Judgement of the Day.-Additional District Magistrate, Jabalpur V Shivkant Shukla

Additional District Magistrate, Jabalpur V Shivkant Shukla

CITATION: 1976 AIR 1207, 1976 SCR 172


On 23rd Dec. 1971, the President while exercising his power under A.352 declared a national emergency on the ground of external aggression and the Maintenance Of Internal Security Act,1971 was published to effectively deal with it. In 1974, the President, in the exercise of his powers under A. 359(1) issued an order thereby suspending A.14,21 and clauses (4),(5),(6) and (7) of A. 22 for six months and later extended to 12 months.

Later, in 1975, another emergency was declared by the President, on the ground of ‘internal disturbance’, this time suspending A.14,21 and 22.

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. The Constitution Thirty-ninth Amendment Act amended Articles 71, 329 and 329(A) and added Maintenance of Internal Security Act 1971 as item 92 in the 9th Schedule. The respondents challenged in several High Courts, the vires of the ordinance issued in 1975, by the President of India as unconstitutional and inoperative in law and prayed for (a) the setting aside of the said order and (b) for directing their release forthwith. In some cases, they challenged the validity of the Thirty-eight and thirty-ninth constitution Amendment Acts.


Majority judgement

(1) In view of the Presidential Order under Art. 359(1). no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or 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. (2) Section 16A(9) of the Maintenance of Internal Security Act, 1971 is constitutionally valid. (3) Article 21 is the sole repository of rights to life and personal liberty against a State. Any claim to a writ of Habeas corpus is the enforcement of Art. 21 and is, therefore, barred by the Presidential order. In times of emergency, it is important to pass such orders for the nation’s security and they cant be challenged on legal lines.

Dissenting judgement by J.Khanna:

Justice Khanna, in his dissent, held that Art.21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the constitution was drafted, and 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. Therefore, he reasoned that even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life or liberty without the authority of law.

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