Case Analysis: ADM Jabalpur v. S.S. Shukla

Court                                          Supreme Court of India


Subject                                      Sustainability of writ “Habeas Corpus” against 

                                                   the Presidential Order under Article 359(1)


Date of Judgment April 28, 1976


Case Number                         Criminal Appeal No.279, Criminal Appeal Nos

                                                   355 & 356 of 1975,Civil Appeal Nos 1845-1849

                                                   of 1975, Criminal Appeal No 380 of 1975, Civil

                                                   Appeal No. 1926 of 1975, Criminal Appeal No.

                                                   389 of 1975, Criminal Appeal No. 3 of 1976,

                                                   Criminal Appeal No. 41 of 1976, Criminal

                                                   Appeal No. 46 of 1976.


Citation                                    1976 AIR 1207, 1976 SCR 172


Bench                                       A.N. Ray, Hans Raj Khanna. M. Hameedullah,

                                                   Y.V. Chandrachud, P.N. Bhagwati


Act                                             Maintenance of Internal Security Act, 1971


Petitioner                                    Additional District Magistrate, Jabalpur


Respondent                                 S.S. Shukla



This case was the outcome of consequences that arose during the period of emergency (June 25, 1975 – March 21, 1977). It is one of the remarkable historical judgement which was put to an end citing as the judgment was filled with errors, in the year, 2017. In 1976, the Five Bench Judge with a majority of 4:1 gave judgment that order issued under Article 359(1) by the President results in suspending the rights of the person to move the Court for the enforcement of personal liberty. Later, on August 24, 2017, in case of “Justice K.S.Puttuswamy(Retd.) vs Union of India & Ors[1]”, the nine-judge constitution bench, overruled a verdict of 1976. It was said by Justice D.Y. Chandrachud, being one of the Judges in nine bench judge that “No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the State, nor does the Constitution create these rights. The Right to Life has existed even before the advent of the Constitution”.


Raj Narain, a socialist, was defeated by the Indira Gandhi in the election from Rai Bareily-parliamentary constituency. He later on the move to the Allahabad High Court alleging that election was not held as per the legal procedure. He also submitted that Indira Gandhi had used the unlawful means such as bribery to the voters, for winning the election.

On June 12,1975, Justice Jagmohan Lal Sinha of the Allahabad High Court found the then Prime Minister(Indira Gandhi) guilty on the charge of misuse of machinery powers for her unlawfully winning the election. The Court subsequently declared that her election “null and void”. The Court also banned her from contesting in any election for 6 years[2].

Indira Gandhi appealed in the Supreme Court against the judgment passed by the High Court. Justice VR Krishna Iyer said that he would not put a complete stay which means Indira Gandhi can remain on the position of Prime Minister, but she could not vote as a Member of Parliament until the final verdict comes[3].

However, this decision of the Supreme court created the disturbance within the society, and various movement started seeking resignation of Indira Gandhi. On June 25, 1975, J.P. Narayana called for a Civil disobedience campaign to force the resignation of the Prime Minister. As a result by using the powers under “Maintenance of Internal Security Act (MISA Act)” many people who oppose against the Indira Gandhi were arrested. Finally, the President “Fakhruddin Ali Ahmed” proclaimed emergency under Article 352 of the Indian Constitution.


On June 25, 1975, the President declared an emergency in the country under the purview of powers given under clause (2)  of Article 352. Such an emergency was brought concerning the security of India is which is getting threatened due to internal disturbance prevailing presently.

Further, on June 27, 1975, by using the power as laid down under clause (1) of Article 359, the President declared that the right of every person including foreigner to move any court for the enforcement of the rights conferred by Article 14, 21 and 22 of the Constitution would be suspended. Along with this, all proceedings pending in any Court for the enforcement of the above-mentioned rights shall also remain suspended for the period during which proclamation of emergency continues.

The President promulgated the amending ordinance no 1 and 7 of 1975 and replaced by the MISA (Amending) Act. It introduces a new Section 16A and giving a deemed effect to Section 7 of the Act as on from June 25, 1975, while the rest had a deemed provision from June 29, 1975. By the same Act, a new Section 18 was also inserted with effect from June 25, 1975. Further, an ordinance was made at later dates, introducing subclause (8) and (9) to Section 16A. All the amendments made by the ordinance were given retrospective effect to validate all Acts done previously.


The issues raised are :

  1. Whether the order issued by the President under Article 359(1) of the Constitution suspends the rights of every person to move any court for the enforcement of the Right to Personal Liberty as provided under Article 21, upon being detention under a law providing for preventive detention?
  2. Whether Writ of Habeas Corpus by detainee under Maintenance of Internal Security Act before a Higher Court can be denied based on Presidential order passed under Article 359(1)?

Related Provisions

The related provisions are :

  1. Article 359(1) – No one has the power or right to submit a petition under Article 226 of the Constitution challenging the enforcement of one or all Fundamental Rights as contained in Part III of the Constitution.
  2. Article 226 – The High Court has the power to issue a writ or other direction to the person, authority or government where a case is lodged for the enforcement of Fundamental Rights or any other purpose.
  3. Article 19 – It has laid down certain right related to Freedom of speech which can be curtailed by the government only with reasonable restrictions.
  4. Article 21 – It provides for the protection of life and personal liberty. This Article is to be interpreted in a broader sense,  and so the restriction of rights under this Article can be done only with “procedure established by law”.
  5. Article 22 –  It provides for the protection of a person from being detained under the normal course or preventive course.
  6. Section 16A(9) of the Maintenance of Internal Security Act of 1971-  It states that no person against whom an order of detention is made or purported to be made under Section 3 shall be entitled to the communication or disclosure of any ground or information

Related Cases

State of Orissa v. Dr. Miss Binapani Dei & Ors[4]

It was held that the Principle of Natural Justice, which are impliedly read into Statues, do not override the express terms of Statues. They are only implied because the functions which the statute imposes are presumed to be meant to be exercised by these rules, and therefore treated as though they were parts of enacted law.

Kesavananda Bharati v. State of Kerala[5]

It was held that the theory of the basic structure of the Constitution could not be considered more than a method of determining the intent behind the Constitutional provisions. It cannot add or rebuild a new part in addition to the Constitution. It further, cannot imply new test outside the Constitution or used to defeat Constitutional provisions.

C. Gokalnath & Ors vs State of Punjab & Another[6]

The Apex Court held if the enforcement of rights as contained in Article 19, 20, 21 and Part III, are suspended by the Courts during an emergency, an inquiry by a Court into the question whether an unlawful deprivation of it violates any of them by executive authorities of the State becomes worthless.

Queen vs Halliday Ex Parte Zadiq[7]

It was held that liberty is confined and controlled by law, whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency.


The Apex Court ruled in favour of the government by a majority of 4:1. The Court held that because of the declaration of Presidential Order, no person has any locus standi to move writ petition under Article 226 of the Constitution, to challenge the legality of an order of detention on the ground of non- compliance of law or is made with malafide intention.

The Court placed reliance on the case “Hari Vishnu Kamath v. Syed Ahmad  Ishaque & ors “which stated that the Constitution had conferred Jurisdiction under Article 226, the limitation cannot be placed on it except by the Constitution itself. Further, the Court held that Article 359(1) and the Presidential order issued does not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive to permit it to go beyond what is sanctioned by law.

The Constitutional validity of Section 16A (9) of the Maintenance of Internal Security Act was in question. It was held that Section 16A(9) of MISA Act enacts an absolute rule of evidence, and it does not detract from or affect the Jurisdiction of the High Court under Article 226 of the Constitution and hence cannot be successfully considered as invalid.

Concept Highlighted

Following concepts were highlighted:

  1. Theory of basic structure.
  2. Theory of eclipse.
  3. The distinction between Article 358 and 359 of the Constitution of India.
  4. The Rule of law.
  5. The Rule of Construction.

[1] AIR 2017 SC 4161

[2] 1975 AIR 1590, 1975 SCC (2) 159

[3]  1975 AIR 1590, 1975 SCC (2) 159

[4] 1967 AIR 1269, 1967 SCR (2) 625

[5] (1973) 4 SCC 225)

[6] 1967 AIR 1643, 1967 SCR (2) 762

[7] [1917] UKHL 1, [1917] AC 260 

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