How the SC Judges’ Dissent Reminds us of Justice HR Khanna in 1975

Justice Khanna was the lone judge who stood for right to life and liberty in a case heard during the Emergency.

Justice HR Khanna. 

(Photo: The Quint)

While praising the public statement of the four senior Supreme Court judges, who said on Friday, 12 January, that the situation in the top court was "not in order" and many "less desirable things" have taken place, senior lawyer Vrinda Grover said that these developments reminded her of Justice HR Khanna.

So what did Justice HR Khanna do?

Justice Khanna served as a judge of the Supreme Court from 1971 till 1977, which included the infamous Emergency period. Today, he is noted in legal circles around the world for his dissenting view in the ADM Jabalpur v Shiv Kant Shukla case of December 1975, in which he stood for the fundamental rights – the right to life and liberty – against all odds.

The immediate context surrounding the ADM Jabalpur v Shiv Kant Shukla case was that during the Emergency leaders of Opposition parties were imprisoned under the preventive detention law. Writ petitions were filed to secure their appearance in court to challenge imprisonment.

However, the issue here was that since fundamental rights were suspended under Emergency, could a writ be filed to challenge the detention?

This is what came up for discussion in the ADM Jabalpur v Shiv Kant Shukla case.

The majority of the five-judge bench hearing the case ruled that no person imprisoned during an Emergency had the right to challenge their detention till the Emergency was lifted. This was seen as an instance of the apex court caving under government pressure and severely undermining individual rights and liberties.

Justice Khanna, however, was the lone dissenting judge in this case, upholding the cause of right to liberty and life. He wrote:

The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.

Justice HR Khanna

He also wrote about the significance of the rule of law.

Rule of law is the antithesis of arbitrariness. [It is accepted in all civilised societies.. it has come to be regarded as a mark of free society… it seeks to maintain a balance between the opposing notions of individual liberty and public order.]

Justice HR Khanna

This dissenting view ultimately cost Justice Khanna the post of the Chief Justice of India, despite him being the senior-most judge at the time.

In place of him, it was Justice MH Beg (one of judges who gave the majority judement in the ADM Jabalpur v Shivkant Shukla case) who was appointed the Chief Justice in January 1977. This decision led to a lot of backlash in the legal community and Justice Khanna ultimately resigned.