THE ISSUE BEFORE THE COURT

This is the second post of the series 'THE HABEAS CORPUS CASE AT FIFTY: The Emergency, the Court, and the Constitution'. It talks about, what were the issues before the Court'.

THE HABEAS CORPUS CASE AT FIFTY: 

The Emergency, the Court, and the Constitution

How I Got Involved with the Case।। The Issues Before the Court ।।

On 27 June 1975, two days after imposition of internal emergency, the right to move the court to enforce Articles 14, 21, and 22 were suspended completely. This was for the first time, as on earlier occasions, they were suspended for the people detained or arrested under specific enactments. 

Article 19 was already unavailable due to Article 358. However, later on 8th January, 1976 right to move any court for enforcement of Article 19 was also suspended. 

The State—in my father's case as well as in all other Habeas Corpus petitions filed throughout the country—raised a preliminary objection about their maintainability. According to it, Article 21 was the sole repository of liberty; its enforcement was suspended; and no Habeas Corpus petition was maintainable. The answer to the State's contention lay in the concept of the Rule of Law. 

Rule of Law 

The phrase ‘Rule of Law’ is said to be coined by Dicey in his book ‘An Introduction to the Study of Law of the Constitution’ but he did not invent it. The idea underlying it has been in vogue since the beginning of civilisation. It has many meanings and connotations including: 

Power conferred on the executive must be exercised in good faith and for the purpose it is conferred; 

Anyone exercising power must not go beyond or outside the limits of the power conferred—it is known by its Latin name, ultra vires or beyond the powers; (Kindly see 'The Rule of Law' by Tom Bingham Part-II Chapter 6’ titled 'The Exercise of Power’) 

Every executive action which acts to prejudice of a person must have the authority of law to support it. (See End Note-1) 

An illegal detention results in not only the violation of Article 21 but is violation of rule of statutory law as well'.

Suspension of right to move for enforcement of Articles 14, 21 and 22 and non-availability of Article 19 only meant that: 

The validity of any law could not be judged on the ground that it was in violation of Articles 14, 21 or 22, or of a law made during the Emergency in violation of Article 19. After suspension of right to move the court for enforcement also meant validity of law could not be tested on the ground of Article 19 as well; 

No Habeas Corpus could be filed for violation of Articles 14, 19, 21 & 22 in any court. 

But this did not mean that a Habeas Corpus could not be filed in a High Court for violation of rule of law. 

It was a simple proposition, understood by the seven High Courts, namely Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madhya Pradesh, and Rajasthan. Though, some of them (except one) (See End Note-2) had dismissed the WPs on merits. 

In the next post, we will talk what happened before the battle began.

End Note -1: t is settled principle of law and has been so held in AIR 1955 SC 544; AIR 1961 SC 1570; AIR 1967 SC 1170; AIR 1970 SC 1275; AIR 1973 SC 106; AIR 1974 SC 366. Seervai has also commented on the same in his book of in Constitution law in its 1st Volume page 343. 2nd Edition. 

End Note -2: The Delhi High Court in the Bharti Nayar’s case allowed the Habeas Corpus for release of her husband Kuldeep Nayar, a well know journalist. Though before the delivery of the judgement, his detention was revoked. This was the only case of a MISA detenu to be allowed during internal emergency. However, some of the High Courts (including Allahabad High Court in Tej Bahadur Singh Vs. State of UP 1977 All LJ 9) allowed some Habeas Corpus petitions but they were not of the cases of MISA detenus and unimportant for the Government. 

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