Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur

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.