Quick answer
In A.D.M. Jabalpur v. Shivkant Shukla (decided 28 April 1976), the Supreme Court held by 4:1 that while the Presidential Order of 27 June 1975 under Article 359(1) was in force, no person could file a habeas corpus petition (a petition asking a court to examine whether a detention is lawful) under Article 226 to challenge detention, even on the ground that it was illegal or mala fide (made in bad faith). Justice H.R. Khanna dissented. The ruling is no longer good law: the Forty-fourth Amendment (1978) stopped the suspension of Articles 20 and 21 during an Emergency, and the case was expressly overruled in the nine-judge Puttaswamy decision (2017).
The case
Additional District Magistrate, Jabalpur v. S.S. Shukla, AIR 1976 SC 1207, Supreme Court of India, 28 April 1976. Bench: A.N. Ray, C.J., H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati, JJ. During the Emergency of 1975, persons detained under the Maintenance of Internal Security Act, 1971 (MISA) filed habeas corpus petitions, and several High Courts held them maintainable. The President's Order of 27 June 1975 had suspended the right of any person to move any court to enforce Articles 14, 21 and 22. The majority (Ray, C.J., Beg, Chandrachud and Bhagwati, JJ.) allowed the State's appeals.
Majority and dissent
| Point | Majority (4 judges) | Khanna, J. (dissent) |
|---|---|---|
| Source of the right to life and liberty | Article 21 is the sole repository of the right to life and personal liberty against the State | Article 21 is not the sole repository; the State cannot deprive a person of life or liberty without the authority of law even apart from Article 21 |
| Habeas corpus during the Presidential Order | No locus standi (right to approach the court) to challenge detention as illegal, mala fide or not in compliance with MISA | Petitions were maintainable; the Presidential Order could not stop courts from examining whether a detention had the authority of law, and Article 226 could not be suspended |
| Section 16A(9) of MISA | Valid; neither the detenu nor the court could ask for the grounds of detention | Declined to decide its validity in these appeals and left the question for a later appeal after the High Courts' final decisions |
How the law changed
- Forty-fourth Amendment, 1978: Section 40 of the Constitution (Forty-fourth Amendment) Act, 1978 amended Article 359 so that the President can suspend the right to move courts for Part III rights "except articles 20 and 21". It also added clause (1B), and changed Article 352 to replace "internal disturbance" with "armed rebellion" as a ground for a National Emergency.
- Puttaswamy, 2017: in Justice K.S. Puttaswamy v. Union of India (24 August 2017), a nine-judge bench recognised privacy as a fundamental right. The lead opinion of D.Y. Chandrachud, J. (for four judges) described the four majority judgments in A.D.M. Jabalpur as "seriously flawed", said Justice Khanna "was clearly right", and declared that A.D.M. Jabalpur "must be and is accordingly overruled". Nariman, J. also expressly overruled the majority judgments, and Kaul, J. agreed with overruling it.
- Underlying principle: life and personal liberty are not gifts of the State and are not created by the Constitution; they are inalienable to human existence.
Example
Suppose a National Emergency is declared today and Farhan is detained by an officer with no legal authority at all. Even if the President suspends the enforcement of other fundamental rights under Article 359, Farhan's family can still file a habeas corpus petition, because Articles 20 and 21 cannot be suspended. In 1976, under the majority view in A.D.M. Jabalpur, such a petition would have been rejected.
For a fuller case summary, see ADM Jabalpur v. Shivkant Shukla.
Exam point
A.D.M. Jabalpur (1976, 4:1) barred habeas corpus during the Emergency; Khanna, J.'s dissent is now accepted as correct. After the Forty-fourth Amendment, Articles 20 and 21 cannot be suspended under Article 359, and Puttaswamy (2017) overruled the case.
