Facts in Brief

On 25 June 1975, the President, exercising powers under Article 352(1) of the Constitution, proclaimed a grave emergency on the ground that the security of India was threatened by internal disturbances. Two days later, on 27 June 1975, the President invoked Article 359(1) and declared that the right of any person, including a foreigner, to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 — as well as all pending proceedings for their enforcement — would remain suspended for the duration of the emergencies proclaimed on 3 December 1971 and 25 June 1975. The Order further stated that it was in addition to, and not in derogation of, any earlier order passed under Article 359(1).

On 8 January 1976, a further notification under Article 359(1) suspended the right to move any court for the enforcement of the rights conferred by Article 19, along with all pending proceedings for that purpose, for the same period.

Several illegal detentions followed across the country, and writ petitions were filed in various High Courts. Nine High Courts ruled in favour of the detenus, holding that although Article 21 could not be enforced, the detention order could still be challenged on other grounds — for example, that it did not comply with the governing Act or was mala fide. The Supreme Court heard the appeals arising from these decisions together and set aside the High Courts’ rulings, upholding both the Presidential Order and the suspension of the said rights.

Arguments

Before the Supreme Court, the Attorney General argued that Article 21 — the fundamental right guaranteeing the security of life and personal liberty — had been suspended. Consequently, the suspension meant that a detenu had no remedy even against an illegal detention; all remedies for securing life and personal freedom ended with the suspension of Article 21.

The detenus, on the other hand, contended that they retained the right to seek a remedy under Article 226 (the High Court’s power to issue writs). In their view, a remedy against illegal detention remained available despite the suspension of Article 21, because Article 226 — which allows enforcement of any other legal right — had not been suspended by the Presidential Order.

Judgment

Marking a dark chapter in Indian legal history, the Supreme Court rejected the respondents’ arguments. It held that Article 21 was the sole repository of the right to life and liberty, and that its suspension necessarily suspended all remedies protecting that right under any other law. By construing Article 21 as the sole source of life and personal liberty, the Court denied the detenus every available remedy, holding that any challenge to a detention order for the enforcement of the right to personal liberty under Article 21 was barred by the Presidential Order then in force.

The majority went further: even an order of detention could not be challenged on any other ground — not even if it was mala fide — leaving the detenu without any remedy against illegal detention. The Court declared:

“In view of the Presidential Order dated June 27th, 1975 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 illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”

With this, the Court closed its doors to any relief whatsoever for persons suffering illegal detention.

For the Common Man

Dubbed “a scar on the Indian judiciary,” the judgment exposed the dangers facing the Constitution — amounting to total anarchy — when the judicial wing is unwilling to stand firm against violations of the constitutional mandate. Justice Khanna, who delivered the lone dissenting judgment, was widely praised for his integrity and his commitment to justice.

When the next government came to power, the Constitution was amended to provide that Article 21 can never be suspended, even during an emergency. The recurrence of such a situation has thus been prevented by constitutional amendment, ensuring that the right to life and personal liberty cannot be suspended under any circumstances.