A.D.M. Jabalpur v. S.S. Shukla, [AIR 1976 SC 1207]

FACTS

The President of India proclaimed emergency on December 23, 1971 on account of threat to the security of the country due to external aggression. In order to deal with the emergency effectively, the Parliament enacted the Maintenance of Internal Security Act, 1971.After a few years, the emergency was declared again on June  25, 1975 under section 352 of the Constitution. This time it was proclaimed on account of threat to the security of the country due to internal disturbances and several people were arrested under the Maintenance of Internal Security Act, 1971.

In exercise of  the powers conferred by Article 359(1) of the Constitution, the president declared that the right to approach any court with respect to detention orders which were already been made under the Maintenance of Internal  Security Act, 1971 for the enforcement of the rights conferred by  Articles 14,  21 and 22  of  the Constitution shall remain suspended for  a period of six months from the date of issue of the order.

The respondents detained under the maintenance of Internal Security Act challenged in several High Courts and prayed for the setting aside of the detention orders made under the said Act  and for  directing  their  release.

ISSUE

Whether the presidential order issued under Article 359(1) of the Constitution suspending the right to move to any court for violation of rights conferred under Articles 14, 19, 21 and 22 of Constitution valid?

ARGUMENTS

Appellant:

The appellant primarily contended that the petition of the respondents asking for release by the issuance of a writ of habeas corpus is not maintainable. As the Presidential order under Article 359(1) suspended the right to move for enforcement of the right conferred by Article 21, the petitions were liable to be dismissed at the threshold. 

Respondent:

The respondents  detained under the maintenance of Internal Security Act challenged in several High Courts, the orders passed 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. 

OBSERVATION

During the times of  emergency,  the Parliament seeks to safeguard the security of a nation and its actions cannot be challenged on the ground of arbitrariness or irregularity in view of the fact that considerations of security  forbid  proof of  the  evidence  upon  which the detention was ordered.

Liberty is always in some form or another confined and  controlled  by  law. The system of representative and  responsible  Government  which  has evolved safeguard of liberty for the benefit of the people. Extraordinary power of curtailing the liberty of people has been given to the Parliament because the threat to the security of the nation is  extraordinary and limited to the period of emergency. 

During the time of emergency, the President has the power under Article 359(1) to suspend the enforcement of all Fundamental Rights. Article 359(1) suspends all pending cases for the imposition of Fundamental Rights. The said article is directed against all individuals and deprives them of their locus standi. If  the courts allows the detenu to enforce theFundamental Rights in spite  of the Presidential order passed under Article 359(1), the proceedings will be nullified and  rendered void.

In Kharak Singh v. State of U.P. and ors. [1964] 1 SCR 332 and Rustom  Cavasjee Cooper  v Union  of India [1970] 3 SCR 530, it was held that all the personal liberties which are not encapsulated under Article 19 will be deemed to be encapsulated under Article 21.  The rule of law regarding personal liberties have been engrafted in Article 21. The negative language of Fundamental Rights granted by Part III of the Constitution imposes limitations on the power of the State and declares the corresponding guarantees of the individual  to that  fundamental Right.  Limitation and guarantee are  complementary. The  limitation of  State action embodied in a Fundamental Right couched in a negative form is the measure  of the  protection of  the individual.

HELD

In  view of  the presidential order under Article 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 or is vitiated by mala fides factual or legal or is based on extraneous considerations.

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