INTRODUCTION
“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” – Charles Evan Huges
This is the statement the Walls of the Hon’ble Supreme Court heard on April 28, 1976, and without any doubt, has been echoing, not only inside the walls of the Apex Court, but throughout the pillars of the Country. I can only think of one person, worthy of Comparison to Hon’ble Justice Hans Raj Khanna, the great revolutionary Fidel Castro. “Condemn me. It does not matter. History will absolve me.”, was the final words of defense in speech, “La historia me absolverá” (History Will Absolve Me), during his trial on October 16, 1953. Both of the statements stand as a testament that has stood the test of time and will continue to do so.
There are numerous tributes to Justice Hans Raj Khanna for his dissent in ADM Jabalpur v. ShivKant Shukla (1976), delivered during the Emergency, stands as a beacon of judicial courage and a defining moment for democracy. “Justice H.R. Khanna’s dissent was not just a judgment—it was a proclamation that liberty cannot be bargained away, not even in emergencies.”. At a time when the majority of the Supreme Court was bowing to executive pressure, Justice Khanna upheld the Supremacy of fundamental rights, proving that a single dissenting voice could resonate through time and shape the constitutional ethos of a nation. At a time when morals and basic human rights were hung outside the Court Rooms, there stood one man, who had his morals close to his heart, and chose to listen to it for one last time, knowing it would cost his Chief Justiceship.
“To the stature of such a man, the Chief Justiceship of India can add nothing.” – Nani A Phalkivala
In 1921, Lord Reading was appointed as the Viceroy of India. Soon after this, he came to Punjab. It was hardly 2 years after the Jallianwala Bagh Massacre. The Punjab Government wanted the Amritsar Municipal Committee to give a welcome address to Reading, as they thought that this would help in ensuring that the massacre left no scar in the minds of the people. This was seen as a key to eliminate the negative image of the colonisers in the country, a method that they practised frequently. Of the thirty members of the committee, only one voted against the welcome address despite all the pressure, and boycotted the same. He was Sarb Dyal Khanna, father of Justice H.R.Khanna.
JUDGE OF SUPREME COURT OF INDIA
Justice HR Khanna was elevated as the Judge of the Supreme Court on the 21st of September, 1971. The first case he presided over was a car pricing case. The Car Manufacturers were represented by Nani A Palkhivala and the Union were represented by Niren De, The Attorney General for India at that time. Years went by and arrived the landmark Keshavananda Bharati which was to be adjudicated upon by a 13 Judge Bench headed by the Chief Justice Shri SM Sikri. The Case was argued for almost 68 days and it was a close verdict of 7-6. This led to the “Doctrine of Basic Structure”.
ADM JABALPUR
On 26.10.1962, the first Emergency was declared by the Indira Gandhi Government, invoking powers vested under Article 352 of the Constitution remained in force during the Indo-Pakistan conflict in 1965 and was revoked on January 10, 1968. A Second Emergency was declared on 3rd December 1971 when Pakistan attacked India,on the grounds that there was a security threat to India due to an “external disturbance”. While the Second Emergency was still in operation, the President declared Third Emergency on 25/26 June, 1975 on the ground that security of India was threatened due to “internal disturbance”. One of the grounds mentioned in Article 352 of the Constitution for declaration of Emergency prior to 44th Constitutional Amendment was “internal disturbance”. The words “internal disturbance” were substituted by the words “armed rebellion” by the 44th Constitutional Amendment. On June 27, 1975 the President issued an Order under Article 359(1) of the Constitution declaring that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 would remain suspended for the period during which the Proclamation of Emergency made under Clause (1) of Article 352 on the 3rd December, 1971 and 25th June, 1975 would remain in force.To this day, this stands as a definitive example of how the rights of the common man are wielded at the discretion of those in power, often to the detriment of justice and equity.
After the imposition of the Third Emergency, number of persons were detained under the Maintenance of Internal Security Act, 1975 (MISA). The State raised a preliminary objection that in view of suspension of the detenus right to enforce any of the rights conferred by Articles 14, 21 and 22 of the Constitution by the Presidential Order dated 27th June, 1975 issued under Article 359 of the Constitution and in view of the automatic suspension of Article 19 of the Constitution by virtue of Article 358 of the Constitution, there was a bar at the threshold for the detenus to invoke the jurisdiction of the High Court under Article 226 of the Constitution and ask for writs of habeas corpus.
The political atmosphere of the Country began to surface after this incident. The High Courts declined to hear matters related to emergency. The State filed appeals before the Supreme Court and the matters were heard before a Five-Judge Bench of the Supreme Court (AN Ray CJ, MH Beg J, YV Chandrachud J, PN Bhagwati J & HR Khanna J). The issue before the Court was whether an order issued by the President under Article 359(1) of the Constitution suspends the right of every person to move any Court for the enforcement of the right to personal liberty under Article 21 upon being detained under a law providing for preventive detention?
During the hearing, Justice Khanna posed a fundamental question: “Mr. Attorney, let me ask you a simple question. Suppose a police officer, for reasons best known to him, eliminates an innocent man. Would there be any remedy available to the victim’s family under the law?” Niren De’s response was as shocking as it was unsettling: “My Lord, during the Emergency, no person has the locus standi to move a writ petition before a High Court for habeas corpus or any other remedy. The right to life itself is suspended.”
A stunned silence gripped the courtroom. The assertion that the government could extinguish life without legal consequences was alarming even to the most ardent defenders of state authority. Justice Khanna, refusing to back down, pressed further: “But surely, Mr. Attorney, even in the absence of Article 21, the right to life is inherent in every individual. It is the most fundamental of all rights.”
However, Niren De remained resolute, replying, “My Lord, once Emergency is proclaimed under Article 352 and rights under Article 21 are suspended under Article 359, no individual can claim the right to life before a court of law.” Justice Khanna, his voice unwavering, posed the final and most damning question: “Then, Mr. Attorney, do you mean to say that even if the executive orders the cold-blooded murder of a citizen, there is no judicial remedy available?” Without hesitation, Niren De responded, “Yes, My Lord. The law does not recognize any remedy in such a case. The courtroom remained in stunned disbelief. With this exchange, the fundamental question of whether the state could act without any legal restraint in an Emergency was laid bare. Four Judges of the Bench constituting majority in their separate Judgments laid down the Doctrine of Article 21 being the Sole Repository of the Right to Life and Personal Liberty, while Justice H.R. Khanna, in his dissent, laid down the Doctrine of Inalienable and Natural Right to Life and Personal Liberty.
The Majority decision, in essence, was that Article 21 of the Constitution was the sole repository of the Right to Life and Personal Liberty, and therefore, on whatsoever ground the detention were to be challenged, the same in effect amounted to enforcement of Article 21 of the Constitution, and as the enforcement of Article 21 was suspended, the detention could not be questioned on any ground whatsoever. This is the Doctrine of Article 21 being Sole Repository. Thus, Chief Justice A.N. Ray. concluded that in view of the Presidential Order dated 27 June, 1975 under clause (1) of Article 359 of the Constitution, no person had locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order of direction to enforce any right to personal liberty of a person detained under MISA on the grounds that the order of detention or the continued detention was for any reason not under or in compliance with MISA or was illegal or malafide. It was further concluded that Article 21 was the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus was enforcement of Article 21 and, was, therefore, barred by the Presidential Order. Justice M.H.Beg. expressed the view that the whole object of guaranteed Fundamental Rights was to exclude another control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there. The intention could never be to preserve something concurrently in the field of Natural Law or Common Law. Beg, J. further opined that anything of the nature of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution, was suspended. The High Court could not enquire into the validity of vires of detention order on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in Habeas Corpus proceedings.Justice Y.V Chandrachud opined that the right to personal liberty was the right of the individual to personal freedom, nothing more and nothing less. That right along with certain other rights was elevated to the status of a fundamental right. It therefore did not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution, either by way of a natural right, statutory right, common law right or a right available under the law of torts. Whatever might be the source of the right and whatever might be its justification, the right in essence and substance was the right to personal liberty. That right having been included in Part III of the Constitution, its enforcement would stand suspended if it was mentioned in the Presidential Order issued under Article 359(1) of the Constitution. Justice P.N.Bhagwati expressed the view that when the principle of rule of law that the executive could not deprive a person of his liberty except by authority of law, was recognised and embodied as a fundamental right and enacted as such in Article 21 of the Constitution, it was difficult to comprehend how it could continue to have a distinct and separate existence, independently and apart from the said Article in which it had been given constitutional vesture. Therefore, the principle of rule of law, that the executive could not interfere with the personal liberty of any person except by authority of law, was enacted in Article 21 of the Constitution and it did not exist as a distinct and separate principle conferring a right of personal liberty, independently and apart from that Article. Consequently, when the enforcement of the right of personal liberty conferred by Article 21 was suspended by a Presidential Order, the detenu could not circumvent the Presidential Order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of rule of law. Bhagwati, J. accordingly concluded that the Presidential Order dated June 27, 1975 barred maintainability of a petition for a writ of habeas corpus where an order of detention was challenged on the ground that it was vitiated by Mala fides, legal or factual, or was based on extraneous considerations or was not in compliance with it. On the other hand, Justice H.R. Khanna in his dissenting judgment opined that Article 21 of the Constitution could not be considered to be the sole repository of the right to life and personal liberty. Every human being in a civilised society had an inalienable and natural right to life and personal liberty independent of Article 21 of the Constitution and, therefore, despite suspension of Article 21 in Emergency, a person could approach the High Court under Article 226 of the Constitution to challenge the legality of his detention. This is the Doctrine of Inalienable and Natural Right to Life and Personal Liberty. It was pointed out by H.R. Khanna, J. that the American Declaration Independence (1776) laid down that “all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness.” The right to life and personal liberty was the most precious right of human beings in civilised societies governed by the rule of law. Rule of law is the antithesis of arbitrariness. Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilised existence. Likewise, the principle that no one would be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one would be deprived of his life and liberty without the authority of law were essentially two facets of the same concept. Khanna, J. observed: “I am unable to subscribe to the view that when right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person’s life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of one’s life or liberty without the authority of law was not the creation of the Constitution. Such a right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such a right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article to be the sole repository of that right.” Khanna, J. further pointed out that as Article 226 was an integral part of the Constitution, the power of the High Court to enquire in proceedings for a writ of habeas corpus into the legality of the detention could not be denied. He held“Recognition as fundamental right of one aspect of the pre constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from Article 359”.
The jurisprudence of his dissent stands as a clear testament to the undeniable truth that a man’s conscience will always find a way to surface. That which should have crowned Justice Khanna with laurels instead cast shadows upon his path, leading to his resignation soon after. After this dissent, he began to see changes in the Supreme Court. In his words :“After the Judgement I found a perceptible change in the attitude of some others. I was normally invited to the official dinners given by the External affairs Ministers to foreign dignitaries. Invitation for such dinners stopped thereafter. It was obvious that I had become in the eyes of the Government Persona non grata. I also came to know that a minister who was living opposite to our house had invited by batches all Judges of the Supreme Court Except me. Not that it mattered to me for I was generally reluctant to accept Invitations for dinner parties.It made me aware and conscious of a new type of attitude of the official circles towards me. Even at public functions some of the acquaintances would try to avoid me. I also learnt from one of my colleagues that he had been told by a minister that Khanna had burnt his boats as a result of that Judgement. The same thing was affirmed by another Judge, who had been my colleague in Delhi High Court and was Subsequently posted in Jammu and Kashmir. I in any case, was mentally prepared for all that”.
KS PUTTASWAMY
“A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights” – Dr DY Chandrachud J
In the Puttaswamy case, the Supreme Court largely addressed the right to privacy but also seized the moment to comment on the weaknesses of the ADM Jabalpur judgment. Justice D.Y. Chandrachud, in his majority judgment, overruled ADM Jabalpur, saying that it was basically flawed. He reiterated that life and personal liberty are inherent in human life and, as confirmed in Kesavananda Bharati, are natural rights under natural law. These rights are not conferred by the state nor are they brought into existence by the Constitution, rather they existed by the laws of nature itself. Sanctity of life is closely linked with human dignity, liberty, and freedom, and no enlightened nation can legally justify encroachment on life and personal liberty without legal jurisdiction. Justice Chandrachud continued to state that the right to life predated the Constitution and remained even under Article 372. While the Constitution, by acknowledging this right, does not render itself the sole source thereof, it would be ludicrous to imply that people, when embracing the Constitution, relinquished their fundamental rights—life, liberty, and freedom—to the state. This belief clashes with the fundamental tenet of the rule of law, which imposes constraints on state authority in issues related to individual freedoms.
The Court also emphasized the importance of the writ of Habeas Corpus, referring to it as a vital bulwark of the rule of law, placing emphasis on the effect of the Forty-Fourth Amendment to the Constitution, which amended Article 359. Due to this amendment, even in times of emergency, the President is no longer able to suspend the right to seek recourse to the courts for enforcement of fundamental rights under Articles 20 and 21.
CONCLUSION
The conflict between professional duties and Moral ethics has always been a subject of fascination.It takes courage for a man to first think that he remained truthful through the test of fire, and it demands even more courage to speak about the same in the public. On a fresh morning in 1977, the President’s office saw the letter of Resignation of Justice H.R Khanna.Democracy, Indeed, could not save one of its sincere sons. A few days after preparing the dissent draft, Justice Khanna, along with his family went to Haridwar. He sat on the banks of the Holy Ganges with his Sister and wife and told them that this dissent might cost him his Chief Justiceship. Like any rational human being, his mind started filtering all his memories in the bench when he made his final walk around corridors of the Hon’ble Supreme Court. He was definite about 2 things in his mind, his resignation decision and how he put morals even during the periods of Emergency.
Seervai, in his monumental treatise “Constitutional Law of India” had said. “If in this Appendix the dissenting judgment of Khanna J. has not been considered in detail, it is not for lack of admiration for the judgment, or the courage which he showed in delivering it regardless of the cost and consequences to himself. It cost him the Chief Justiceship of India, but it gained for him universal esteem not only for his courage but also for his inflexible judicial independence. If his judgment is not considered in detail it is because under the theory of precedents which we have adopted, a dissenting judgment, however valuable, does not lay down the law and the object of a critical examination of the majority judgments in this Appendix was to show that those judgments are untenable in law, productive of grave public mischief and ought to be overruled at the earliest opportunity. The conclusion which Justice Khanna has reached on the effect of the suspension of Article 21 is correct. His reminder that the rule of law did not merely mean giving effect to an enacted law was timely, and was reinforced by his reference to the mass murders of millions of Jews in Nazi concentration camps under an enacted law”. The right to life and personal liberty which inheres in the body of a living person is recognized and protected not merely by Article 21 but by the civil and criminal laws of India, and it is unfortunate that in the Habeas Corpus Case this aspect of the matter did not receive the attention which it deserved. Neither the Constitution nor any law confers the right to life. That right arises from the existence of a living human body. The most famous remedy for securing personal liberty, the writ of habeas corpus, requires the production before the court of the body of the person alleged to be illegally detained. The Constitution gives protection against the deprivation of life and personal liberty; so do the civil and criminal laws in force in India”. Hon’ble Justice H.R.Khanna, was, is, and always,will remain a true son democracy has ever had.
–This column is authored by S Mrinal & Aaditya Narayanan.V. They are currently pursuing LLB Course (4th Year) in SASTRA University