In England it was the practice in times of danger to the State to pass what were popularly known as Habeas Corpus Suspension Acts. Suspension did not legalize illegal arrest; it merely suspended a particular remedy in respect of particular offences.
The House of Lords took the view that the power to detain could not be controlled by the Courts. Considerations of security forbade proof of the evidence upon which detention was ordered. It was sufficient for the Home Secretary to have a belief which in his mind was reasonable.
The suspension, indeed, of The Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State. While the suspension lasts, he will not be able to get himself discharged from prison. If the prisoner has been guilty of no legal offence then on the expiration of The Suspension Act the Secretary of State and his subordinates are liable to actions or indictments for their illegal conduct.
Unsuitability of a Court of Law for determining matters of discretionary policy was referred to by Lord Parker in The Zamora Case and Lord Finlay in The Zadiq Case. In the Liversidge Case, it was held that the Court is not merely an Inappropriate Tribunal, but one the jurisdiction of which is unworkable and even illusory in these Cases. A Court of Law could not have before it the information on which the Secretary acts still less the background of statecraft and national policy.
There is no record of any life of an individual being taken away either in our country during Emergency or in England or America during Emergency in their countries. It can never be reasonably assumed that such a thing will happen. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.
The opinion in England has been that when danger is imminent, the liberty of the subject is subordinated to the paramount interests of the State. Ring leaders are seized and outrages anticipated. Plots are disconcerted, and the dark haunts of conspiracy filled with distrust and terror.
While the Courts of Law are in normal tunes peculiarly competent to weigh the competing claims of Individuals and Government, they are ill equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an Emergency. Neither are they equipped, once an Emergency has been recognized particularly a War Emergency or Emergency on account of security of the Country being threatened by internal aggression to measure the degree to which the preservation of the life of the community may require Governmental Control of the activities of the Individual. Jurists do not have the vital sources of information and advice which are available to the Executive and the Legislature.
The supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula. Aristotle, pointed out that the rigid certainty of law is not applicable to all circumstances. This plea would be echoed by the modern administrator called upon to deal with the ever changing circumstances.
Material and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administration. The file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question. The Court cannot insist on the production of the file or hold that the Case of the Detenu stands unrebutted by reason of such non-disclosure. To hold otherwise would be to induce reckless averments of mala fides to force production of the file which is forbidden by law.
“Counsel after Counsel expressed the fear that during the Emergency, the Executive may whip and strip and starve the Detenu and if this be our Judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a Diamond-Bright, Diamond-Hard hope that such things will never come to pass.”
– Hon’ble Justice Y.V. Chandrachud, ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.