Author: Aditya Srivastava, United University, Prayagraj
Linkedin Profile: https://www.linkedin.com/in/aditya-srivastava-67368a303
To the Point
The Supreme Court’s controversial decision in ADM Jabalpur v. Shivkant Shukla (1976) validated the suspension of fundamental rights during the Emergency. His principled dissent, long dismissed, was resurrected in Justice K.S. Puttaswamy v. Union of India (2017), where the Supreme Court acknowledged the right to privacy as a fundamental right and explicitly overruled ADM Jabalpur, marking a constitutional course correction.
Abstract
The ADM Jabalpur v. Shivkant Shukla (1976) judgment remains one of the most controversial and widely criticized decisions in Indian constitutional jurisprudence. Delivered during the Emergency imposed by the Indira Gandhi government, the majority of the Supreme Court held that the right to life and personal liberty under Article 21 of the Constitution was effectively inactive and could not be upheld in court. This decision effectively placed the executive’s authority above the Constitution and sanctioned a period of authoritarian excess. However, in this climate of judicial submission, one judge — Justice Hans Raj Khanna — dissented. His opinion upheld the supremacy of constitutional values, the inviolability of natural rights, and the principle of the rule of law. He argued that even in the absence of Article 21, no individual could be deprived of life or liberty without the authority of law, thus grounding his view in the concept of inalienable human rights and the basic structure of the Constitution.
Decades later, in Justice K.S. Puttaswamy v. Union of India (2017), a nine-judge bench of the Supreme Court resurrected and embraced Justice Khanna’s dissent. The Court unanimously declared that the Right to Privacy is a fundamental right under Part III of the Constitution, inherently protected under Articles 14, 19, and 21. In doing so, the Court explicitly overruled the majority in ADM Jabalpur, characterizing it as a grave constitutional mistake. Justice D.Y. Chandrachud, writing the leading opinion, observed that ADM Jabalpur was an embarrassment to constitutional democracy and lauded Justice Khanna’s dissent as “the voice of the Constitution.”
This article examines how a solitary dissent, once ignored and punished, became the foundation of a transformative constitutional moment in Indian democracy. It traces the historical, legal, and philosophical underpinnings of both the ADM Jabalpur and Puttaswamy decisions, analyzes how Khanna’s reasoning aligns with the principles of constitutional morality, and explores how dissent can safeguard democratic values against majoritarian excesses.
Justice Khanna’s dissent is more than a legal opinion — it is a profound affirmation of the idea that fundamental rights are not mere concessions of the state but are intrinsic to the human condition. Its revival in Puttaswamy stands as a reminder that while majority opinions may shape law, it is often the dissenting voice that preserves justice.
Use of Legal Jargon
Habeas Corpus: • A legal order to free someone from illegal confinement.
Article 21: Protection of life and personal liberty.
Article 359: Suspension of enforcement of fundamental rights during Emergency.
Ratio Decidendi: The legal reasoning behind a judicial decision.
Obiter Dicta: Incidental remarks made by a judge, not binding as precedent.
Basic Structure Doctrine: A judicial principle that certain fundamental features of the Constitution cannot be altered.
Judicial Review: The power of courts to examine the constitutionality of legislative or executive actions.
The Proof
Background of ADM Jabalpur (1976):
The case arose during the proclamation of Emergency (1975–77) under Article 352. The central question was: Could a detainee approach the High Court under Article 226 for a writ of habeas corpus when Article 21 and other rights were suspended under Article 359?
The Majority Judgment:
Four out of five judges (Ray, Beg, Chandrachud, Bhagwati) ruled:
During Emergency, no remedy existed for unlawful detention.
Right to life and liberty becomes non-justiciable.
The executive’s action could not be challenged for want of legality during suspension.
Justice H.R. Khanna’s Dissent:
Justice Khanna held:
Article 21 embodies natural law, and even its suspension cannot erase the right to life.
His judgment declared that even in absence of Article 21, no state has power to deprive life or liberty without law.
His dissent went unheeded at the time but became a defining moral statement in India’s constitutional jurisprudence.
Case Laws
1. ADM Jabalpur v. Shivkant Shukla (1976) AIR 1976 SC 1207
Issue: Whether fundamental rights, especially under Article 21, can be enforced during an Emergency.
Held: Majority held that they cannot be enforced; Justice H.R. Khanna dissented.
2. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
Issue: Whether Right to Privacy is a fundamental right under the Constitution.
Held: Privacy is a part of personal liberty under Article 21.
Relevance: Reversed ADM Jabalpur and supported Justice Khanna’s dissenting opinion.
3. Maneka Gandhi v. Union of India (1978) 1 SCC 248
Held: The process described in Article 21 must be “fair, just, and reasonable.”
Impact: Expanded the scope of personal liberty; built upon Khanna’s logic.
4. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
Doctrine: Basic Structure Doctrine.
Relevance: Justice Khanna was a key contributor; set the tone for the inviolability of rights.
Conclusion
The journey from ADM Jabalpur (1976) to K.S. Puttaswamy (2017) is not merely one of legal reversal; it is a profound transformation in India’s constitutional ethos. The ADM Jabalpur verdict is often remembered not for the majority’s reasoning but for Justice H.R. Khanna’s lonely and courageous dissent — a dissent that has since evolved into the moral compass of Indian constitutional law.
At the heart of this transformation lies a fundamental question: Can the state override the individual’s right to life and liberty, even during extraordinary times? The majority in ADM Jabalpur shamefully answered in the affirmative, subordinating civil liberties to executive expediency. Justice Khanna, however, stood on the side of history, asserting that no authority — not even the state — can extinguish the inherent dignity and liberty of the individual. His dissent underscored that rights are not gifts from the state but are inalienable and universal, grounded in natural law and constitutional conscience.
Puttaswamy marked a constitutional renaissance. The nine-judge bench not only recognized the Right to Privacy as a fundamental right but also acknowledged the historical error of ADM Jabalpur. In doing so, the Court effectively canonized Justice Khanna’s dissent, referring to it as a “beacon of light in the darkest hour.” This was not just symbolic. It was a long-overdue institutional apology to the people of India and a reaffirmation of the core principles of liberty, dignity, and the rule of law.
The implications of this judicial correction go beyond privacy. It reflects a mature and introspective judiciary that is willing to correct its past mistakes and protect constitutional rights even in the face of overwhelming state power. It sets a precedent that no government — regardless of political mandate — can erode individual freedoms with impunity. This shift also reinstates the idea that judicial dissent is vital in a democracy; that disagreement within the judiciary can serve as the foundation for future consensus.
Moreover, the legacy of Justice Khanna is now part of India’s constitutional identity. He forfeited the role of Chief Justice by prioritizing judicial integrity over personal gain — a remarkable display of moral bravery in a time when the judiciary was yielding to political influence. Today, law students, scholars, and judges alike study his dissent not just as legal doctrine, but as a lesson in judicial ethics, constitutional fidelity, and human rights.
In a democratic society governed by a written constitution, the role of the judiciary is not to echo the voice of power but to protect those without power. Justice Khanna did just that. And in doing so, he reminded us that even a lone voice can echo through time and reshape the destiny of a nation.
Let this reaffirmation in Puttaswamy not be the end of that journey but a renewed beginning — where the Constitution remains the ultimate shield against tyranny.
FAQS
Q1. What was the ADM Jabalpur case about?
It concerned whether a person detained during the Emergency could file a writ petition under Article 226 to challenge the legality of their detention, given the suspension of Article 21.
Q2. What was the position of the majority in ADM Jabalpur?
The majority held that during the Emergency, no person had the right to approach the courts for enforcement of the right to life and liberty, even in cases of unlawful detention.
Q3. Why is Justice H.R. Khanna’s dissent important?
Justice Khanna was the only judge who held that life and liberty are inalienable, and even during Emergency, the State could not arbitrarily detain individuals. His opinion upheld the spirit of the Constitution and was later accepted as correct in Puttaswamy.
Q4. How did the Puttaswamy judgment respond to ADM Jabalpur?
The Puttaswamy judgment explicitly overruled ADM Jabalpur, stating that the majority judgment was flawed and that Justice Khanna’s dissent represented the true constitutional interpretation.
Q5. What is the significance of this in today’s legal context?
It establishes that even during emergencies, constitutional rights like liberty, privacy, and dignity remain protected.
