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This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she analyzes the A.D.M. Jabalpur v. Shivkant Shukla.

Introduction- Emergency 1975

On June 25, 1975, the President, in the exercise of the powers conferred by paragraph (2) of Article 352 of the Constitution, declared that there is a serious emergency for which Indian security is threatened by internal disturbances. On June 27, 1975, in the exercise of the powers conferred by Clause (1) of Article 352 of the Indian Constitution, the President declared that the right of any person (including a foreigner) to approach a court for the application of his rights conferred by Articles 14, 21 and 22. The Constitution and all proceedings pending before a court for the enforcement of the aforementioned rights shall remain suspended during the period in which the urgency is proclaimed. 

Black law’s dictionary defines emergency “as a failure of the social system to deliver reasonable conditions of life”. The term emergency may be defined as “circumstances arising suddenly that calls for immediate action by the public authorities under the powers especially granted to them”. 

According to Dr. B.R. Ambedkar, the Indian federal system should use the emergency as a last resort and the government changes itself to a unitary system from a democratic one to save the constitution. This power to government is gained from the constitution itself. There are three types of emergencies in the Indian constitution,

  • National Emergency
  • Failure of constitutional machinery in states
  • Financial Emergency

Article 352 of the constitution talks about the national emergency which can be declared in case of war, external aggression and rebellion the central government takes all the powers namely executive, legislative and financial.

During national emergency except article 20 and 21, all other fundamental rights are suspended. The president may suspend the right to move to courts by enforcing article 359. Union government can make legislation on state list items by article 250. 

Facts of the case

On June 25, 1975, the President, in exercising the powers conferred by Article 352(2) of the Constitution, declared that there was a serious emergency for which the security of India was threatened for internal problems. On June 27, 1975, in the exercise of the powers conferred by Article 359(1), the President declared that the right of any person (including foreigners) to be transferred to a court in order to respect the rights conferred by Articles 14, 21 and 22.

The Constitution and all proceedings pending before a court for the application of the aforementioned rights will remain suspended during the period of proclamation of urgency. The Presidential Ordinance of June 27, 1975, also specified that it would be additional and not negligible to any order issued before the date of the order mentioned in Article 359 of Clause (1) of the Constitution. On June 29, 1975, by another decree, the President made the order of June 27, 1975, applicable to the State of Jammu and Kashmir.

The President promulgated Amendment Orders Nos. 1 and 7 of 1975 and replaced them with the 1975 Domestic Security Maintenance Act No. 39, which introduces a new Article 16A and gives effect to Article 7 of the law. Law in force on June 25, 1975, the other provisions that came into effect on June 29, 1975. By the same Act, a new section 18 was also inserted with effect from June 25, 1975.

On October 17, 1975, the order of September 16, 1975, In 1975, introduced new amendments to section 16A of the Maintenance of Homeland Security Act, which introduced paragraphs 16 (8) and (9) of section 16A.

On November 16, 1975, Ordinance No. 22 of 1975 was enacted. It introduced some changes to the law on the maintenance of internal security, also inserting paragraph 2A in Article 16A. All the amendments made by the order had retroactive effect to validate all the previous laws. The aforementioned orders were published on January 5, 1976, under the Maintenance of Internal Security Act of 1971, 2014 (Law No. 14 of 1976).

Defendants detained under Article 3(IA)(ii) read with Article 3(2) of the Internal Security Maintenance Act. The law has been challenged in several superior courts by virtue of the order of the President of India on June 27, 1975, declaring it unconstitutional and inoperative and invoking:

  1. The annulment of that order, and
  2. The pronouncement of His release immediate

In some cases, they questioned the validity of the amendments to the laws of Articles 38 and 39. When these hearing requests were filed, the plaintiff raised the preliminary objection of maintainability for the fact that the request for release, a writ of Habeas corpus was issued. The accused alleged, in essence, to have been deprived of their personal liberty in violation of the procedure established by law, whose motive was at their disposal.

Only Article 21 of the Constitution and taking into account the presidential order of June 27, 1975, which suspends the right to request the execution of the right conferred by this article, the petitions could be rejected at the threshold. While the superior courts of Andhra Pradesh, Kerala and Madras confirmed the preliminary objection, the present dispute has not been favourably received by the superior courts of Allahabad, Bombay (Nagpur Bench), Delhi, Madhya Pradesh, Punjab and Haryana. The state and the central government. Aggravated by the decision of several superior courts, he appealed the decision of the Supreme Court of the Kingdom.

Arguments

Petitioner

  1. 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).
  2. 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.

Respondent

  1. 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.
  2. 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.
  3. 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

Given the presidential order of June 27, 1975, according 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. In case of emergency, the executive protects the life of the nation.

Consequently, its actions, whether arbitrary or illegal, cannot be questioned, as security considerations preclude the evidence on which it is based Queen v. Halliday Ex Parte Zadiq [1917] AC 210. The freedom in question is limited and controlled by law, whether at common law or in law.

The safeguarding of liberty is in the good sense of the people and in the system of representative and responsible government that has developed. If extraordinary powers are granted, they are granted because the urgency is extraordinary and limited to the emergency period. Freedom is itself the gift of the law and perhaps the law lost or abridged.

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 purpose of Article 359(1) is not only to prohibit the right to sit in this Court, but also to remove any superior court that the jurisdiction created by Article 359(1) applies to the rights mentioned in the presidential order, either by a request under Article 32 or by a request under article 226. An application for habeas corpus under article 491 of the Code de criminal proceedings cannot be filed simultaneously before the High Court. Article 359(1) makes no distinction between the threat to the security of India resulting from war or external aggression and treats India’s security by internal disturbances.

The powers of President U / A 352(1) and 359(1) of our Constitution are exempt from any remedy in the courts, even when the emergency is over. Section 16A(9) of the Maintenance of Internal Security Act of 1971. It is not unconstitutional on the ground that it constitutes an interference with the jurisdiction of the Superior Court itself, pursuant to Article 226.

Section 16A(9) of the Maintenance of Internal Security Act of 1971 states that issuing a true rule of evidence and does not exempt or affect the jurisdiction of the High Court under section 226 of the Constitution and therefore can not be considered invalid. In addition, Section 18 of the Maintenance of Internal Security Act of 1971 does not suffer from the excessive delegation and is a valid piece of legislation. Part III of the Constitution confers fundamental rights in both positive and negative language.

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.

Obiter Dicta

A.N.Ray

“Freedom is limited and controlled by law, whether at common law or in law, which is, according to Burke, regulated freedom, not abstract or absolute freedom. the good sense of the people and the system of representative and responsible government that has developed: if extraordinary powers are granted, they are granted because the urgency is extraordinary and we are limited to the period of emergency.”

H.R. Khanna

The observations in the above-mentioned cases show that the validity of the warrant of arrest could be annulled despite the presidential orders of 1962 and 1974 under section 359 if the right was not covered by these presidential orders. The protection granted by the absolute presidents was conditional and limited to abandoning the challenge of the arrest warrants and other measures adopted under the provisions mentioned in these presidential orders with respect to the violation of the articles specified in these presidential orders.

If the detention of a detainee did not comply with the provisions mentioned in the presidential orders, the presidential orders did not have the effect of protecting the warrant of arrest and it was permissible to question the validity of the detention at the prison. The reason was not made under the specified provisions but in violation of those provisions.

M.Hameedullah beg

We can say that the Constitution is dominated by the rule of law because its general principles were, for example, the right to individual liberty or the right of public assembly. the rights of private persons in special cases presented to the courts; whereas in many foreign constitutions the security (as it is) conferred on the rights of individuals results or seems to result from the general principles of the constitution.

P.N. Bhagwati, J.

There are three types of crisis in the life of a democratic nation, three well-defined threats to its existence: a nation and a democracy. The first is war, especially a war to repel the invasion when a “state must transform its political and social order in peacetime into a combat machine in wartime and surpass the skills and efficiency of war. the enemy. ”

There may be a real war or a threat of war or preparations to deal with the imminent occurrence of the war, which can all create a crisis situation of the most serious order. The need to concentrate more power within the government and the contraction of normal political and social freedoms cannot be discussed in such a case, especially when people face a horrendous horror of national slavery.

The second crisis is a threat or presence of internal subversion intended to disrupt the life of the country and endanger the existence of a constitutional government. This activity can have various causes. Perhaps the most common is disloyalty to the existing form of government, often accompanied by a desire for change through violent means.

Another cause may be strong dissatisfaction with some government policies. State applications within the federal government for linguistic or religious lines may fall into this category. Or the presence of powerful elements without law, perhaps without political motivation, but for various reasons that go beyond the scope of the ordinary mechanism of law, can lead to this problem.

The third crisis, recognized today as a measure of emergency sanction by the constitutional government is collapsing or causing a collapse of the economy. It must be recognized that an economic crisis is such a direct threat to the constitutional existence of a country at war or internal subversion. These are three types of emergency that can normally endanger the existence of constitutional democracy.

Y.V. Chandrachud, J.

I must now consider a very important picture of the defendants’ argument that section 21 is not the only depository of the right to life and personal liberty. This argument has been presented to us in too many aspects to be mentioned and many cases have been cited in support. This was to some extent unavoidable, as many councils defended the same argument and each had its own particular and preferred accent. I will try to compress the arguments without, I hope, sacrificing the thematic value.

Decision

The case was discussed for more than two months, after which the case was reserved. Only after a sentencing application was filed did the Supreme Court reach the following conclusion:

“In view of the presidential order of June 27, 1975, no person has the right to make an application for summary judgment under section 226 to a superior court for habeas corpus or any other order or order tending to contest the lawfulness of an arrest warrant that the order is not in accordance with the law, is unlawful or is tainted with factual or legal defects or is based on strange considerations “.

The judge ruled in favour of the government with a four to one majority. Only Judge Khanna had the courage to make the right decision in favour of human nature and freedom. He knew what was at stake. The records indicate that the night before the announcement of the judgment, he informed his sister that he had made a decision and that he knew that it would cost him the seat of the President of the Supreme Court. from India.

The judgment ended with a firm quote: “As Judge Huges observed, judges are not there to decide cases, but to decide them as they should, and even if they are regrettable that they can not always agree, it is better that their independence is maintained and that unanimity is guaranteed by their sacrifice.

“Disagreement in a court of last resort calls upon the meditative spirit of the law, to the intelligence of a future day, when a subsequent decision may be just the mistake in which the dissenting judge believes that the court was betrayed. “What would be the consequences of his actions, his junior judge MH Beg replaced him and became president of the Supreme Court of India?”

The other four: CJI A.N.Ray, Justice Beg, Justice Chandrachud and Justice Bhagwati could not avoid the unscrupulous favour of the government in power. A. Ray, with her controversial appointment as CJI by Indira Gandhi, replacing three high-ranking judges, revered the same ground on which she walked. There are anecdotes about how he called her and her personal secretary, often enough to advise him on the smallest questions. Judge Bhagwati has lifted the torch of individual liberty only to add diplomacy to a correct reading of the Constitution.

The minutes read as he said: “I have always been inclined to defend individual freedom, because I believe it is one of the most valuable values ​​of humanity, without which life The pillars of a free and democratic society Men could easily lay down their lives on their altars to secure, protect and preserve them, but I do not think it’s fair to let my love for personal freedom to blur my vision or convince me to include in the relevant provisions of the Constitution an interpretation that their language cannot reasonably support. “

In 1979, after Indira Gandhi came to power, he wrote her a letter that we all hope she does not do. It reads as follows: “I am sure that with his will of iron and determination, an extraordinary vision and a dynamic vision, a great administrative capacity and a vast experience, a love and affection overflowing with the people and, above all, a heart that identifies with the misery of the poor and the weak, will be able to steer the ship of the nation safely toward its precious purpose. “He later became the president of the Supreme Court of India.

The High Court compiled in silence. Their superior had silenced them. This day has been called “the darkest day of Indian democracy” and rightly so. There are several similarities between this trial and Hitler’s mode of operation and his accession to power. The Emergency Proclamation, at the request of Indira Gandhi, granted him a decree by decree, suspended the elections and limited fundamental rights.

The most significant example in the history of a “rule by decree” is the Reichstag Decree on the Fire of 1933. Adolf Hitler convinced German President Hindenburg to issue a decree indefinitely suspending all basic civil rights. This paved the way for the suppression of opposition by the Nazis and the government of a single party of the Third Reich.

NirenDe’s calm and calm answer to the uncomfortable questions of Judge Khanna regarding the Nazi holocaust. In one case, CJI Ray almost reprimanded the inmates’ lawyer who had built Nazi gas chambers to prove their statements. For all the others, with the exception of him, it was only an act of despair and defence to maintain the facade of “rectitude”.

The Supreme Court judge, Bhagawati has stated that

“I was wrong, the majority judgment was not good judgment, and if I was ready to make a new decision, then I would agree with what Judge Khanna did. Initially, I was not in favour of the majority opinion, but in the end, I do not know why they convinced me to agree with them, a type of litigation for the first time. was an act of weakness on my part. “

Review of Earlier studies

Article on The Right to Life of Potential Persons by E. -H. W. Kluge

In this sense, it is totally useless to indulge in a panegyric on the blessings of guaranteed personal freedom. The love of freedom to be free of embarrassing and illegal restrictions is implanted in every human breast. In the Declaration of Independence of the United States and in the bills of almost every state statute, we find that individual liberty is expressly guaranteed to all men equally.

Despite the existence of these fundamental and constitutional guarantees of individual liberty, the astonishing anomaly of the slavery of an entire race in more than a third of the States of the American Union, during three quarters of a century of natural existence, left their own constitutional declarations that “all men are endowed by their Creator with certain inalienable rights, including the right to life, liberty and the pursuit of happiness”.

But fortunately, this contradiction is already in the past and, according to the provisions of the Thirteenth Amendment to the US Constitution, it is now the fundamental and virtually immutable law of the country, according to which “neither slavery, nor servitude, except as a sanction for an offence for which the party has been duly convicted, must exist in the United States or in any place under its jurisdiction.

Article on The Right to Life by George P. Fletcher

In the theory of rights, we are constantly confronted with the problem of reconciling the right of a person to his right to suffer damage to the interests protected by that right. In the case of the right to life, we must evaluate many cases in which people are killed or allowed to die, and we wish to affirm their right to life.

These cases include the murder of an aggressor in self-defence, accidental killing, the end of life-sustaining treatment and the death penalty. Two modern ways of reconciling acceptable murders with the right to life will no longer suffice.

One approach is to assert that the right to life is simply a prima facie right; it is subject to annulment by contradictory considerations. Even if there is no confusion in association with the principles of proof, the notion of prima facie law cannot resist criticism. If the right of every person to life takes precedence over the wishes of those who wish to kill him, we would scarcely say that this right is simply prima facie.

And if the victim’s right of defence authorizes the murder of an aggressor, it is difficult to say that the aggressor’s right to life is somehow invalidated and, as a result, “lost” in the collision with a higher value. It seems that the line remains the same whether it is cancelled or not.

Fundamental rights under the police power

The Fourteenth Amendment has given freedom, property and equality the highest protection that rights are capable of in our system of government, and has, therefore, called them the fundamental rights of the individual. Of these, the right to liberty is necessarily the vaguest content, because it is quite clear that freedom must be understood as being subject to restrictions and that the mode and degree of constraint is the question in question. We can form a fairly definite conception of personal freedom in the strictest sense.

The freedom of private conduct is as follows in order of importance to the individual and may be considered to enjoy practically the same immunity against restrictive legislation as the freedom of the body. The freedom of purely social relations, which renders the legal relations of the parties ineffective, is in some respects part of the freedom of private conduct and, even if it is not strictly private, it is in principle: does not worry the state and, as a result, is generally exempt from police power.

Cases

  1. Maneka Gandhi v. Union of India
  2. Poona municipal corporation V. D.N.Deodher
  3. Bharat Kala Bhandar v. Municipal committee
  4. Indore municipality v. Niamatulla
  5. Dwarkadas Shrinivas v. the Sholapur spg. And wvg company Ltd and Ors.

Laws related to ADM Jabalpur case

Article 21

Protection of life and personal freedom. No person shall be deprived of his life or personal liberty, except according to the procedure established by law. This Article 21 requires that the following conditions be met before a person is deprived of the property:

  1. There must be a valid law.
  2. The law must establish a procedure.
  3. The procedure must be fair, fair and reasonable.
  4. The law must comply with the requirements of articles 14 and 17, that is, it must be reasonable.

Article 358

Suspension of provisions of Article 19 during emergencies –

  1. While an Emergency Proclamation states that the security of India or any part of its territory is threatened by war or by external aggression, nothing is at stake. Article 19 it will restrict the power of the State as defined in Part III to make any law or take any executive action that the State would like, but the provisions contained in that Part would be competent to do or take, but any law thus made, the extension of the incompetence, will cease to have effect as soon as the Proclamation ceases to function, except that incompetence respects things done or omitted before the law ceases to have effect.
  2. Provided that when said Emergency Proclamation is in force only in any part of the territory of India, any such law may be made, or an executive action of this kind may be taken under this article in relation to or in any territory of the State or Union in which or in any part from which the Emergency Proclamation is not operational, if and to the extent that the security of India or part of its territory is threatened by activities in or in relationship with the part of the territory of India in which the Emergency Proclamation is in operation.
  3. Nothing in clause (1) shall apply (a) to any law that does not contain a recital in the sense that such law is related to the Emergency Proclamation in effect when it is made, or (b) to any executive action adopted from otherwise, by virtue of a law that contains said recital.

Article 359(1)

Suspension of the execution of the rights conferred by Part III of the Indian Constitution during emergencies

  1. When an Emergency Proclamation is being executed, the President may, by means of an order, declare that the right to transfer to any court for the execution of the rights conferred by Part III of the Indian Constitution (except articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the aforementioned rights will remain suspended for the period during which the Proclamation is in force or for the shortest period specified in the order

Essential ingredients of Article 359(1)

Declare that the emergency proclamation must be in force. The President may order not to apply to a court for the application of the fundamental rights set out in Part III of the Constitution. In any order, the enforcement procedures will remain suspended for the duration of the proclamation.

Difference between Article 358 and Article 359(1)

Article 358 suspends rights only in Article 19 to the extent that the legislator may legislate to violate Article 19 in the application of the emergency proclamation, when urgency is proclaimed, the presidential order under or all fundamental rights.

Under Article 358, the executive may take any action that it may take under such statutes. Article 358 does not suspend any fundamental right, while Article 359(1) also suspends any ongoing proceedings for the application of such fundamental rights. Article 358 is limited to Fundamental Rights under Article 19 only while Article 359 it extends to all those Fundamental Rights whose execution is suspended by the Presidential Order.

Article 358 automatically suspends fundamental rights under Article 19 as soon as a state of emergency is declared. On the other hand, Article 359 does not automatically suspend any fundamental right. This only allows the President to suspend the application of the specified fundamental rights.
Article 358 only works in the event of an external emergency (ie when a state of emergency is declared because of war or external aggression) and not in the case of an internal emergency (this is to say when the state of emergency was declared on the basis of armed rebellion). Article 359, on the other hand, applies both in the case of an external emergency and an internal emergency.

Article 358 suspends fundamental rights Article 19 for the duration of the emergency, Article 359 suspends the application of fundamental rights for a period specified by the President, which can be either the entire duration of the emergency or a shorter period.
Article 358 applies to the whole country, while Article 359 applies to all or part of the country. Article 358 suspends Article 19 Fully, while article 359 does not authorize the suspension of the application of articles 20 and 21.
Article 358 authorizes the State to legislate or to take any implementing measure incompatible with the fundamental rights set out in Article 19, while Article 359 authorizes it to legislate or to take enforcement action contrary to the fundamental rights execution is suspended by order of the president.

There is also a similarity between Article 358 and Article 359. Both provide immunity from contestation only to emergency laws and not to other laws. In addition, executive measures taken only under such a law are protected by both.

In the present case, the oblique reference indicates that “… no freeman shall be imprisoned, imprisoned, sick or banished, or destroyed in any way except by the judgment of his own people or the law of the land”. The document is with the detainee or someone else on his behalf, so he goes to court to oppose the detention. The person or his representative must prove that the authority or court that ordered the arrest committed an error of fact or of law. It is clear that the habeas corpus appeal remains the most powerful process by which any citizen can challenge the correction of the restriction on individual liberty. Article 21 of the Indian Constitution guarantees the right to life and liberty of every citizen of the nation.

The right to apply to a court to enforce this article was suspended under Article 359 when the “internal” emergency was imposed (1975-1977). The logical question that followed was whether the Habeas Corpus order was enforceable in such a situation? The historic case of the Supreme Court or habeas corpus attempted to answer this question and was at the origin of the 44th Constitutional Amendment in 1978. This amendment, adopted unanimously, guarantees that Article 21 cannot be suspended even in case of emergency.

Outcomes

Article 358 was broader, the fundamental right being suspended as a whole, while Article 359 did not suspend any fundamental right. Second, the primary purpose of Article 359(1) was to prohibit the referral of the Supreme Court under Article 32 to enforce certain rights. This statutory prohibition has no effect on the application of the common law and statutory rights to personal liberty before the High Court under Article 226 of the Constitution.

Thirdly, even though Article 359(1) grants the executive power almost unlimited special powers to revoke Part III of the Constitution, it does not affect the essential element of the sovereignty of the separation of powers. which leads to a system of “control and balances” and the limited power of the executive. The suspension of fundamental rights and the respect of their rights were not intended to tip the balance in favour of the executive to the detriment of the individual.

Fourthly, the presidential orders imposed are valid only for fundamental rights and do not extend to natural law, common law or legal right. In fifth place; The equation of state and executive is very wrong.

The only consequence of the suspension of fundamental rights or their application is that the legislator can create laws that go against these fundamental rights and that the executive can apply them. This should at no time be interpreted as the right of the executive to violate court decisions and previous legislative mandates.

Sixth, the executive can only act for and against its citizens within the limits set by the laws in force. Article 352 or the proclamation of the state of emergency does not in any way increase the scope of the executive powers of the State in relation to what is enshrined in Article 162 of the Constitution and nothing more (see the defendants’ fifth argument).

Finally, the State and its agents have the right to arrest only if the alleged act of detention falls within the scope of Section 3 of Maintenance of Internal Security Act and all the conditions that it contains are filled. If a condition remains unfulfilled, detention is considered “beyond the powers” of that act. The most important objective of constitutionally entrenching constitutional rights is to make them enforceable against the state and its agencies through the courts.

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According to the words of Justice Khanna

“The right to pre-trial detention, detention without trial is anathema to all those who enjoy personal freedom.

In order to strike a balance between opposing points of view, the drafters of the Constitution expressly provided for preventive detention while introducing safeguards to prevent any abuse of these powers and to mitigate their severity and severity. However, the dilemma faced by the creators of the Constitution in striking a balance between the two opposing views of the subject’s freedom and the security of the state has not been definitively resolved with the development of the Constitution.

Even in the absence of an article 21 in the Constitution, the state does not have the power to deprive a person of his life or freedom without the authority of the law. This is the essential postulate and the fundamental postulate of the rule of law and not that of men in all civilized nations. Without this holiness of life and freedom, the distinction between a lawless society and a law-governed society would be meaningless.

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

Calls are accepted.

The judgments are cancelled.

Applications to higher courts must now be rejected in accordance with the law established in those appeals.

Given the presidential order of June 27, 1975, no person has standing to refer a written application under section 226 to a superior court for habeas corpus or any other order or order challenging the legality of an order of detention why the order was not in accordance with the law or was unlawful or unlawful, or tainted with bad faith in fact or law or was based on extraneous considerations.

Conclusion and Suggestions

Article 21 has been misinterpreted in this case. Indeed, the procedure that was not established in accordance with the law was later. Whenever internal aggression occurs in a country, it does not mean the government. They can take the lives of their citizens and strangers. It is true that during the emergency, the president by order may suspend all fundamental rights, but that order must have effect from the date on which it was approved, but it must not be executed. from the previous date.

Amendment 44, tabled in 1978, was the result of the Supreme Court’s decision. In an interview, Judge P.N. Bhagwati admits that the decision of the Supreme Court in ADM Jabalpur was incorrect and pleads guilty to the same thing. The reason for joining the majority (A. Ray, Y. V. Chandrachud and H.H. Beg) in this case was that he was persuaded by his colleagues and admitted that it was an act of weakness on his part. He also said that “it was against my conscience, this judgment is not the justice of Bhagwati.

Reference

  1. M.P.Jain, “Indian Constitutional Law” Fifth Edition 2008, Wadhwa and Company, Nagpur. 
  2. J.N.Pandey, “The Constitution Law of India” Forty Fifth Edition 2008, Central Law Agency, Allahabad. 
  3. D.D.Basu, “Shorter Constitution of India” 
  4. V.N. Shukla, “Constitution of India” 
  5. Seervai, “Constitutional Law of India” 
  6. P.M.Bakshi, “Constitutional Law of India

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