Judicial Opinions as Literature - ADM Jabalpur v. Shivakant Shukla

Abstract

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender”.- The New York Times, April 30, 1976The Supreme Court of India, in Additional District Magistrate, Jabalpur v. Shivakant Shukla by a majority of 4:1, ruled that in a state of Emergency, no person has a right to move the High Court under Article 226 of the Constitution for a writ of habeas corpus and that the constitutional guarantees under Article 21 remain suspended during such period. Justice Hans Raj Khanna delivered the minority opinion which has gone down in history as an eloquent expression of the sanctity of the fundamental right to life and liberty, and also, judicial independence.This paper seeks to analyse Justice Khanna's dissent in the light of seeing the judicial opinions as literature, to see how judges write and why do they write in a particular way. The approach is a literary cum legal analysis.