BENCH OF THE CASE

JUSTICE Y.V CHANDRACHUD

JUSTICE P N BHAGWATI

CHIEF JUSTICE A .N RAY

JUSTICE M HAMEEDULLAH BEG JUSTICE H R KHANNA

 INTRODUCTION
• The case of is one of the landmark
cases in the history of Indian legal system as it is one of those
cases which paved the way for further developments in the legal
system by exposing the existing loopholes. Fascinatingly, at the same
time, the case is also a dark spot in the legal system and the
judiciary. The reason for that is, in this case, the courts refused
to address and recognize the plights of the citizens of India by
completely neglecting the rights bestowed upon a person upon birth.
This case is also known as . The Latin term
"habeas corpus" means 'you must have the body' and a writ for
securing the liberty of the person was called habeas corpus . The
writ affords an effective means of immediate release from an unlawful
or unjustifiable detention whether in prison or in private custody.
 HISTORICAL BACKGROUND IN BRIEF
• It all started with the election of Mrs. Indira Gandhi, the then Prime
Minister, which had been held to be invalid by the Allahabad High Court.
Indira Gandhi lost her election case on June 12, 1975 and on her appeal
in the Supreme Court she was only granted a conditional stay. As a result,
she could neither vote nor speak in the Lok Sabha. She became a
dysfunctional Prime Minister. Wanting to cling to the chair at any cost,
she chose to - the pretext being
'internal threat' to India . Any person who was considered to be a
political threat, or who could politically voice his opposition was
detained without trial under Preventive Detention laws one of which was
the dreaded MISA (Maintenance of Internal Security Act).Immediately
thereafter, on June 25, 1975, she proclaimed a state of internal
Emergency. In a midnight swoop, most of the prominent Opposition leaders
including Jayaprakash Narayan, Morarji Desai, Atal Behari Vajpayee and L
K Advani were detained without charges and trial. The fundamental rights
to life and liberty (Article 21) and equality (Article 14) were suspended.
 FACTS IN BRIEF :-
• On June 25 th, 1975 the President in exercise of powers conferred by
clause (1) of Articles 352 (Proclamation of Emergency) of the
Constitution declared that a grave emergency existed whereby the security
of India was threatened by internal disturbances. On June 27 th, 1975 in
exercise of powers conferred by clause (1) of Articles 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 Article 14, Article
21 and Article 22 of the Constitution and all proceedings pending in any
court for the enforcement of the abovementioned rights shall remain
suspended for the period during which the proclamations of emergency made
under clause (1) of Article 352 of the Constitution on December 3 rd,
1971 and on June 25 th, 1975 were in force. The Presidential Order of
June 27, 1975 further stated that the same shall be in addition to and
not in derogation of any order made before the date of the aforesaid
order under clause (1) of Article 359 of the Constitution. ......contd.
• On January 8 th, 1976 there was a notification passed in the exercise of
powers conferred by clause (1) of Article 359 of the Constitution whereby
the President declared that the right of any person to move any to court
for the enforcement of the rights conferred by Article 19 of the
Constitution and all proceedings pending in any court for the enforcement
of the abovementioned rights would remain suspended for the period during
which the proclamation of emergency made under clause (1) of Article 352 of
the Constitution on December 3 rd, 1971 and on June 25 th, 1975 were in
force. Several illegal detentions were there upon made across the country,
pursuant to which various writ petitions were filed throughout the country.
Nine High Courts gave decision in favour of detunes, holding that that
though Article 21 cannot be enforced, yet the order of detention was open
to challenge on other grounds such as that the order passed was not in
compliance of the Act or was mala fide. Against these orders, many appeals
were filed before the Supreme Court. Disposing of all the appeals together,
the Supreme Court set aside that the decisions of the High Courts which had
held the declaration and the subsequent detentions as illegal and upheld
the declaration and suspension of the said rights.
 ISSUE RAISED
v Whether a WRIT PETITION under Art. 226 before a
High Court is maintainable to enforce the right to
personal liberty during an emergency declared under
clause (1) of Art. 359 of the Constitution ?

v If such a petitionis maintainable ,what is the scope

of Judicial Scrutiny in view of presenditial order ?
 ARGUMENTS BY BOTH SIDES
o ARGUMENT BY PETITIONER
§ The State does not release any detainees while the Advisory
Council was of the opinion that there was no sufficient reason
for his arrest and, therefore, continued to detain him in
violation of the provisions of Article 22; Habeas corpus and this
is the case even if Article 22 is itself a fundamental right. The
right to appeal to a court for the purpose of enforcing a right
under Article 19 has now been suspended by the President pursuant
to an order made under Article 359(1).
§ The suspension of the right of a person to transfer a court for
the purposes of the application of the right to life and liberty
is exercised in accordance with a constitutional provision and,
therefore, it can not be said that the result means the law.
state of the line.
 o ARGUMENT BY RESPONDENT
§ According to the respondents, the limited purpose of Article 359(1) is
to remove the restrictions on the legislature’s power so that, during
the operation of the emergency, it is free to legislate to violate the
fundamental rights set forth in the presidential order. The argument is
made that there is a law in force governing pre-trial detention, the
Maintenance of Internal Security Act of 1971. Each arrest warrant
approved by the executive branch must comply with the conditions
prescribed by this law. The defendants’ argument that Article 21 is
not the sole depository of the right to life and personal liberty.
§ Non-fundamental constitutional rights derived from Articles 256, 265
and 361(3), neither the natural or contractual rights nor the legal
rights to personal liberty are unaffected by the presidential order.
Legal rights can only be removed by law and not by an executive
department.
§ Finally, it was requested that the preamble of the Constitution speaks
of a sovereign democratic republic and that, therefore, senior
executives subordinated to the legislature cannot act to the detriment
of citizens, except to the extent permitted by applicable law. chosen
from the city.
 Ratio Decidendi
• Acc. to Clause (1) of Article 359, no one has the right to submit
petitions under Article 226 of the Constitution to a superior court of
habeas any other order or order to enforce any right to the personal
liberty of a person detained under the Maintenance of Internal Security
Act of 1971 on the grounds that the warrant of arrest or detention are
for a reason not in accordance with the law, illegal or masculine.
• The purpose of Article 359(1) is to prevent the application of any
fundamental right mentioned in the Presidential Order from being
prohibited or suspended during the emergency period. The purpose of
Article 359(1) is not only to limit the application of this section to
the legislative domain but also to the actions of the executive branch.
• The limits of judicial review must be coextensive and consistent with the
right of an aggrieved person to complain about the invasion of their
rights. The theory of the basic structure of the constitution can not be
used to construct an imaginary part of the constitution that might
conflict with constitutional provisions.
 JUDGEMENT
• To personal liberty of a person detained under the Maintenance of
Internal Security Act , 1971 on the grounds that the order of detention
or the continued detention is for any reason not in compliance with the
Act or is illegal or male fide .In view of the Presidential order dated
June 27,1975 , under Clause(1) of Art. 359, no person has locus standi
to move writ petitions under Art. 226 of the Constitution before a
High Court for habeas corpus or any other writ or order or direction to
enforce any right.

• Art. 359 (1) makes no distinction between the threat to security of

India by war or external aggression on one hand and treat to security
of India by Internal disturbance to another hand.
• The purpose and object of Art. 359(1) is that the
enforcement of any Fundamental Right mentioned in the
Presidential order is barred orbit remains suspended
during the emergency. The scope of Art. 359(1) is not only
to restrict the application of the Article to the
legislative field but also to the acts of the Executive.
The object of the right to move any High Court the bar
created by Art. 359(1) applies to petitions for the
enforcement of Fundamental Rights mentioned in
Presidential order whether by way of an apply under Art.
32 or by way of application under Art. 226. An application
invoking Habeas Corpus under 491 of CrPC cannot
simultaneously be moved in the High Court
• Section 16A (9) of MISA ,1971 is not unconstitutional on the
ground that it constitute an encroachment on the writ
jurisdiction of High Court under Art. 226

• Part III of the constitution confers fundamental rights in

positive as well as negative language. The limits of judicial
review have to co- extensive with the right of an aggrieved
person to complain of the invasion of his rights.

• The theory of the basic structure of the constitution can not be

used to build into the constitution an imaginary part which may
be in conflict with the constitutional provisions.
 HELD
• In view of the Presidential order dated June 27 ,1975 no
person has any Locus Standi to move any writ under
Art. 226 before a High Court for Habeas Corpus or any
another 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 was
illegal or was vitiated by Mala Fides factual or legal
or is based extraneous consideration.
 Dessenting Judgement by Justice H R KHANNA
• Law of preventive detention without trial is an anathema to all
those who love personal liberty.
• It is with a view to balancing the conflicting viewpoints that
the makers of the Constitition made express provisions for
preventive detention and at the same time inserted safeguards to
prevent abuse of those powers and to mitigate the rigour and
harshness if those provisions. The dilemma which faced the
Constitution makers in balancing the two conflicting related to
liberty of the subject and laid to rest for good with drafting of
the Constitution .
• Even in the absence of Article 21 in the constitution , the
State has got not power to deprive a person of his life or
liberty without the authority of law . This is the essential
postulate and basic assumption of the rule of law
 SOME IMPORTANT SOURCES

indiankanoon.org
lawtimesjounral.in
sci.gov.in
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