This judgment is considered a stain on the history of the court, which had delivered a judgment that has trummelled on the rights of citizens.

Case background:

The President of India, during the Emergency, made such a proclamation and many people were detained under various laws. Some of them moved high courts seeking a writ of habeas corpus. The Government said, since the right to move courts for the enforcement of Article 21 is suspended, the petitions were not maintainable.

Hon’ble Court rules:

The 4 out of 5 judges on the bench held that “The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control. An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency”

Justice Hans Raj Khanna is the dissenting voice on the bench and after referring to earlier A.K.Gopalan case he held that “The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence of the Rule of law cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law.”

And “The suspension of the right to move a court for the enforcement of the right contained in Art. 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The pre-supposition of the existence of substantive power to deprive a person of his life or personal liberty in Art. 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of Art. 21, the suspension would also dispense with the necessity of the existence of the substantive power The co-existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in Art. 21 would not lead to the result that even if there is suspension of the right regarding procedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right to make. any court for the enforcement of the right contained in Art. 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise.. Of substantive power to deprive a person of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power. The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in Art. 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power.”

Final Words

There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders.

The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well-established.

Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort.

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed.

Observation: 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 recognise than that unanimity should be secured through its sacrifice.

Citation: AIR 1976 SC 1207,

Indiankanoon link: https://indiankanoon.org/doc/1735815/