Provisions Involved

Article 21,226 and 359 of The Indian Constitution. Section 3,16 and 18 of Maintenance of Internal Security Act


ADM Jabalpur, popularly known as ‘Habeas Corpus Case’ is one of the most disputed case in the history of Indian legal system. Indira Gandhi was held guilty and further barred her from contesting elections for six years. An emergency was imposed thereafter. A Presidential Order was issued barring the maintainability of habeas corpus writ in High Courts during emergency. Despite the order, numerous writ petitions were filed in the High Courts challenging the unlawful detention of people and nine High courts held against the State(Indira Gandhi), declaring that Habeas Corpus writ is maintainable in High Courts even during emergency. The Supreme Court however overruled the judgement given by nine High Courts and ruled in favour of the State declaring that such writ petitions are not maintainable against the Presidential order. 


Whether a writ petition under art. 226 is maintainable before a High court to enforce the right of personal liberty during an emergency declared under art. 359(1)? 

If such a petition is maintainable, what is the scope of judicial scrutiny in view of the presidential order?



The Supreme Court, by a majority of 4:1 struck down the order of the High Courts that allowed the Habeas corpus petitions and held that such petitions are not maintainable. The Supreme Court held that Liberty is confined and controlled by law, whether common law or statute. It is a regulated freedom. It is not an abstract or absolute freedom. Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilized nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.