This essay is part of a four-part series on some of the greater dissents in Indian constitutional law that are worth returning to. The previous posts can be accessed here and here. I can only hope that readers find something of interest in this journey.
We have spoken enough about how dissents shape the future, how they become doctrine, and how time eventually vindicates them. This essay is about no redemption arc. This is about sheer grit. It is about the loneliness of choosing principle. It is about the violence of knowing the consequences. Khanna J.’s opinion in ADM Jabalpur v. Shivkant Shukla is not great because it won later. It is great because it lost then. It refused to barter away liberty even when every State instinct was pushing the other way. It is great because it shows us what courage actually looks like in real time. And precisely so for the reasons stated above, this essay by no means is a tribute to what the dissent became.
It is quite simply a return to what it was in that moment.
What was at stake in ADM Jabalpur was not a courtroom disagreement that was to be resolved through reasoning. It was the State asking the judiciary to accept the unimaginable; that during the Emergency, a citizen could be picked up and detained – and the law would have nothing to say. For the nation, this was not just about Article 21 in a technical sense. It was about whether constitutionalism itself could survive the suspension of constitutional morality. If the Court agreed, it would mean that the State could place power beyond law, that liberty existed only at the government’s mercy, and that the judiciary would accept this new reality without protest. If you think about it – this was the closest our Republic came to formally normalising authoritarianism under the seal of judicial authority.
For Khanna J., the stakes were brutally personal. He knew what his dissent meant. Seniority was everything in that Court; the next Chief Justice’s chair was practically in sight. He also knew, almost certainly, that dissent meant losing it. And yet, he did not dilute his opinion, did not search for compromise to retain respectability. He chose to stand in a courtroom where every incentive must be pushing him the other way. Happier still, Khanna J. risked everything the institution could offer him, in order to remind it what it was meant to stand for.
What does this teach us today?
First, that destruction rarely announces itself. It arrives incrementally. Wrapped in legality, justified by necessity, defended as pragmatism (readers familiar with Professor Tarun Khaitan’s Killing a Constitution by a Thousand Cuts will recognise this pattern instantly). We see the same logic at work today when preventive detention is normalised, when bail is treated as an exception rather than the rule, and when dissent is reframed as disorder—or worse, as terror. The recent bail order in cases arising out of the Delhi riots illustrates this with uncomfortable clarity. The lesson of ADM Jabalpur is therefore not confined to Emergency-era excesses; it is a standing warning against judicial acquiescence whenever the State invokes exceptional circumstances.
Second, Khanna J.’s dissent reminds us that institutions do not save constitutions. People do. Courts are not inherently counter-majoritarian; they become so only when judges consciously choose that role. The comforting assurance that “the Court will correct itself over time” is of little solace to those whose liberty is extinguished in the meantime. Correction delayed is often justice denied.
Finally, the dissent teaches us that courage in adjudication is an inherently lonely exercise. It does not come with applause, nor does it guarantee legacy. It demands a willingness to be isolated, misunderstood, and professionally diminished. In an era where conformity is often rewarded and dissent is casually dismissed as disruption, Khanna J.’s dissent functions as a manual on judicial ethics. It reminds us that fidelity to the Constitution may sometimes require standing alone – against the State – against one’s own institution – and even history itself.
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