No person has any locus standi to move any writ petition under Article 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 not under or in compliance with the Act or is illegal or is vitiate by malafides factual or legal or is based on extraneous consideration.

CASE BRIEF: Additional District Magistrate, Jabalpur V/S. S. S. Shukla Etc. [OVERRULED]


Case name: Additional   District Magistrate, Jabalpur V/S. S. S. Shukla Etc.

Case number: 1976 AIR 1207

Court: In the Supreme Court of India

Bench: RAY, A.N. (CJ)

KHANNA, HANS RAJ

BEG, M. HAMEEDULLAH

CHANDRACHUD, Y.V.

BHAGWATI, P.N.

Decided on: 28/04/1976


Ø BRIEF FACTS AND PROCEDURAL HISTORY:

1. In exercise of the powers conferred by Clause (1) of Art. 352 of the Constitution the President of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of India is threatened by external aggression.

2. On November 16, 1974, the President of India, in exercise of the powers conferred by Clause (1) of Art. 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under s. 3(1)(c) of the Maintenance of Internal Security Act, 1971 (as amended by ordinance ll of 1974) for the enforcement of the right conferred by Articles 14, 21 and Clauses (4) (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court or the enforcement of any of the aforesaid rights with respect to all orders of detention made under the said section 3(1)(c) shall remain suspended for a period of six months from the date of issue of the order. Or the period during which the proclamation of emergency issued under Clause ll of Art. 352 of the Constitution of India on December 3, 1971, is in force, whichever period expires earlier. the order stood extended to the whole of the territory of India.

3. On June 20, 1975, the President of India, amended the above order by substituting 12 months for ’6 months’ in the order. On June 25, 1975, the President, in exercise of his powers conferred by Clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances.

4. On June 27, 1975, in exercise of powers conferred by Clause (1) of Art. 359 the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency.

5. On September 25, 1975, the last paragraph in the Presidential order dated June 27 1975, was omitted. The President promulgated the amending ordinances No. i and 7 of 1975, and replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16A, and giving a deemed effect to s. 7 of the Act as on from June 25, 1975, while the rest having a deemed effect from June 29, 1975.

6. By the same Act a new section 18 was also inserted with effect from June 25, 1975. By the Constitution (Thirty-eighth Amendment) Act, 1975, Articles 123, 213, 239(b), 352, 356, 359 and 368 were amended. Clauses (4) and (5) were added in Art. 352 of the Constitution. Broadly stated, the Thirty-eighth Con 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.

7. The respondents detained under s. 3(IA)(ii) read with s. 3(2) of the maintenance- of Internal Security Act (Act 26 of 1971 j as amended by the Maintenance of Internal Security Act (Amendment Act 39 of 1975), 1975 challenged in several High Courts, the vires of the ordinance issued on June 27, 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 come cases, they challenged the validity of the Thirty-eight and I thirty-ninth constitution Amendment Acts.


Ø ISSUE BEFORE THE COURT:

1. whether, in execution of the Presidential Orders when a person was detained, if the High Court can entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention?


Ø RATIO OF THE COURT:

1. The court observed that Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State. Any claim to a writ of habeas corpus is enforcement of Art. 21 and is, therefore, barred by the Presidential order.

2. The court observed 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. Liberty is itself the gift of the law and may by the law forfeited or abridged.

3. Part III of our Constitution confers Fundamental Rights in positive as well as negative language. A Fundamental Right couched negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasize the immunity from State action as Fundamental Right.

4. Article 21 is our Rule of Law regarding life and liberty. No other Rule of Law can have separate existence as a distinct right.

5. The court held that The Presidential orders does not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainty of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature.

6. The Executive cannot detain a person otherwise than under valid legislation. The suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law.

7. The Constitution is the mandate. The Constitution is the rule of law. No one can arise above the rule of law. The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law.

8. The court held that Section 16A (9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention.

9. The rule of law has come to be regarded as the mark of a free society. Its content is different in different countries. It is, however, identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and Public order.

10. Rule of Law is not a law of nature consistent and invariable at all times and in all circumstances. The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself, affords little guidance. The essential feature if Rule of law is that the judicial power of the state is to a large extent, separate from the Executive and the Legislature. The Rule of Law us a normative as much as it is a descriptive term. It expresses an ideal as much as a juristic fact.

11. The rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.


Ø DECISION HELD BY COURT

1. In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 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 not under or in compliance with the Act or is illegal or is vitiate by malafides factual or legal or is based on extraneous consideration.

2. Section 16A(9) of the Maintenance of Internal Security Act is constitutionally valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals

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