# Jabalpur v. S. Shukla (A.l.R. 1976 SC 1207) should be dropped. It is not

- **Citation:** [1978] 2 S.C.R. 581
- **Court:** Supreme Court of India
- **Decided:** 1978-01-11
- **Bench:** M. H. Beg, N. L. Untwalia, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jabalpur-v-s-shukla-a-l-r-1976-sc-1207-should-be-dropped-it-is-not-7396
- **Pages:** 13

## Headnote

Co11ten1pt of Court-News iten1 published in a newspaper criticizing judg·
•11zent of Suprefne Co11rt-Conten1pt proceedings-If coufd be initiated.
B
Per Majority (Untwalia and Kailasan1, JJ.)_
HELD : The notice issued to the Editor of the Times of India calling upon
·him to show cause why proceedings under Art. 129 of the Constitution for
·contemJtt of the Supreme Court should not be initiated against him in respect
·of the -statements made criticizing the judgment of this Court jn A. p. M.
Jabalpur v. S. Shukla (A.l.R. 1976 SC 1207) should be dropped. It is not
.a fit case where formal proceedings for contempt should be drawn up.
C
[582 A-B]
Beg. C. J. (dissenting)
There cannot be a -grosser or clearer case of contempt of court th::i.ti the
<implications of this document.
[586 CJ
1. The obvious suggestion and threat held out to Judges of the Court is
that t.hey will be maligned and punished if they Could not in future so decide
D
-cases as to protect the interests or voice the opinions of \vha~ever political or
·other sort of group those who have signed the document mentioned in the
newpaper may represent.
It implies nothing more nor less than blackmail to
·demoralise upright judges. People \vho could indulge in it certainly do not
represent those \vho say that law, as found in the Constitution, must ah,cays be
,declared by Judges fearlessly and honestly.
[586 A-C]
2. It is a serious matter if persons in the position of those whose names are
·given in the offending news item containing a vituperative attack upon a ·partiE
cular judgment of this Court are really signatories of the document. The attack
is primarily irrational and abusive, even if it is partially based on ignorance and
the rest on misconception.
[582 E-F]
3. It may be that some people go on making assertions about judgments. ot
'this Court without reading or under standing them.
But, the way in \vhich this
'has been going on, as a part of a consistent scheme to malign . the
Court and its Judges, shows that their intention is to deliberately shake the
confidence of the public in this Court. In any case, this \vould be the result it
F
nothing is done to check such a campaign of vilification.
[583 E-F]
4. To blame and abuse the Judges after shutting one's eyes to \vhat may
ibe the shortcomings of his own case or the la\\', as it exists, may be forgiven
:in a certain type of litigatit blinded by personal feelings.· But, if those who
purport to act pro bono p11blico to protect the Constitution and the ]a\Y conduct themselves in this fashion and, if responsible daily nc\vspapcrs publish
Vt'hat could be regarded, in addition to being defamatory and abusive, as gross
•contempt of this Court, such. people should be reminded of what the Jaw· says
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:.about it and what their duties are to the Court, to -the public and to individuals
maligned.
[586 C-D]
5. Even if the case could be one in \Vhich nvo views were possible on any
question, no newspaper could be allowed to describe one of the hvo views as
a .'misdeed' and suggesting that Judges
0Should have held what they could not
honestly believe to be correct in la\v.
It was stated that the Judges \Vho gave
suGh decisions would be ostracised in other countries. Those who drafted the
document Seemed to be aware of the perils of their
irresp0nsible language.. H
They, therefore, took shelter behind some article in a foreign ne\vspaper presumably based on sources interested in distortion or no better informed and
\Vith no better motives than those quoted in the ne\vs item.
[593 .B-C]
582
SUPREME COURT REPORTS
(1978] 2 S.C.R.
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ORIGINAL JURISDICTION .
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V. M. Tarkunde, P.H. Parekh, (Mrs.) Manju Sharma and Kailash
V asdev for the ~lleged contemner.
(Miss) A. Subhashin; for the Sol. General.
S. K. Jain for the Intervener.
The following Orders of the Court were delivered :
UNTWALIA & KAILASAM, JJ. Having considered every pros and
cons of the matter in regard to the amended notice issued to the editor
of the Times of India o

## Text

_Characters 0–36,597 of 40,059. This is a partial read: ask again with offset=36597 for what follows._

j
581
IN RE : SHRI SHAM LAL
A
Januarv 18, 1978
[M. H. BEG, C. J., N. L. UNTWALIA AND P. S. KAILASAM, JJ.]
Co11ten1pt of Court-News iten1 published in a newspaper criticizing judg·
•11zent of Suprefne Co11rt-Conten1pt proceedings-If coufd be initiated.
B
Per Majority (Untwalia and Kailasan1, JJ.)_
HELD : The notice issued to the Editor of the Times of India calling upon
·him to show cause why proceedings under Art. 129 of the Constitution for
·contemJtt of the Supreme Court should not be initiated against him in respect
·of the -statements made criticizing the judgment of this Court jn A. p. M.
Jabalpur v. S. Shukla (A.l.R. 1976 SC 1207) should be dropped. It is not
.a fit case where formal proceedings for contempt should be drawn up.
C
[582 A-B]
Beg. C. J. (dissenting)
There cannot be a -grosser or clearer case of contempt of court th::i.ti the
<implications of this document.
[586 CJ
1. The obvious suggestion and threat held out to Judges of the Court is
that t.hey will be maligned and punished if they Could not in future so decide
D
-cases as to protect the interests or voice the opinions of \vha~ever political or
·other sort of group those who have signed the document mentioned in the
newpaper may represent.
It implies nothing more nor less than blackmail to
·demoralise upright judges. People \vho could indulge in it certainly do not
represent those \vho say that law, as found in the Constitution, must ah,cays be
,declared by Judges fearlessly and honestly.
[586 A-C]
2. It is a serious matter if persons in the position of those whose names are
·given in the offending news item containing a vituperative attack upon a ·partiE
cular judgment of this Court are really signatories of the document. The attack
is primarily irrational and abusive, even if it is partially based on ignorance and
the rest on misconception.
[582 E-F]
3. It may be that some people go on making assertions about judgments. ot
'this Court without reading or under standing them.
But, the way in \vhich this
'has been going on, as a part of a consistent scheme to malign . the
Court and its Judges, shows that their intention is to deliberately shake the
confidence of the public in this Court. In any case, this \vould be the result it
F
nothing is done to check such a campaign of vilification.
[583 E-F]
4. To blame and abuse the Judges after shutting one's eyes to \vhat may
ibe the shortcomings of his own case or the la\\', as it exists, may be forgiven
:in a certain type of litigatit blinded by personal feelings.· But, if those who
purport to act pro bono p11blico to protect the Constitution and the ]a\Y conduct themselves in this fashion and, if responsible daily nc\vspapcrs publish
Vt'hat could be regarded, in addition to being defamatory and abusive, as gross
•contempt of this Court, such. people should be reminded of what the Jaw· says
G
:.about it and what their duties are to the Court, to -the public and to individuals
maligned.
[586 C-D]
5. Even if the case could be one in \Vhich nvo views were possible on any
question, no newspaper could be allowed to describe one of the hvo views as
a .'misdeed' and suggesting that Judges
0Should have held what they could not
honestly believe to be correct in la\v.
It was stated that the Judges \Vho gave
suGh decisions would be ostracised in other countries. Those who drafted the
document Seemed to be aware of the perils of their
irresp0nsible language.. H
They, therefore, took shelter behind some article in a foreign ne\vspaper presumably based on sources interested in distortion or no better informed and
\Vith no better motives than those quoted in the ne\vs item.
[593 .B-C]
582
SUPREME COURT REPORTS
(1978] 2 S.C.R.
A
ORIGINAL JURISDICTION .
B
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D
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F
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V. M. Tarkunde, P.H. Parekh, (Mrs.) Manju Sharma and Kailash
V asdev for the ~lleged contemner.
(Miss) A. Subhashin; for the Sol. General.
S. K. Jain for the Intervener.
The following Orders of the Court were delivered :
UNTWALIA & KAILASAM, JJ. Having considered every pros and
cons of the matter in regard to the amended notice issued to the editor
of the Times of India on the 11th January, 1978, to show cause why
'proceedings for contempt of this Hon'ble Court under Article 129 of
the Constitution should not be initiated against you in respect of the·
statements made in the aforesaid news item in respect of the habeas
corpus case (A.D.M. Jabalpur v. S. Shukla) and the judgments of this
Court in that case', we are of the view that it is not a fit case where a
formal proceedings for contempt should be drawn up.
We accordingly
drop the proceedings.
BEG, C.J.
I am afraid I am unable to concur with the majority
view on the case before us which arises out of the publication of a
news item in the Times of India newspaper of 7 January, 1978, on
which a notice to show cause why proceedings for contempt of Court
be not initiated against the Editor of the newspaper was
issued. I
think that it is a serious matter if persons in the position of those whose
names are given in the offending news item as having subscribed to a
do.cument containing a vituperous attack upon a particular judgment of
this Court reported in Additional District Magistrate, Jabalpur v. S.
Shukla(!), are really signatories of this document.
The attack is primarily irrational and abusive even if it is partially based on ignorance
and the rest on misconception.
The view of this Court in that case
was that the effect of the Presidential Order under Article 359 of the
Constitution considered there was to disable High Courts from investigating questions relating to violation of the fundamental rights to personal liberty, pr.otected by Article 21, in proceedings under Article 226'
of the Constitution.
Article 21 of the Constitution reads as follows :
"Article 21-No person shall be.deprived of his life or
persopal liberty except according to procedure established by
la\v".
It is clear beyond the shadow of doubt that what this Article protects is a right of every person in India, whether he is an Indian <;itizen
or not to be dealt with in accordance with law whenever a question of
depriving him of his life. or personal _liberty by executive authorities
arises. The law on the view adopted m A. K. Gopalan v. The State qf
H
Madras('), which was not questioned by anybody before us on
thJ.S.
(1) A.J.R. 1916 SC 1207.
(2) [1950] S.C.R. 88.
\
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lN RE : SHAM LAL (Beg, CJ.)
583
aspect, was statutory law or "lex" and not "just" so far as prewntive
detention, the very concept of which seems opposed to normal notions
.of "jus", is concerned. If the enforcement of rights conferred by
Article 21 was suspended, investigation of alleged violations of the
statutory protections is in abeyance because the guarantee given by
Article 21 is itself that of protection by statutory provision only atleast
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as regards preventive detention.
The majority view, that the right to obtain a release on a writ of
Habeas Corpus against Executive authorities was suspeuded, meant no
more than that the use of Articles 32 and 226 only was suspended by
the President against these authorities.
No question arose at all in
that case of depriving anyone of life itself without complying with law.
On the other hand, the Attorney General repeatedly said there that
eriminal and civil laws, in general, and their protections were not suspended at all. Deprivation of life contrary to law was punishable
murder or homicide not amounting to murder just as it was before the
Presidential Order which made no difference here.
Only the use of
Article 32 and 226 to enforce specified fundamental rights against
Executive authorities was suspended by the order under Article 359.
In fact, all the judges of this Court held this. Nevertheless, certain
interested persons, with motives which could be presumed to be ulterior and unhealthy, have continued to misrepresent to the pnblic that
what the majority of Judges of this Court held was that rights to life
and liberty themselves were suspended.
No judge had held that.
Speaking for myself, I would be certainly shocked to hear that· any
judge or Court had or could have, in the twentieth century, possibly
held that. All I can say to anyone who claims that any Judge of this
Court has so held is to ask him to show me anything which could possibly have this meaning.
It may be that some people go on making assertions about judgments of this Court without reading or understanding them. Bnt, the
way in which this has been going on, as a part of a consistent scheme
to malign the Court and its Judges, shows that their intention is to
deliberately shake the confidence of the public in this Court. In any
case, this would be the result if nothing is done by anyone to check
such a campaign of vilification.
·
I will only reproduce here three paragraphs from my very Jong
judgment on the case to show what we had held and what the Attorney
General had conceded. I said there :
"Para 250 :Enforceability, as an attribute of a legal right,
and the power of the judicial organs of the State to enforce
the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner. It follows from these basic premises of our
Constitutional jurisprudence that Courts cannot, during a
constitutionally enjoined period of suspension of the enforceability of Fundamental Rights through Courts, enforce
w1Iat may even be a "fundamental right" sought to be protected by Part ID of the Constitution. The Attorney General
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SUPREME COURT REPORTS
[1978] 2 S.r'.R.
has, very fairly and rightly, repeatedly pointed out that no
substantive right, whether declared fundamental
or not,
except the procedural rights converted into substantive ones
by Article 32, could be suspended. Even the enforcement
in general, of all such rights is not suspended.
Only the
enforcement of specified rights through Courts is suspended
for the time being.
Para 251 : The enforceability of a right by a Constitutionally appointed judicial organ has necessarily to
depend
upon the fulfilment of two conditions : firstly, its recognition
by or under the Constitution as a right; and, secondly possession of the power of its enforcement by the judicial organs.
Now, if a right is established on facts, as a rigbt, it will
certainly satisfy the first condition. But if the right is unenforceable, because the power of its enforcement. by Courts
is constitutionally suspended or inhibited, for the duration of
the Emergency, its mere recognition or declaration by Courts,
either as a right or as a fundamental right, could not possibly
help a petitioner to secure his personal liberty.
Article 226
of the Constitution is not meant for futile and unenforceable
declarations of right.
The whole purpose of a writ of Habeas
Corpus is to enforce a right to personal freedom after the
declaration of a detention as illegal when it is so found upon
investigation.
Para 254 : In this country, the procedure for deprivation
as well as enforcement of a right to personal freedom is.
governed partly by the Constitution and partly by ordinary
statutes. Both fall within the purview of 'procedure'. Article
21 of the Constitution guarantees, though the guarantee is
negatively framed, that 'No person shall be deprived of his
life or personal liberty except according to procedure established by law'. If an enforcement of this negatively framed
right is suspended, a deprivation contrary to the prescribed
procedure is not legalised. The suspension of enforcement does
not either authorise or direct any authority to violate the procedure. It has to be clearly understood that what is suspended
is really the procedure for the enforcement of a right which
could be said to flow from the infringment of a statutory
procedure.
If the enforcen1cnt of a right to be free, resulting
derivatively from both the Constitutional and statutory provisions, based on an infraction of the procedure, which is
statutory in cases of preventive detention, is suspended, it
seems to me to be impossible to Jay down that it becomes
enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so Jong. as
the
part of the procedure infringed is directory.
Such a view
would, in my opinion, introduce a distinction which is neither
warranted by the language of Article 359 of the Constitution
nor by that of the Presidential Orders of 1975. If the claim.
)
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IN RE : SHAM LAL (Beg, C.J.)
• 585
to assert the right is one based on violation of procedure,
A.
the degree of violation .may affect the question whether the
right to be free is established at all, but it should. not, logi-
·cally speaking, affect the r.esult where the enforcement of the
right, even in a case in which it has become apparent, is
suspended".
It has been made absolutely clear in 'the passages cited above that
B
no fundamental right itself was suspended by a Presidential Order
under Article 359. What was held to have been suspended was the
power of the Court itself to enforce the widely conferred right of personal liberty under Article 21 by resorting to Articles 32 and 226
against Executive authorities.
On this aspect of the case-that the
power of the Court to enforce fundamental constitutional rights
was
suspended-Khanna, J., stated as one of the conclusions of bis
C
judgment :
''.A Presidential Order under Article 359 (I) can suspend
during the period of emergency only the right to move any
Court for enforcement of the fundamental rights mentioned
in the Order."
This could oniy mean that the power of the Court to enforce specified
fundamental rights was suspended. In the course of the judgment,
Khanna J., expressed the view (para 15) :
"The effect of the suspension of the right to move any
court fo.r the enforcement of the right conferred by Article 21,
in my opinion, is that when a petition is filed in a Court, the
Court would have to proceed upon .the basis that no reliance·
can be placed upon that article for obtaining relief from the
court during the period of emergency."
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Therefore, it could be said that this statement of the position by
Khanna J. himself was, roughly speaking, an expression of a unanimously held view. of all the Judges~ Indeed, in the passages, quoted
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already from my judgment, the effect is shown to be less drastic for
the cit!zen than it is given in the last quoted passage.
I have repeatedly
pointed out in my judgment that it is not so much the right of the
citizen to move .the court as the power of the court to enforce fundamenal rights which is, in substance, temporarily suspended.
Neither the validity of the Presidential Order nor of the Constitutional amendment, by which this Court's very jurisdiction to entertain
the question of validity of the Presidential Order "on any ground" was
declared to be ll!ln-existent, was questioned by any counsel before this
Court either for conflict with the basic structure of the Constitution or
for mala fides of any sort (legal or factual).
Yet, without questioning
the validity of the Presidential Order or even the Constitutional amendment .barring judicial scrutiny of grounds of its validity, this Court was
expected, to judge from the tenor of the attacks made upon the judgment· of this Court, without indicating where the Court's reasoning
went wrong, to hold that the emergency itself was · unconstitutional.
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SUP)lEME COURT REPORTS
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Even Mr. Justice Khanna did not hold that because no materials were
placed and no grounds urged before the Court to enable it to hold that
the declaration of Emergency was itself invalid.
The obvious suggest10n: and threat held out to Judges of th~ Court is that they will be
mabgned and punished if they could not m future so decide cases as to
protect the interests or voice the opinions of whatever political or other
sort of group those who have signed the document mentioned in the
newspaper may represent. No more insidious a danger to judicial independence could exist. It implies nothing more nor less than blackmail
to demoralise upright Judges. People who could indulge in it certainly
do not represent those who say that law, as found in the Constitution,
must .be always declared by Judges fearlessly and honestly. I cannot
conceive of a grosser or clearer case of contempt of Court than the
implications of this document, if we were to think about them, would
constitute.
·
To blame and abuse the Judge after shutting one's eyes t0 what may
be the shortcomings of his own case or the law, as it exists_.
may be
even forgiven in a certain type of litigant blinded by personal feelings.
But, if those who purport to act pro bono publico to protect the Constitution and the law conduct themselves in this fashion, and, if responsible daily newspapers publish what could be regarded, in .addition to
being defamatory and abusive, as gross contempts of this Court, one
wonders whether time has not come to remind snch people of what the
law says about it and what their duties are to the Court, to the public,
and to the individuals maligned.
Although there was no difference of opinion at all between the
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Judges of this Court in Shukla's case that the Presidential Order under
.
Article 359 of the Constitution did suspend enforcement of fundamental
"..
rights including the right to personal liberty-a right which had been
1
given a very comprehensive meaning and scope by a series of decisions
of this Court from Gopalan's case through Satwant Singh's(I)
and
Kharak Singh's( 2) cases upto Golak Nath's cases-yet, there was a
difference of opinion between the majority opinions of Judges of this
F
Court and the view of Khanna J. on the question whether any statutory
rights remained, apart from the fundamental right to personal liberty,
which could still be enforced during the emergency, and, if so, how.
Mr. Justice Khanna said that there were such "statutory" rights which
could be enforced.
But, the majority of Judges of this Court could
not see how even a distinction between the fundamental rights to
personal liberty and a statutory right to personal liberty could possibly
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help a detenu in preventive detention when the fundamental right to
personal liberty protected by Article 21 itself guaranteed protection by
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"law" and this "law", according to Gopalan's case, was 'lex' or only
statutory law where 'preventive detention' was involved as it was in the
~
Habeas Corpus cases. If the enforcement of that protection of pe~-
sonal liberty by statutory law was specifically suspended by the Presidential Order how did any right of enforcement of the statutory prote~-
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tion to personal freedom still remain active? To say that it did
(1) ft967] (3) S.C.R. 525.
(2) {t964] (1) S.C.R. 332.
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INRE : SHAM LAL (Beg, C.J.)
587
seem an
obvious contradiction to the majority.
Moreover, the
distinction made by Khanna J. lost all its importance when the majority
confined the suspension of enforcement only to what conld be done
under Articles 226 and 3 2 of the Constitution. As is clear from the
passages cited above from my judgment in Shukla's case, the Attorney
General had conceded that the statutory protections surrouuding life
and liberty, outside Articles 226 and 32 of the Constitution, were not
suspended at all and conld be enforced. This meant that everyone,
whether an officer or a dignitary of State, such as a Minister, conld be
prosecuted for murder or for illegal and malicious confinement of anybody just like any ordinary alleged offender.
The kind of evidence
which could not be given in proceedings under either Article 32 or
Article 226 could be put forth in other types of legal proceedings.
One wonders whether it is an exhibition of dishonesty or of real
inability to understand what this Court had clearly and actually helcJ
when some people go on suggesting that this Court could and did ho ..
that the Executive authorities could do whatever they might like to
do to destroy life and liberty but Courts will give no relief or redress,
due to the Emergency, even if cases falling outside the area 9! "preventive detention", where release through writs of Habeas Corpus was
suspended, were brought before them. In any case, such assertions
are gross distortions of what this Court actually held in Shukla's case
(supra).
_. ·q
In Shukla's case (supra), I pointed out that, although, for reasons
which were outside the purview of judicial scrutiny, Courts had been
deprived of the power to test preventive detentions by applying norms
of "judicial justice", yet, the duties of the Executive were uot diminished but were enhanced on that account so that the Executive mu>t
see that the detenu gets justice at its hands.
I said there(')
(at p.
1315) :
"It appears to me that it does not follow from a removal
of the normal judicial superintendence, even over questions
of vires, of detention orders, which may require going into
facts behind the returns, that there is no Rule of Law during
the emergency or that the principles of ultra vfres are not to
be applied at all by any authority except when, on the face of
the return itself, it is demonstrated in a Court of Law that
the detention does not even purport to be in exercise of the
executive power or authority or is patently outside the law
authorising detention.
It seems to me that the intention
behind emergency provisions and of the Act is that, although
such executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly
supervised and controlled by the
hierarchy of executive
authorities themselves. It enhances the powers and, therefore, the responsibilities of the Executive."
It is surprising that even passages indicating that, although, judges
c:'.'Yressing the majority view in Shukla's case (supra)
did not
lik~
(!) A.I.R. 1976 S.C. 1315.
12-1146 SCI/77
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SUPREME COURT REPORTS
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measures of preventive detention without trial even during an Emergency, yet, they were .bound by the Constitution and the law to perform
the unpleasant duty to declare what the law was and not to run away
from it, are cited sometimes to indicate that judges, for some reason,
are partial to repressive laws.
In fact, I quoted a long passage from
Erskine May's History of England to show the plight of persons detained on suspicion.
The suggested inference was
that such powers,
unless duly supervised, are bound to be misused. It was impossible
for the Court to do anything more than to warn the Executive of lhe
dangers of arrogating unto itself so great a share of power over the
person of the individual citizen.
It is true that this Court held that preventive detention was practically removed from judicial supervision during an Emergency.
The
common statement of a conclusion at the end of the judgments in the
Habeas Corpus cases, based on the majority view but signed by all
the Judges, including Khanna J., was perhaps misleading as it gave the
impression that no petition at all would lie under either Article 226 or
3 2 to assert the right of personal liberty because the locus standi of
the citizen was suspended.
Had a review petition been filed before us
I would have certainly made it clear that the Statement of a conclusion
reached by the majority did not accurately set out atleast my conclusion
which is found at the end of my judgment. It seems to me that the
majority conclusion is rather loosely and vaguely expressed at the end
of our judgments.
A legitimate criticism could, therefore, be that this
Court should draft and state its majority conclusions better.
However,
a reading of all the judgments would have revealed that what was really
meant by stating the conclusion as it was done was nothing more than
that the power of Courts under article 226 to afford relief was suspended bnt the power to entertain petitions was not suspended. The term
'locus standi', with regard to what was snspended, was used becanse of
a similar use of it in previous judgments of this Court. Speaking for
myself, I made it quite clear that I did not understand those judgments
as laying down anything more than that the power of the Court to
afford relief was suspended so that hearings of cases could be resumed
after the suspension was lifted. And, the practice followed by this
Court, during the Emergency, was also to suspend proceedings or to
keep them in cold storage, so as to revive them later, but not to dismiss
them outright for want of 'locus standi' of petitioners.
Some people have said that. an exception should have been made in
cases of mala fide detentions falling outside the statutory and emergency
provisions.
I may quote here the exact words used by me with regard
to allegations of 'malice in fact' which, even apart from emergency
provisions, are not generally triable in summary inquiries into causes
of detention upon Habeas Corpus petitions but left to suits or other
proceedings for false imprisonment.
I held that this right was intact
even during the emergency.
I said there :
"As regards the issue of 'malice in fact', as I have already
pointed out, it cannot be tried at all in a Habeas Corpus
proceeding although it may be possible to try it in a regular
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INRE : SHAM LAL (Beg, C.J.)
589
suit the object of which is not to enforce a right to personal
A
freedom but only to obtain damages for a wrong done which
is not protected by the terms of Section 16 of the Act.
The
possibility of such a suit should be another deterrent against
dishonest use of these powers of detaining offic1<rs."
Some people mention the English decision of the House of Lords
in Liversidge v. Anderson(') to support the view that an issue of
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"malice in fact" should have been left open by the Supreme Court for
decisions by the Courts.
This assumes that the majority in Shukla's
case did not leave that course open for suits for damages for false
imprisonment just as was the position in Liversidge' s case where,
although, there was nothing equivalent to Section 16A(9) of the Act,
which could prevent English Courts from going into the grounds, yet,
the House of Lords held, practically as a matter of public policy, that
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the mere belief or satisfaction of the Secretary of State was enough
and could not be challenged and he could not be asked to give particulars for his belief.
In fact, the British Courts have gone much
further than we did.
The view of the best legal circles in England was,
I have heard, that the majority view in Shuklds case is absolutely
correct because it accords with principles on which law relating to
emergencies in even the most democratic countries is based.
AccordD
ing to those principles the Constitution says to the Judicature on
matters covered by Emergency provisions : "Hands off t
The executive knows more and understands better what is to be done here. You
are not judges of these matters." That is evident also from what our
Constitution says. The judges cannot be held responsible for what the
Constitution contains.
That is the responsibility of those who made it.
Others have the power to change it.
The judges can only declare what
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the Constitution contains and what its meaning and effects are. Beyond
that come the function of the lawmakers who can set right the law if it
is defective or wanting in any respect.
The constitutional position regarding Emergency provisions
and
the principle underlying them were well stated by Khanna J. in Shukla's
case (supra) as follows (para 201) :
F
"No one can deny the power of the State to assume vast
powers of detention in the interest of the security of the State.
It may indeed be necessary to do so to meet the peril facing
the nation.
The considerations of security of the State must
have a primacy and be kept in the forefront compared to
which the interests of the individuals can only take a secondary place.
The motto has to be "who lives, if the country
dies''.
Extraordinary powers are always assnmed by the
government in all countries in times of emergency because of
the extraordinary nature of the emergency. The exercise of
the power of detention, it is well settled, depends upon the
subjective satisfaction of the detaining authority and the courts
can neither act as courts of appeal over the decisions of the
detaining authority nor can they substitute their own opinion
for that of the authority regarding the necessity of detention."
(I) (1942] A.C. 204.
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590
SUPREME COURT REPORTS
(1978] 2 S.C.R.
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Even in times when there was no declaration of Emergency and no
amendments had been made in the law so as to deprive courts of power
to look into the grounds of detention, claims for relief on grounds of
either "malice in fact" or "malice in law" could be judged only by
looking at the grounds of detention in proceedings under either Article
32 or 226. But, as the majority of Judges in Shukla's case pointed
out, Section 16A, sub-section ( 9) was added during the emergency so
B
that its validity could not be questioned for violation of fundamental
rights because Article 358 of the Constitution, which is absolutely
clear on the point, made such a course impossible. Section 16A(9),
therefore, also deprived Courts of powers to find out how detent10n w,.s
for a collateral purpose or suffered from even what is called "malice in
law". Hence, there was no alternative before the Court except to say
that, due to insurmountable obstacles placed by constitutional proviC
sions and statutory law made during the emergency declared and protected by constitutional provisions, a High Court could not investigate
the legality of a detention under Article 226 or 32 of the Constitution
in such a way as to enforce a fundamental right against an executive
authority empowered to pass and actually passing a prima facie valid
detention order .. But, that did not bar other legal proceedings mentioned by me specifically in Shukla's case (supra) which were still
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open to persons aggrieved even by prima facie valid detention orders,
although what could be done under Article 3 2 or 226 in normal limes
could noCbe achieved by other proceedings.
Indeed, I pointed out in Shukla's case (supra) that, although High
Courts were disabled by section 16A(9) of the Maintenance of Internal
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Security Act, which was added during the emergency, from calling for
and examining grounds of detention, yet, if, upon the face of an orde1
of detention, it appeared that it was defective for some reason, or, on
the return filed in reply to a petition, it appeared that there could be or
was no detention order, such as the one required by Statute, a writ of
Habeas Corpus could be issued to release the detenu as if he was in
private detention and not in "purported" detention of an executive
F
authority,-even "purported" orders were protected by statute.
I indicated how the writ of Habeas Corpus lies not only against executive
authorities but also against private individuals.
Hence if a detention
was, on the face of the detention order, without a further investigation
which could not, obviously, take place without grounds, utterly illegal
detention, ordered by an officer with no authority to order it, would tc
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on par with a detention by a private individual against whom a v.Tit of
Habeas Corpus would go.
In fact, this was the only way in which
what Mr. Justice Khanna seemed to have had in view when he spoke
of statutory rights against actions outside the Act and the emergericY
provisions could be enforced despite the Presidential Orders of 1975
and statutory amendments.
The suspension operated only against
purported action of executive authorities.
The fundamental right•
were also guaranteed against acts of authorities which were parts of
"the State".
Those laws which recognise and protect the rights of the
individual to be free from illegal confinement, from assault, and from
murder, could, on the very concessions made by the Attorney General,
be invoked by the aggrieved citizen even during the period of emer-
•
)
}
)
INRE : SHAM LAL (Beg, C.J.)
591
,gency against private persons. Such rights are not ,given against execuA
tive authorities, as such, but against all wrongdoers whoever they may
.be? operating outside the protected area.
Therefo~e, whenever it was
evident, on the face of the "return" to a notice by the Conrt
that a
detaining officer was acting outside the protected field, releas; could he
?rdered.. !his is what I specifically held.
And, there seemed nothing
m thi: views expressed by other learned Judges contrary to what I said
on this aspect.
B
With regard to the power of High Courts to issue writs of Habeas
Corpus even in cases of alleged preventive detention by officers of
State I specifically said there (at p. 1311) :
"Detentions which not only do not but could not possibly
have any apparent, ostensible, or purported executive authority of the State whatsoever to back them, could be equated
·with those by private persons.
The suspension of enforcement of specified fundamental rights operates only to protect
infringements of rights by the State and its authorised agents,
acting or purporting to act in official capacities which they
could and do hold. A claim to an order of release from
such a patently illegal detention, which is not by the State or
on its behalf, could be enforced even during the current
Emergency.
But, there is no such case before us."
With regard to one of the cases cited before us, State of Madhya
Pradesh v. Thakur Bharat Singh(1), it was pointed out that Shah J.,
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had upheld the view that, :j]though, the validity of a provision empowerE
ing preventive detention enacted during the emergency could not be
challenged due to Article 358, yet, if it was made before the declaration of emergency, it could be so challenged and declared void.
Commenting on this case, the majority view, expressed by me, was (at
p. 1312) :
"I do not think that there is any such case before us. It
seems to me to be possible to distinguish the case on the
ground that it was a case of patent voidness of the order
passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a
specified fundamental right, I think it was placed on such a
footing by Shah J., speaking for this Court."
F
Similarly, all previous cases of this Court were distinguished by G
references to the differently framed Presidential Orders and statutory
provisions which were applicable to their facts, but, the changed w_ording of the emergency orders of 1975 and amendments of the Mamtenance of Internal Security Act intended to oust the power of Courts to
make orders of release even in cases of "purported" detention made
Courts quite powerless to act nnder Article 226. Hence, thi:re was no H
use in saying that nine High Courts had taken some other view.
The
various High Courts had, upto the stage when cases were brought up
(I I [1967] (2) S.C.R. 454.
592
SUPREME COURT REPORTS
(1978] 2 S.C.R.
A
here, merely repeated what this Court had held in other circumstances
~ith refere!l~e to other. laws.
Most of them had not decided the question of validity of sect10n 16A(9) of the Act by the time the cases
came up before this Court at an intermediate stage.
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If the minority view of Khanna J. had prevailed, some more time
would have been spent in the High Courts upon further enquiries which
could not proceed far for want of grounds of detention but the writ
petitions would have been ultimately dismissed in &II th~se ~ses where
there were prima facie valid detention orders as there seemed to be in
all cases which came up before this Court. And, in those cases where
there were no such prima facie valid detention orders, the detenus
could be released even upon the reasoning of the majority if the view, as
explained above, and, in greater detail in my judgment on Shukla's case
contained the true ratio of the majority decision.
The enquiries made by the High Courts could not be more than
very superficial if grounds of detention could not be sent for and
persued by them because section 16A(9) introduced by Act No. XIV
of 1976 was vali.d.
Most of the High Courts had not ruled upon the
validity of this provision. One of the grounds on which this Court had
entertained the appeals by the State authorities at an intermediate stage
was that, in view of Section 16A(9) of the Act, further enquiry may
not be called for in the
High Courts if the provision was
valid.
Khanna J., thought that the question of validity of this provision should
be decided by this.