Legal World and Childhood Dreams

THE ISSUE BEFORE THE COURT

2026-08-30T15:51:05.574+05:30

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

THE HABEAS CORPUS CASE AT FIFTY:

The Emergency, the Court, and the Constitution

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

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

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

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

Rule of Law

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

Every executive action which acts to prejudice of a person must have the authority of law to support it. (See End Note-1)
Power conferred on the executive must be exercised in good faith and for the purpose it is conferred;
Anyone exercising power must not go beyond or outside the limits of the power conferred—it is known by its Latin name, ultra vires or beyond the powers; (Kindly see 'The Rule of Law' by Tom Bingham Part-II Chapter 6’ titled 'The Exercise of Power’)

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

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

The validity of any law could not be judged on the ground that it was in violation of Articles 14, 21 or 22, or of a law made during the Emergency in violation of Article 19.
After suspension of right to move the court for enforcement of Article 19, it also meant that the validity of a law (made at any time) could not be tested on the ground of Article 19 as well;
No Habeas Corpus could be filed for violation of Articles 14, 19, 21 & 22 in any court.

But this did not mean that a Habeas Corpus could not be filed in a High Court for violation of rule of law. This was, what we were doing at that time.

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

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

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

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

#ADMJabalpurVersusShivkantShuklz #TheHabeasCorpusCase #VKSChaudhary #VirendraBhaisaheb #Dadda #VirendraKumarSinghChaudhary #InternalEmergency #Emergency

THE HABEAS CORPUS CASE AT FIFTY

2026-08-21T05:49:07.376+05:30

As I then was
The Emergency, the Court, and the Constitution

How I Got Involved With The Case

Summary: This is a new series titled 'THE HABEAS CORPUS CASE AT FIFTY: The Emergency, the Court, and the Constitution'.

It is about ADM Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207: (1976) 2 SCC 521—the Habeas Corpus case. The case that closed the doors of liberty instead of opening them.

The Habeas Corpus case was decided on 28 April 1976. Fifty years have gone by. It is instructive to understand the point involved, the mood at that time, and its aftermath.

This is the First post of the series and explains as to how I got involved with the case.

THE HABEAS CORPUS CASE AT FIFTY:

The Emergency, the Court, and the Constitution

How I Got Involved with the Case।।

After obtaining my law degree in 1973, I started my practice in the Banda district court, where two of my uncles (Yogendra Kumar Singh Chaudhary and Gyanendra Kumar Singh Chaudhary) practised: one was a lawyer on the civil and revenue side, and the other on the criminal side.

After a year, I shifted to the Kanpur district court to practise with Barrister Narendra Jeet Singh. His wife had inherited property in Kashmir, and he used to visit there every year. At the end of a year, he invited me to spend the summer of 1975 in Srinagar, which I gladly accepted.

On the fateful night intervening 25–26 June—when the Internal Emergency was imposed. I was on the train (see End Note-1), on my way back to join my father's chamber at Allahabad.

My father, VKS Chaudhary (Virendra Bhai Saheb) (Dadda) was a senior advocate in Allahabad and a prominent RSS office-bearer. Our family and the family of Rajju Bhaiya (later to become the fourth Sar Sanghchalak of the RSS) were very close. We had our houses in the same compound. He used to come over to our house every day in the morning to read newspapers and often in the evening after attending Shakha.

Rajju Bhaiya went underground to fight against the tyranny.

My father was first arrested under Defence of India Rules (DIR) (see End Note-2). He was granted bail. We waited for him outside central Naini jail. The Sun set, darkness fell but my father did not come out.

Late night, we were sent a word that he was detained under Maintenance of Internal Security Act (MISA), equivalent to the present National Security Act (NSA).

We filed a Habeas Corpus petition for my father’s release. State raised a preliminary objection regarding its maintainability. The matter was referred to a five-judge bench. It was decided in our favour by four to one.

However, the State took matter to the Supreme Court. This is how my involvement started with the Habeas Corpus case—the case that would make HR Khanna J. the greatest judge ever to adorn the Bench of the Supreme Court, and for whose honour the New York Times remarked that a statue should be erected in every city in India.

My next post will be about the point involved in the case.

End Note-1: I had flown from Srinagar to Amritsar, where daughters of Barrister Saheb lived. I stayed there for a night and took a train to Delhi and caught overnight train to Allahabad. To best of my recollection, it was Delhi Howrah mail

End Note-2: RSS was banned on 4th July 1975. On the morning of the same day, my father was also arrested. I was not present in the house on that day but had gone to Shahdol, MP for naming ceremony (नामकरण संस्कार) of my niece. After the ceremony was over, my mother informed me that police had come around 6am and surrounded the house. They were courteous and permitted my father finish his daily routine and breakfast. They took him away around 9:30am.

#ADMJabalpurVersusShivkantShuklz #TheHabeasCorpusCase #VKSChaudhary #VirendraBhaisaheb #Dadda #VirendraKumarSinghChaudhary #InternalEmergency #Emergency

'ARE YOU A NORMAL JUDGE' - PUBLISHED

2026-08-07T16:20:41.090+05:30

This post is about my new Book 'Are You A Normal Judge? – On Law and Other Things.

I am happy to share that my book Are You a Normal Judge? – On Law and Other Things has now been published and is available on Amazon and Flipkart.

Drawing upon more than five decades as a lawyer, judge, teacher, and now, after retirement, once again as a lawyer, I have shared experiences, courtroom stories, historical episodes, reflections on the judiciary, and lessons learnt along the way. The book is written not only for lawyers and judges, but also for law students and anyone interested in law, justice, and public life.

Whatever little I have learnt in my professional journey, I have tried to pass it on to the next generation.

The title was inspired by a question asked many years ago after I delivered a talk at an International Conference on Open Source Software and Intellectual Property Rights. During the tea break, a young lady hesitantly asked me:

"Sir, are you a normal judge?"

Surprised, I asked, "Do I look abnormal?"

She nervously replied that she wanted to know whether judges normally dealt with subjects such as the one I had spoken about that day, or whether they banged gavels, shouted, "Order! Order!", and sentenced people to death—as they are often portrayed in films.

Her innocent question stayed with me. Years later, it became the title of this book.

The royalties from the book have been dedicated to the Krishna Virendra Trust, an educational charitable trust established in memory of my parents.

I hope readers will find in these pages something useful, something thought-provoking, and perhaps, at times, something to smile about.

If you happen to read the book, I would be delighted to know what you think. Your comments and feedback would be most welcome.

#Law #LawCourt #History #AreYouANormalJudge

Legal World and Childhood Dreams

THE ISSUE BEFORE THE COURT

THE HABEAS CORPUS CASE AT FIFTY:

The Emergency, the Court, and the Constitution

THE HABEAS CORPUS CASE AT FIFTY

As I then wasThe Emergency, the Court, and the Constitution

How I Got Involved With The Case

THE HABEAS CORPUS CASE AT FIFTY:

The Emergency, the Court, and the Constitution

'ARE YOU A NORMAL JUDGE' - PUBLISHED

As I then was
The Emergency, the Court, and the Constitution