The nadir of Indian jurisprudence was unquestionably the 28 April 1976 Supreme Court decision in ADM Jabalpur vs Shivakant Shukla, popularly called the Habeas Corpus case.

There is little point in discussing at length what the Supreme Court majority held in that decision; it is perhaps the most pilloried Indian decision of all time. The majority held that the Presidential Order of 27 June 1975 under Article 359(1) of the Constitution (part of the set of “emergency” provisions) suspended all rights in Part III – including the right to personal liberty, and the right to move a high court under Article 226 for issue of a high prerogative writ remedy of habeas corpus.

Consequently, the Supreme Court majority held that nine high court decisions to the contrary – that despite the proclamation of an Emergency, citizens could petition high courts invoking Constitutional remedies for habeas corpus – were erroneous.

There was one dissenter: Justice Hans Raj Khanna, formerly of the Delhi High Court. The exchange during the hearing between him and Attorney General Niren De, is still chilling. When Justice Khanna asked if the suggestion was that should a policeman shoot a citizen, that citizen would be without remedy, De’s response was yes, he would. “Consistent with my position, My Lord, not so long as the Emergency lasts. It shocks my conscience, it may shock yours, but there is no remedy.”

Justice Hans Raj Khanna | By Source, Fair use,

There is something to be said, perhaps in a fuller discussion, between two of the several independent opinions voiced in this case: that of Justice PN Bhagwati, a position he later publicly disavowed, and that of Justice Khanna. Of all the opinions, I find these two to be of the greatest interest because of their philosophical underpinnings in interpreting the Constitution. Justice Bhagwati clearly refused to look beyond the Constitution.

It was whole. It was complete. There was no call to search for any other source or inspiration or underlying principle. If, therefore, the Constitution as it then stood allowed the suspension during a validly declared Emergency of all rights, including the right to personal liberty, the constitutionality of state actions violating those rights could not be questioned.

Justice Khanna’s decision was remarkable not only for the emotive language but, perhaps more importantly, because he looked beyond the words of the Constitution. He looked to its purpose, and this is the reason he quoted the American statesman and jurist Chief Justice Charles Evans Hughes: that a dissent 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.

Justice Khanna’s dissent cost him the position of chief justice. His legacy endures.

The five burials of the ‘Habeas Corpuscase

The Habeas Corpus case received not one but five burials. First, there was the 44th Constitutional Amendment to Article 359, prohibiting the suspension of Articles 20 and 21 during any Emergency declared. Second, in 2007, the Supreme Court said this amendment had impliedly overruled the Habeas Corpus case. Third, delivering the 25 February 2009 Khanna Memorial Lecture, Chief Justice MN Venkatachaliah said the majority judgment belonged to the dustbin of judicial history.

Fourth, in a 19 November 2010 decision, a two-judge bench of the Supreme Court said that the Habeas Corpus case was wrongly decided, and that there was no doubt that the majority decision had violated the fundamental rights of a large number of people in the country. And fifth, in the remarkable Puttaswamy decision of 24 August 2017, holding that privacy is constitutionally protected, nine judges of the Supreme Court expressly – and finally – formally overruled ADM Jabalpur.

In para 649, Justice Sanjay Kishan Kaul agreed that the 1976 decision “was an aberration in the constitutional jurisprudence of our country” and the majority opinion in ADM Jabalpur should be buried “ten fathoms deep with no chance of resurrection”.

There are two matters of interest here. The first is a question of approach, and there really is a separate tale to be told some day about Justice Khanna’s vision of the Constitution, and its enduring legacy. There appears to be a direct line between his influential view in the legendary Kesavananda Bharati case, regarding Parliament’s power to amend the Constitution at all, and his dissent in ADM Jabalpur.

Constitutional amendments to meet changing societal needs are permissible; but it is impermissible to alter the basic or foundational structure of the Constitution; and this means that Parliament has no power to destroy or abrogate the basic structure of the Constitution. This formulation has in time become fundamental to constitutional law and interpretation; and it is not reaching too far to suggest that it is precisely this thinking that informed his dissent in ADM Jabalpur.

The second is the apparent inconsistency between the Puttaswamy privacy decision and the later decision of 26 September 2018 by five judges regarding the UIDAI and Aadhaar, where, too, a question of privacy was to be confronted. Here, too, there was a lone dissent, by Justice DY Chandrachud. He found the entire Aadhaar project illegal, invasive of privacy and violative of liberty. He held that the creation of a surveillance state was unconstitutional. The issue is of global importance, and we have no dearth of examples: from the deep surveillance conditions and face-mapping technologies in China’s cities, to the proliferation of “security” cameras in every corner of London.

In a superb analysis, Shyam Divan, a senior lawyer in the Supreme Court, and who has led from the front in important cases including the two Puttaswamy decisions and the decision on Section 377 decriminalising homosexuality, underscores the importance of personal liberty in a digital age, and the deep connection between privacy and freedom of speech and expression. The Orwellian vision of a Big Brother is predicated on the elimination of independent thought and freedom of expression. The tragedy is that this is no longer in the realm of speculation.

Excerpted with permission from On Citizenship, featuring Romila Thapar, N Ram, Gautam Bhatia and Gautam Patel, Aleph Book Company.