The Latin phrase Habeas Corpus translates into you must have the body, to put it simply.

The
history of this powerful writ appears to be traced to Anglo-Saxon common law roots; its precise
mention occurring in the Magna Carta or The Great Charter of the Liberties of England in 1215.
The oblique reference states no free man shall be taken or imprisoned or disseised or exiled
or in any way destroyed except by the lawful judgment of their peers or by the law of the land.
(para 29) The right to invoke this writ lies with the person detained or another person on his
behalf to move to the court to object to the detainment. The person himself, or his representative,
must prove that the authority/court ordering the detainment has made a factual or legal error.
Clearly, the writ of Habeas Corpus remains the most powerful process by which any citizen may
question the correctness of restraint on individual liberty. Article 21 of the Indian constitution
guarantees the right to life and liberty to each and every citizen of the nation. Right to move to
the court to enforce this article was suspended under Article 359 of the constitution when
internal emergency was imposed (1975-77). The logical question that followed whether the
writ of Habeas Corpus was enforceable in such a situation? The landmark Supreme Court case
or the Habeas Corpus case attempted to answer this question, and was the reason for the
44th Constitutional Amendment in 1978. This amendment, passed unanimously, ensure that
Article 21 cannot be suspended even during an Emergency.
Historical Background:
It all began by a judgment delivered on June 12, 1975 by Justice Jagmohan Lal Sinha of the
Allahabad High Court. In State of Uttar Pradesh vs. Raj Narain, the petitioner challenged Indira
Gandhis election to the Lok Sabha and consequent victory from the Rae Barelli constituency in
Uttar Pradesh. On June 12, Justice Sinha convicted the then Prime Minister, of having indulged
in corrupt practices and declared her election invalid, which meant she could not contest
elections or hold office for six years. Her appeal to the Supreme Court only granted her a
conditional stay. She could not vote or speak in the Lok Sabha rendering her dysfunctional. Upon
increasing hostility by the opposition and in desperation to hold on to the chair of the PM, she
requested the President Fakhruddin Ali Ahmed to declare a state of emergency under clause (1)
of Article 352 of the Indian Constitution which he did so obediently on June 26 1975. The
government cited a grave emergency existed whereby the security of India was threatened by

internal disturbances. The war with Pakistan that had just ended (1971) and the drought (1972)
were said to have damaged the economy greatly and paralyzed the nation. On June 27 1975, the
exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were
enforced, within which the right of any person including a foreigner to move to the court to
enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in
certain cases) of the Constitution and all the proceedings pending in any court concerned with
the enforcement of the aforementioned articles will remain suspended for the period of
Emergency.
What ensued was a string of illegal and hasty detentions without charge or trial, including those
of the major leaders of the opposition party such as Moraji Desai, Atal Bihari Vajpayee,
Jayprakash Narayan and L.K.Advani under the Maintenance of Internal Security Act, Preventive
Detention Law (MISA). Consequently several writ petitions were filed all over the country.
Records show that nine High Courts ruled in favour of the petitioners stating that even though
Article 21 was not enforceable, a person could still demonstrate that their detention was not in
compliance of the law under which they were detained, or that the action by the State was mala
fide or that it was a case of mistaken identity. Highly perturbed the government decided to appeal
against these decision in the Supreme Court, which became what is called the Additional District
Manager of Jabalpur vs. Shiv Kant Shukla case or the Habeas Corpus case.
The case:
The main question of the case was whether, under Presidential Orders the High Court could
entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention. The
arguments in Supreme Court began on December 14 1975, before a bench consisting of Chief
Justice of India A.N. Ray, Justice H.R. Khanna, Justice M.H. Beg, Justice Y.V. Chandrachud and
Justice P.N. Bhagwati. They were considered the most respectable and wise judges of the
Supreme Court at that time. The Attorney General of India, Niren De began his arguments in his
powerful voice, almost terrorising the court, much like the Governments rule at that time. No
questions were asked until Justice Khanna asked, Life is also mentioned in Article 21. Would
Government arguments extend to it also? Niren De didnt seem to be hassled by this rather

uncomfortable question and answered swiftly saying, Even if life was taken away illegally,
courts are helpless.
Arguments on behalf of the State:
The main contention of the State was that the sole purpose and aim of the emergency provisions
in the Constitution is that they guarantee special powers to the Executive to hold complete
discretion over the implementation of the laws and rights of the country. The reason behind this
was that during an emergency the considerations of the state assume supreme importance. The
central argument put forth by the State was that once the right to move any court was suspended
in context to Article 14, Article 21 and Article 22, the detained person had no right to approach a
court regarding the same; by which logic their writ petitions would have to be dismissed. They
highlighted the fact that Emergency provisions in Part XVIII of the Indian Constitution including
Article 358, Article 359(1) and Article 359(1A) are constitutional necessities and imperatives of
the Constitution as the military and economic security of the nation preceded everything else.
The validity of the law as stated in the Presidential Order under Article 359(1) cannot be
challenged on the ground of violating a fundamental right which was suspended by the above
mentioned Article in the first place.
Arguments on behalf of the Respondent:
There were seven major arguments put forth by the Respondents. The first argument interpreted
the States argument as the non-existence of any right to life and liberty during an emergency. It
went on to clarify that in this regard, Article 358 was more extensive as the fundamental right is
suspended as a whole whereas Article 359 does not suspend any fundamental right. Secondly;
the main aim of Article 359(1) was to prohibit moving the Supreme Court under Article 32 for
the enforcement of certain rights. This prohibition by law has no effect on the enforcement of
common law and statutory rights of personal liberty in the High Court under Article 226 of the
Constitution. Thirdly; even though Article 359(1) grants special and almost unlimited powers to
the Executive for dismissing Part III of the Constitution, it does not undermine the essential
component of sovereignty of the separation of powers, leading to a system of checks and
balances and limited power of the Executive. The suspension of fundamental rights and its

enforcement was not meant to tip the scales in favour of the Executive vis--vis the individual.
Fourthly; the Presidential Orders imposed were valid only with respect to fundamental rights and
did not extend to Natural Law, Common Law or Statutory Law. Fifthly; the equation of the State
and the Executive is highly erroneous. The only consequence of the suspension of fundamental
rights or their enforcement is that the Legislature can create laws which go against said
fundamental rights and the Executive can implement them. At no point, should this be interpreted
as the right of the Executive to violate previous judicial decisions and legislative mandates.
Sixthly; the Executive can act for and against its citizens only to the extent set by valid laws.
Article 352 or the Proclamation of Emergency, at no point, increases the scope of the Executive
Powers of the State from what is enshrined under Article 162 of the Constitution and nothing
more (See fifth argument of respondents). Lastly, the State and its officers only hold the Right to
Arrest if the alleged act leading to detention fell under Section 3 of MISA and its every condition
contained within it is fulfilled. If any condition remains unfulfilled the detention is considered
beyond the powers of that act.
The decision:
The case was argued for over two months after which judgement was reserved. It was only after
an application was moved for the pronouncement of judgement that the Supreme Court came out
with the following conclusion:
In view of the Presidential Order dated 27th June 1975 no person has any locus to move any
writ petition under Art. 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.
The judgement ruled in favour of the Government with a four to one majority. Only Justice
Khanna, had the courage to take the right decision in favour of human nature and liberty. He
knew what was as stake. Records state that the night before the judgement was announced he
told his sister that he had made up his mind and decision and knew that it would cost him the seat

of the Chief Justice of India. He ended his judgment with a strong worded quote: 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 is appeals 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. He knew what the
consequences of his actions were to be. His junior, Justice M.H. Beg superseded him and became
the Chief Justice of India in his stead.
The four others: CJI A.N.Ray, Justice Beg, Justice Chandrachudh and Justice Bhagwati could not
stop themselves from blatantly favouring the Government in power. A.N. Ray, with his
controversial appointment as CJI by Indira Gandhi, superseding three senior judges in line,
worshipped the very ground she walked on. There are anecdotes narrated of how she used to
telephone her and her personal secretary quite frequently to take advice even on the smallest of
matters. Justice Bhagwati, held up the torch of personal liberty only to dampen it with the
diplomacy of the correct reading of the Constitution. Courtroom records read as him saying: I
have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most
cherished values of mankind, without it life would not be worth living. It is one of the pillars of
free democratic society. Men have readily laid down their lives at its altar, in order to secure it,
protect it and preserve it. But I do not think it would be right for me to allow my love of personal
liberty to cloud my vision or to persuade me to place on the relevant provision of the
Constitution a construction which its language cannot reasonably bear.
In 1979, after Indira Gandhis rise to power once again he wrote a letter to her that we all wish he
didnt. It read as I am sure that with your iron will and firm determination, uncanny insight and
dynamic vision, great administrative capacity and vast experience, overwhelming love and
affection of the people and above all, a heart which is identified with the misery of the poor and
the weak, you will be able to steer the ship of the nation safely to its cherished goal. He went on
to

become

Chief

Justice

of

India.

The High Court quietly compiled. Their senior had silenced them. That day has been referred to
as the blackest day in Indian Democracy and rightly so. There are several similarities between
this judgement and Hitlers way of functioning and his rise to power. The Proclamation of
Emergency upon the request of Indira Gandhi bestowed upon her to rule by decree, suspend
elections and curd fundamental rights. The most significant example in history of a rule by
decree is the Reichstag Fire Decree of 1933. Adolf Hitler convinced German President
Hindenburg to issue a decree to suspend all basic civil rights indefinitely. This is what paved the
way for the consequent Nazi suppression of its opposition and the one-party rule of the Third
Reich. Niren Des straight faced and calm answer to Justice Khannas uncomfortable question
chimes of the Nazi holocaust. In one instance, CJI Ray went on to almost scold the counsel for
the people detained who brought up Nazi gas chambers to prove their point. To everyone else
except him, this was nothing but an act of desperation and defensiveness to keep the faade of
righteousness on.
The Supreme Court violated all fundamental rights with that decision. It was the darkest hour of
Indian judiciary which struck at the very heart of fundamental rights. All four judges with the
exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice
Bhagwati expressed regret 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 dont
know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But
ultimately, I dont know why, I was persuaded to agree with them. I was a novice at that time, a
young judgeI was handling this type of litigation for the first time. But it was an act of
weakness on my part.