Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur
Chapter Thirty-Five
Syllabus topic 3, "Jurisdiction"
Pages 106 to 108 of 430
In one line
Habeas corpus is used mostly against preventive detention, and in 1976 the Supreme Court held that during an Emergency it could not be used at all.
In the wording a student can write in an exam: preventive detention is detention without trial, authorised by Article 22(3) to (7) and by statutes made under Entry 9 of List I and Entry 3 of List III; habeas corpus is the remedy against it, but Article 359 permitted the President to suspend the right to move any court for the enforcement of Part III rights during an Emergency, and ADM Jabalpur held that no such petition was maintainable while that order was in force.
Preventive detention in the Constitution
Article 22(1) and (2) give an arrested person the right to be informed of the grounds of arrest, to consult a legal practitioner, and to be produced before a magistrate within twenty-four hours. Article 22(3) then says that those two clauses do not apply to an enemy alien or to a person detained under a law providing for preventive detention.
Article 22(4) limits detention to three months unless an Advisory Board of persons qualified to be High Court judges reports sufficient cause. Article 22(5) requires the grounds to be communicated as soon as may be and the earliest opportunity of making a representation. Article 22(6) allows facts to be withheld if disclosure is against the public interest. Article 22(7) allows Parliament to prescribe circumstances in which detention beyond three months is permitted without an Advisory Board.
So the Constitution itself authorises detention without trial, and then supplies a minimum procedure. Habeas corpus enforces that procedure.
The Emergency case
Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
Facts. During the Emergency a Presidential order under Article 359(1), dated 27 June 1975, suspended the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 nevertheless obtained relief in habeas corpus petitions before several High Courts, which held that they could still show that the detention was not under the Act at all. The State appealed.
Held. By majority, no person had any locus standi to move a writ petition for habeas corpus to challenge the legality of an order of detention while the Presidential order was in force, because Article 21 was the sole repository of the right to life and personal liberty and the right to move a court to enforce it had been suspended. Justice H.R. Khanna dissented, holding that the sanctity of life and liberty is not the gift of the Constitution and that the State has no power to deprive a person of life or liberty without the authority of law even in an emergency.
Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur
Why it matters here. It is the case that shows what judicial review is worth when a court declines to exercise it, and it is the reason the Forty-fourth Amendment was passed. The dissent has since been approved and the majority is treated as wrongly decided.
What the Forty-fourth Amendment did
It amended Article 359 so that an order suspending the right to move a court cannot extend to Articles 20 and 21. The practical result is that a habeas corpus petition alleging a deprivation of personal liberty otherwise than by procedure established by law is maintainable even during an Emergency. It also made the proclamation of an Emergency itself harder, by substituting armed rebellion for internal disturbance and by requiring a written communication of the Cabinet's decision.
The grounds that actually succeed today
Delay in passing the order. A long unexplained gap between the prejudicial activity and the detention shows that the satisfaction was not genuine.
Delay in considering the representation. Article 22(5) requires the earliest opportunity to represent, which implies a duty to decide the representation with reasonable despatch.
Non-supply of documents relied on. The grounds must be accompanied by the material on which they rest, or the right to represent is illusory.
Irrelevant or non-existent grounds. Where the order rests on several grounds and one is bad, the detention ordinarily falls, because the court cannot say what weight the bad ground carried.
Failure to consider a bail order or an acquittal. The detaining authority must apply its mind to the fact that the person is already in custody.
A worked example
A man is detained under a State preventive detention law on 1 March on the basis of three incidents said to have occurred the previous June, July and August. The grounds are served on 6 March. He makes a representation on 10 March, which the State considers on 25 May. One of the three incidents ended in his acquittal, a fact not mentioned in the grounds.
Three good points. The gap between August and March is a delay which the State must explain, and an unexplained delay shows a want of genuine satisfaction. The representation lay unconsidered for over two months, which offends Article 22(5). And the acquittal was a material fact not placed before the detaining authority, so there was non-application of mind. Any one of the three would ordinarily lead to release, and the petition may be filed by any relative.
What this does NOT mean
It does not mean preventive detention is unconstitutional. Article 22 authorises it, and the courts test compliance rather than the policy.
Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur
It does not mean ADM Jabalpur is still law. The Forty-fourth Amendment removed its foundation for Articles 20 and 21, and the Supreme Court has since said the majority view was erroneous.
It does not mean the court examines the sufficiency of the grounds. It examines their existence, their relevance and the procedure, not whether they justify detention.
Quick revision
Article 22(3) to (7) authorises preventive detention and supplies a minimum procedure: Advisory Board within three months, grounds as soon as may be, earliest opportunity to represent, facts may be withheld in the public interest. ADM Jabalpur held that during a Presidential order under Article 359 no habeas corpus petition was maintainable, Justice Khanna dissenting. The Forty-fourth Amendment answered it by taking Articles 20 and 21 out of Article 359. Today the grounds that succeed are delay in passing the order, delay in deciding the representation, non-supply of documents, irrelevant or non-existent grounds, and non-application of mind.
Test yourself
1. What exactly did the majority hold in ADM Jabalpur? That while the Presidential order under Article 359 suspending the right to move a court for Articles 14, 21 and 22 was in force, no person had locus standi to file a habeas corpus petition challenging a detention.
2. How did the Forty-fourth Amendment answer it? By providing that an order under Article 359 cannot suspend the enforcement of Articles 20 and 21.
3. Why does one bad ground out of three ordinarily destroy a detention order? Because the court cannot know what weight the detaining authority gave to the bad ground, so the subjective satisfaction is vitiated as a whole.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.