Opinion April 29, 1976, Forty Years Ago

Today in history

April 29, 2016 12:51 AM IST First published on: Apr 29, 2016 at 12:51 AM IST

SC Toes Govt Line

The Supreme Court, by a four-to-one judgment, held that during the Emergency no person could move any writ petition for the enforcement of personal liberty on the ground that the detention was illegal or mala fide. The court upheld the objection raised by the Centre about the maintainability of habeas corpus petition in a batch of appeals filed by the Union government from the orders of various high courts.

Justice H.R. Khanna

Justice H.R. Khanna, the seniormost judge, was the only one who dissented.
Chief Justice A.N. Ray, in his judgment, said: “In view of the presidential order dated June 27, 1975, under Clause (1) of Article 359 of our Constitution, no person has the 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 enforce any right to personal liberty of a erson detained under the act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the act or is illegal or mala fide.” He also said: “Article 21 is the sole repository of rights to life and personal liberty against the state.

The claim to a writ of habeas is enforcement of Article, is, therefore, barred by the presidential order.”

Justice Khanna

Justice Khanna held that during the Emergency the president could suspend only the fundamental rights and not any other right created by Parliament by law.

The right to life and liberty being rights that existed prior to the Constitution, they could not be taken away by the president during the Emergency.

MISA Upheld

On Section 16A(9) of the Maintenance of Internal Security Act (MISA), the chief justice said: “It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention.”