The nadir of Indian jurisprudence was unquestionably the 28 April 1976 Supreme Court decision in ADM Jabalpur vs Shivakant Shukla , popular...
The nadir of Indian jurisprudence was unquestionably the 28 April 1976 Supreme Court decision in ADM Jabalpur vs Shivakant Shukla, popularly called the Habeas Corpus case.
There is little point in discussing at length what the Supreme Court majority held in that decision; it is perhaps the most pilloried Indian decision of all time. The majority held that the Presidential Order of 27 June 1975 under Article 359(1) of the Constitution (part of the set of “emergency” provisions) suspended all rights in Part III – including the right to personal liberty, and the right to move a high court under Article 226 for issue of a high prerogative writ remedy of habeas corpus.
Consequently, the Supreme Court majority held that nine high court decisions to the contrary – that despite the proclamation of an Emergency, citizens could petition high courts invoking Constitutional remedies for habeas corpus – were erroneous.
There was one dissenter: Justice Hans Raj Khanna, formerly of the Delhi High Court. The exchange during the hearing between him and Attorney General Niren De, is still chilling. When Justice Khanna asked if the suggestion was that should a policeman shoot a citizen, that citizen would be without remedy, De’s response was yes, he would. “Consistent with my position, My...
