The clampdown in Kashmir and the ADM Jabalpur Verdict

Mr. Ritwik Sharma


In this article, the author draws out a strange comparison between the current lockdown in Kashmir where citizens/political leaders have been detained and the dissenting judgment given by Justice HR Khanna in the ADM Jabalpur verdict. Moreover, the article highlights the importance of John Locke’s theory of natural rights and its impact on the ADM Jabalpur verdict and the current situation in Kashmir. The article sheds light on how the courts, just like they did during the emergency, have provided little respite to the people who are being denied basic rights.


“I have prepared my judgment and it is going to cost me the Chief Justice-ship of India”, said Justice Hans Raj Khanna a night before delivering his dissenting note in the infamous verdict of ADM Jabalpur vs Shivkant Shukla (1976) where the Supreme Court held that the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution remains suspended during Emergency under Article 359(1) and an aggrieved person is barred from approaching any court under Article 32 and 226 of the Indian Constitution. The judgment was authored by CJI A.N Ray, Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati with Justice Khanna being the sole dissenter. The judgment, despite being overruled by the K.S. Puttaswamy (2017) verdict, has left a damning impact on the Indian judicial system.

On August 5th 2019, Article 370 of the Indian Constitution, which provided a special status to the state of Jammu and Kashmir, was abrogated and a curfew was imposed in the Kashmir valley with communication lines getting shut and basic rights provided to the civilians being denied. Prior to the abrogation, many leaders in the state were put under house arrest/detention. This situation in Kashmir has opened old wounds and once again reminded us of the darkest phase in the history of the Indian judicial system. The dissenting note given by Justice Khanna in the ADM Jabalpur case holds special relevance here. 


The Lone Warrior

The ADM Jabalpur case will always be remembered for Justice Khanna’s stand against the authoritarian government of Indira Gandhi which ultimately cost him the Chief Justice-ship of India (he later resigned from the SC in protest). However, Justice Khanna’s lone stand left a deep impact on subsequent Supreme Court judgments.

Key arguments laid down by Justice Khanna in his dissenting note:

  1. The fundamental right to life and personal liberty predates the Indian Constitution in the form of natural rights, rights which are eternal and inalienable. Moreover, Article 21 is not the sole repository of the right to life and personal liberty and there are other natural rights which provide safeguards to the citizens against arbitrary action of the executive. Justice Khanna categorically stated that even if Article 21 did not exist, it would not be permissible for the state to deprive any person of his right to life and personal liberty without authority of law. Justice Subbarao, too, in his dissenting note in the case of Kharak Singh vs State of UP (1964) observed that mere absence of certain rights does not confer any power upon the executive to abrogate the basic rights of the citizens.
  2. Justice Khanna went onto speak at length about the importance of the rule of law. An illusion of rule of law cannot be equated with the actual rule of law by suspending the fundamental right to life and personal liberty through constitutional/legal means. Mere enactment of a legislation to negate other legislations is not rule of law, noticed Justice Khanna. He further observed that rule of law is the true antithesis of arbitrariness and considered it as a mark of free society. Rule of law intends to balance the contradictory notion of individual liberty and public order.
  3. Maintenance of Internal Security Act was passed in 1971 which was arbitrarily used to detain politicians and activists during the emergency while enforcement of Article 21 was in suspension. Detention without trial in anathema to those who love personal liberty, said Justice Khanna. It was stated that a person who believes in the rule of law would never want to be detained without facing proper trial. Further, detaining a person without trial would confer the powers of both the prosecutor and the judge on the executive, something which is inherently arbitrary.
  4. Power to issue the writ of Habeas Corpus granted to High Courts under Article 226 is a fundamental part of the Constitution and no power has been conferred upon any authority to suspend or restrict such powers of the High Court during an emergency, read the note. Justice Khanna vehemently said that a result cannot be brought about by putting some “particular construction” on the Presidential Order in question.

John Locke’s concept of Natural Rights: Did it impact Justice Khanna’s dissent?

Justice Khanna in his dissent categorically stated that natural rights predate the Indian Constitution. Natural rights, according to Justice Khanna, are comparable to contemporary rights but are much wider in scope with less restrictions. In this regard, it is pertinent to mention the role of John Locke in understanding where natural rights actually stem from. John Locke in his treatise laid emphasis on three natural rights which are integral to human well-being and these rights are right to life, right to liberty and right to property. Natural rights, according to him, are pre-political rights which have emerged even before the political systems came into being. Keeping this in mind, it is clear that right to life and liberty has been abrogated in the current clampdown in Kashmir. The shutting down of communication lines and detention of popular leaders clearly impinges upon the right to life and liberty as stated by Locke.

Moreover, Locke, moving away from Hobbes who believed in absolute sovereignty, stated that there should be a restrained government so that rights of the people are well safeguarded. Locke stated that constitutional restraints and the rule of law helps safeguarding the rights of the people. Further, Locke believed rights of the people can only be protected by placing suitable restrictions on the government.

John Locke and Justice Khanna’s views are not far from each other. Both of them vehemently advocated the protection of natural rights from arbitrary powers of the government. The current lockdown in Kashmir clearly signifies that their warning has turned into reality.

Lessons from Justice Khanna’s dissenting note

Firstly, the Supreme Court is again turning a blind eye towards the plight of the people by refusing to entertain petitions on an urgent basis, a mistake it committed during the emergency period. It is perplexing that the Supreme Court is “waiting” for the normalcy to return in the valley whilst giving a free run to the Centre in managing the situation in the valley. Despite emergency not being declared in Kashmir, the situation in the valley is precarious and basic fundamental freedoms like right to movement, freedom of speech etc., have been restricted.

Secondly, the abrogation of Article 370 is a different issue altogether but Justice Khanna’s observation is key in this matter. Most of the detentions have been made under the Public Safety Act, 1978 to detain people under the garb of rule of law. However, Justice Khanna in his note categorically ruled out that a mere illusion of rule of law cannot be turned into a reality if the fundamental right to life and personal liberty is infringed. One legislation cannot be enacted to negate the other to circumvent the rule of the law, the note mentioned.

Finally, prior to the abrogation most of the local leaders were put under house arrest/detention which included an IAS being stopped from leaving the country so that normalcy could be restored. However, this too contravenes the argument put forward by Justice Khanna. He noted that an individual who has faith in the rule of law would never want to spend time in detention without trial. Its been nearly two months and the courts are yet to examine the legality and veracity of the Habeas Corpus matters filed before it.



Justice Khanna’s landmark dissenting note should be treated as a constitutional mandate yet, it is being neglected by the courts. His note serves as a fundamental lesson that even though the security of the State is non-negotiable, the rights of the citizens should be safeguarded as well. If the State is unable to balance public order with the liberty of the citizens then it is failing in its duty.  

The lack of action by the courts has made it evident that we are yet to bury the demons of the ADM Jabalpur verdict. Justice Khanna’s dissenting note, which should be printed in silver and gold, will remain a piece of paper if the courts refuse to intervene.

Mr. Ritwik Sharma is a lawyer based in Delhi. He graduated from Amity Law School, Delhi in 2018.




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