Part III — The public power that serves it
The Brooding Spirit of the Law
A documented case, told from the judgments of India's Supreme Court and the amendment that answered them.
On 27 June 1975 India's President made an order under the Constitution's emergency provisions. People held in preventive detention went to the High Courts for habeas corpus, the old writ that makes a jailer justify a detention. On 28 April 1976 the Supreme Court decided, by four judges to one, that while the order was in force nobody had standing to ask for the writ to challenge a detention order, even on the ground that the order was illegal or made in bad faith. The writ remained; the right to use it was suspended.[1]
Justice H. R. Khanna dissented. Even without the constitutional article on life and liberty, he wrote, the State has no power to deprive a person of life or liberty without the authority of law. He closed his opinion with an appeal to the brooding spirit of the law.[2]
Parliament answered three years later. The Forty-fourth Amendment, assented to on 30 April 1979, provided that an emergency order can no longer suspend the right to go to court to enforce the rights to life and personal liberty, and narrowed the grounds on which an emergency may be proclaimed. Its statement of objects said the change was meant to put the right to life and liberty on a secure footing.[3]
Part III is about public power: who answers for it, how its offices are built and checked, the vote, what an office may keep about a person, what a crisis may and may not change, how a person is heard, and how the rules themselves change. Each chapter asks what an office may do, who may challenge it, and what no office may suspend. The design has no power to suspend a right in an emergency, and a court's door stays open whatever order is in force.
Notes
Additional District Magistrate, Jabalpur v. S. S. Shukla, Supreme Court of India, 28 April 1976, (1976) 2 SCC 521, majority order; Indian Kanoon. The Court held that the presidential order suspended the right to move the courts to enforce the article on life and liberty, so detainees lacked standing; it did not abolish the writ. The majority also upheld section 16A(9) of the Maintenance of Internal Security Act. ↩︎
The same judgment, Khanna J dissenting, headnote at [266 F, 302 H] and the closing passage at [304 G]. ↩︎
The Constitution (Forty-fourth Amendment) Act, 1978, s. 40, amending article 359, and the Statement of Objects and Reasons, paras 6 and 8; Legislative Department, Government of India. The Act is titled 1978 and was assented to on 30 April 1979. ↩︎