Justice HR Khanna, the lone sentinel of liberty during Emergency

On June 25, 1975, democracy in India entered a dark tunnel. Indira Gandhi’s government declared a state of Emergency, suspending fundamental rights, detaining political opponents and gagging the press. Among the many institutional capitulations during this period, perhaps the most devastating came from the judiciary itself. In the landmark Additional District Magistrate (ADM), Jabalpur vs Shivkant Shukla case of 1976, the Supreme Court delivered a judgment that remains a black mark on India’s constitutional history. Yet, even in that moment of collective judicial failure, one judge chose courage over compliance — Justice Hans Raj Khanna.

The case arose from a series of habeas corpus petitions filed in several high courts across the country by individuals detained under the Maintenance of Internal Security Act (MISA), a draconian law that permitted preventive detention without trial. The central question before the five-judge Constitution Bench of the Supreme Court was stark: could a citizen, detained without trial during the Emergency, approach the court for enforcement of their fundamental right to life and personal liberty under Article 21 of the Constitution?

Four judges — Chief Justice AN Ray and Justices MH Beg, YV Chandrachud and PN Bhagwati — ruled in favour of the state. Their majority verdict held that during the Emergency, when the President had issued a proclamation under Article 359 suspending the enforcement of fundamental rights, no person had the locus standi to move any court for violation of the right to life and liberty. That is, if the state took away a person’s liberty arbitrarily — or even their life — the courts were powerless to intervene. This judgment effectively left the citizen at the mercy of the executive.

In dissent, Justice HR Khanna penned what would become one of the most celebrated and morally powerful judgments in Indian legal history. He held that the right to life and personal liberty is not merely a creature of Article 21 but it is a basic human right derived from the principles of natural justice and the common law tradition. In a democracy governed by the rule of law, he argued, no authority could deprive a person of life or liberty without the sanction of law, Emergency or not. Justice Khanna’s judgment stated: “Even in the absence of Article 21, the State has no power to deprive a person of his life or personal liberty without the authority of law.”

He invoked not just constitutional interpretation but also the moral foundations of law itself. For him, to accept otherwise would be to legitimise totalitarianism.

Justice Khanna was under no illusion about the consequences of his dissent. In his autobiography Neither Roses Nor Thorns, he recalls telling his sister, “I have written my judgment — and I know it will cost me the Chief Justiceship of India.” At the time, the convention was that the seniormost judge would become the Chief Justice of India. But by delivering this judgment, he knowingly sacrificed his chance to head the judiciary. As expected, the government superseded him, appointing Justice Beg — who had ruled in the majority — as the next Chief Justice in 1977. Khanna resigned soon after.

His dissent, however, endured far beyond his tenure. Over time, the ADM Jabalpur judgment has been universally condemned, even by those who wrote it. In interviews given later in life, Justice PN Bhagwati, one of the majority judges in the ADM Jabalpur case, acknowledged: “I was wrong. Justice Khanna was right… It was an act of great courage and character.”

Justice DY Chandrachud, son of one of the majority judges, formally overruled the judgment in the Puttaswamy privacy verdict in 2017, calling ADM Jabalpur a “deeply flawed” ruling. The verdict said, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence… Justice Khanna was right; not the majoritarian view.”

Former Attorney General for India Soli J Sorabjee has also recognised Justice Khanna’s dissent as “one of the finest moments in the history of our judiciary. It immortalised him. The others are forgotten.”

Khanna’s stand becomes even more remarkable when placed in context. At a time when Opposition leaders were in jail, the media was muzzled and institutions had collapsed under executive pressure, Khanna refused to cede the judiciary’s role as the last protector of individual liberty. His statement at his farewell from the Supreme Court remains etched in memory: “There can be no greater indication of the decay in the rule of law than a docile Bar, a subservient judiciary and a society with a choked or coarsened conscience.”

Justice Khanna’s legacy is not just about a dissenting opinion in one case. It is about the moral strength of the judiciary in a democracy, especially when the Constitution is threatened not by external forces, but by those meant to uphold it. His earlier role in the Kesavananda Bharati case, which enshrined the doctrine of the ‘Basic Structure’ of the Constitution, had already affirmed his commitment to constitutionalism. But in ADM Jabalpur, he stood utterly alone and, that solitary stand made all the difference.

In today’s India, where questions about institutional independence, civil liberties and judicial courage still surface, Khanna’s example teaches that the judiciary’s strength lies not in numbers or hierarchy, but in the willingness to uphold justice against power, even when it is politically inconvenient or personally costly.

With dissent today being increasingly viewed as disloyalty and critics of the government often facing legal reprisals, arrests or social vilification, his stance underscores that the right to question authority lies at the heart of a constitutional democracy. When institutions yield to executive pressure and the space for civil liberties shrinks, Khanna’s example shows that it is possible, and necessary, to uphold the rule of law and fundamental freedoms, even in the face of overwhelming power and personal cost.

To dissent in solitude requires far greater strength than to concur in chorus.

Harvinder Khetal is Assistant Editor, The Tribune.

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