Justice HR Khanna’s dissent in the Emergency’s infamous ADM Jabalpur case still resonates

The ADM Jabalpur case remains a dark chapter in the history of the Supreme Court of India.

After the Emergency was revoked, the Shah Commission, appointed in 1977 to inquire into its excesses, said 1,10,806 persons were arrested, tortured and imprisoned. When the State had turned oppressor, the obvious hope lay with the judiciary. So, during Emergency families and supporters of detained persons started filing writs of Habeas Corpus in various high courts, challenging the illegal detention and seeking the release of detainees.

As highlighted in the book titled ‘Nani Palkhivala The Courtroom Genius’, authored by Soli J Sorabjee  and Arvind P Datar: “The High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan had held that even though Article 359 suspended enforcement of Articles 14, 21 and 22, the High Courts were entitled to examine the orders of detention and see whether they complied with the mandatory provisions of the Maintenance of Internal Security Act, 1971 (MISA), or whether the orders were mala fide or based on irrelevant material.”

Nani Palkhivala doesn’t appear in Supreme Court

But the government was in no mood to cede any ground, and appealed in the Supreme Court against the High Court decisions. All the cases were clubbed together as ‘ADM Jabalpur vs Shivakant Shukla’. With so many High Courts ruling in favour of detainees to the extent of their right to seek relief from the courts, it was thought that it was an “open and shut case”. It was thought that judgment would be in favour of people.

Soli J Sorabjee and Arvind P Datar narrate an incident that shows how even the best legal mind at that time failed in his judgment.

The authors recount that when the case came up for hearing, a galaxy of prominent advocates appeared before the Supreme Court. However, Nani Palkhivala, who was well-known as a pre-eminent counsel in constitutional law and a popular defender of liberty, was absent. He was the one who had appeared successfully for Ram Jethmalani before the Bombay High Court during the Emergency. So, why did he not appear in this case? The reason behind his absence was that Palkhivala was sure that “there was no way that the Supreme Court would allow the appeals of the Government especially after seven High Courts had delivered well-reasoned decisions in favour of the citizen”.

Sorabjee and Datar write: “His view was that it was an open and shut case and nothing would be gained by his appearing before the Supreme Court. Palkhivala felt that Chief Justice Ray and Justice Beg would possibly hold in favour of the Government. He was completely confident about Justice Chandrachud and Justice Bhagwati holding in favour of the citizen. Indeed, ironically, he felt that it was Justice HR Khanna who could be the ‘dark horse' but could be persuaded to dismiss the appeal and uphold the right to liberty.”

Travesty of justice

The judgment was delivered on 28 April 1976. The court, by a majority of 4:1, held:

1. Article 359 not only prohibited the enforcement of Articles 14, 21 and 22, but also barred a person detained from approaching the High Court to question his detention on any ground whatsoever.

2. Liberty is the gift of law and can be forfeited by law.

3. Once a presidential order is passed under Article 359, there is a complete bar on any person moving the court for violation of Articles 14, 19 and 21.

4. During the Emergency, no person can question his detention for any reason whatsoever or on the ground that it is illegal or malafide.

The majority held that the Supreme Court was not competent to examine the question of mala fides or the character of the order of detention.

The judgment was a complete mockery of every cherished principle that guided the framers of the Constitution. It was a travesty of justice of the highest order, and it was facilitated by none other than the four most important men tasked with securing the rights of the citizens.

During the hearing of the case, Attorney-General Niren De was asked by Justice HR Khanna if a police officer, because of personal enmity, killed another man, would there be any remedy. Justice Khanna in his autobigraphy titled ‘Neither Roses, Nor Thorns’ writes, “The answer of Mr De was unequivocal: "Consistently with my argument", he said, "there would be no judicial remedy in such a case as long as the Emergency lasts", and he added, "It may shock your conscience; it shocks mine, but consistently with my submissions, no proceedings can be taken in a court of law on that score.”

This blatant admission reflected the State’s utter arbitrariness and disregard for the rule of law during the Emergency. However, it did not stop four of the senior-most judges of India’s top constitutional court from giving a judgment favouring the government.

While this was the most shocking part of the hearing, what remains as the most embarrassing part of the judgment was Justice Beg’s remarks. He said, “We understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal.  Even parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.”

Who fared worse, the Executive or judiciary?

What followed this judgment was another dark chapter in the history of the Supreme Court and Indian democracy. Justice HR Khanna had to pay a heavy price for his dissent. He was superseded for the position of Chief Justice of India (CJI), and Justice M.H. Beg was appointed the CJI. While the government decision to supersede Justice Khanna was obvious, the acceptance of the post by Justice Beg without any hesitation shows that the apex court failed its citizens both at the institutional and at the individual level in those testing times.

The ADM Jabalpur case remains a dark chapter in the history of the Supreme Court of India. Yet, amidst this institutional failure, one man stood tall—Justice H.R. Khanna. At a time when his fellow judges chose to bow to the might of the government, Justice Khanna stood firm, defending the Constitution and individual liberty. His lone dissent did not merely salvage the dignity of the judiciary—it elevated it. He was the one truly deserving of leading the institution he so courageously upheld.

Nani Palkhivala, in a glowing tribute published in The Indian Express, captured the depth of Justice Khanna’s contribution and achievement. He wrote: “In deciding the habeas corpus matter as he did, H.R. Khanna played a memorable role at the most critical juncture in our history. Generations unborn will admire his historic judgment as a shining example of judicial integrity and courage and cherish it for the abiding values it embodies. H.R. Khanna has the priceless inner satisfaction of feeling that he has lived above the fog in public duty and in private thinking. When he pronounced his glorious dissent in the habeas corpus case, the New York Times remarked that surely a statue would be erected to him some day in an Indian city. His real monuments are his rulings upholding the basic structure of the Constitution and the citizen’s right to his life and personal liberty. To the stature of such a judge, the Chief Justiceship of India could have added nothing.”