The ADM Jabalpur Dissent: Justice H.R. Khanna and Article 21

When a state declares an emergency, civil liberties are almost always the first casualty. The ADM Jabalpur v Shivkant Shukla (1976) judgment remains one of the most controversial decisions in Indian constitutional jurisprudence. Delivered during the Emergency imposed by the Indira Gandhi government, the majority of the Supreme Court held that the right to life and personal liberty under Article 21 of the Constitution was effectively inactive and could not be upheld in court. This decision effectively placed the executive’s authority above the Constitution and sanctioned a period of authoritarian excess. However, one judge, Justice Hans Raj Khanna, dissented. His opinion upheld the supremacy of constitutional values and the principle of the rule of law. He argued that even in the absence of Article 21, no individual could be deprived of life or liberty without the authority of law, thus grounding his view in the concept of inalienable human rights and the basic structure of the Constitution. This paper examines how Justice Khanna’s solitary opinion shaped the modern framework of Indian rights jurisprudence. Decades later, in Justice K.S. Puttaswamy v Union of India (2017), a nine-judge bench of the Supreme Court resurrected and embraced Justice Khanna’s dissent. The Court unanimously declared that the Right to Privacy is a fundamental right under Part III of the Constitution, inherently protected under Articles 14, 19, and 21. In doing so, the Court overruled the majority in ADM Jabalpur, characterising it as a grave constitutional mistake. Justice D.Y. Chandrachud observed that ADM Jabalpur was an embarrassment to constitutional democracy and lauded Justice Khanna’s dissent as “the voice of the Constitution.” This article examines how a solitary dissent, once ignored and punished, became the foundation of a transformative constitutional moment in Indian democracy. It traces the historical and philosophical underpinnings of both the ADM Jabalpur and Puttaswamy decisions, and analyses how Khanna’s reasoning aligns with the principles of constitutional morality. Justice Khanna’s dissent is more than a legal opinion; it is an affirmation of the idea that fundamental rights are not mere concessions of the state but are intrinsic to the human condition. Its revival in Puttaswamy stands as a reminder that while majority opinions may shape law, it is often the dissenting voice that preserves justice.