What Khanna saw: the lone dissent that outlived the Court that wrote it

Half a century after ADM Jabalpur, Justice H.R. Khanna's solitary dissent reads less like a counterargument and more like the only judgment that survived. A reconstruction of what he refused to concede, and why his colleagues refused with him.

By the time the case reached the Supreme Court the country had been under the Emergency for nine months. Habeas corpus petitions filed by detenus across the country had been allowed by nine High Courts. The Union appealed to the Supreme Court asking, in substance, whether a person whose right to life had been suspended by Presidential Order under Article 359 could approach a court at all to test the lawfulness of his detention. Four judges said no. The fifth said the question answered itself.

The fifth was Justice Hans Raj Khanna. His dissent runs to roughly forty thousand words. The line that survives is much shorter, and it is not, in the strictest sense, the holding. It is the premise.

The case the Court was asked to decide

The detenus had been held under the Maintenance of Internal Security Act, 1971. Their petitions before the High Courts argued the detentions were either without jurisdiction or in mala fide exercise of power. The High Courts, almost uniformly, held the petitions maintainable: the Presidential Order suspended the right to move a court for enforcement of fundamental rights, but did not abolish the writ of habeas corpus, which long predated the Constitution and rested on the duty of a court to ask why a person was being held.

The Union’s appeal asked the Supreme Court to disagree. Its argument, distilled, was this: when Article 21 — the right to life and liberty — was suspended, it was suspended in its entirety. There was no residual right anywhere else in the Constitution, in statute, or in common law that could fill the space. A High Court that entertained a habeas petition during such suspension was overreaching its jurisdiction. The remedy, in plain terms, did not exist while the Emergency lasted.¹

What four judges held

Chief Justice A.N. Ray, writing first, accepted the argument almost without qualification. Article 21 was, in his reading, the sole fountain of the right to liberty in the Constitution. Suspend the article and the right itself fell away. The writ of habeas corpus, he wrote, was an enforcement mechanism for the underlying right; without the right, the mechanism had nothing to enforce. He devoted considerable attention to demonstrating that the Constitution’s framers had intended the suspension power to be plenary.

Justice M.H. Beg agreed and went further. He suggested that the detenus were, if anything, lucky to be held under MISA, where the conditions of detention were at least regulated; the executive had broader powers it had chosen not to exercise. The detenu’s remedy, in his telling, was political, not judicial.

Justice Y.V. Chandrachud, then in the early phase of his long tenure, also concurred. His judgment was the most careful of the four. He acknowledged the disquiet the result would produce and insisted that the suspension was time-limited, that the executive remained accountable to Parliament, and that the framers had foreseen and accepted the cost.

Justice P.N. Bhagwati — who would, within a decade, become the architect of public interest litigation and the most expansive reader of Article 21 the Court has produced — concurred too. His Bhagwati of 1976 wrote that the right to life and liberty was a constitutional right and nothing more; it was created by Article 21 and could be unmade by a Presidential Order under Article 359. The Bhagwati of 1985 would say something close to the opposite. The Bhagwati of 2011 would publicly apologise for the judgment.²

The premise Khanna refused

Justice Khanna’s dissent does not begin with a different reading of Article 359. It begins earlier, at a place none of the four majority opinions had thought to examine: the question of whether the right to life and liberty existed before, beneath, and apart from Article 21. To read the majority on this point is to be told that without Article 21 there is nothing. To read Khanna is to be told that without Article 21 there is still everything that came before it.

His method is not philosophical. It is, quite specifically, legal-historical. He works through the writ of habeas corpus as it stood in England before 1789, in colonial India under the Government of India Acts of 1915 and 1935, and in the various drafts of the Indian Constitution debated in the Constituent Assembly. At each stage, he is asking the same question: was the right to be free from arbitrary detention a creature of the document that recognised it, or a fact that the document chose to recognise?

His answer is that it was a fact. The Constitution, in his reading, did not create the right to liberty in 1950. It found a right that was there already and entrenched it. Article 21 made the right justiciable; it did not bring the right into being. From this it followed, for him, that suspending Article 21 suspended only the constitutional remedy. The right itself — unwritten, anterior, lodged in something he variously called the rule of law and the structure of an ordered society — remained.

This is the move that the line everyone remembers stands for: even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law.

The evidence he leans on

The dissent draws heavily on three sources. The first is the English common-law tradition, in particular the line from Bushell’s Case and Entick v. Carrington through Liversidge v. Anderson. Khanna pays particular attention to Lord Atkin’s dissent in Liversidge, which had also been a lone dissent and which had also gone, by then, from heresy to common sense. The structural parallel is not subtle.

The second is the debates of the Constituent Assembly, where he locates passages from B.N. Rau, K.M. Munshi, and Alladi Krishnaswami Ayyar that treat the right to liberty as antecedent to the article that protected it. He does not claim these passages settle the question; he claims they make impossible the majority’s confident assertion that the framers had foreseen and accepted total suspension.

The third is harder to point to. It is the structure of the Constitution as a whole — the federal scheme, the separation of powers, the duties of magistrates under the criminal procedure code, the existence of provisions in Articles 22, 32, and 226 that presuppose review of detention. If the majority were right, all of these were meaningless during a Proclamation. Khanna’s point was not that this would be inconvenient. His point was that this would be incoherent.³

Where majority and dissent cannot both be right

The majority and Khanna agreed on more than is sometimes acknowledged. Both accepted that Article 359 permitted suspension of the enforcement of certain fundamental rights. Both accepted that the Emergency was lawfully proclaimed. Both accepted that the courts could not, during such suspension, entertain a writ that depended for its existence on Article 21.

The disagreement was about whether the writ of habeas corpus depended on Article 21. The majority said yes. Khanna said no — the writ predated Article 21 by centuries, was preserved by Article 226 independently of any fundamental right, and rested on a foundation broader than the fundamental-rights chapter. From this single disagreement everything else followed, including the difference between a country whose courts could ask why a person was being held and one whose courts could not.

One of the two readings is wrong. The argument for thinking it is the majority’s is that their reading required the Constitution to have abolished, in the moment of its enactment, a right that English courts had recognised since the seventeenth century. The argument for thinking it is Khanna’s is that his reading required the Constitution to mean something it did not say. Both readings have costs. The majority’s costs were paid in the cases of detenus held without remedy. Khanna’s costs would have been paid by an executive whose emergency powers were less plenary than it wished.

The price

Khanna was, at the time of the judgment, the senior-most puisne judge of the Supreme Court. He was next in line for Chief Justice. His dissent was a matter of public record. Three months after he delivered it, he was superseded; Justice M.H. Beg, who had concurred with the Chief Justice, was elevated to the Chief Justiceship over him. Khanna resigned the same day.

He wrote, in his memoirs, that he had known what the cost would be when he wrote the judgment. He had told his sister, before delivery, that he had prepared his judgment with the awareness that it would mean the end of his prospect of being Chief Justice. He had decided that this did not change anything.

How the dissent travelled

For ten years ADM Jabalpur was good law. Maneka Gandhi v. Union of India in 1978 began the slow unwinding by recasting Article 21 to require procedure that was fair, just and reasonable; if Article 21 contained that much, suspension of it became correspondingly more consequential. Through the 1980s and 1990s the Court read Article 21 expansively, and the foundation Khanna had identified — a right to liberty that did not depend solely on the article — became, in effect, the operating premise of the Court without ever being so labelled.

The formal overruling came in 2017. Justice K.S. Puttaswamy v. Union of India, the privacy judgment, contained an extended treatment of ADM Jabalpur in which all four majority opinions were declared to have been wrongly decided.⁴ Justice D.Y. Chandrachud, writing for the lead opinion, also addressed his father’s judgment directly. The 1976 Chandrachud was wrong, the 2017 Chandrachud wrote. The dissent of Khanna was right.

It is rare for a son to overrule his father from the same Court. It is rarer for a Court to find, forty years on, that the dissenter had not lost the case but only the vote.

The judgment now stands overruled. The line everyone remembers is now law. The four judges who decided against Khanna are remembered, when they are remembered, in the company of his dissent rather than on the strength of their own reasoning. Two of them later said they had been wrong. The fifth said nothing more on the subject; he had said it once.