PROJECT

ON

INTERPRETATION OF CONSTITUTION DURING TIME OF

EMERGENCY

Submitted by- Shrey Srivastava

Roll no. 618
VII th Semester (B.A.LL.B Hons.)

Submitted to- Dr. (Prof.) Ali Md.

Faculty for Interpretation of Statutory Provisions of Law

C HANAKYA N ATIONAL L AW U NIVERSITY

P ATNA .

ACKNOWLEDGEMENT

TAKE

HUMBLE
D R . P R O F.

THIS

OPPORTUNITY

GRATITUDE

AND

TO

PERSONAL

EXPRESS

MY

REGARDS

TO

ALI FOR INSPIRING ME AND GUIDING ME

DURING THE COURSE OF THIS PROJECT WORK AND

ALSO FOR HIS COOPERATION AND GUIDANCE FROM
TIME

TO

TIME

DURING

THE

COURSE

OF

THIS

P R O J E C T WO R K O N T H E T O P I C I N T E R P R E TATI O N
OF CONSTITUTION DURING TIME OF EMERGENCY .
I EXPRESS MY GRATITUDE TO THE FACULTY OF,
INTERPRETATION OF STATUTORY PRINCIPLES OF LAW
FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT
WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE OF
WORK.
YOURS SINCERELY
SHREY SRIVASTAVA
ROLL NO. 618

TABLE OF CONTENTS

A B L E

I S T

I
R

O F

O F

N D E X

O F

E S E A R C H

O N T E N T S

................................................................................I

B B R E V I A T I O N S

U T H O R I T I E S

E T H O D O L O G Y

I I

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............................................................................V
..................................................................... V

I N T R O D U C T I O N ...................................................................................... V I I

EMERGENCY AND THE INDIAN CONSTITUTION

CO RELATION OF ART. 21 AND ART. 19
CONCLUSION
BIBLIOGRAPHY

LIST OF ABBREVIATIONS

A .....Appeals

AIR .............All India Reporter

All .......Allahabad
Bom. ...Bombay
Del. .....Delhi
Ed. ..Edition.
i.e. .That is
Inc....Incorporated
Ltd. ..Limited
Mad ..Madras
SCC ...Supreme Court Cases
vol. ..Volume

INDEX OF AUTHORITIES

CASES CITED

1) A.K Gopalan v. State 1950 SCR 88

2) Consumer Education and Research Centre v. UOI 1995 3 SCC 42; Kirloskar Brithers
Ltd. V. Employees State Insurance Corpn. 1996 2 SCC 682
3) Eshugbayi v. Govt. of Nigeria 1931 LR 640 (CA); 1931 All ER 44.
4) Hameli Singh v. State of UP 1996 2 SCC 549.
5) Maneka Gandhi v. UOI 1978 AIR
6) MC Mehata v. UOI 1987 4 SCC 463; Indian Council for Enviro- Legal Action v. UOI
1996 3 SCC 212.
7) Mohini Jain v. State of Karnataka 1992 3 SCC 666
8) Mr. X v. Hospital Z AIR 1995 SC 495.
9) Neera Mathur v. LIC 1992 1 SCC 286.
10) Olga Tellis v. Bombay Municipal corporation AIR 1986 SC 180.
11) Parmananda Katara v. UOI AIR 1989 SC 2039
12) Paschim Bang Khet Mazdoor Samiti v. State of W.B 1996 4 SCC 37
13) Peoples Union for civil liberties v. UOI 1993 3 SCC 258.
14) PUCL v. India W.P (civil no. 196 of 2001)
15) R. Haliday ex parte Zadig, 1917 AC 260, reported by David Foxton in 2003 119 Law
Quaterly Review 455-83.
16) R. Rajagopal v. State of T.N 1994 6 SCC 632.
17) Rural Litigation and Entitlement Kendra v. State of U.P 1985 2 SCC 431
18) Sriram Food and Fertilizer case 1986 2 SCC 176 ( M.C mehata v. UOI )
19) State of Maharastra v. Madhulkar Narain AIR 1991 SC 207
20) Subhas Kumar v. State of Bihar AIR 1991 SC 420.
21) Sunil Batra v. Delhi Administration AIR 1978 SC 1675.
22) Unnikrishnan v. AP 1993 1 SCC 645.

RESEARCH METHODOLOGY

The purpose of my project is to examine the interpretation of constitution during the

time of emergency. I have examined case laws of Indian Courts and well as foreign courts. I
have made recommendation that law needs to be certain therefore, it is important that the
interpretation of constitution must be done irrespective of any emergency situation. I have
addressed the problems related with the interpretation of art. 359 of the constitution. My
project aims to examine the role of judges in interpreting the constitution.

My project is confined to interpretation of art. 359, therefore I have not addressed the
ancillary issued like the concept of procedure established by law under art. 21 etc,. I have
followed a doctrinal method of research. I have used both primary and secondary source of
material. My source of research include study of case laws, case comments, books related to
interpretation of constitution and articles of imminent authors.

I have used a uniform method of footnoting. It is supplemented by bibliography at the

end of the project.

INTRODUCTION
In India during the period of national emergency, there was gross violation of
fundamental rights of the people. The increased central authority over the states ended the
bargaining federalism of the Nehru years, and the federal structure of the congress party

disappeared as many ministers became New Delhis instruments and P.M gained control of
Congress party machinery.1 The executive branch came to dominate Parliament to such a
degree that Parliament lost any effective identity of its own. And, authority within the
executive became concentrated in the P.Ms office and then was exercised from Mrs. Indira
Gandhis residence, to the exclusion of all but a few and the two branches, the judiciary,
intending to end its function as a co-equal branch of government.
During 1975 emergency question arose as to whether there was a right to challenge
the detention order independently of art. 21, which was suspended by an order under art. 359.
In ADM Jabalpur v. Shiv Kant Shukla2, the Supreme Court by 4:1 decided that while the
proclamation of emergency is in force, and a Presidential order under art. 359 in operation,
the Court could not examine action, even on the ground that it was ultra vires the enabling
statute or malafide.3 The principle that an individuals liberty could not be taken away except
be authority of law existed in India well before the constitution came into force. 4 It continued
by virtue of art. 372 of the constitution 5. The court could have permitted limited judicial
review under administrative law. Chandrachud J. expressed hope that the power reposed by
art. 359 in the executive government would not be abused. 6 Ray CJ. Characterized arguments
about the possible abuse of power by the government as diabolic distortion and
mendaciously malignant.7 A.N. Ray, C.J. held that liberty is itself the gift of the law and
may by the law be forfeited. It was held that suspension of the fundamental right under
Article 21 implied the suspension of the right to file a habeas corpus petition and the detainee
has no right to move any court for his release, the result of the majority view was that even if
a wrong person was detained or if a person was detained for malafide or irrelevant reasons
that the detainee had no right to release from the courts.

Granville Austin, Working a democratic constitution, a history of the Indian experience,

oxford university press, New Delhi, 1999, p. 173.
2

AIR 1976 SC 1207.

Seervai H.M, The Emergency, Future Safeguards and the Habeas Corpus Case: A Criticism, N.M Tripathi,
Bombay, 1978.
4
Eshugbayi v. Govt. of Nigeria 1931 LR 640 (CA); 1931 All ER 44.
5
Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford University Press,
New Delhi at p. 227.
6
AIR 1976 SC 1207 at p. 1349.
7
Ibid 1223.
3

Unlike the reasoning in Gopalan case8, this was not the legal positivism. It is better
described as escapism, helplessness, and even timidity9. Ray CJ had superseded three senior
most judges. Two other members of the majority went on to become Chief Justices in order of
their seniority, while the third member, Beg J. superseded Khanna J, who wrote dissenting
judgment. Khanna Js dissenting judgment was reminiscent of Lord Atkins dissent in
Liversidge v. Anderson.10
In answer to the query from Khanna, J. if a person had any remedy if he was
summarily to be imprisonment or even executed, the Attorney General stated regrettably he
would have to say that he had none as a right to personal freedom had been suspended. This
recalls similar queerly by Lord Shaw who dissented in R. Haliday ex Parte Zadig11 to the
Attorney General if a regulation could be validly enacted putting a man to death, to be told
that the grave result seen perfectly logical.12
Khanna, J. alone stoutly held that Article 21 was not the sole repository of the right
to life and personal liberty and the courts retained the power to examine the legality of orders
of detention. Khanna, J.s outspoken dissent incurred the displeasure of the Government
which superseded him in the next vacancy n the position of the chief justice and appointed a
judge who was his junior as the Chief justice who had formed part of the majority.
To avoid such situations to occur again it is important that there must be rule of
law. During the reign of Hitler, Germany was also ruled by law, but it was not rule of law but
rule by law. It is important that there must be checks and balance amongst the three organs of
the government, so that there is rule of law and not dictatorship.

In India, the act of executive violating fundamental rights of people is challenged

before the judiciary. It is so because in India, judiciary is the protector of the fundamental
rights of the people. It is the role of judiciary to protect the constitution and to vigil on the act
of executive. But, sometimes, Indian judiciary succumbs to the pressure of executive. In

A.K Gopalan v. State 1950 SCR 88 at p. 90.

Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford University Press,
New Delhi at p. 250.
10
1942 AC 206.
11
1917 AC 260
12
R. Haliday ex parte Zadig, 1917 AC 260, reported by David Foxton in 2003 119 Law Quaterly Review 45583.
9

Fundamental right case (ADM Jabalpur v. Shiv Kant Sukhla 13) the judgment given by
Indian judiciary was highly criticised. When the power of judiciary is unregulated it becomes
whimsical.
The Israeli Supreme Court has faced this problem in several difficult cases. In
Public Commission Against Torture v. Govt. of Israel 14, the Supreme Court has held that
violent interrogation of a suspect terrorist not lawful even if doing so may save life by
preventing impending terrorist acts- the overpowering argument of the ticking bomb
situation. President Aharaon Barak of Israeli Supreme Court said:
Preserving the rule of law and recognisation of individual liberty constitute an
important component of its understanding of security. At the end of the day, they strengthen
its spirit and strength and allow it to overcome its difficulties.
This project examine the interpretation of constitution during the time of
emergency by the Supreme Court of India. I have gone through a plethora of cases to find as
to whether Indian Judiciary is fair as far as interpretation of constitution is concerned. The
sole responsibility of interpreting the Indian Constitution is on Supreme Court of India.
Therefore, its role in interpreting the constitution becomes important especially during the
time of national emergency when fundamental rights of the people are suspended.
I have also tried to answer the troubles which arise in interpreting Art. 359 of the
Constitution.
359. (1) Where a Proclamation of Emergency is in operation, the President may by
order declare that the right to move any court for the enforcement of such of 1[the rights
conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all
proceedings pending in any court for the enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation is in force or for such shorter period
as may be specified in the order.
The question which art. 359 pose before us as to whether the interpretation of art. 20
and art. 21 will be a confined one during the proclamation of emergency or will the court
interpret art. 20 and art. 21 of the constitution irrespective of any emergency situation. Since
art. 20 and art. 21 of the constitution cannot be suspended during the time of emergency, so a
13
14

AIR 1976 SC 1207.

53 (4) PD 817.

person even during the emergency period can approach the court for violation of art. 20 art.
21 of the constitution. Art. 21 in Maneka Gandhi case15 was held to include all the freedom
mentioned under art. 19(1) of the constitution. Along with passage of time, the scope of art.
21 was extended to include right to privacy 16 , right to shelter 17, right to heath and medicinal
assistance18, right to get pollution free water 19, protection of ecology and environment
pollution20, Right to education21 and many more rights. So, whether during the time of
emergency such a broad construction may be given to art. 21 or will the interpretation of art.
21 will be affected by the situation of emergency.
It is my submission that interpretation of constitution must not be affected by
the situation of emergency. It is so because once the court interprets any article, it becomes
the law of land and affects the rights of the people till the time a larger bench over rule such
decision.
The judgment given in A.K Gopalan case (7 bench decision) was criticized in
Bank Nationalisation case (11 bench decision). However, it is submitted that the decision of
Bank Nationalisation case, as far as co-relation of art. 19 and art. 20 of the Indian constitution
is concerned is wrongly decided. I have also come to a conclusion that art. 21 and art. 19 are
not linked. Therefore, the interpretation of personal liberty by the court during the time of
emergency must be confined one and cannot be extended to include the freedoms enshrined
in art. 19(1) of the constitution. Thus if the court interpret art. 21 as distinct from art. 19,
there will arise no problem as to the interpretation of constitution during the time of
emergency. Art. 358 provides that the rights mentioned under art. 19 will automatically be
suspended during the time of emergency22. So, the question which now arises is, if art. 19 is
15

Maneka Gandhi v. UOI 1978 AIR

Peoples Union for civil liberties v. UOI 1993 3 SCC 258. (telephone tapping case); also see R. Rajagopal v.
State of T.N 1994 6 SCC 632. (Auto shanker case); State of Maharastra v. Madhulkar Narain AIR 1991 SC 207;
Mr. X v. Hospital Z AIR 1995 SC 495.
17
Hameli Singh v. State of UP 1996 2 SCC 549.
18
Parmananda Katara v. UOI AIR 1989 SC 2039; Paschim bang Khet Mazdoor Samiti v. State of W.B 1996 4
SCC 37; Consumer Education and Research Centre v. UOI 1995 3 SCC 42; Kirloskar Brithers Ltd. V.
Employees State Insurance Corpn. 1996 2 SCC 682
19
Subhas Kumar v. State of Bihar AIR 1991 SC 420.
20
Rural Litigation and Entitlement Kendra v. State of U.P 1985 2 SCC 431; Sriram Food and Fertilizer case
1986 2 SCC 176 ( M.C mehata v. UOI ); MC Mehata v. UOI 1987 4 SCC 463; Indian Council for Enviro- Legal
Action v. UOI 1996 3 SCC 212.
21
Mohini Jain v. State of Karnataka 1992 3 SCC 666
22
358. (1) While a Proclamation of Emergency declaring that the security of India or any
part of the territory thereof is threatened by war or by external aggression is in
operation], nothing in article 19 shall restrict the power of the State as defined in Part III
to make any law or to take any executive action which the State would but for the
provisions contained in that Part be competent to make or to take, but any law so made
16

suspended and art. 21 cannot be suspended than how will the court interpret art. 21 during the
time of proclamation of emergency. Supreme Court right since R.C Cooper case23 to the
present time has considered that at. 21 and art. 19 are co related and violation of art. 21 will
automatically violate art. 19 of the constitution. But, it is humbly submitted that art. 19 and
art. 21 are not co- related. Once, this is established, there will arise no problem as to the
interpretation of art.21 during the time of emergency.
Seervai had commented on the role of judges in interpreting constitution, he said
Aristotle went to the root of the matter when he said: Plato is dear to me, but the dearer is
the truth. Adapting his words a judge should say to himself: Fundamental rights are dearer
to me, but dearer still is truth, and justice founded on truth, and they must prevail in a court of
justice.24
In the light of above issues, I finally have suggested that the role of judges or any
organ of the government must be to establish rule of law in the country. There has to be
fairness in application of law.

INDIAN CONSTITUTION DURING EMERGENCY

The provisions of national constitutions, like other laws, are often ambiguous, vague,
contradictory, insufficiently explicit, or even silent as to constitutional disputes that judges
shall, to the extent of the incompetence, cease to have effect as soon as the
Proclamation ceases to operate, except as respects things done or omitted to be done
before the law so ceases to have effect:
23
24

R.C Cooper v. UOI

Seervai H.M, Constitutional Law of India, 3rd ed, vol- 1, Tripathi Pvt. Ltd., 1983, Bombay, at p. 732.

must decide25. In addition they sometimes or even silent as to constitutional disputes that
judges must decide. In addition they sometimes seem inadequate to deal appropriately with
the development that threaten principles the constitution was intended to safeguard,
developments that its founders either failed, or were unable to anticipate.26
In Special Reference No. 1 of 200227 it was observed that liberal and visional
interpretation is necessary to interpret the provisions of the constitution. The reasoning given
was that the old legal pillars suffer new stresses. So the court has to adopt the law and
develop its latent capabilities if novel situations are encountered. It was also held that the
meaning of the words in the constitution should be understood having regard to their line of
growth and change of concepts.
In Indian Cement v. State of T.N28, Mukarji, J. stated the principles to be followed in
interpreting the constitution. The learned judge observed:
Courts of law are enjoying to gather the meaning of the constitutions from the
language used and although one should interpret the words of the constitution of the same
principles of interpretation as one applies to a n ordinary law but these very principles of
interpretation compels one to take into accounts the nature and scope of the act which
requires interpretation. Constitution is the mechanism under which the laws are to be made
and not merely an Act which declares what the law is to be.29
While interpreting constitution courts define the rights of the citizens, it limits the
powers of legislature so its interpretation has a profound effect on the institutional structure
of the society. There can be a situation which had not been foreseen by the constitutional
maker because of which a constitution might fail to achieve one of its important purposes.
Therefore in re, C.P and Berar Sales of Motor Spirit and Lubricants Taxation Act, 193830
Gwyer J. of Federal Court of India relied on the observations of Lord Wright in James v.
Commonwealth of Australia31and observed that a constitution must not be constructed in any
narrow or pedantic sense, and that construction musts not be constructed in any narrow or
25

Goldsworth Jeffrey, Interpreting Constitution a comparative study, oxford university press, 2008 ed, New
Delhi at p. 1.
26
Ibid.
27
2002 8 SCC 237.
28
1990 1 SCC 12.
29
See the observations of Higgins, J. in the A-G. for the State of New South Wales v. brewery Employees
Union of New South Wales 1908 6 CLR 469 at p. 611-12.
30
AIR 1939 FC 1; 1939 FCR 18: 180 IC 161.
31
1936 AC 578.

pedantic sense, and that construction most beneficial to the widest possible amplitude of its
powers, must be adopted. The learned Chief Justice emphasized that a broad and liberal
should inspire those whose duty is to interpret the constitution, but they are not free to stretch
or pervert the language of the enactment in the interest of any legal or constitutional theory,
or even for the purposes of supplying omissions or correcting supposed errors. A Federal
Court will not strengthen, but only derogate from, its position, if it seeks to do anything but
declare the law; but it may rightly reflect that a constitution of a constitution of a country is a
living and organic thing, which of all instruments has the greatest claims to be constructed ut
re magis valeat quam periapt- it is better that it should live than it should live that it should
perish.
Jeffrey Goldsworth in introduction to Interpretation of Constitution has mentioned
that if the courts are guardians of their nations constitution, what exactly is that they are
guarding? Is it a set of reasonably fixed rules and principles, laid down at the founding, that
must not be changed except by formal rules and principles, laid down at the founding, and
that must not be changed except by formal amendment 32? Or does the force of those rules and
principles ultimately depend on abstract principles and values, whose effective protection
may justify considerable creativity in response to perceived threats33.
Justice Cardozo, a written constitution states or ought to state not rules for the
passing hours, but principles for an expanding future. 34 The Indian courts has also not taken
a positive approach to constitutional interpretation but has expanded the rights to people by
interpreting the constitution liberally. Liberal interpretation of legislative power was
combined with a positivist interpretation of the constitutional limitation imposed on it. 35 H.M
Seervai stated:

well established rules of interpretation requires that the meaning and the intention of
the framers of a constitution be it a Parliament or a constituent Assembly must be
ascertained from the language of the constitution itself; with the motives of those framed it,
the Court has no concern.36
32

Supra note n. 9 at p. 2.
Jackson V and Tushnet M, Comparative constitutional Law (Founding Press, New York, 1999) at p. 145.
34
Cardozo BN, The nature of judicial process, 33rd printing, Yale university press, New Haven, 1974 83.
35
Sathe SP, India: Positivism v. Structuralism, Interperating Constitutionalism,2008 ed, Oxford University Press,
New Delhi at p. 227.
36
Supra n. 24 at p.172,
33

Interpretation of constitution becomes important during the time of emergency. The

court restrict the interpretation of constitution during the time of emergency and gives a wide
discretion to the executive to perform its act. Absence of this checks and balances creates a
situation of lawlessness where there is no rule of law but rule by law.
In the United States the case of Korematsu v. United States37 is a notorious example
of the Supreme Court submitting to national pressure during war times. The court held legal a
military order under which more than 112000 residents western states all of Japanese descent
and of which more than two out of three were natural- born US citizens were removed from
their homes and herded into temporary camps and later into relocation centers in several
states. Korematsu, a native American born of Japanese ancestry was convicted of disobeying
the exclusion order .
Black, J. delivering the opinion of the court said:
Korematsu was not excluded from the Military area because of hostility
to him or his race. He was excluded because we are at war with the Japanese Empire,
because the properly constituted military authorities feared an invasion of our West coast and
felt constrained to take proper security measure, because they decided that the military
urgency of the situation demanded that all situation of Japanese ancestry be segregated from
the west
Coast temporarily, and finally, because of Congress, reposing its confidence in this
time of war in our military leaders----as inevitably it must- determined that they should
have the power to do just this.38
In his dissenting opinion Roberts, J. spoke of the disproportion and lack of reasonable
relationship of the exclusion even if military necessity demanded it.
.the exclusion either temporarily or permanently, of all persons with
Japanese blood in their veins has no such reasonable relation. And that relation is lacking
because the exclusion order must necessarily rely for its reasonableness on the assumption
that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and
espionage and to aid our Japanese enemy, in other ways. It is difficult to believe that reason,
logic or experience could be marshaled in support of such an assumption.39
37

] 89 L ED 194; 323 US 214 (1944)

IBID at P. 223.
39
IBID at P. 235.
38

Jackson, J. also dissented from the majority of words which must caution Judges who
succumb to giving a convenient interpretation of the Constitution in times of national crisis.
He said .a judicial construction of the due process clause that will sustain this order
is a far more subtle blow to liberty than the promulgation of the [military] order itself. A
military order, however unconstitutional, is not apt to last longer than the military
emergency..once a judicial opinion rationalizes such an order to show that it conforms to
the Constitution, rather rationalizes the constitution to show that the constitution sanctions
such an order, the court for all times has validated the principle of racial discrimination in
criminal procedure and of transplanting American citizens. The principle then lies about like
a loaded weapon ready for the hand of any authority that can bring forward a plausible claim
of an urgent need.40
Korematsu case41 had an interesting sequel. The uncritical acceptance of the opinion
of the military which saw a danger from every person of Japanese origin was later exposed by
Korematsu. Long after his conviction in 1942, in 1984 korematsu petitioned the United States
District Court, N.D. California, for a writ of Coram Nobis to vacate his conviction on the
grounds of governmental misconduct. The court granted korematsu relief of Coram nobis
(Korematsu v, United States).
During the hearing of the case before the District Court Judge Patel, some horrific
facts were brought out. It was established that the Government knowingly withheld and
distorted information from the court when they were considering the critical question of
military necessity and also provided misleading information to the Court. Judge Patel
observed The judicial process is seriously impaired when the Governments law
enforcement officers violate their ethical obligation to the Court.
Judge Patel memorably concluded: Korematsu .. stands as a constant caution
that in times of war or declared military necessity, our institutions must be vigilant in
protecting constitutional guarantees. It stands as a caution that in times of distress the shield
of military necessity and national security must not be used to protect governmental actions
from close scrutiny and accountability. It stands as a caution that in times of international
hostility and antagonisms our institutions, legislative, executive and judicial, must be
prepared to exercise their authority to protect all citizens from the petty fears and prejudices
that are so easily aroused.
40
41

IBID at P. 245-46.
IBID

Congress then passed a law acknowledging the fundamental injustice of the

evacuation, relocation and internment and apologizing on behalf of the people of USA.
Reparations were approved and each living survivor of the internment was compensated in an
amount approximating to 20,000.42
In Pakistan Judges including the present restored Chief Justice Iftikhar Mohammed
Chaudhery have upheld Military Rule and Marital Law by three military rulers. They have
relied on the doctrine of State necessity propounded by jurist Kelson- a theory formulated
years before the concepts of human rights and the rule of law had developed.
Such cases of judicial deference and timidity in times of war and national crisis have
fortunately not been repeated in recent times. The dissents of Judges like Lord Atkin in UK,
Justice Roberts and Jackson in USA and Justice Khanna in India have been in the words of
Chief Justice Huge of US, an appeal to the brooding spirit of the law, to the intelligence of a
future day when a later decision may possibly conceal the error which the dissent /Judge
believes the court to have betrayed.
It is heartening to note recent assertions of judicial assertiveness over Governments
claim to national security in decisions of the US Supreme Court in the cases of the
Guantanamo detainees and that of the House of lords in the case of non-UK citizens
detainees under the UK Anti-Terrorism Act.
The US Supreme Courts decisions in the trail of detainees at the US Naval Base at
Gunantanamo Bay in Cuba are remarkable perseverance judicial control over anti terrorism
measures adopted by the US government following the 9/11 attack by terrorist in Bush
administrations war against terror
The US government had made a number of orders with the approval of Congress
denying Habeas Corpus to detainees at Guantanamo in the usual Court of law. Three US
Supreme Courts Decisions in Rasul v. Bush43, Hamdi v. Rumsfeld44 and Hamdan v.
Rumsfeld45 had ordered the detainee access to the courts within the United States but after
each judicial mandate, Congress responded with legislation aimed at thwarting the courts
decisions. Meanwhile detainees continues to languish at Guantanmo for more than six years
with most of them having never been charged with any criminal offences.
42

Congressional Editions of US Constitution, 2004 at P. 465.

159 L Ed 2d 548
44
159 L Ed 2d 578
45
165 L Ed 2d 723.
43

Finally on 12-6-2008 in Boumediene v. Bush46, the U.S Supreme Court in a 5:4

decisions held ouster of habeas corpus rights of these detainees under the Military
Commission Act, 2006 to be unconstitutional, and the alternative e process contained in the
Detainee Treatment Act 2005, for the security of the designation of the detainee as enemy
combatant did not provide adequate substitute for the writ of Habeas Corpus.
The Boumediene47 decisions is a sharp rebuke for the excessive of the Bush
Government over the 9/11 attack of the rule of law, fair trails and ouster of traditional remedy
of Habeas Corpus. In a memorable part of the judgment, refuting the govt. claims form
immunity form judicial control over Guantanamo naval base in Cuba because it was claimed
that US has dejure sovereignty over Cuban Territory, Kennedy, J. held that the governments
claim means that it would govern without legal restraint. He said our basic charter cannot
be contracted away like this.. to suggest that political branches have the power to switch
the constitution on or off at will, would permit a striking anomaly in our tripartite system of
govt. leading to a regime in which Congress and the President and not this court would say
what the law is.
Following upon attacks in US on 11-9-2001, the Anti Terrorism Crime and Security
Act 2001, S. 23 granted the Home Secretary the power to detainee indefinitely any foreign
(non UK) national whose presence in the UK he reasonably believes to be a risk to the
national security, whom he reasonably suspect to be international terrorist, and whom he
cannot deport.

In A. Secy. Of State for the Home Department 48 in one of the strongest assertion of
the judicial power in the English judicial history given by an unprecedented strength of 9 of
12 Law Lords, the House of Lords held that the power to detain was a disproportionate and
discriminatory response to the international terrorist threat presented to the UK. It was
international terrorist threat presented to the UK. It was therefore incompatible with Articles
5(1) and 14 of the European Conventions on Human Rights, 1950, by virtue of sec 4 and sec.
16 of the Human Rights Act, 1998 and a declaration to that effect was made.

46

553 US 2008
Boumendiene v. Bush 553 US 2008.
48
2005 2 AC 68.
47

Their lordship described the Home Secretarys power of indefinite detention without
charge, in breach of Convention right, as anathema in any country which observes the rule of
law (Lord Nicholls), the real threat to the life of the nation (Lord Hoffmann) and the stuff of
nightmares (Lord Scott).
The House of Lords (Lords Hoffmann dissenting) upheld the decision of the Special
Immigrations Appeal Commission and the Court of Appeal that the Home Secretary was
entitled to conclude on the available evidence that a public emergency threatening the life of
the nation required for derogation from section 4 and 6 of human right act, 1998 did exist.
Nevertheless they held the section 23 of anti-terrorism crime and security act, 2001 was a
disproportionate and discriminatory response to the public emergency. It was
disproportionate because there was no rational connection between the measure and
objective, and the measure went beyond what was necessary to achieve the objective.
In particular, section 23 allowed certified suspected international terrorist who had
been detained to choose to leave the United Kingdom at any time, and there was no evident
justification for detaining foreign nationals but not UK nationals. It was discriminatory
because its restriction on the enjoyment of article 5(1) of the Convention applied to foreign
nationals but not UK nationals. A quashing order was made under section 6 of the human
right act, 1988 in respect of designated derogation order, because of in compatibility with
article 15(1). A declaration was also made under section 4 of the same Act that Section 23 of
the Anti-terrorism, crime and security act, 2001 is incompatible with Article 14 of the
Convention and, in the absence of designated derogation order with Article5(1).

On 11-3-2005 the British parliament passed the Prevention of Terrorism Act, 2005
which replaced part 4 of 2001 Act, three days before it was due to expire. The 2005 Act
appears to take account of the House of Lords decision in A v. Secy. Of State for Home
Department No. 149. It provides for a range of control orders, which allow for a
proportionate response to a terrorist threat and which do not discriminate against non- UK
nationals.
In A v. Secy. Of State for Home Department No. 2 50 the house of lords held that the
special Immigration Appeals Commission(SIAC) under the UK terrorism Act when hearing
49
50

2005 2 AC 68.
2006 2 ac 221.

an appeal by a detainee could not receive evidence obtain by the use of torture even though
such evidence was obtained by any foreign official without the complicity of British
authorities.
The two House of Lords decisions in A v. Home Secy51. Is the beginning in the UK of
a much belated awakening to the fact that even in the context of national security the courts
have a responsibility that the rule of law is respected.
No doubt the Guantanamo decisions of the Supreme Court of the USA and the House
of Lords decisions under the UK Terrorism Act were not delivered amidst the clash of the
arms as the Lord Atkin had said in Liversidge case52 but in the penumbra of two to four years
of the 9/11 terrorist attacks. In that sense the pressure on these Judges were not that intense as
it was on the Judges who decided Liversidge 53 and Korematsu54 in the midst of the World War
II. Nevertheless, the approach of the judges in the US ands UK in Guantanamo and in the UK
Terrorism Act cases is vastly different from that in the past, being more conscious of human
rights and the dispensable requirement of judicial review.
An independent judiciary which is obliged to uphold human rights has an unenviable
task in times of combating terrorist who themselves have no regard for human rights. This is
the agonizing dilemma of the judges in a democracy committed to the rule of law.

The Indian Supreme Court has radically changed its interpretative philosophy. It was
so because after Shiv Kant Shukla case the Supreme Court was losing its credibility before
the people. From positivism it has shifted to liberal interpretation. But what ever be the mode
of interpretation there must be checks and balance amongst the various organs of the
government. It can take place only when there rule of law prevails. The contrast between the
rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently
in Aristotle's Politics, where the rule of law implies both obedience to positive law and
formal checks and balances on rulers and magistrates. Dicey identified three principles which
together establish the rule of law55: (1) the absolute supremacy or predominance of regular
51

Supra n. 51.
1942 A 206
53
ibid
54
Korematsu v. US, 89 L Ed 194
55
Law of the Constitution (10th Ed., 1959), pp. 187, et seq.,
52

law as opposed to the influence of arbitrary power; (2) equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the ordinary courts;
and (3) the law of the constitution is a consequence of the rights of individuals as defined and
enforced by the courts."56
Rule of law is frequently opposed by authoritarian and totalitarian states. The explicit
policy of such governments, as evidenced in the Night and Fog decrees of Nazi Germany, is
that the government possesses the inherent authority to act purely on its own volition and
without being subject to any checks or limitations. Dictatorships generally establish secret
police forces, which are not accountable to established laws, which can suppress threats to
state authority. But it the Constitution which is supreme and so the Supreme Court which the
sole responsibility to interpret the constitution has to interpret it in such a manner that the
executive wings must not become over powerful and dominate the other three organs of the
government.

CO-RELATION OF ART. 21 AND ART. 19.

The co-relation of art. 21 to art. 19 was one of the central issues in A.K Gopalan v.
The State57 case. In this case it was contended that personal liberty in art. 21 included all the
freedoms conferred by art. 19(1)(a) to (g). The correctness of the law laid down in Gopalan
case was never seriously doubted by any judgment of the Supreme Court till in R.C Cooper
v. UOI58 (Bank Nationalisation case), a Bench of 11 judges, by a majority of 10:1,
reconsidered Gopalan case and held that it was wrongly decided as because, according to the
court its main premises, namely, that Art. 22 was a complete code was wrong, and also
because the majority in Gopalan case treated the fundamental rights conferred by various
articles as exclusive. It may be added that three majority Judges in Gopalans case held that
art. 22 was not a complete code59; and they did not hold that the fundamental rights conferred
by different articles were mutually exclusive.

56

Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6,
footnote 1
57

1950 S.C.R. 88.

1970 3 SCR 530.
59
Mahajjan J. alone of all the judges held that Art. 22 was a complete Code.
58

Fazal Ali (dissenting opinion) held that in Art. 19(1) (d) the concept of right to move
freely throughout the territory of India was entirely different from the concept of the right to
personal liberty. Kania C.J. said that in the right to move freely throughout the territory of
India the emphasis was not on free movement simpliciter, but on the right to move freely
throughout the territory of India and that Art. 19(1)(d) read with sub-Art. (5), meant that if
restrictions were put on the movement of a citizens from State to State or even within a State,
such restrictions must satisfy the requirements of Art. 19(5) and that Art. 19(1)(d) had nothing
to do with detention, preventive or punitive. This position was made clear by Art. 19(5)
which permitted reasonable restrictions to be imposed on the right in the interest of the
general public or the protection of the interest of any Schedule Tribe. Thus it deals with
provincialism and not with detention.
Justice Mukherjee, held that Art. 19gives a list of individual liberties and
prescribes in the various clauses the restraint that may be placed upon them by law, so that
they may not conflict with public welfare or general pubic morality. On the other hand art.
20, 21 and 22 are primarily concerned with penal enactment or other laws under which
personal safety or liberty of persons would be taken away in the interests of the society and
down the limits within which State control should be exercised. 60 Also art. 19 confers the
freedom on citizens alone where as the rights conferred under art. 21, 22 and 20 apply to all
the persons. Art. 19 is positive in form and 20 and 22 are negative in form.
H.M Seervai has commented that the whole discussion on the merits would have been
unnecessary if Art. 19(1) and Art. 21 had been held to be mutually exclusive in Gopalan
case61. Assuming that the right to move freely was of the essence of personal liberty the
majority held that it did not fall under Art. 19(1)(d) which conferred a different right namely,
the right to move freely throughout the territory of India.62
Also the insertion of word personal before the word liberty has restricted the scope
of art. 21. The Draft Committee Report on Draft art. 15 (now art. 21) was discussed by the
Judges to further support this argument. The report stated that the word liberty should be
qualified by the word personal before it for otherwise it might be construed very widely so
as to include even the freedoms already dealt with in art. 13 (now art. 19).

60

1950 SCR at p. 254.

Seervai H.M, Constitutional Law of India, 3rd ed, vol- 1, Tripathi Pvt. Ltd., 1983, Bombay. At p. 700.
62
ibid
61

Kailashsam J. has made it clear in Maneka Gandhi case63 that the decision of the
Bank Nationalization case in so far as it relate to art. 21 and 19(1) is in the nature of obiter
dicta. Though it is a decision of a court of 11 Judges and is entitled to the highest regards, as
the court had not applied its mind or decided the specific question and as it is in the nature of
a general casual observation on a point not calling for decision and not obviously argued
before it the case cannot be taken as an authority on the subject when no occasion arose for it
to consider and decide the question.64
In Bacchan Singh case, it was held that the rights mentioned in art. 19(1)(a) to (e)
shows that the rights there mentioned are not absolute; they have to be exercised so as not to
injure the rights of others. They are subject to the power of the State to make laws imposing
reasonable restrictions, which may even extend to prohibition, on the exercise of those rightsa power which if properly exercised, is the best guranteed of those freedoms. The argument
for Gopalans case that all imprisonment in a cell as a result of preventive detention affected
his rights under art. 19(1) was rejected on two grounds:

i.

That it would render several sections of the Penal Code, for theft, cheating, forgery and

even ordinary assault illegal, and such a result was not the outcome of the constitution.65
ii.

That the correct test is to consider the direct impact of the impugned law on the

fundamental right and not what would be the result of the detention otherwise valid on the
mode of the detnus life. The test of direct and indirect effect adopted in Gopalans case was
approved by a full court in Ram Singh v. Delhi66, and although Mahajan and Bose JJ.
Differed on the merits, there was no dissent on this point among all the Judges. Also in
Express newspaper case, Bhagwati J., added that the impugned act could be legitimately
characterized as a measure which affected the press, but its intention or the proximate effect
and operation was not such as to violate art. 19(1), and therefore, it could not be held invalid.
iii.

63

Thus the content of art. 19 and 21 are not same.67

Maneka Gandhi v. UOI 1978 AIR SC at p. 681.

Maneka Gandhi v. UOI 1978 AIR SC at p. 681.
65
A.K Gopalan at AIR p. 908.
66
1951 SCR 451.
67
Ibid Sarkaria J. at p. 908.
64

Art. 19 will be attracted only to such laws, the provisions of which are capable of
being tested under cls. (2) to (5) of art. 19.68 Finally as per Sarkaria J. it can be said that:
a. The Bank Nationalisation case and Maneka Gandhis case had not over ruled or
rendered bad the conclusion of the judges in Gopalns case that the IPC particularly
those of its provisions which do not have a direct impact on the rights conferred by
art.19(1), is not a law imposing restrictions on those rights.
b. The reasoning, explicit and implicit, of Kania C.J., Patanjali Sastri and Das JJ., that
a construction which treated every section of the IPC as a law imposing restriction
on the rights conferred by art. 19(1) would lead to absurdity is unassailable and must
be avoided.
c. The approach of Das C.J in Chamarbaugwallas case that crime or criminal activities
were not protected by art. 19(1) still holds the field as it has been approved in
Fatechands case.

CONCLUSION
There is a popular saying that no matter what their stated interpretation philosophy,
judges somehow manage to find ways of adjusting their constitutions to the felt necessities of
the time.69 Two issues must be distinguished. The first is the extent to which law remains
stubbornly inseminate, whatever interpretive methodology is employed, thereby requiring
judges to exercise discretion on moral or policy ground. The second is the extent to which
judges are willing to misapply or to abandon, their orthodox methodology in order to reach to
desired conclusion.70
The various decisions of Supreme Court regarding the co relation of art. 19 with
art. 21 was under examination under this project. It is submitted that the fundamentals rights
enshrined in the constitution are not a water tight compartment and they are over lapping. But
it was never the intention of the constitution maker to provide all the freedom conferred by
68

Ray C.J in saha case

A phrase famously used by OW Holmes Jr in The Common Law (little Brown, Boston, 1881) at p.1.
70
Goldsworth Jeffrey, Interpreting Constitution a comparative study, oxford university press, 2008 ed, New
Delhi at p. 1.
p. 343.
69

art. 19 to be included in personal liberty under art. 21. This construction of art. 21 will is no
way affect the scope of personal liberty. Art. 21 is worded in negative terms but it is well
settled now that art. 21 has both negative and affirmative dimension. Positive rights are very
well conferred under art. 21 of the constitution. But the rights enshrined in art. 19 are not the
part of art. 21 of the constitution.
The decision of Maneka Gandhi so far as it relate to co relation of art. 21 and art. 19 is
wrong as art. 19(1)(d) did not confer a right of free movement simpliciter, but a right to move
freely throughout India. However other than that the judgment of Supreme Court regarding
the procedure established by law as meaning fair, just and reasonable procedure is a valid
interpretation of art. 21. it has over ridden the narrow interpretation laid down in Gopalan
case regarding procedure established by law. It is submitted that the outcome of Maneka
Gandhi case was right but the method by which the judges arrived it was contrary to the
intention of the constitution maker.

In Gopalan Case, relation of art. 14 and art. 21 was not dealt with. However violation
of art. 14 can take place when it discriminate between two classes and such classification is
not a reasonable classification.
The approach of Indian judiciary in Gopalan case was positivist which in Maneka
Gandhi case become liberal. The liberal interpretation of art. 21 by the court since than had
included several new rights, including a right to privacy71, right of prisoners to be treated
according to prison rules72, a right to shelter73, a right to education74, a right o sufficient food
to avoid starvation75. In Francis Coralie Mullin v. UT of Delhi, Justice Bhagwati said:
The fundamental right to life which is the most precious human right and which
forms the arc of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come and
enhanced the dignity of the individual and the worth of the human person.76

71

Neera Mathur v. LIC 1992 1 SCC 286.

Sunil Batra v. Delhi Administration AIR 1978 SC 1675.
73
Olga Tellis v. Bombay Municipal corporation AIR 1986 SC 180.
74
Unnikrishnan v. AP 1993 1 SCC 645.
75
PUCL v. India W.P (civil no. 196 of 2001)
76
1981 1 SCC 608.
72

The approach that the constitution has be to interpret differently during different times
is a wrong concept. Law has to be certain and once any article is interpreted by the court, it
becomes the law of the land and has effect on the rights of the people. Court must not act as
the rubber stamp. The system of governance can only succeed if judiciary is fearless and
checks the executive whenever there a need.
After Jabalpur case the judges had to rehabilitate themselves, and this may have
inspired their post emergency activism. They may have realized that the Court might lose its
credibility permanently, if it were seen as a mere rubber stamp of the ruling majority. The
independence of judiciary depends on the strong public support, as well as constitutional
guarantees. The courts activism in later years was directed towards both the ends77.
For rule of law to prevail in India, it is important that there must be avoidance of
arbitrariness. It can be done when there is adherence to the supremacy of law. Court must not
succumbs to the pressure of executive or interpret the constitution under constraint during the
time of emergency.

BIBLIOGRAPHY
Books referred

Granville Austin, Working a democratic constitution, a history of the Indian

experience, oxford university press, New Delhi, 1999, p. 173.

Seervai H.M, The Emergency, Future Safeguards and the Habeas Corpus Case: A
Criticism, N.M Tripathi, Bombay, 1978.

Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism, 1 st

ed,Oxford University Press, New Delhi, 2008

Goldsworth Jeffrey, Interpreting Constitution a comparative study, oxford university

press, New Delhi, 2008.

77

Halsbury's Laws of England, Vol: Constitutional Law and Human Rights.

Sathe SP, India: Positivism v. Structuralism, Interperating Constitutionalism,2008 ed, Oxford University Press,
New Delhi at p. 251.