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SUPREME COURT OF INDIA
A N Ray
H R Khanna
M H Beg
P N Bhagawati
Y V Chandrachud
ADDITIONAL DISTRICT MAGISTRATE, JABALPUR, APPELLANT
VERSUS
SHIVAKANT SHUKLA, RESPONDENT. (CRIMINAL APPEAL NO. 279 OF 1975)
STATE OF UTTAR PRADESH, APPELLANT
VERSUS
V. K. S. CHAUDHARY AND OTHERS, RESPONDENTS. (CRIMINAL APPEALS NOS. 355 AND 356 OF 1975)
UNION OF INDIA, APPELLANT
VERSUS
ATAL BIHARI VAJPAYEE AND OTHERS, RESPONDENTS. (CIVIL APPEALS NOS. 1845-1849 OF 1975)
UNION OF INDIA, APPELLANT
VERSUS
MRS. SATYA SHARMA AND ANOTHER, RESPONDENTS. (CRIMINAL APPEAL NO. 380 OF 1975)
STATE OF KARNATAKA AND OTHERS, APPELLANTS
VERSUS
N. K. GANPAIAH AND ANOTHER, RESPONDENTS. (CIVIL APPEAL NO. 1926 OF 1975)
STATE OF MAHARASHTRA AND OTHERS, APPELLANTS
VERSUS
SUBHAS AND OTHERS, RESPONDENTS. (CRIMINAL APPEAL NO. 389 OF 1975)
STATE OF RAJASTHAN AND OTHERS, APPELLANTS
VERSUS
MILAP CHAND KANUNGO AND OTHERS, RESPONDENTS. (CRIMINAL APPEAL NO. 3 OF 1976)
UNION OF INDIA AND ANOTHER, APPELLANTS
VERSUS
SHRI RAM DHAN, RESPONDENT. (CRIMINAL APPEAL NO. 41 OF 1976) AND
UNION OF INDIA, APPELLANT
VERSUS
DR. MRS. REKHA AWASTHI, RESPONDENT. APPLICANT/INTERVENERS 1. SMT. MANEK BEN (IN CRIMINAL APPEAL NO. 279 OF 1975) 2.
MAHARAJ JAI SINGH (IN CRIMINAL APPEAL NOS. 279 AND 355-356 OF 1975) 3. SURINDER MOHAN AND SURAJ BHAN GUPTA (IN CRIMINAL APPEALS NOS. 279 AND 355-356 OF 1975) 4. V. K. SINGH CHOWDHRY (IN CRIMINAL APPEAL NO. 355 OF 1975) 5. DEEPCHAND JAIN (IN CRIMINAL APPEALS NOS. 355-356 OF 1975).
Criminal Appeals Nos. 279 (From the Judgment and Order dated September 1, 1975 of the Madhya Pradesh High Court in M.P No. 597 of 1975), 355 and 356 (From the Judgment and Order dated November 12, 1975 of the Allahabad High Court in W.P. Nos. 7428 and 6885 of 1975), 380 (Appeal by Special Leave from the Judgment and Order dated October 31, 1975 of the Delhi High Court in Criminal Writ No. 149 of 1975), 389 (Appeal by Special Leave from the Judgment and Order dated December 5/6/8, 1975 of the Bombay High Court in Criminal Applns. Nos. 171, 95, 96, 99, 109, 115, 116 and 168 of 1975), 1845-1849 (From the Judgment and Order dated November 26, 1975 of the Karnataka High Court in W.P. Nos. 3318, 4101, 4103, 4177, and 4178 of 1975), and 1926 (From the Judgment and Order dated November 28, 1975 of the Karnataka High Court in W.P. No. 4178 of 1975), of 1975 and 3 (From the Judgment and Order dated December 12, 1975 of the High Court of Rajasthan in D.B. Crl. Habeas Corpus Petition No. 1606 of 1975), 41 (Appeal by Special Leave from the Judgment and Order dated November 19, 1975 of the Delhi High Court in Criminal Writ No. 158 of 1975), and 46 (Appeal by Special Leave from the Judgment and Order dated October 31, 1975 of the Delhi High Court in Criminal Writ No. 128 of 1975), of 1976, decided on April 28, 1976.
Constitution of India, 1950 - Articles 14, 21, 22, 19, 226, 352, 123, 213, 239B, 71, 329, 329A, 32, 162, 357, 250, 15, 16, 25, 26, 28, 29, 30, 31, 372, 265, 12, 20, 256, 13, 299, 351, 136, 246, 368, 51, 1, 360, 353, 225, 375, 53, 73, 355, 356, 358, 359, 360, 361, 354, 279, 268, 217, 154, 34, 31B, 40, 38, 28, 2379, 227, 8 and 9 - Indian penal Code, 1860 - Sections 342, 76, 79 - Code of Criminal Procedure, 1973 - Sections 491, 419, 56, 57 and 167- Government of India Act, 1935 - Sections 229, 298 and 299 - Code of Civil Procedure, 1908 - Section 80 – Indian Evidence Act - Sections 123, 124, 162 and 16A - Preventive Detention Act, 1950 - Sections 14, 7, 12, 8, 103 and 3 - Preventive Detention Act, 1967 - Section 8 - Maintenance of Internal Security Act, 1971 - Sections 16A, 12, 2, 3, 7, 2, 9, 18, 10, 6, 13, 11, 19, 14, 16, 17, 15, 4 and 5 - Emergency Powers Act, 1964 - Section 1 - Emergency Powers Act, 1920 - Section 1 - Presidential Order, 1975 - Sections 16A, 8, 12 and 18 - Madhya Pradesh Public Security Act, 1959 - Section 3 - General Clause Act, 1897 - Sections 21 and 14 - Thirty-Eighth Amendment Act, 1975 - Section 7 - Defense of India Ordinance, 1962 - Sections 3, 40 and 30 – Indian Income Tax Act, 1922 - Sections 5, 54 and 64 - Representation of the People Act, 1951 - Section 105 - Principal Act - Sections 14, 16A, 18, 2, 3 and 4 - Enforcement Of Fundamental Rights - Grave Emergency Exists - These appeals are by certificates in some cases and by leave in other cases state is appellant - Respondents filed applications in different high courts for issue of writ of habeas corpus - They challenged in some cases validity proclamation of emergency by president - They challenged legality and validity of orders of their detention in all cases - State raised a preliminary objection that presidential order made suspending detenus right to enforce any of rights conferred and continuance of emergency during which by virtue all rights conferred stand suspended are a bar at threshold for respondents to invoke jurisdiction of high court and to ask for writs of habeas corpus - Held, There is no sufficient ground to interfere with view taken by all nine high courts which went into matter that presidential order did not affect maintainability of habeas corpus petitions to question legality of detention orders - Principles which should be followed by courts in dealing with petitions for writs for habeas corpus to challenge legality of detention are well-established - Appropriate occasion for this court to go into constitutional validity and its impact on power and extent of judicial scrutiny in writs of habeas corpus would been when State or a detenu whosoever is aggrieved comes up in appeal against final judgment in any of petitions pending in high courts - Appeals are disposed of.
The Supreme Court of India addressed the maintainability of writ petitions under Article 226 of the Constitution seeking habeas corpus for persons detained under the Maintenance of Internal Security Act, 1971 (MISA), in the context of a Presidential Order issued on June 27, 1975, under Article 359(1). This order suspended the right to move any court for enforcement of rights under Articles 14, 21, and 22 during the ongoing emergencies proclaimed on December 3, 1971, and June 25, 1975 (!) (!) (!) (!) (!) .
The Court examined whether such petitions could challenge detention orders on grounds like non-compliance with MISA, mala fides, or lack of lawful authority. The majority held that Article 21 constitutes the sole repository of the right to personal liberty, encompassing both substantive and procedural protections against deprivation except by procedure established by law (!) (!) (!) (!) (!) . The Presidential Order, by suspending enforcement of this right, deprives detainees of locus standi to seek judicial review via habeas corpus, rendering such petitions maintainable only if the detention lacks any ostensible legal basis (e.g., issued by an unauthorized authority or patently outside statutory powers) (!) (!) (!) (!) (!) (!) . The majority emphasized that while executive actions must generally conform to law, the Order's effect during emergency is to bar challenges invoking Article 21, including those alleging procedural irregularities or mala fides, as these inherently enforce the suspended right (!) (!) (!) (!) (!) (!) .
The rule of law, requiring executive actions to have legal sanction, remains operative but is subordinated to emergency provisions; it does not independently sustain habeas corpus claims under Article 21 during suspension (!) (!) (!) (!) (!) . Pre-Constitution common law or statutory rights to liberty merge into Article 21 and are equally suspended in enforcement (!) (!) (!) (!) (!) . The majority rejected arguments that Article 226's "for any other purpose" clause allows bypassing the suspension, as substantive claims still invoke the barred right (!) (!) (!) (!) (!) .
Regarding Section 16A(9) of MISA, the majority upheld its validity as a rule of evidence deeming detention grounds confidential and against public interest to disclose, without encroaching on Article 226 jurisdiction, as it aligns with the Order's suspension and limits scrutiny to facial validity (!) (!) (!) (!) (!) . Section 18 of MISA, negating non-statutory liberty rights, was also affirmed (!) (!) (!) (!) (!) .
The minority view, articulated by Justice Khanna, dissented on maintainability, holding Article 21 does not exclusively embody liberty rights; pre-Constitutional common law and statutory protections persist independently, allowing habeas corpus challenges to ultra vires detentions or statutory violations, as the Order suspends only specified fundamental rights, not broader legality principles (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . The minority affirmed habeas corpus as integral to constitutional structure, unaffected by the Order, with judicial scrutiny ensuring compliance with MISA's procedural safeguards (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . It deferred ruling on Section 16A(9)'s validity to full merits hearings (!) .
The majority's conclusions prevailed: appeals allowed, High Court orders set aside, petitions dismissed as barred, with liberty preserved for non-Article 21 claims (e.g., criminal appeals) (!) (!) .
JUDGMENT
RAY, C.J. - These appeals are by certificates in some cases and by leave in other cases. The State is the appellant. The respondents were petitioners in the High Courts.
2. The respondents filed applications in different High Courts for the issue of writ of habeas corpus. They challenged in some cases the validity of the Thirty-eighth and the Thirty-ninth Constitution Amendment Acts, the proclamation of emergency by the President under Article 352 of the Constitution made on June 25, 1975. They challenged the legality and validity of the orders of their detention in all the cases.
3. The State raised a preliminary objection that the Presidential Order dated June 27, 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any of the rights conferred by Articles 14, 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the respondents to invoke the jurisdiction of the High Court under Article 226 of the Constitutional and to ask for writs of habeas corpus.
4. The judgments are of the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
5. The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14, 21 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of the Maintenance of Internal Security Act (hereinafter referred to as the Act), which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was made mala fide or was made on the basis of relevant materials by which the detaining authority could have been satisfied that the order was necessary. The High Courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a persons right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statute which form the conditions precedent to the exercise of power under that statute as distinguished from merely procedural provisions or are mala fide or a not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary.
6. The High Court held that the High Courts could not go into the questions whether the proclamation of emergency was justified or whether the continuance thereof was mala fide.
7. The High Courts did not decide about the validity of the Thirty-eighth and the Thirty-ninth Constitution Amendment Acts. The Thirty-eight Constitution Amendment Act amended Articles 123, 213, 239B, 352, 356, 359 and 360. Broadly stated, the Thirty-eighth Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant articles final and conclusive and to be beyond any question in any court on any ground. As for Article 359 clause (1A) has been inserted by the Thirty-eighth Constitution Amendment Act. The Thirty-ninth Constitution Amendment Act amended Articles 71, 329, 329A and added entries after Entry 86 in the Ninth Schedule.
8. No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals.
9. It is appropriate to mention here that on December 3, 1971 in exercise of powers conferred by clause (1) of Articles 352 of the Constitution the President by proclamation declared that a grave emergency exists whereby the security of India is threatened by external aggression.
10. On June 25, 1975 the President in exercise of powers conferred by clause (1) of Articles 352 of the Constitution declared that a grave emergency exists
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