ADM Jabalpur: The top court’s fall and redemption

The judgment is a cautionary tale of how legal formalism and deference to executive authority can gut the soul of a liberal constitutional democracy

Fifty years after the Emergency, the memory of that period continues to haunt the conscience of India’s constitutional democracy. Central to that collective reckoning is the Supreme Court’s judgment in ADM Jabalpur Vs Shivkant Shukla case in 1976, famously dubbed the “Habeas Corpus case”. 

People take out a demonstration against the imposition of Emergency in 1975. (HT Archive)

At a time when the judiciary was expected to act as the guardian of civil liberties, the apex court chose to become an instrument of the executive, handing down a verdict that effectively sanctioned state authoritarianism. The judgment is a cautionary tale of how legal formalism and deference to executive authority can gut the soul of a liberal constitutional democracy. 

HT takes a look at the legal, political and moral dimensions of the case, the dissent that stood tall against the tide, and the decades-long journey of constitutional redemption that culminated in its formal overruling in 2017.

The context

On June 25, 1975, then Prime Minister Indira Gandhi declared a national Emergency under Article 352 of the Constitution, citing internal disturbances. Civil liberties were curtailed, political opponents jailed, and press freedom muzzled. The government invoked Article 359(1), issuing a presidential order suspending the right of citizens to move courts for the enforcement of Articles 14, 21 and 22 -- rights guaranteeing equality, life, personal liberty, and protection against arbitrary arrest.

Against this backdrop, several high courts granted relief to detainees under Article 226, questioning the legality of their arrests under the Maintenance of Internal Security Act (MISA), 1971. The Union government challenged these orders, leading to the Supreme Court’s decision in ADM Jabalpur Vs Shivkant Shukla. The pivotal legal issue was whether a citizen could seek judicial remedy via habeas corpus (essentially challenge detention) when the enforcement of Article 21 (right to life and liberty) stood suspended.

In a 4-1 majority, the Supreme Court ruled that no individual had the locus standi to approach courts for enforcement of fundamental rights during the Emergency. The majority judgment, delivered by then Chief Justice of India AN Ray and concurred with by justices MH Beg, YV Chandrachud and PN Bhagwati, held that the suspension of Article 21 rendered the right to life and personal liberty non-justiciable.

Even if a detention was illegal, arbitrary or mala fide, the courts had no authority to intervene, stated the majority opinion, asserting that rights existed only insofar as the Constitution recognised and enforced them. This effectively meant that during the Emergency, the State could deprive a person of their liberty or even life without any legal recourse.

The verdict was an endorsement of unchecked executive power. It subordinated the judiciary to the will of the government, silenced legal dissent, and undermined the foundational promise of the Constitution: That liberty is not at the mercy of the State.

The dissent

The lone dissent came from justice HR Khanna, who rejected the majority’s formalism and asserted that the right to life and liberty is not a gift of the Constitution but an inherent natural right. Drawing from natural law and common law traditions, justice Khanna argued that certain rights are so intrinsic to human dignity that they transcend constitutional text. His judgment famously stated, “Even in the absence of Article 21, the state has no power to deprive a person of his life or liberty without the authority of law.”

Justice Khanna underscored that the Constitution did not create the right to life and liberty; it merely recognised it. As he eloquently put it: “Rule of law is the antithesis of arbitrariness.” This means that the executive branch cannot misuse its power and claim protection simply because the President has issued a proclamation. Therefore, he held, even when fundamental rights are suspended by a presidential order, judges still have the authority to review the actions of the executive to ensure they are lawful and not arbitrary.

His principled stand cost him the Chief Justiceship as he was superseded by justice Beg despite being senior.

The ADM Jabalpur judgment sparked outrage among jurists, scholars, and civil society. It came to symbolise judicial abdication, a moment when the Supreme Court failed in its primary duty to act as a bulwark against executive excess. Though the Emergency was lifted in 1977 and the Janata Party came to power, the damage had been done. Yet, the spirit of justice Khanna’s dissent lived on, influencing a more expansive and liberal interpretation of rights in the years to come.

Reversal and redemption

The judicial journey from ADM Jabalpur to KS Puttaswamy Vs Union of India (2017) is one of moral and constitutional redemption. It began with Maneka Gandhi Vs Union of India (1978), where the Supreme Court overturned the narrow reading of Article 21 established in AK Gopalan Vs State of Madras (1950) which held that each fundamental right operates independently and should therefore be interpreted in isolation. The Maneka Gandhi ruling declared that laws affecting personal liberty must be just, fair and reasonable, creating a triadic relationship between Articles 14, 19 and 21 – as against the previous concept of fundamental rights existing in separate silos. Justice Krishna Iyer famously stated that natural justice is “not a creation of the Constitution but inherent in human values.” In many ways, the Maneka Gandhi case was the jurisprudential response to ADM Jabalpur’s moral collapse, reasserting the judiciary’s role in preserving dignity and fairness.

That trajectory culminated in the 2017 KS Puttaswamy verdict. In KS Puttaswamy, a nine-judge bench in the top court finally buried ADM Jabalpur. Writing the lead opinion, Justice Dhananjaya Y Chandrachud explicitly overruled the majority view in his father’s judgment in ADM Jabalpur. He stated: “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. They constitute rights under natural law.” It was a rare and poignant moment of judicial introspection.

In 2020, during the Covid-19 lockdown, the Supreme Court again revisited ADM Jabalpur. A bench headed by justice Ashok Bhushan, while ruling on police delays in filing chargesheets, emphasised that the right to liberty remains enforceable even in emergencies. The court noted that the “retrograde steps” taken in ADM Jabalpur were immediately remedied by the 44th Amendment and formally overruled by Puttaswamy.

The 44th Constitutional Amendment in 1978 responded to the ADM Jabalpur verdict by inserting a critical safeguard -- even during an Emergency, Articles 20 and 21 cannot be suspended. This was Parliament’s way of ensuring that the excesses sanctioned by ADM Jabalpur would not be repeated. It codified what justice Khanna had asserted all along – that certain rights are non-negotiable.

The story of ADM Jabalpur Vs Shivkant Shukla is not just about a flawed judgment but stands as a grim reminder of what happens when courts choose executive convenience over constitutional conscience. It is about the fragility of constitutional rights, the dangers of judicial timidity and the enduring value of dissent. It is a crucial narrative that reveals about a moment when the rule of law bent under pressure, and how that breach was slowly repaired through principled jurisprudence and legislative intervention.

Justice Khanna’s dissent, once sidelined, now occupies a place of honour in India’s constitutional canon. It reminds us that in times of crisis, the judiciary must rise above expediency and remain faithful to the moral foundations of the Constitution.