– Sarthak Kaushal2

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



The case which is commonly known as the Habeas Corpus case, pertains to the time of proclamation of emergency under the government of Indira Gandhi. When her elections were termed to be illegal, the presidential order was passed for it. The question was whether a person can approach high court, when his fundamental rights are violated during emergency or not. Judgement was delivered onApril 28th, 1976 under constitutional bench of five judges with ratio of 4:1.


In State of Uttar Pradesh v. Raj Narain3, petitioner challenged the elections of Indira Gandhi on grounds of corruption from her Lok Sabha constituency, Rae Barelli. On June 12, 1975 Justice Sinha ofAllahabad High Court declared her elections invalid, as a result, Indira Gandhimoved to Supreme Court against this judgement and took temporarystay on judgement of High Court.

Indira Gandhi was slowly losing her political footprint and the opposition was becoming stronger day by day, this made her declare emergency under clause (1) of Article 352 of Indian Constitution with the consent of FakhruddinAliAhmed, the then President of India. Emergency was termed as serious due to internal disturbances.

After the proclamation of emergency, Article 14 and Article 21 were suspended and the rights vested there in were revoked, hence, any case relating to these Articles was also suspended. Opposition was suppressed because of emergency. Anyone who was considered a political threat was detained.

1 AIR 1976 SC 1207

2 B.B.A.LL.B., V Sem., Indore Institute of Law

3 1975 AIR 865, 1975 SCR (3) 333

Several leaders like Atal Bihari Vajpayee and L.K. Advani were detained under MISA (Maintenance of Internal SecurityAct). Several petitions were being filed under High Court challenging the arrest. Many High Courts ruled in the favor of the petitions. So, Indira Gandhi government approached Supreme Court in the light of the case ofADM Jabalpur V. Shivkant Shukla.


1. Whether a person can approach High Court under proclamation of emergency for Unlawful detention?

2. Whether suspension ofArticle 21 fit under the Rule of Law?

3. Does detainee hold locus to file a petition in court during Emergency?


Upon the issues, it was discussed by the State that the only purpose of Emergency in the Constitution is to guarantee special power to the Executive machinery which can hold discretion over the implementation of law and whatever State considers, it shall be held valid. The right of filing writ petition in High Courts under Article 226 are suspended and petitioners had no right to approach the Court for the implementation of the same and this would have logically dismissed such petitions.

The fact that Emergency provisions in Part XVIII of the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are necessities in regard to economy and military security ofthe State. The validityof the law under Presidential Order cannot be challenged on the ground of violating fundamental rights which were suspended by such order.

This answers all the issues like “Whether a person can approach high court under proclamation of emergency for unlawful detention or not?” for which the answer is No, one cannot approach the High Court for restoration of his fundamental right under anyArticle of the Indian Constitution. Upon the issue of locus standi, the petitioner holds no ground for any relief.


It was held that no person has any ‘locus standi’ to move any writ petition under Article 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 illegalor is vitiated bymala fide intention. Section 16 (a) (9) ofthe Maintenance of Internal SecurityAct was said to be constitutionally valid. The appeals were accepted but the judgements were to be set aside.

The ratio of this judgement was 4:1. Four out of five judges which included Chief Justice A.N. Ray, Justice M.H. Beg, Justice Y.V. Chandrachud and Justice P.N. Bhagwati, agreed with each other but the dissenting view came from the side of Justice H.R. Khanna, who ended his judgement by saying “As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed.”

Justice Khanna stated that, “his judgement has its price fixed for him”, he realized this when his junior, Justice M.H. Beg was appointed as Chief Justice of India, bypassing him in seniority. In M.M. Damnoo v.. State of Jammu and Kashmir4 the court required the state government to produce the file confining the grounds of detention so that it can be proved that the detenu had been detained for security purpose. In this case it was seen that any kind of legislative provision prohibiting disclosure of grounds of detention obstructs the power of High Court under Article 226 and would be void.


On a detailed analysis of this Judgment multiple observations were done by the Supreme Court.

4 1972 AIR 963, 1972 SCR (2) 1014

Supreme Court observed that Article 21 which deals with right to life and personal liberty against illegal deprivation by state but in this case, all the rights including article 21, was suspended due to emergency, as a result, court was not in position to question about authority or legality of state’s decision.

Article 358 is much wider than Article 369. In the ambit of its application;Article 369 does not suspend any right of the citizen and also Article 359(1) grants special power to executive and does not undermine the essential components of separation of power. The link between executive and state is imprecise and the effect of the suspension of such rights will result in giving extra power to the legislature, which might be misused for making laws against the fundamental rights. As seen in this case, there was a high misuse of power for political gain of a single individual.

Additionally Section 3 of MISA (Maintenance of Internal SecurityAct) says that the state only holds right to arrest if alleged, and each and every condition which falls under this section must be fulfilled. If any single situation is left than the detention is beyond the power of the state. This decision given by the Supreme Court was highly criticized everywhere and was seen as the biggest mistake of judiciary till date.

The dissenting view given by Justice Khanna holds more value than the judgement given by the majority. The malafide intention of the Indira Gandhi government was trapped byJustice H.R. Khanna by his very first uncomfortable question when he asked that, “life is also mentioned in article 21 and would government argument extent to it also?” This question had no escape and Niren De’s answer to this question was, “even if life was taken away illegally, courts are helpless.”

The day when this judgement was pronounced was termed as the “darkest day of democracy” and it was even being compared with the regime and rise of the Hitler. The judgement was criticized a lot by everyone, basically because it was not in favor of Rule of Law. This case has always been compared to the Indira Gandhi’s case that how she was held guilty inAllahabad High Court but given clean chit by the Supreme Court. These two cases have shaken the trust of common people from the judiciary. Judiciary which was responsible to provide justice to common people against the state was working on the behalf of state only.

Justice Khanna solely relied on the judgement of Makkhan Singh V. State of Punjab5 in which he noted that: “If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and tile right of the detenu to move for his release on such a ground cannot be affected by the Presidential order”.

Suspension ofArticle 21 would simply mean depriving someone of his right of life and liberty which is also against the basic rights of an individual given by Universal Declaration of Human Rights, of which India is a part of. The case is a perfect example of blunder done by four able and qualified judges of apex court can do under any bad influence. All the judges involved in this case went on to become Chief Justice except Justice H.R. Khanna.

In year 2011, Justice P.N. Bhagwati regretted for what he had done by saying, “I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.” Such kind of acceptance of a former Chief Justice if enough to identify the seriousness of the case and judgement.


After the emergency, everything was rejected by the majority population in 1977. InManeka Gandhi V. Union of India6 changed the position ofArticle 21 by establishing a link between Article 14, 19 and 21 which was denied in the case of A.K. Gopalan V. State of Madras7 particularly in respect of Article 19 and 21.

5 1964 AIR 381, 1964 SCR (4) 797

6 1978 AIR 597, 1978 SCR (2) 621

7 1950 AIR 27, 1950 SCR 88

Both these articles cannot be separated from each other. The majority view of this case was completely negative by 44thAmendment of the Constitution as well as judicial interpretation. Now Article 20 and 21 cannot be suspended in any situation. 44thAmendment also changed “internal disturbances” into “armed rebellion”. Many such provisions were made under 44thAmendment in order to avoid the misuse of provisions of the Constitution.


The proclamation of emergency and arbitrary use of power by the state and taking away the personal liberty can be considered one of the most erroneous judgement till date. Supreme Court elaborated Article 21 and introduced PIL after it faced criticism over the judgement and damage it had done. The wrong interpretation led to infringement of fundamental rights of individuals. Dicey’s rule of law which was explained by Justice H.R. Khanna holds much greater force now also. Now, further provisions shall be made to ensure that no political agenda should overpower justice and equity of citizens.