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Justice Khanna's Dissent in the ADM Jabalpur Case

Under the preventive detention statute, the decision in the ADM Jabalpur vs Shiva Kant case, widely known as the Habeas Corpus case, set the tone for countless arrests, a clause by which defendants could not assert their liberty in extenuating circumstances. On 25/06/1975 the President of India in the exercise of his powers given by Clause (1) of Article 352 of the Constitution declared Emergency, stating that “a grave emergency exists whereby the security of India is threatened by internal disturbances.”

With this proclamation, Part XVIII of the Constitution of India, which provides for ‘Emergency Provision’ was activated. According to the respective chapter, Article 359 of the Constitution provides that the President may declare that the right to move any court to enforce fundamental rights remains suspended upon the declaration of an emergency.

Thus by Clause(1) of Article359, two days later, on 27 June 1975, the President declared that the right of any citizen, including an alien, to move any court to impose the rights conferred on him by Article14, Article 21, and Article 22 of the Constitution would be suspended for the duration during which the Proclamations of Emergency would be in effect. The emergency has led to wide-scale human rights violations. The regular operation of the Constitution was abrogated in the name of the state of exception'. Politicians, leftists, dissenters were arrested all over the board. Detainees were also kept under the Maintenance of Internal Security Act,1971, in ADM Jabalpur. The matter entered the Supreme Court's. The key question before the court was whether the order issued by the President pursuant to Article 359(1) of the Constitution suspends the right of any person, after being detained pursuant to a law providing for preventive detention, to move any court to impose the right to personal freedom pursuant to Article 21?

The majority of four judges (Chief Justice A.N. Ray, Justice M. HameedUllah Beg, Justice P.N. Bhagwati and Justice Y.V. Chandrachud) held that no writ against the detention of a person is in court with the declaration of emergency and the subsequent suspension of enforcement of Art. 21. The majority held that no person has a standing position to bring before the High Court any written petition pursuant to Article 226 for Habeas Corpus, or any other written order or direction, to challenge the lawfulness of the arrest warrant in view of the Presidential Order of 27 June 1975.

Justice H.R. Khanna famously disagreed with the majority, a dissent which cost him the position of India's Chief Justice. He disagreed with the stance of the majority that Article 21 of the Declaration of Emergency should be suspended. It held that if the right to enforce Article 21 is suspended, there would be no recourse against the State's deprivation of the life or liberty of an individual, even if such deprivation may be without the power of law or even in flagrant breach of the provisions of law. Observing that such a position would be against rule of law, J. Khanna said that, “without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.”

In addition, he also held that without the force of law, the right not to be deprived of one's life or liberty was not the creation of the Constitution. Before the Constitution came into effect, certain privileges existed. And except in the absence of Article 21 of the Constitution, without the force of law, the State has no right to deprive a person of his or her life or liberty. The sole repository of the right to personal liberty is not Poetry. 21. Khanna argued that even if the constitutional rights of an individual were stripped away, he/she might move the court to understand why they are being held. That was because Article 21 was not the only place for life and liberty, and even though it had been suspended, it was the fundamental hallmark of society.

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