Contents

Declaration................................................................................................................................II
Certificate.................................................................................................................................III
Acknowledgements..................................................................................................................IV
Introduction................................................................................................................................1
Research Methodology...............................................................................................................2
Problem...................................................................................................................................2
Rationale.................................................................................................................................2
Objectives...............................................................................................................................2
Hypothesis..............................................................................................................................2
Nature of Study.......................................................................................................................2
Sources of Data.......................................................................................................................2
Review of Literature...............................................................................................................3
Chapterisation.........................................................................................................................3
Contribution of Research........................................................................................................3
Principles of Natural Justice.......................................................................................................4
Exclusion of Natural Justice in India.........................................................................................5
Doctrine of Necessity.............................................................................................................5
Doctrine of Absolute Necessity-............................................................................................5
Exceptions to Audi Alteram Partem:......................................................................................6
Statutory Exclusion................................................................................................................7
Legislative Function...............................................................................................................8
Emergency..............................................................................................................................8
Article 22 and Emergency........................................................................................................10
Makhan singh’s case................................................................................................................11
Habeas corpus case..................................................................................................................12
Some observations on cases on Natural Justice.......................................................................13
Conclusion................................................................................................................................16
References................................................................................................................................17
 Introduction
Rules of natural justice have developed with the growth of civilization. It is not the creation
of Constitution or mankind. It originated along with human history. In order to protect
himself against the excess of organized power, man has always appealed to someone which is
not been created by him and such someone could only be God and His laws, Divine law or
Natural law, to which all temporal laws must and actions must conform. It is of ‘higher law
of nature’ or ‘natural law’ which implies fairness, reasonableness, equity and equality.
Natural justice rules are not codified laws. It is not possible to define precisely and
scientifically the expression ‘natural justice’. They are basically common – sense justice
which are built- in the conscience of human being. They are based on natural ideals and
values which are universal in nature. ‘ Natural justice’ and ‘legal justice’ are substances of
‘justices’ which must be secured by both, and whenever legal justice fails to achieve this
purpose, natural justice has to be called in aid of legal justice. Natural justice has an
impressive history which has been recognized from the earliest times. The Greeks had
accepted the principle that ‘no man should be condemned unheard’. It was first applied in
‘Garden of Eden’ where opportunity to be heard was given to Adam and then providing him
punishment.

1
 Research Methodology
Problem
The principles of Natural Justice are found in every constitution but their adaptation and use
somehow differs. The author identifies the problem which is suspension of Natural Rights
during the time of emergency in India.

Rationale
Principles of Natural Justice has very large application around the world. Natural Rights are
the most important rights provided by a constitution and it should not be suspended at any
cost.

Objectives
1. Tostudy the principles of Natural Justice.

2. To study about their status during the emergency in India.

3. To provide an overview of principles of Natural Justice with the help of case laws.

Hypothesis
The author assumes that the natural rights such as preventive detention and right to trial were
suspended during the time of emergency.

Nature of Study
This project is based upon doctrinal method of research. This project has been done after a
after a thorough research based upon intrinsic and extrinsic aspects of the project.

Sources of Data
The sources of data in this research project are primarily analytical and based on secondary
source of data. The following secondary sources of data have been used in the project-

1. Articles.

2. Books

3. Journals

4. Websites

2
Review of Literature
1. Law of Habeas Corpus, Certiorari, Mandamus and Emergency Legislation,
Daulat Ram Prem, Arora Law House, 1950.

This classic work on writ remedies is arranged thematically for ease of reference contains
dedicated chapters on each of the writs available under the Constitution of India, viz.
Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition. It Covers the
position of law in India and other foreign jurisdictions including UK and USA. It also
provides clarity on complex legal issues relating to Judicial Review; writ jurisdiction,
Judicial activism and Public Interest Litigation.
Appendices include the High Court Rules relating to Article 226 of the Constitution of
India and include all important supreme court decisions on the subject since 2013. An
invaluable reference work for constitutional lawyers, judges, judicial academies, professors
and advanced students of constitutional law
2. I.P. Massey, Administrative Law, (Eastern Book Company, 8th ed. 2012)
The book provides a deep insight on the administration related laws in India. The power
with the administration and their duties.

Chapterisation
Chapter 1 of the project work deals with the basic understanding of the writs mandamus and
Certiorari.

Chapter 2 deals with the legal requirement and the purpose of the mentioned writs.

Chapter 3 deals individually and specifically with the writs and highlights the importance of
the writs in context of its legal connotation.

Contribution of Research
As a student of law this project work will further help in understanding theprinciples of
Natural Justice.

3
 Principles of Natural Justice
When we say about PNJ, there are mainly two principles which must be followed:

 Nemo judex in causa sua: No man shall be a judge in his own cause, or the deciding
authority must be impartial and without bias.

 Audi Alteram Partem: To hear the other side, or both the sides must be heard, or no man
should be condemned unheard, or that there must be fairness on the part of the deciding
authority.

The PNJ at one time applied only to judicial proceedings and not to administrative
proceedings but in Ridge vs. Baldwin,1 it was stated that the principles of natural justice are
applicable to ‘almost the whole range of administrative powers’. This principle is applicable
in India also. In State of Orissa vs. Binapani,2 the SC observed that: “It is true that the order
is administrative in character, but even an administrative order which involves civil
consequences…must be made consistently with the rules of natural justice…” Now it has
been well established that the Principles of Natural Justice supplements the enacted statute
with necessary implications and accordingly administrative authorities performing public
functions are generally required to adopt “fair procedure”. A person may also have legitimate
expectation of fair hearing or procedural fairness/treatment but where their observance leads
to injustice they may be disregarded as Natural Justice Principles are to be invoked in doing
justice only. There are several well established limitations or exceptions on the Principles of
Natural Justice and the existence of such circumstances deprives the individual from availing
its benefits. As the Principles of Natural Justice are ultimately weighed in the balance of
fairness and hence the Courts have been unwilling in extending these principles to situations
where it would cause more injustice rather than justice so, where a right to be fairly heard has
been denied, it is more probably a case of bad decision than of true exception and in such
situations the principles of natural justice can be discarded. The application of the
principlesof natural justice can be excluded either expressly or by necessary implication but it
must be subject to the provisions of Article 14 and 21 of the constitution.3

1
(1963) 1 Q.B 539
2
1967 AIR 1269, 1967 SCR (2) 625
3
http://www.legalservicesindia.com/article/article/exceptions-to-the-principles-of-natural-justice-1529-1.html
(last visited Feb. 16, 2017)

4
 Exclusion of Natural Justice in India
Doctrine of Necessity
The doctrine of necessity is an exception to ‘Bias’. The law permits certain things to be done
as a matter of necessity which it would otherwise not countenance on the touchstone of
judicial propriety. The doctrine of necessity makes it imperative for the authority to decide
and considerations of judicial propriety must yield. It can be invoked in cases of bias where
there is no authority to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the defaulting
party would benefit from it. If the choice is between either to allow a biased person to act or
to stifle the action altogether, the choice must fall in favour of the former as it is the only way
to promote decision-making.4

Where bias is apparent but the same person who is likely to be biased has to decide, because
of the statutory requirements or the exclusiveness of a competent authority to decide, the
Courts allow such person to decide. In Ashok Kumar Yadav vs. Haryana,5 the Court held that
a member of the Public Service Commission could not entirely disassociate himself from the
process of selection just because a few candidates were related to him. He should disassociate
himself with the selection of the persons who are related to him, but need not disassociate
with the selection of other candidates. Though his presence on the selection committee could
create a likelihood of bias in favour of his relations yet, since the PSC is a constitutional
authority, such a member cannot be excluded from its work and his presence in the
recruitment process is mandatorily required. The Court further held that where substitution is
possible, this doctrine would not apply

Doctrine of Absolute Necessity-

The doctrine of ‘absolute necessity’ is also taken as an exception to ‘Bias’ where it is
absolutely necessary to decide a case of Bias and there is no other option left. In Election
Commission of India vs. Dr. Subramaniam Swamy,6 the SC was asked to decide whether the
CEC TN Seshan, who was allegedly biased in favour of Swamy, because of the long
friendship, could participate in the giving of opinion by the EC. The opinion was to be given
on the alleged disqualification of Jayalalitha, the then CM of Tamil Nadu under Article 191

4
S.P SATHE, ADMINISTRATIVE LAW 200 (Lexis Nexis, 2004)
5
AIR 1987 SC 454.
6
[1966] 4 SCC 104

5
of the Constitution. Swamy had made a petition to the Governor alleging that Jayalalitha had
incurred a disqualification under Article 191 read with Sec 9 of the RPA, 1951, to get elected
to the legislative assembly, as at the time of the election she was a party to a contract with the
Government. Under Art 192 of the Constitution, before giving any decision on such question
of disqualification, a Governor is required to obtain of the EC, and has to act according to
such opinion. The Governor forwarded Swamy’s petition to the EC for its opinion.
Jayalalitha moved the HC of Madras under Art 226 of the Constitution, seeking a writ of
prohibition enjoining upon Seshan not to participate in giving opinion. The HC, through a
single judge Bench, held that Seshan shouldn’t give opinion in view of his prejudice against
Jayalalitha. The Single Judge also held that she had not incurred any disqualification. On
appeal, the Division Bench held that the single judge Bench had been wrong in deciding the
question of Jayalalitha’s disqualification, because that question could be decided by the EC
alone. The Division Bench, however agreed with the Single Judge Bench that Seshan
suffered from Bias, and therefore, should not give his opinion. The Division Bench observed
that in view of the appointment of additional two members on the EC, the EC could give
opinion through members other than the CEC.

On appeal, the SC confirmed that Seshan should not give opinion. The Court, observed that
in view of the multi-member composition of the EC and its earlier decision in T.N Seshan vs
UOI, where it was held that decisions of the EC should be by majority, while giving opinion
under Art 192(2) of the Constitution, the CEC could get himself excused from sitting on the
Commission, while an opinion on a matter in which he was held to be biased was being
given. If the other two members differed, the CEC could give opinion, and the opinion of the
majority would be the opinion of the EC. In that case, though he was biased, he would
berequired to give opinion under the doctrine of necessity and not only mere necessity but
absolute necessity. Thus, the doctrine of bias would not be applied.

Exceptions to Audi Alteram Partem:

The word exception in the context of natural justice is really a misnomer, but in the below
mentioned exclusionary cases, the rule of audi alteram partem is held inapplicable not by way
of an exception to “fair play in action”, but because nothing unfair can be inferred by not
affording an opportunity to present or meet a case. 7 But such situations where nothing unfair
can be inferred by not affording a fair hearing must be few and exceptional in every civilized
society. Principles of natural justice are ultimately weighed in the balance of fairness and,
7
Maneka Gandhi vs. Union of India [1978] 1 SCC 248 597 (SC)

6
hence the Courts have been circumspect in extending these principles to situations where it
would cause more injustice rather than justice. 8 For example, a party would forfeit its right to
hearing if undue advantage obtained is protecting the proceedings somehow and nullifying
the objectives.9

In spite of the phenomenal increase in the range of applicability of natural justice, there still
remain a number of situations where the Courts have denied the right of hearing to the
affected persons. Although the SC has asserted in OP Gupta vs. Union of India,10 that “it is a
fundamental rule of law that no decision must be taken which will affect the rights of any
person without first giving him an opportunity of putting forward his case”, it will be wrong
to suppose that natural justice is universally applied in administrative process.11

Statutory Exclusion
Natural justice is implied by the Courts when the parent statute under which an action is
being taken by the Administration is silent as to its application. Omission to mention the right
of hearing in the statutory provision does not ipso facto exclude a hearing to the
affectedperson. A statute can exclude natural justice either expressly or by necessary
implication. But such a statute may be challenged under Art.14 so it should be justifiable.

In Charan Lal Sahu vs UOI12 (Bhopal Gas Disaster case) is a classical example of the
application of this exception. In this case the constitutional validity of the Bhopal Gas
Disaster (Processing of Claims) Act, 1985, which had authorized the Central Government to
represent all the victims in matters of compensation award, had been challenged on the
ground that because the Central Government owned 22 percent share in the Union Carbide
Company and as such it was a joint tortfeasor and thus there was a conflict between the
interests of the government and the victims. The court negative the contention and observed
that even if the argument was correct the doctrine of necessity would be applicable to the
situation because if the government did not represent the whole class of gas victims no other
sovereign body could so represent and thus the principles of natural justice were no
attracted.13
8
Karnataka Public Service Commission vs. B.M. Vijay Shankar [1992] 2 SCC 206
9
Ram Krishna Verma vs. State of U.P [1992] 2 SCC 620
10
[1987] 4 SCC 328 2257 (SC)
11
M.P JAIN & S.N JAIN , PRINCIPLES OF ADMINISTRATIVE LAW 252 (5th ed. 2007)
12
[1990] 1 SCC 613 1480 (SC)
13
I.P MASSEY, ADMINISTRATIVE LAW 261 (Eastern Book Company, 8th ed. 2012)

7
Legislative Function
A ground on which hearing may be excluded is that the action of the Administrative in
question is legislative and not administrative in character. Usually, an order of general nature,
and not applying to one or a few specified persons, is regarded as legislative in nature.
Legislative action, plenary or subordinate, is not subject to the rules of natural justice because
these rules lay down a policy without reference to a particular individual. On the same logic,
principles of natural justice can also be excluded by a provision of the Constitution also. The
Indian Constitution excludes the principles of natural justice in Art. 22, 31(A), (B), (C) and
311(2) as a matter of policy. Nevertheless, if the legislative exclusion is arbitrary,
unreasonable and unfair, courts may quash such a provision under Art.14 and 21 of the
Constitution.14

In Charan Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas Disaster
(Processing of Claims) Act, 1985 was involved. This legislation provide for details of how to
determine claims and pay them. The affected parties approached the SC and contended thatno
hearing was provided to them and it was violative of Audi Alteram Partem. The SC held,
“For legislation by Parliament no principle of natural justice is attracted, provided such
legislation is within the competence of the Legislature.”

Emergency
In India, it has been generally acknowledged that in cases of extreme urgency, where interest
of the public would be jeopardizes by the delay or publicity involved in a hearing, a hearing
before condemnation would not be required by natural justice or in exceptional cases of
emergency where prompt action, preventive or remedial, is needed, the requirement of notice
and hearing may be obviated. Therefore, if the right to be heard will paralyze the process, law
will exclude it.15

In Mohinder Singh Gill vs. CEC,16 whether notice and right to be heard must been given or
not was been laid down before the SC. In Firozhpur Constituency Parliamentary Election
counting was been going on where in some segments counting were going on and in some it
was over. One candidate was having a very good lead but before the declaration of the
results, in a mob violence in some segments ballot papers and boxes were been destroyed.

14
I.P MASSEY, ADMINISTRATIVE LAW 256 ( Eastern Book Company ,8th ed. 2012)
15
I.P MASSEY, ADMINISTRATIVE LAW 251 (Eastern Book Company, 8th ed. 2012)
16
[1978] 1 SCC 405 851 (SC)

8
The ECI acting under Article 324, 329 without giving any notice or hearing to the candidates
cancelled the Election and ordered for fresh Election. The SC rejected the claim of notice and
audi alteram partem and held that in case of emergency, Audi Alteram Partem can be
excluded.

9
 Article 22 and Emergency
The first proclamation of Emergency under Article 352 of the Constitution was made by the
President on 26th October 1962. This proclamation of Emergency was made on the ground of
external aggression in view of the Chinese Attack. The Presidential Order issued under
Article 359 on 3rd November 1962 suspended enforcement, inter alia of Article 22 for
purposes of the Defence of India Act and the rules made thereunder. The Makhan Singh’s
case was decided during the period of this Emergency. This Emergency was revoked on 10th
January 1968.

The second proclamation of Emergency under Article 352 was made by the President on 3rd
December 1971 again on the ground of external aggression when Pakistan launched an
undeclared war against India. This Emergency was in operation when the third proclamation
was made on the ground of internal disturbance.

The third proclamation of Emergency under Article 352 was made on 25th June 1975. A
Presidential Order was issued on 27th June 1975 under Article 359 suspending enforcement
of rights of any person inter alia under Article 22 generally, unlike the Presidential Orders
issued in 1962 and 1971 which had done so only for purposes of the Defence of India Act and
the rules thereunder. The Habeas Corpus case was decided during the third Emergency. Both
the second and third proclamations of Emergency were revoked on 21st March 1977.

It is interesting to study the trend of judicial decisions during the first and third Emergency.

10
 Makhansingh’s case
On October 26, 1962 the President of India having been satisfied that a grave national
emergency exists, whereby the security of India or any part of the territory thereof is
threatened by Chinese Aggression issued a proclamation declaring the Emergency under
Article 352 of the Constitution. President promulgated the Defence of India Ordinance on the
same date. By S. 3 of the Ordinance the Central Government was empowered to make rules
as appear to be necessary or expedient for securing the defence of India, civil defence, the
public safety, the maintenance of public order or the efficient conduct of military operations
or for maintaining supplies and services essential to the life of the community by notification
in the official gazette. In exercise of these powers, the Central Government promulgated the
Defence of India rules, 1962 by notification in the Official Gazette Extraordinary dated
November 5, 1962.

If the Presidential Order precludes a citizen from moving the Court for the enforcement of the
specified fundamental rights, it would not be open to the citizen to urge that the Act (Defence
of India Act and Rules) is void for the reason that it offends against the said fundamental
rights under Articles 14, 21 and 22. It is in order to prevent the citizen from making such a
claim that the Presidential Order has been issued and so, during the period of its operation,
the challenge to the validity of the Act cannot be entertained, for the reason that the
fundamental rights which are alleged to have been contravened are specified in the
Presidential Order and all citizens are precluded from moving any Court for the enforcement
of the said specified rights.

The Court observed that though an order of detention under Defence of India Act and the
Rules cannot be challenged in proceedings under S. 491 (1)(b), Cr. P.C. or Article 226 (1) of
the Constitution, on the ground that theAct and the Rules contravene the fundamental rights
under Articles 14, 21 and 22, by virtue of Presidential Order under Article 359 dated
November 3, 1962 as modified on November 11, 1962, the detention can be challenged on
grounds of infringement of the right conferred by Part III of the Constitution, other than those
rights specified in the Presidential Order. For example the detenu can challenge the detention
order on the ground that it is in violation of the mandatory provisions of the Defence of India
Act. The right of the detenu to move for his release on such a ground cannot be affected by
the Presidential Order. Similarly the detenu can move the court for a writ of habeas corpus on
the ground that his detention has been ordered mala fide.
11
 Habeas corpus case
In A.D.M. Jabalpur v. S. Shukla17(popularly known as Habeas Corpus case) it was held by
majority (Khanna J. dissenting) that in view of the Presidential Order dated 27th June, 1975
no person has any locus standi to 249 move any writ petition under Article 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.

Ray C.J. observed that Article 21 is the sole repository of rights to life and personal liberty
against the state. Any claim to a writ of habeas corpus is enforcement of Article 21 and is,
therefore, barred by the Presidential Order. It is not competent for any court to go into
question of mala fides of the order of detention or ultra vires character of the order of
detention or that the order was not passed on the satisfaction of the detaining authority. The
bar created by Article 359 (1) applies to petitions for the enforcement of fundamental rights
mentioned in the Presidential Order whether by way of an application under Article 32 or by
way of any application under Article 226.

In Makhan Singh’s case the Supreme Court had observed that if the detention was challenged
on the ground that it contravened the mandatory provisions of the relevant Act or that it was
mala fide and was proved to be so, the bar of the Presidential Order could have no
application. Referring to this observation, Ray C.J. pointed out that these observations were
obiter dictum as this decision was on a point not necessary for the purpose of or which did
not fall to be determined in that decision. Secondly, there is vital and telling difference
between the effect of the Presidential Order of 1962 and the present Presidential Order.
Government deliberately made the present Presidential Order an unconditional order under
Article 359 (1). The ratio in Makhan Singh’s case was that 1962 Presidential Order being a
conditional one the enforcement of rights under Article 21 and 22 was suspended only to the
extent of the conditions laid down in the Presidential Order and the suspension could not
operate in areas outside the conditions. There is no aspect whatever 250 of any condition in
the present Presidential Order. Therefore, the decision in Makhan Singh’s case has no
application to the present case. The conclusion is that the Presidential Order is a bar at the
threshold.
17
A.I.R. 1976 S.C. 1207.

12
 Some observations on cases on Natural Justice
Makhan Singh’s case a 7 Judge-Bench decision is an authority for the proposition that in spite
of the Presidential Order under Article 359 (1) suspending right to move the Courts for
enforcement of fundamental rights under Articles 21 and 22, the detenu’s right to challenge
his detention on following grounds remains intact.

i) The detention order is in violation of the mandatory provisions of the preventive

detention law.
ii) The detention has been ordered mala fide.
iii) The operative provision of the law under which he was detained suffers from the
vice of excessive delegation.
iv) The law authorising detention was colourable exercise of legislative power i.e. it
was passed by the legislature having no legislative competence.
v) The violation of fundamental rights other than those rights specified in the
Presidential Order.

Makhan Singh’s case held that the detenu can move the Court for a writ of habeas corpus on
any one of the above pleas. The plea thus raised by the detenu cannot at the threshold be said
to be barred by the Presidential Order. In terms, these are not pleas relatable to the
fundamental rights specified in the Presidential Order. These are the pleas which are
independent of the said rights.

As the Article 21 was held to be the sole repository of rights to life and personal liberty and it
was suspended during emergency; in effect, the majority held that all law was abrogated in
relation to life and personal liberty. This was not the correct statement of the law in view of
Makhan Singh’s case.

In view of Makhan Singh, even during a proclamation of emergency, executive action taken
without the authority of a valid law can be successfully challenged which may be apart from
enforcement of a fundamental right. The startling conclusion was reached in Habeas Corpus
case that the effect of the President’s Order under Article 359 was that no redress was
available against violation of the law or against mala fide actions of the executive authorities.
Mala fide order is not an order authorized by law at all. A mala fide detention order may be
prompted by personal malice or ill will or passed for collateral In view of the Presidential
13
Order dated 27th June 1975 no person has 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
challenge the legality of an order 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. 258 or irrelevant purposes. It is clearly an act not authorised by law and is
illegal. So Courts retain jurisdiction to set it aside. It is important to note in this regard that
Article 359 does not confer power on the President to issue an Order providing that the right
of any person to move any court for any purpose is barred. The 1962 Presidential Order and
1975 Presidential Order differed in one respect. The 1962 Order mentioned the violation of
fundamental rights by Defence of India Act, 1962 and Rules. The 1975 Order did not specify
any particular law at all. Under the 1962 Order, all pleas were open to a detenu, other than the
violation of fundamental rights by a specified law. Under the 1975 Order, the very same pleas
were open to a detenu for it makes no difference whether a specified law violates
fundamental rights or any law violates fundamental rights. Khanna J. in his minority opinion
rightly observed that the difference in phraseology of the 1975 Presidential Order and earlier
Presidential Order would not justify the conclusion that because of the 1975 Presidential
Order, a detention order need not comply with the requirements of the law providing for
preventive detention. The observations of Bhagwati J. in Habeas Corpus case were that the
question as to what were the other pleas available to a detenu in challenging the legality or
propriety of his detention, despite 1962 Presidential Order was not in issue before the Court
while deciding Makhan Singh’s case and did not fall to be decided and observations made by
the Court on this question were therefore, clearly obiter. It is submitted that these
observations are partly wrong. In Makhan Singh’s case the question of excessive delegation
of legislative power, which did not relate to the enforcement of fundamental rights was in fact
argued on the merits and decided against the petitioners. Another point that the law under
which the petitioners were detained was a colourable piece of legislation was also argued and
decided against the 259 detenus. Therefore, the observation of the Supreme Court on these
points cannot be called as obiter dicta. Makhansingh was rightly decided and the Supreme
Court was wrong in rejecting that decision in Habeas Corpus case. It appears that the majority
judges in deciding Habeas Corpus case were in the vortex of confusion. In deciding Habeas
Corpus case it appears that the judges were more concerned with the language of the law than
with the spirit of the Constitution, more concerned in protecting executive action than the
oppressed detenus. Dissenting judgment of Khanna J. is convincing and correct. He rightly
held that Article 21 cannot be considered to be the sole repository of the right to life and

14
personal liberty and even in the absence of Article 21 in the Constitution, the State has got no
power to deprive a person of his life or personal liberty without the authority of law.

The majority view in Habeas Corpus case has been completely nullified by the Forty-fourth
Amendment of the Constitution as well as subsequent judicial interpretation and therefore, it
is no longer good law. Now the enforcement of Article 20 and 21 cannot be suspended in any
situation and the Court has held that Article 21 binds not only the executive but also the
legislature thereby implying the correctness of Justice Khanna’s minority view that
suspension of enforcement of Article 21 relieves the legislature of it's constraints but not the
executive which can never deprive a person of his life or liberty without the authority of law.

15
 Conclusion
The observations of Bhagwati J. in Habeas Corpus case were that the question as to what
were the other pleas available to a detenu in challenging the legality or propriety of his
detention, despite 1962 Presidential Order was not in issue before the Court while deciding
Makhan Singh’s case and did not fall to be decided and observations made by the Court on
this question were therefore, clearly obiter. It is submitted that these observations are partly
wrong. In Makhan Singh’s case the question of excessive delegation of legislative power,
which did not relate to the enforcement of fundamental rights was in fact argued on the merits
and decided against the petitioners. Another point that the law under which the petitioners
were detained was a colourable piece of legislation was also argued and decided against the
259 detenus. Therefore, the observation of the Supreme Court on these points cannot be
called as obiter dicta. Makhansingh was rightly decided and the Supreme Court was wrong in
rejecting that decision in Habeas Corpus case. It appears that the majority judges in deciding
Habeas Corpus case were in the vortex of confusion. In deciding Habeas Corpus case it
appears that the judges were more concerned with the language of the law than with the spirit
of the Constitution, more concerned in protecting executive action than the oppressed
detenus. Dissenting judgment of Khanna J. is convincing and correct. He rightly held that
Article 21 cannot be considered to be the sole repository of the right to life and personal
liberty and even in the absence of Article 21 in the Constitution, the State has got no power to
deprive a person of his life or personal liberty without the authority of law.

16
 References
List of cases
1. Ridge vs. Baldwin,(1963) 1 Q.B 539
2. State of Orissa vs. Binapani,1967 AIR 1269, 1967 SCR (2) 625
3. Ashok Kumar Yadav vs. Haryana,AIR 1987 SC 454.
4. Election Commission of India vs. Dr. Subramaniam Swamy,[1987] 4 SCC 328 2257
(SC)
5. Maneka Gandhi vs. Union of India [1978] 1 SCC 248 597 (SC)
6. Karnataka Public Service Commission vs. B.M. Vijay Shankar [1992] 2 SCC 206
7. Ram Krishna Verma vs. State of U.P [1992] 2 SCC 620
8. OP Gupta vs. Union of India,[1966] 4 SCC 104
9. A.D.M. Jabalpur v. S. ShuklaA.I.R. 1976 S.C. 1207.
10. Charan Lal Sahu vs UOI[1990] 1 SCC 613 1480 (SC)
11. Mohinder Singh Gill vs. CEC,[1978] 1 SCC 405 851 (SC)
Books

1. Pradyumna K. Tripathi, The American Journal of Comparative Law, Vol. 9, No. 2

(Spring, 1960), pp. 219-248
2. Exceptions To The Principles Of Natural Justice By Ms.MoushumiSarmah, I.S.S.N
2321 6417
3. Vijay Jaiswal, Preventive Detention In The Indian Constitution, On September 2,
2013
4. Suspension of Fundamental Rights, quickgs

Websites
1. www.newindialaw.blogspot.in
2. www.www.grkarelawlibrary.yolasite.com
3. www.www.diva-portal.org
4. www.encyclo.findlaw.com

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