We may recall the Constitution Bench Judgment of this Court in Additional District Magistrate, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 where Majority of the Judges had taken the view that after proclamation of Emergency under Article 352, no proceedings can be initiated for enforcement of right under Article 21. Justice A.N. Ray, C.J., with whom Three other Hon’ble Judges have concurred, in Paragraph 136 and Paragraph 137 laid down following.
Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a Writ of Habeas Corpus is enforcement of Article 21 and is barred by the Presidential Order [June 27, 1975].
Three-Judge Judgment of this Court in Union of India v. Bhanudas Krishna Gawde, (1977) 1 SCC 834 took the same view following the Majority of this Court in ADM, Jabalpur.
Article 359 was amended by The Forty-Fourth Constitutional Amendment Act, 1978. The sting of the Judgment of this Court in ADM, Jabalpur and retrograde steps taken in respect of right protected under Article 21 was, thus, immediately remedied by the Parliament.
We may notice that the Constitution Bench Judgment of this Court in ADM, Jabalpur has been formally over-ruled by Seven-Judges Constitution Bench Judgment in K.S. Puttaswamy, (2017) 10 SCC 1.
– Hon’ble Justice Ashok Bhushan, S. Kasi v. State, [Criminal Appeal No. 452 of 2020].