ADM Jabalpur v. S.S. Shukla

Bench: Chief Justice A.N. Ray, Justice H.R. Khanna, Justice M. Hameedullah Beg, Justice Y.V. Chandrachud and Justice P.N. Bhagwati

Appellant: Additional District Magistrate, Jabalpur. Respondent: S.S. Shukla

Citation: 1976 AIR 1207, 1976 SCR 172


Can a High Court entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention during an emergency?


  • In June of 1975, the President, using his powers under Article 352(2) declared an emergency as the security of India was threatened due to some internal problems. Later on, exercising his powers given under Article 359(1), the President it was enforced on the people of India and the foreigners, that the right to approach the court to enforce their rights under Article 14, 21 and 22 and the proceeding related to these Articles shall be suspended for the period of Emergency.
  • The President made several changes in the Domestic Security Maintenance Act, 1975, and Maintenance of Homeland Security Act via amendments, and all these amendments had a retrospective effect to validate all the previous laws.
  • Anybody who was considered a political threat or who raised his political opinion was arrested without trial under Prevention Detention Laws. It resulted in the arrest of many

leaders of opposition Atal Bihari Vajpayee, Morarji Desai, and others under MISA, as they were a threat to the Indira Gandhi, led government.

  • The new law was challenged in many superior courts stating that it was unconstitutional. In several cases, the validity of the amendments was contested before the court of law. The main objection that was raised was the maintainability for the fact that the request for release, a writ of Habeas corpus. It was contended that the accused were deprived of their right to personal liberty.
  • Several petitions were filed in various High courts all over the country contesting the unlawful detention. Mostly court passed judgments in favor of the petitions and it forced the Indira Gandhi Government to approach SC and that led to the Additional District Magistrate Jabalpur V. Shivkant Shukla case which is known as the Habeas Corpus Case.

Argument raised by Appellant:

  • The appellant contended that the purpose of the emergency in the Constitution is that it gives power to the Executive to have control over the implementation of law applicable to the citizens of the country. The aim was that during an emergency the considerations of the state assume supreme importance.
  • The state does not release a detune despite even on the recommendation of the advisory board and keeps him in detention without any reason is a slight violation of rights under Article 22 and therefore, there shall be no petition of habeas corpus that will be maintainable. The right under Article 19 was suspended by the order of president vide Article 359(1).
  • The appellant contended that suspending the right of a person to file a petition in a court for the enforcement of rights under Article 21 is well within the power of President given by the constitution and it does not mean that there is an absence of rule of law.
  • They contended the legitimacy of a Presidential Order cannot be challenged on the ground of violating fundamental rights.

Argument raised by Respondent:

  • The respondents contended that the aim of Article 359(1) is to remove the limitations imposed on the legislature while making law so that during an emergency, the legislature is free to violate the fundamental rights outlined in the presidential order.
  • It was argued that there is already a mechanism to govern pre-trial detention (Maintenance of Internal Security Act of 1971). Each arrest issued by the executive must comply with the conditions laid down under this law.
  • It was contended that Article 21 is not the only article that gives the right to life and personal liberty.
  • The respondent said that non-fundamental rights under Articles 256, 265, and 361(3), neither the natural or contractual rights nor the legal rights to personal liberty are not affected by the presidential orders.
  • According to the respondent, legal rights can only be removed via law.
  • The preamble of the Constitution states that India is a sovereign, democratic and republic state, therefore, the senior executives cannot make a law that will result in the loss of citizens’ rights, subject to the extent permitted by applicable law.


The court by a majority of 4 to 1 held that in light of the presidential, no person has the right to make an application under Article 226 of the constitution in superior court for habeas corpus or any other order that contest the lawfulness of an arrest warrant and imply that said order is not following the law and is unlawful or any other ground. But Justice Khanna had a different opinion and he favored the freedom of the detenu from unlawful arrest.