ADM Jabalpur v. Shivkant Shukla

Facts and decision

Facts. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, arose out of the two proclamations and the two Presidential orders set out above. Detenus held under the MISA moved various High Courts under article 226. Nine High Courts held that a petition was maintainable notwithstanding the Presidential order, on the footing that a detenu could still show that the order was not under the Act at all, or was mala fide, or was passed on extraneous considerations. The Union appealed to the Supreme Court.

That is worth pausing on. The High Courts had held for the detenus, and the Supreme Court reversed them. A student writing about the Emergency and the judiciary should know that the lower courts held the line.

The decision

Bench. A.N. Ray C.J., H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati JJ.

Held. By the majority of Ray C.J., Beg, Chandrachud and Bhagwati JJ., with Khanna J. dissenting:

1. In view of the Presidential order of 27 June 1975 under article 359(1), 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, 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 considerations.
2. Section 16A(9) of the Maintenance of Internal Security Act 1971 is constitutionally valid.
3. Section 18 of that Act is not invalid.
4. Article 21 is the sole repository of the right to life and personal liberty against the State. Since any claim to habeas corpus is an enforcement of article 21, it is barred by the Presidential order.

The reasoning on judicial review. Ray C.J. held that in times of emergency the executive safeguards the life of the nation, and its actions cannot be challenged on the ground that they are arbitrary or unlawful, in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered. The English wartime decisions were followed.

The English authority the majority relied on. This book has not read an English report of it, so it is cited as the Supreme Court itself cites it in this judgment, at [1942] AC 206.

Facts. Liversidge v. Anderson concerned Regulation 18B of the Defence (General) Regulations 1939, under which the Secretary of State could detain a person if he had reasonable cause to believe him to be of hostile associations. Liversidge, detained under it, sued for false imprisonment and sought particulars of the grounds.

Held. The majority of the House of Lords held that the words meant that the Secretary of State need only show that he thought he had reasonable cause, so that the court could not examine the grounds. Lord Atkin dissented, in the passage this whole paper turns on: that amid the clash of arms the laws are not silent, that they may be changed but they speak the same language in war as in peace, and that he knew of only one authority which would justify the suggested construction, namely Humpty Dumpty, for whom a word meant just what he chose it to mean. The companion appeal on the same Regulation, Greene against the Secretary of State for Home Affairs, is cited in this judgment at [1942] AC 284; this book takes nothing from it beyond that reference.

Why it matters here. The ADM Jabalpur majority followed the Liversidge majority, and Khanna J.'s dissent stands to it as Lord Atkin's dissent stood to the House of Lords. English law itself later treated Lord Atkin's dissent as correct, so the Indian majority followed a construction that its own source had abandoned.

Khanna J.'s dissent

The dissent is the reason the case is taught, and its two propositions should be quoted rather than paraphrased.

Article 21 is not the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law.

The right did not begin with the Constitution. Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilised existence. The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution; it was a necessary corollary of the concept relating to the sanctity of life and liberty, and it existed and was in force before the Constitution came into force.

And the consequence. Even in the absence of article 21, the State has no power to deprive a person of life or liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law, and not of men, in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.

Khanna J. was the senior-most judge after Ray C.J. He was superseded for the office of Chief Justice of India in January 1977 and resigned. A student may state that; it is a matter of public record and it is the reason the dissent is remembered as it is.

Why the majority reasoned as it did, stated fairly

An answer that only condemns the majority is not an LL.M. answer. The argument has to be set out before it is answered.

The textual argument. Article 359(1) empowers the President to declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned shall remain suspended. The order of 27 June 1975 mentioned articles 14, 21 and 22. If the right to move a court to enforce article 21 is suspended, and if a habeas corpus petition by a detenu is in substance an enforcement of article 21, the petition is barred by the plain words.

The precedent argument. Makhan Singh v. State of Punjab, AIR 1964 SC 381, had already decided what a Presidential order does and does not bar, and the majority read it as leaving no room for a challenge that in substance sought to enforce a suspended right. That reading is contestable, and [What a Presidential Order Can Never Bar: Makhan Singh] sets out why.

The institutional argument. In an emergency the executive has information a court cannot see and responsibility a court does not carry. Where the material cannot be produced, review is a formality.

Why the reasoning is nonetheless wrong

Four answers, in ascending order of force.

1. The suspension is of a remedy, not of a right. Article 359 does not suspend article 21; it suspends the right to move a court to enforce it. A person may therefore still complain that the detention is not under the Act at all, which is not an enforcement of any fundamental right but an assertion that the executive has acted without statutory authority. That was Khanna J.'s view, it was the view of nine High Courts, and it is the view Makhan Singh actually supports.

2. The consequence stated by the majority was accepted rather than avoided. During argument the Attorney General accepted, on the majority's logic, that even a detention wholly outside the Act, or an unlawful killing, would be unremediable while the order stood. A construction that produces that result should have been rejected for that reason alone.

3. Article 21 as the sole repository is not sound. The proposition that liberty exists only because article 21 confers it makes the Constitution the source of the right rather than its guarantee. Khanna J.'s answer, that the principle existed before the Constitution and would survive its absence, is the better view and is now the accepted one.

4. It made the courts unnecessary at the moment they were most needed. That is the rule of law objection, and it is why the case belongs to Module III of this paper rather than only to constitutional law.

What happened to the decision

It was undermined by amendment in 1978. Section 40 of the Constitution (Forty-fourth Amendment) Act 1978 amended article 359(1) so that articles 20 and 21 can never be suspended. From 20 June 1979 the situation in which ADM Jabalpur arose cannot recur. See [The 44th Amendment and Suspendability] and [The Non-Suspendability of Articles 20 and 21].

It was expressly overruled in 2017. In K.S. Puttaswamy v. Union of India, a Bench of nine judges declared the decision in ADM Jabalpur to be seriously flawed and expressly overruled it. See [The Formal End of ADM Jabalpur].

The two events are not the same and must not be run together. The 44th Amendment changed the law prospectively in 1978; it did not overrule the case. The overruling came thirty nine years later. A student who writes that the 44th Amendment overruled ADM Jabalpur is wrong on both the date and the mechanism, and it is the commonest error made about this case.

A worked example

Assume a proclamation of emergency in force today, and a Presidential order under article 359(1) suspending the right to move a court to enforce articles 14 and 19. Anil is detained under a Central Act and says the order was passed by an officer who had no power to pass it.

Could the State rely on ADM Jabalpur? No, and for two independent reasons. First, articles 20 and 21 cannot be included in a Presidential order at all after 1978, so Anil can move a court to enforce article 21 whatever else is suspended. Second, the decision has been overruled.

What would Anil have to show? That the detention is not authorised by the statute. That is not the enforcement of a suspended right; it is the assertion that the executive acted without power, which Makhan Singh always allowed and which the ADM Jabalpur majority denied.

Quick revision

• ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, 28 April 1976. Ray C.J., Khanna, Beg, Chandrachud and Bhagwati JJ.
• Presidential order of 27 June 1975 under article 359(1) suspended the right to move any court to enforce articles 14, 21 and 22.
• Majority: no locus standi to move a High Court under article 226 for habeas corpus, even alleging that the detention was not under the Act, was illegal, was mala fide or rested on extraneous considerations. Section 16A(9) of the MISA valid. Article 21 is the sole repository of the right to life and personal liberty.
• Nine High Courts had held the other way and were reversed.
• Khanna J. dissenting: the principle that no one shall be deprived of life and liberty without the authority of law was not the gift of the Constitution; it is the essential postulate and basic assumption of the rule of law.
• Undermined by the 44th Amendment in 1978, which made articles 20 and 21 non-suspendable. Expressly overruled in 2017 in K.S. Puttaswamy v. Union of India.

Test yourself

1. What exactly did the majority hold about locus standi? That in view of the Presidential order of 27 June 1975 under article 359(1), no person had locus standi to move a High Court under article 226 for habeas corpus or any other writ to challenge the legality of a MISA detention on the ground that it was not under or in compliance with the Act, or was illegal, or was vitiated by mala fides factual or legal, or rested on extraneous considerations.

2. What is the "sole repository" proposition, and who rejected it? That article 21 is the sole repository of the right to life and personal liberty against the State, so that any claim to habeas corpus is an enforcement of article 21 and is barred. Khanna J. rejected it, holding that the principle existed before the Constitution and would exist without article 21.

3. Did the 44th Amendment overrule the case? No. It amended article 359(1) in 1978 so that articles 20 and 21 can never be suspended, which prevents the situation recurring. The decision was expressly overruled in 2017 by the nine judge Bench in K.S. Puttaswamy v. Union of India.

4. How many High Courts had decided in favour of the detenus? Nine, and the Supreme Court reversed them.

5. Which English decision did the majority follow, and how does the judgment cite it? Liversidge v. Anderson, cited as [1942] AC 206, together with its companion appeal Greene, cited as [1942] AC 284.