR 1976 SC 1207

Updated: Aug 19, 2020


(Rayat College of Law, Ropar)

Abstract :

In this cases analysis I will be dealing with the case of “A.D.M Jabalpur v. Shivakant Shukla” contains one of the landmark judgments in the bygone days of Indian Judicial system as it is one of those cases which gave a way to the further developments in the Indian legal system by exposing the existing loopholes. The Proclamation and discretionary utilization of power by the State Machinery and taking the individual freedom of various individuals alongside judicial stamp can be viewed in the following case. This case is popularly known as the Habeas Corpus case, it was for the countless arrests made under the preventive detention law in which the defendants were unable to stake a claim for their liberty under the exceptional circumstances occurring at that period of time.


In State of Uttar Pradesh v. Raj Narain, Indira Gandhi’s election from Lok Sabha was challenged by petitioner on corruption as ground from her constituency, Rae Barelli.

On June 12, 1975, Justice Sinha held Indira Gandhi guilty of this and also declared her election as invalid. So, after this judgment, Indira Gandhi moved to the Honorable Supreme Court and pleaded for conditional stay on the decision of High Court. She started losing her political footprint in the Parliament . The opposition on the other side became more powerful which made Indira Gandhi to declare Emergency under Clause (1) of Article 352 of the Indian Constitution with help of the President Fakhruddin Ali Ahmed and the Emergency was termed as serious because of the “internal disturbances”. During that period, India was engaged in a war with Pakistan and faced drought situation in the country that turned the Indian economy into a bad shape. After the proclamation of Emergency, the fundamental rights given under Article 14, and 21 remained suspended and also the proceedings were pending in Court concerned with enforcement of these Articles remain suspended for the period of Emergency. Any person who was suspected to be a political threat or anyone who could voice his opinion politically was detained without any trial under Preventive Detention Laws.

This situation led to arrest of several opposition political 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 becoming to be a political threat to Indira Gandhi. These leaders then filed petitions in several High Courts challenging their arrest. Many High Courts were in favour of these petitions due to which Indira Gandhi government filed petition in the Supreme Court on this issue which infamously became Additional District Magistrate Jabalpur v. Shivkant Shukla.

It is also known 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 all the Rights given under Article 21 remained suspended.


The issues in the above case were-

  • Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus be presented in High Court by a person who is challenging his unlawful detention?

  • Was suspension of Article 21 was justified under the rule of law?

  • Does the detenue hold locus standi in Court while continuation of the period of Emergency?

Contentions of Parties :

The petitioner contended that the whether the right of a person to approach respective High Court gets withdrawn when his fundamental rights are taken away, especially Article 14, and 21 during the Proclamation of Emergency and enforcement of such rights remain suspended for the period of Proclamation of Emergency in force.

The respondent contended 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 makes any decision, it would be valid.

The Arguments presented by the Petitioner:

  1. The main contentions from the State was that the sole purpose and aim of the emergency provisions in the Constitution is to guarantee special powers to the Executive to hold complete discretion over the laws and rights implemented in the country. The reason behind this was that during emergency situation the considerations of the state assume to be of the supreme importance.

  2. The state does not release a detune even after the opinion given by the advisory board that there is insufficient cause for his detention and thus keeps him in detention in fragrant violation of the provisions of Article 22, no habeas corpus petition would be maintained 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 was suspended by the President under the order issued under article 359(1).

  3. Suspension of the rights of a person to move to 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 current situation would mean the absence of the rule of the law in the country.

  4. This underlined the fact that Emergency provisions in the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are constitutional necessities of the Constitution as the military and economic security of the nation was the priority above everything else.

  5. The validity of the law given in the Presidential Order under Article 359(1) cannot be challenged on the ground for violation of a fundamental right which was suspended in the above mentioned in the above article.

The Arguments on behalf of the Respondent:

  1. According to the respondents view, the objective of article 359(1) is to withdraw the restrictions on the power of the legislature so that during the proclamation of the emergency it would be free to make laws in the violation of the fundamental rights specified in the Presidential order.

  2. The main aim of Article 359(1) was to prohibit moving to the Supreme Court Of India under Article 32 for the enforcement of their rights. This prohibition by this law has no effect on the enforcement of common law and also the statutory rights of personal liberty in the High Court under Article 226 of the Constitution.

  3. The Presidential Orders that were imposed were valid only with respect to the fundamental rights provided in the Constitution and did not extend to any other law such as Natural Law etc.

  4. Article 352 , does not , increases the scope of the Executive Powers of the State from which are provided under Article 162 of the Constitution and nothing more

  5. The argument proceeds, for being a valid law for regulating the preventive detention passed by the Executive must confirm to the conditions that are prescribed by that law.

  6. The State and its officers only have the Right to Arrest if the alleged act which is leading to detention fell under Section 3 of MISA and its every condition contained within it is fulfilled completely. If any of the condition remains unfulfilled the detention is considered to be ‘beyond the powers’ of that act.

Legal Provisions :

Article 21

Protection of life and personal freedom. No person shall be deprived of his right to life and personal liberty, except by the procedure prescribed by the law. Article 21 requires that the following conditions to be fulfilled before a person is deprived of the property:

  1. There must be a valid law.

  2. The law must establish a procedure.

  3. The procedure must be free, fair and reasonable.

  4. The law must comply with the requirements of articles 14 and 17, that is, it must be reasonable.

Article 358

Suspension of provisions of Article 19 of the Constitution during proclamation of emergency in the state-

  1. While an Emergency Proclamation states that the security of India or any part of its territory is threatened by war or by external aggression, nothing is at stake. Article 19 it will restrict the powers of the State as defined in Part III of Constitution to make any law or take any executive action that the State would like, but the provisions given in that Part would be competent to do or take, but any law thus made, the extension of the incompetence, will have no effect as soon as the Proclamation ceases to operate, except that incompetence respects things done or omitted before the law ceases to have effect on them .

  2. As given that when said Emergency Proclamation is in force only in any particular part of the territory of India, any such law may be made, or an executive action of this kind may be covered under this article in relation to or in any territory of the State or Union in which or in any part from which the Emergency Proclamation is not in operation, if and to the extent that the security of India or any of its part of territory is threatened by activities in or in relationship with the any part of the territory of India in which the Emergency Proclamation is being operated.

  3. Nothing in clause (1) shall apply (a) to any law that does not contain a recital in the sense that such law is related to the Emergency Proclamation in effect when it is made, or (b) to any executive action taken from otherwise, by virtue of a law that contains said recital.

Article 359(1)

Suspension of the execution of the rights given in Part III of the Indian Constitution during proclamation of emergency-

  1. When an Emergency Proclamation is being executed, the President may, by means of an order, declare that the right to transfer to any court for the execution of the rights conferred in Part III of the Indian Constitution (except articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the aforementioned rights will remain suspended for the period during which the Proclamation is in force or for the shortest period as given in the order.


On basis of the Presidential order given on 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before any High Court in India for the writ of Habeas Corpus or any other writ or order or direction to challenge the legality of any order of detention on the ground that the order is not under or in compliance with the Act or the order is illegal or is vitiated by malafides, factual , legal or is based on an extraneous consideration.

  • Section 16A (9) of the Maintenance of Internal Security Act is valid in accordance with the Constitution and is not unconstitutional;

  • The appeals are accepted. The judgments are set aside;

  • The petitions presented before the High Courts are now to be abandoned of in accordance with the rules laid down by these appeals in the court.

The judgement above 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 Judgment was provided 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 these as they think that they should be decided, and while it may be regrettable that they cannot always agree to this, it is better that their independence should be maintained and recognized than that solidarity 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.”

In M.M. Damnoo v. State of J&K the Court asked the State Government to generate 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 importance to the security of the State”. It would, therefore, be taken into consideration that if there is any legislative provision which prohibits disclosure of the grounds or information or materials on which the orders of detention were based and prevents the Court from calling for the production of such grounds, information and materials, it would obstruct the use of exercise of the constitutional power of the High Court under Article 226 and would be void as offending that provided Article.

Conclusion :

The Proclamation of Emergency and arbitrary use of power by the State government and also the taking away of the personal liberty of a number of people along with judicial stamp is considered as one of the most inaccurate judgment of the times . Supreme Court elaborated the interpretation of Article 21 and also brought PILs to bring transparency after it faced criticism over the judgment and damage that had been done. Due to which all this lead to the infringement of fundamental rights of the citizens of India. 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. Also, further provisions shall be made to ensure that no political parties programs and policies should take away justice and equity of Indian citizens.


· Law Times Journal

· The Law Brigade

· The Indian Kanoon

· The Leaf Let

[DISCLAIMER: This case analysis is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].

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