Why ADM Jabalpur vs. Shivkant Shukla is criticized for wrong reasons: A case for constitutionalism

Justifying the majority decision in the Habeas Corpus case in terms of Constitutional law, PRADHYUMAN SINGH nevertheless argues that the Supreme Court failed to carry out its duty as the guardian of civil/human rights by not applying the principle of Constitutionalism in its approach.  


ONE of the darkest days touted of the Supreme Court of India is 28TH April, 1976. This was the day a Constitution Bench of the apex court, in the case of ADM Jabalpur vs. Shivkant Shukla decided that during a National Emergency, the right to life of a person cannot be enforced by a High Court under Article 226 of the Constitution of India.

Article 226 is broader than Article 32 because under the former, rights other than fundamental rights under Part III of the Constitution may be enforced as well. This is because the language of Article 226 is broader than Article 32, which provides that directions may be issued to enforce fundamental rights as well as “for any other purpose”. This expression expands the jurisdiction of a High Court to enforce Constitutional rights (such as the right to property under Article 300A) which are not fundamental rights, along with statutory rights of people as well.

Also read: ADM Jabalpur: The Case that was but should never have been!

Background of the case

As per Article 359 of the Constitution, upon the Proclamation of Emergency by the President, an order may be made that all the fundamental rights become unenforceable. This means that despite the existence of these rights, one does not have the ability to move any High Court or the Supreme Court to enforce it.

The facts of the case in ADM Jabalpur squarely fit the pre-requisites of Article 359. A proclamation of Emergency had been made and was in effect. Further, an order was issued by the President that no Fundamental Rights, including the right to life under Article 21 would be enforceable. In these circumstances, the right to life under Article 21 could not be enforced under Article 226. This position being clear, the moot question before the Supreme Court was actually not centered on Article 21.

The question was if Article 226 was wide enough to enforce the natural right to life of a person. As mentioned earlier, the language of Article 226 envisages enforcement of fundamental rights as well as the power to issue directions for “any other purpose”.

The argument was that, the natural right to life existed even outside of the Constitution, and what was sought to be enforced was not the right to life from Article 21 (which is unenforceable in this circumstance) but this natural right to life. As this right was independent of the text of the Constitution, it could not be curtailed by the Constitution in any manner. Accordingly, it would fall within the expression “any other purpose” in Article 226, and be enforceable by the High Court.

Also read: Revisiting the Emergency: A Primer

Natural law

Proponents of the natural law school of jurisprudence argue that the source of all laws is nature itself. Natural and human rights exist and inhere in individuals just by virtue of them being human. Thus, the natural rights of life, liberty and property are already vested in all persons. Any political or legal arrangement akin to a Constitution merely recognises such rights and endeavours to protect them. Thus, the argument is that the Constitution of India cannot be the sole repository or source of these rights.

The logical extension of this argument would entail that such natural rights exist even without the political State. For example, if our society was living in the state of nature, that is, in a time where there is no such thing as a State, government, or law and order, each of us would still be vested with these rights.

In this scenario, if any person’s right to life were to be violated, there would be no mechanism to enforce this right. Therefore, it is asserted that the mere existence of a right does not imply the existence of a mechanism (like State machinery such as the courts and the police force) to enforce such a right. This leads one to wonder: from a practical standpoint, how did humankind go about making an enforceable legal system?

Also read: Juridical Viralities, Courts and the Question of Justice

Social contract and the Constitution

The solution was found in the adoption of a social contract by people at large. The social contract is like any other contract where a promise is made by and between parties to the contract. Except, a social contract is entered into by members of a society at large who agree that certain norms will be applicable to everyone. Further, this contract results in the creation of the political State, a government, a law and order system including police and armed forces.

In this manner, the State is delegated the responsibility to enforce the rights of people that already inhere in them. What is important to understand is that the only source of law which forms the basis to enforce these natural rights is the social contract. It is admitted that the rights themselves find their source outside the contract, but they are enforceable only because our social contract says so.

The social contract for independent India has been its Constitution. The Constitution was adopted by the Constituent Assembly, members of which were indirectly elected as representatives of the population.

The status of the Constitution as a social contract is made clear by the Preamble as well. The Preamble’s opening lines are the enacting clause of the Constitution. It reads-


The social contract for India has given recognition to its version of the right to life under Article 21. Arguably, this version of the right to life is actually inconsistent with the natural right to life. This is because the natural right to life exists by virtue of nature. Such a right does not even contemplate the existence of a State for its existence. Therefore, nature being the source of these rights, the natural right to life is absolute and does not have any exceptions to it whatsoever. This is unlike the right to life under Article 21, which can be curtailed by a law that is just, fair and reasonable.

The inconsistency described above leads to a paradoxical situation which can be understood with the help of an example. Article 21 today also includes within it, among other things, the right to privacy. This right may be curtailed by a law that is proportionate, as held in the landmark judgment of Justice K.S. Puttaswamy (Retd) & Anr. vs. Union of India & Ors. (2018).

Suppose a law is made to install CCTV cameras in a village. Let us also assume that this law is proportionate and does not violate Article 21. This legislation would still be inconsistent with the natural right to life (including privacy) which exists outside the Constitution, as this natural right is inviolable no matter the circumstances. Therefore, the natural right to life and Article 21 of the Constitution are inconsistent with each other, and one of these sources of law must necessarily override the other.

Also read: An Absurd Jurisprudence

Why ADM Jabalpur was legally correct

The source of right that ought to be given this over-riding effect has to be Article 21 of the Constitution. This is because our social contract (that is, the Constitution) has made the decision to adopt a version of the right to life, as articulated in Article 21. The very existence of Article 21 clearly expresses that the terms of the social contract seek to exclude the operation of the natural right to life.

If the natural right to life were to be allowed to override Article 21, then no legislation could be made that curtailed the right to life under Article 21 in any circumstance whatsoever. (A legal maxim that best explains this principal is the Latin phrase ‘expressio unius est exclusio alterius’) This would result in Article 21 turning into a dead letter with no legal effect at all, because Article 226 would be used to invoke these absolute natural rights to strike down any law.

Therefore, our social contract must be understood as a self-contained, all-encompassing source of enforceable rights. It must be clarified that the social contract in this regard has only chosen to enforce the right to life under Article 21.

By choosing to enforce Article 21 over the natural right to life, it does not reject the idea that the natural right to life exists. On this basis, as the text of Article 21 excludes the enforcement of the natural right to life, Article 226 of the Constitution cannot be used to enforce the same. Accordingly, it is asserted that the majority decision in ADM Jabalpur is correct in its holding.

The enduring importance of constitutionalism to justice

Despite making an argument for the legal correctness of this decision, it is still conceded that the decision marked a low for the Constitution and the apex court. Dr. B.R Ambedkar, the Chairman of the Drafting Committee of the Constitution, often spoke of the notion of Constitutionalism. This is an idea that exists outside the text of the Constitution and connotes the practice of Constitutional ideals to ensure there is justice, equality and fairness in society. This feeling and emotion of being willing to follow the principles of the Constitution was considered by Dr. Ambedkar to be essential for any polity.

If Constitutionalism does not inhere in the citizenry, no matter how perfect and fool-proof the Constitution, there is bound to be injustice. As a corollary, no matter how imperfect the Constitution, if the citizens exhibit the ideals of Constitutionalism, we as a nation will be in a much better place.

Lawyers and judges have certain legal duties, but before anything else they are citizens and people. It is only the spirit of Constitutionalism that can ensure there is justice ultimately. Therefore, a call has to be responsibly made at times to subject everything to this sense of justice, even the law.

Also read: “Constitutional democracy is one where majority will and rule are controlled and directed by constitutional principles”: Justice Venkatachaliah

There have been innumerable occasions where the Supreme Court has been called upon to decide on important issues affecting civil/human rights in this manner. On some of them, despite the text of the law saying one thing, the Court practiced constitutionalism to strengthen and protect the rights of citizens.

To give but two examples: The judgment in Maneka Gandhi vs. Union of India (1978) reintroduced substantive due process in Article 21 despite every textual indication against it. Later, Vishaka & Ors. vs. State of Rajasthan & Ors. (1997) famously laid down a set of detailed guidelines to protect women from sexual harassment at the workplace.

In this context, ADM Jabalpur ought to be considered one of the darkest days of the Supreme Court. The legal nuances aside, the Court failed to imbibe constitutionalism in its approach and attitude. It forgot that law is only the means to an end, and not an end in itself.

(Pradhyuman Singh is a final year law student, completing his B.A LL.B (Hons.) from Gujarat National Law University, Gandhinagar. The views expressed are personal.)