HARMONIZING SEPARATION OF POWER FROM KHANNA’S DISSENT TO KASHMIR BLACKOUT: TANNVI

HARMONIZING SEPARATION OF POWER FROM KHANNA’S DISSENT TO KASHMIR BLACKOUT

Author: Tannvi

CHRIST (Deemed to be University), Bengaluru

ISSN: 2581-8465

ABSTRACT

From the positivist epoch to the golden age of the disposition of the Judiciary towards the Government, the Indian Judiciary has gone through several phases of changes since its inception. One of the essential characteristics that the Judiciary has been preserving is the doctrine of Separation of Power. It refers to a theory of governance where the three organs are each conferred with discrete, independent powers and responsibilities so that powers of one organ are not in conflict with those of the other organs and therefore remain separated. This doctrine has been shaped dynamically in the past 70 years of political, social, cultural, and religious conditions and judicial assertions. This paper aims to surgically segregate the various threads of the judicial functions in the past.

Along with this, the paper aims to scrutinize the implementation of Article 370 in Kashmir. This revocation has taken a very analogous curve to that of the dissent of Justice Khanna in 1978. The author aims to draw a parallel between these two instances to describe the need to adhere to the Doctrine of Separation of Power in contemporary India. The paper also describes the various instances where Judiciary has considered this doctrine as fluid and debased it for both good and bad. In addition to this, the paper attempts to undertake the task of explaining the main cruxes of separation of power from the window of Indian Judiciary. The trial will be done by analyzing various judgments and evaluating the functioning of judicial review and judicial activism. Finally, the paper will try to illustrate a balance between efficient governance and separation of power.

I.  INTRODUCTION-

The doctrine of Separation of Powers accentuates exclusiveness in the mutual relationship of the three organs of Government, that is, Legislature, Judiciary, and Executive. The primary concept is to ensure that each of these organs should exercise only one type of function and there should not be an accumulation of all the functions in one organ else it will cause a threat to personal freedom. It could ratify a tyrannical law, enforce it in a repressive manner, and interpret it capriciously without any external control. The contemporary exegesis of the doctrine of separation of powers is not a mere notional philosopher’s conception.[1] It is an ordinary practical proposition. The segmentation of the Government into three branches does not indicate three firm watertight compartments. In India, we follow the doctrine of separation of power in a broad sense. It acts more like rectifying machinery where all organs of governance keep an eye on each other to maintain efficiency and accountability in governing.[2] However, is this mechanism working efficiently? This question arose because of the lawsuits and judicial reviews undertaken by the Supreme Court in the last 70 years of independence. Indian Constitution has faced various audits, but the revocation of Article 370[3] from Kashmir and the response of the Supreme Court on it have brought back Khanna’s opinion on autocratic and arbitrary rule of the Government in 1978 on the name of national security.[4] Several other cases and judicial reviews have described the degree of misinterpretation, exploitation, and cover-ups performed by the Supreme Court as more of a defender of the Government than a shield to the principles of Justice, equity, and good conscience.

II. KASHMIR AND KHANNA’S CAUTION-

Article 50[5] of the Indian Constitution that affirms that the state shall take measures to detach Judiciary from the Executive in the state public services. This is a part of Directive Principles of State Policy which is a section for progressive principles that shall be adopted by the Constitution in the future. There are primarily two reasons why the Constituent Assembly did not incorporate the separation of powers doctrine clearly and directly in the Constitution. Firstly, the founding fathers thought that it was too early to be inserting this principle as the Constitution was just drafted, and to attain this range of Democracy might take some while. Moreover, secondly, India espoused the British parliamentary kind of governance. Thus, the constituent assembly believed that it was better to avoid adopting a complete separation of powers doctrine such as that enshrined in the American model.[6] However, contemporary India has moved away from the assumptions under which it was formed. The scope of Democracy has changed, and the three organs of the system must not interfere in the functions of each other; for if it happens, it might lead to totalitarian and authoritative regimes. The issue of the hour is that this progressive principle formulated by the Constituent Assembly has not yet been able to fit into our Constitution and is thus used manipulatively to fulfill the needs of the ones in power. This exploitative usage of power was questioned by Khanna in 1978 and was given a clean chit even then and now in the Kashmir blackout after the revocation of Article 370.[7]

a)  REVOCATION OF ARTICLE 370

Indian Government, on August 05, 2019, abrogated the special status, or limited autonomy, granted under Article 370[8] of the Indian Constitution to Jammu and Kashmir. This revocation was accompanied by the discontinuance of communication lines in the Kashmir Valley; a region gripped by a prolonged separatist insurgency. Several leading state politicians were taken into police custody or kept under house arrest, including the former Chief Minister, Mehbooba Mufti, who called the day the blackest in India’s Democracy.[9] The Government stated that this diminution was sketched for anticipated violence, and defended the revocation for ensuring that the people of the state have access to government schemes such as reservation, education, and information.

There were nearly 8 million people who lived through this communication blackout.[10] These freedoms are restricted by shutting down the ability of information disclosure and imposing curfews. Along with this, doctors and humanitarian workers are also not able to reach out for help while reports about raids, arrests, clashes, and detentions were pouring out and added to the panic and unrest. It could have been only speculated as to what grave human rights violations might have taken place. The center had complete control over what information was coming out of the region. Apart from this, access to emergency services, education, and health care were also drastically affected.[11]

            b) ADM. JABALPUR v. SHIVKANT SHUKLA

The Additional District Magistrate Jabalpur v. Shivkant Shukla[12] case of 1978 argued whether the fundamental rights of citizens which guarantee the freedoms of life and liberty are liable to interruption or abrogation during Emergency or not? Major judges affirmed, however, Justice Hans Raj Khanna wrote the dissenting judgment in this ‘habeas corpus case’. Justice Khanna dissented stating that during the proclamation of Emergency or presidential order under Article 359(1)[13] if the person cannot go to the Court for the enforcement of fundamental right under the Article 32,[14] constitutional remedy that does not restrain one from exercising one’s

legal remedy through statute. He, also denied that Article 21[15] is not the sole repository of right to life and personal liberty even in the absence of Article 21[16] from the Constitution, the state cannot take away the right to life and personal liberty from a person as it is a pedestal of a civilized society.[17] He said:

            The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the Court shall be silenced and rendered mute…detention without trial is an anathema to all those who love personal liberty.[18]

Khanna believed that during the proclamation of Emergency, Article 21[19] only evades the procedural power. The substantive power of Article 21 is fundamental to a democracy. Later, the Supreme Court of India had set aside the majority judgment and assented to Justice Khanna’s dissenting opinion on the unalterable nature of the right to life and liberty. Khanna asserted his opinion through the following statement:

            As observed by Chief Justice Hughes (Chief Justice of the United States Supreme Court, Charles Evans Hughes, Sr. from 1930-1941), judges are not there solely to decide cases, but to decide them as they think they should be decided. While it may be regrettable that they cannot always agree, their independence should be maintained and recognized that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the Court to have been betrayed.[20]

            c) KHANNA’S WARNING REGARDING AUTOCRATIC RULE

Khanna had set forward his argument as a judge and not as an executive spokesperson. He described how inefficient and hastily taken judgments can benefit the Legislature to make arbitrary laws and Executive to enforce these arbitrary laws in a repressive manner.

Ironically it was the courtroom with a portrait of Khanna in which the Attorney General for India and the Solicitor General for India gave a discourse to the Court, evidently questioning the constitutionality of such a long period of lockdown in Kashmir.[21] The generals did not proclaim as officers of the Court. Instead, they clarified on behalf of the Executive, commending and shielding it from the inquiry. The scholarly Solicitor General, Tushar Mehta, first asked why shall one disrupt Government’s ‘historical movement’, and then he resentfully carried on asking ‘who would do so?’ He indicated that there were ‘forces across the border’ and that there were persons within who were either too naïve and misguided to question their Government.[22] While the solicitor general seized the aspirations of the Kashmiri people for the Court, the Former Attorney General and then later Chief Justice of India, Ranjan Gogoi, took a diplomatic stand. He is a jurist, but his stand was that of an executive officer of the Government. He began by congratulating the Government for its ‘historic’ move to dilute Article 370.[23] And post that, he gave statistics of the number of civilians and army personnel killed over the years in Kashmir. It was for this reason that Article 370[24] had to be abrogated unilaterally and secretly.[25] In response to arguments on the legality of the lockdown and violations of Articles 19[26] and 21,[27] he stated that it had to be done to ensure smooth enforcement. He further dealt with how these acts were motivated and funded by Pakisthan and thus were not open to judicial scrutiny.[28]

The question of the hour is that the actions permitted by the Legislature and being enforced by the Executive under the blanket of national security and long- term peace were not questioned by the apex force of our nation- the Supreme Court. Whether the actions are being done arbitrarily, is secondary to the contemporary issue. The citizens of India are not questioning the Government’s intention; instead, they are demanding transparency in their actions through the window of justice providing mechanism of our nation.

III. JUDICIARY AND SEPARATION OF POWER-

The doctrine of separation of powers constitutes to be the basic structure of the Constitution of India, although not explicitly mentioned. Keshavnanda Bharti[29] case dealt with making certain aspects of the Constitution so essential that they could not be omitted or replaced. The space of interpreting this basic structure is onto the Judiciary. Separation of Power is one such principle in which the judicial body of our nation has been reiterating over and again to position its power as a check and balance mechanism. In S.P. Gupta v. President of India,[30] judicial independence is established by Justice Fazal Ali under Article 50.[31] Similar observations were made in P. Kannadasan & Ors. v. State of Tamil Nadu [32] and Ram Jawaya Kapoor v. State of Punjab.[33]

The Legislature cannot pass any law violating the principle of the basic structure, and if it does, then Judiciary shall object on it. Moreover, if the Legislature is quiet on some subject matter, then the Judiciary can form laws on it in the form of guidelines, as held in Sub-Committee on Judicial Accountability V. Union of India & Ors.,[34] by pointing out the grey areas of overlapping powers. These guidelines will be adhered to only until the Legislature does not make specific laws on it. This ensures that no one organ becomes arbitrary. The Constitution guarantees that the discretionary independence bestowed on any one branch of Government is within the democratic principle. The interplay of Judiciary and the doctrine of separation of power can be observed in the several judicial decisions, and it is progressed through judicial review, the power to review legislative decisions’ legality and judicial activism, to make laws on the essential matters of concern if Legislature is quiet about it.

            a)  JUDICIAL PRONOUNCEMENTS ON SEPARATION OF POWER

India follows the separation of functions and not of powers. Moreover, therefore, we do not abide by the principle in its rigidity. This has been pronounced in several cases, such as A. K. Roy v. Union of India & Anr.[35] and Smt. Indira Gandhi v. Raj Narain.[36] The exercise of both legislative and executive functions by the Cabinet ministers under Article 74(1)[37] brings a better hold over the Executive by mandating their aid and advice for the President. Thus, the Executive is derived and dependent on the Legislature for its legitimacy. The Honorable Supreme Court made this observation in Ram Jawaya v. the State of Punjab.[38]

Similarly, the amending power of the Parliament lies in Article 368,[39] which has been limited by the Supreme Court in Kesavananda Bharati.[40] It was held that amending power was subject to the basic features of the Constitution, which if tampered shall be struck down as unconstitutional. Justice Beg affirmed that Separation of Power is a part of the Basic Structure of the Constitution. Thus no organ of the republic can take over the functions assigned to the other, and this scheme shall not be amended even by resorting to Article 368.[41]

Several trials to dilute this principle have been tried and failed even to the end resort of intrusion of judicial power by the Legislature. In subsequent cases, the Supreme Court had to apply the Kesavananda ruling[42] regarding the non-amending ability of the fundamental aspects of the Constitution and strict adherence to the doctrine of separation of powers can be seen. In Indira Nehru Gandhi v. Raj Narain,[43] where the dispute regarding Prime Minister Election was pending before the Supreme Court, it was adjudged that this specific dispute is a judicial function which even Parliament cannot exercise through its amending powers. So the constituent body’s declaration of Prime Minister elections to be not void shall be ultra vires. This declaration is a judicial function, and according to the doctrine of separation of power shall not be exercised through an Executive or legislative body. Thus this case had set a crystal clear picture on how India shall practice the doctrine of separation of power. This was also the time when ADM Jabalpur v. Shivkant Shukla[44] case took place. Unfortunately, the majority of judges adopted the then-attorney general’s view, instead of subjecting it to critical scrutiny. Justice Khanna is acclaimed for his courage and independence during this period, which has been called the darkest hour of Indian Democracy. The repercussions of this case took a toll on Justice as his junior; M. H. Beg was appointed Chief Justice in January 1977.[45] This was widely protested by the legal community and bar association as was against the tradition conventionally followed. This autonomy was questioned by Khanna, while he stated:

            The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the Court shall be silenced and rendered mute… detention without trial is an anathema to all those who love personal liberty.[46]

Khanna pointed out the need to separate the powers of governance in order to maintain checks and balances. He proposed the ideals of Separation of Power as practiced in the United States of America. He believed that though in India strict separation of powers like in American sense is not followed, the principle of checks and balance is a part of this fundamental structure doctrine. This understanding of the Doctrine of Separation of Power does not put the three organs of governance into watertight compartments of working but provides a platform to monitor each other’s functioning and harmonize their powers for efficient regulation along with liberty.

b) JUDICIAL REVIEW-

Judicial Review, which evolved in Marbury v. Madison,[47] is a shield to check-to-check lawlessness – legislative as well as an executive with a review to serve legitimacy of power and administrative efficiency. Judicial review is the power by which Judiciary aims at “activating” herself in retaining her domain of judicial activity over the state inactivity. This judicial activism is multifold as it makes action not only accessible through strategies of PIL, vide pro bono, but a rule of life for the lost, deprived, underprivileged, destitute.

Indian Constitution though fundamental rights explicitly enable Judicial review under Article 13[48] and also can be indirectly processed under the writ jurisdiction of the Supreme Court and the High Court which is given under Article 32[49] and Article 226[50] respectively. Furthermore, judicial review is also imputable in the “Doctrine of limited government”. This can be traced in the case of Kesavananda Bharati v. State of Kerala[51] in which the Supreme Court passed orders under article 13[52] of Constitution and the Bhagalpur blinding case[53] of 1979-80, in which the Supreme Court ordered under Article 32.[54]

Judicial Review is, therefore, a mechanism through which the Judiciary uses her power to evaluate and analyze the actions of the legislative and executive body of governance. This enables a process to keep a check on arbitrary laws and repressive enforcement of such laws. However, unfortunately, in contemporary times, the Judiciary is not performing its responsibility to guard the citizens against totalitarian administration; instead, it is acting as armor to that very administration. Khanna cautioned this authoritative rule of Government in his dissent in ADM Jabalpur[55] case of 1976. Though his opinion was not given due attention at that time in 2017, the Supreme Court reversed the 1976 judgment. In the case of Justice K.S. Puttaswamy (Retd) and Another v. Union of India and others the chief contention was regarding the right to privacy. The judgment said:

            The judgments rendered by all the four judges constituting the majority in the ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence. The right to life being is inalienable to each individual; it existed before the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty, and freedom to the state on whose mercy these rights would depend.[56]

Khanna’s dissent of 1976 was globally appreciated. The New York Times on April 30, 1976, wrote an editorial about the case which has become locus classicus now:

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 HR 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.[57]

Khanna’s alert in 1976, to such violation of the doctrine of separation of power and the rule of law, is now taking the shape of an autocratic establishment with no transparency and authoritative management without scrutiny in Kashmir. He questioned the existence of Justice and demised the decision of the apex court as it completely disregarded the plight of the citizens. It can be observed that the Supreme Court gave a very similar reaction to the quandary of the individuals when they questioned the hidden enforcement of revocation in Kashmir and the telecommunication cut in the state. The Judiciary questioned the responsibility which a citizen holds towards the state. The learned justices of the apex court shunned the retaliation of the public and instead questioned as to why would anyone question Government? This reaction of the Judiciary has shaken the very roots of Democracy.

c) JUDICIAL ACTIVISM-

According to Black’s Law Dictionary, judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[58] It is articulated and enforced by judicial rulings suspected of being based on personal or political considerations rather than on existing law. It implies going beyond the usual constraints applied, to provide for the right to remove and declare invalid any legislation or rule against the precedent if it violates the Constitution. It is premised upon the fact that judges assume a role as independent policymakers or independent “trustees” on behalf of a society that goes beyond their traditional role as interpreters of the Constitution and laws.

Judicial activism in India refers to the power of the Supreme Court and the High Court but not the subordinate courts, to proclaim the laws as unconstitutional and void if it violates inconsistent with one or more aspects of the Constitution. According to SP Sathe, “a court giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.”[59]

Thus it is a tool used by the Judiciary to perform the function of the Legislature on the subject matters that they have not made laws on or are quiet about. This principle has been in use by Judiciary to provide a speedy remedy for similar cases in the future. This is a lope hole in the working of the doctrine of separation of power. The classic example of this is Vishakha v. State of Rajasthan.[60] In this case, the Supreme Court defined the guidelines for harassment of women at the workplace. This was beyond the powers of the Judiciary. No other organ of governance objected to this. The law regarding the same was enacted in 2012, which was the Prevention of Harassment of Women at Workplace Act (POHOWA).[61]

            This power bestowed on the courts enables it to provide prompt relief to the sufferers until the Legislature enacts a law in place of it. In Khanna’s opinion, the court shall act as a system that provides solutions to the concerns of the citizens instead of guarding the government enactments against the examination. The Judiciary shall provide policies on certain dealings of national importance or social welfare in order to maintain a just society. Neither in ADM Jabalpur’s case of 1978 nor Concealed Enforcement of Revocation of Article 370 in 2019 has the Court questioned the Government, reviewed the enforcement, demanded lucidity, or taken up the grievances. This defiance in the judicial process has ruined the proficient performance of the Democracy, which solicits citizenry with the moral responsibility to rebel against unjust laws and capricious rule. Without this scrutiny, Democracy will be a blindfolded archery game for the voters where they select their representatives on assertions and are unable to monitor the implementation of such claims.

            IV. CONCLUSION-

The modern rendition of the doctrine of separation of power in India is not a mere notional philosopher’s conception. It is an ordinary practical principle that enables rectifying machinery where all organs of governance keep an eye on each other to maintain efficiency and accountability in governing. Hans Raj Khanna’s dissent in ADM Jabalpur[62] case of 1976 asserted that the Judiciary should be vigilant of the autocratic rule. Khanna’s courage for Justice and zeal for the law was remarkable as he stood against the tyrannical legislation, repressive Executive, and incompetent Judiciary. His lone dissent questioned the existence of Justice in our country as he saw his fellow bench judges shielding the Government and covering up a violation of the most basic right of a citizen, right to life, liberty and freedom.

Khanna’s stand was very courageous, and it paved the way for Judiciary to the role of a policy architect that is judicial activism which has to be done through the means scrutinizing government enactments and enforcements which is judicial review. Judiciary thus in this new interface provides guidelines, rules, regulations, and policies for the individuals when any law is absent on such subject matter. This could help citizens to get speedy remedy for the urgent socio-economic problems that they are facing and not wait for the extensive law enactment procedure to provide a remedy. This can happen through the mechanism of judicial review, which enables the Supreme Court to analyze and evaluate the various statutes, laws, and acts which the Legislature passes. This helps in checking the constitutional validity of the principles as to whether it stands erect on the principles and structure which our Constitution enshrines. The apex court guarantees the avoidance of arbitrary rule on the citizens and defends them from being exploited. Thus through these two ideals, the Judiciary should ensure the protection of the rights of the citizen which must evolve with the dynamic nature of the social, cultural, political, and economic transformations in the environment around which the individual dwells.

Khanna cautioned the autocratic rule of Government in 1976 and also shunned the crooked nature of Judiciary which had become incompetent to provide Justice. Khanna believed that in this threefold Government, Judiciary played the most crucial role. It interweaves the relationship between the individuals and their representatives by validating enactments and inquiring actions and follow-ups. Without Judiciary the whole administration will either fall flat or turn up as a totalitarian regime. Thus in order to keep Democracy alive, Judiciary must work efficiently and independently. In the past, several decisions of the courts were considered erroneous, and the validity of the justice catering mechanism of the Judiciary was interrogated. ADM Jabalpur[63] case is one such cases. Khanna’s dissent during Emergency was powerful and massive for his time considering the Government of Indira Gandhi and the proclamation of Emergency. Kashmir Blackout does not seem to have such immense scope as the Emergency of 1975- 76. Thus one cannot compare the national Emergency of 1975-76 and the current Emergency in Kashmir today, it is sheer sanctimony to praise Justice Khanna’s dissent in the ADM Jabalpur[64] case and still celebrate the communication clampdown in Kashmir. These events are not proportional but share the same root issue that is, violation of individual rights by the Government and corrupt shielding of the Government by the Judiciary.[65] Judiciary acted like an executive spokesperson in both the instances, pronouncing statements and verdicts to cover-up the arbitrary laws and brutal enforcement. Khanna warned the people of India in 1976 by dissenting to the provisions of Emergency which were proclaimed during Indira Gandhi’s Prime Ministerial years. Before proclaiming this opinion, Justice Khanna indicated to his sister that he had prepared huis judgment which might cost him his life-long pursuit, the Chief Justice-ship of India.[66] He knew that his outlook at the case would take away his seat as a Chief Justice of India. In place of Khanna, Justice MH Beg, one of the judges who gave the majority judgment in the ADM Jabalpur v Shivkant Shukla case,[67] was appointed the Chief Justice in January 1977. This decision led to much backlash in the legal community, and Justice Khanna ultimately resigned. Justice Khanna, in his book Making of India’s Constitution[68], wrote:

            If the Indian Constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper; it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty, and in the final analysis; its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power.[69]

This declaration by Khanna will be a constant reminder to the citizens of India that they are the sole protectors of their liberty. He states that people must not be ignorant of capricious authority and must demand their rights. He enlightens the nation of its responsibility to guard its entitlement in order to maintain its liberty. Khanna stirs the citizens to question the legislative, executive, and judicial actions and functions as they are the ones who will be affected by those dealings.

The response of the highest judicial officers on veiled enforcement of revocation of Article 370 [70]in Kashmir brought back Hans Raj Khanna’s words of warning. After over 40 years, Judiciary again operated as an executive guard. Instead of supporting the citizens for the hidden enforcement by the Government, the Supreme Court questioned the intention of the people of India by asking why anyone would retaliate on such an exemplary move of the Government. The concern of the hour is that such a move is being implemented in isolation. Furthermore, if the action of the Government in the right and is being implemented correctly, then why is it not brought into the light. According to Khanna, the accountability and responsibility to protect the liberty of the people is bestowed with the people, but the people become helpless when they are not allowed to know what is happening and how? The only aid under this circumstance would be to knock the doors of the highest Justice- providing institution in India, the Supreme Court.

Nevertheless, as Khanna cautioned that the Judiciary might not be fair. Furthermore, under these circumstances, people must retaliate to get back what they are entitled to. Thus, ignorance of the proceedings of Government must not be done in the first place, and if it is done, then the citizens are obligated to guard their liberty themselves.

History has proven this time, and again that rebellious actions lead to violence, bloodshed, and a series of corrupt and capricious practices. So the question now is whether retaliation is the only solution? Is it possible to bring changes in the way judicial functions and powers are seized and performed? The only answer is that Judiciary needs to undertake several fundamental changes from the way the judicial officers are appointed and impeached to their powers and areas of functioning. This can be traced from Khanna’s contemplation of the repercussions of his opinion. Thus there is an urgent requirement to make various changes in the appointment procedure and the functions and power granted to it. These changes shall ensure the efficient working of Judiciary as they would provide judges with the security of their position and insurance of no negative impact.


[1]              . Khare, N., 2017. Separation of power and rule of law in india, unswerving deepening of democracy. International Journal of Recent Research Aspects, 4(8), pp.114-117.

[2]              . Rao, P.P., 2005. Separation of powers in a democracy: the Indian experience. Peace Research, 37(1), pp.113-122.

[3]              .  Constitution of India 1950, art 370.

[4]              . Bakshi, P.M., 1956. Comparative Law: Separation of Powers in India. American Bar Association Journal, pp.553-595.

[5]              . Constitution of India 1950, art 50.

[6]              . Sri Vaishnavi ‘Separation of Powers and its Relevance (ipleaders, May 31 2019) https://blog.ipleaders.in/separation-of-powers-and-its-relevance/ accessed June 30 2020.

[7]              . Constitution of India 1950, art 370.

[8]              . Constitution of India 1950, art 370.

[9]              . Gupta, R. and Kumar, K., What missing the Internet means in digital era: A case study of longest ever Internet blackout in Jammu & Kashmir.

[10]           . ibid

[11]           . Mahase, E., 2019. Kashmir communications blackout is putting patients at risk, doctors warn.

[12]           . ADM Jabalpur v Shivkant Shukla [1976] SC, 1 AIR (SC).

[13]           . Constitution of India 1950, art 359, clause 1.

[14]           . Constitution of India 1950, art 32.

[15]           . Constitution of India 1950, art 21.

[16]           . Constitution of India 1950, art 21.

[17]           . ADM Jabalpur v Shivkant Shukla [1976] SC, 1 AIR (SC).

[18]           . ADM Jabalpur v Shivkant Shukla [1976] SC, 1 AIR (SC); Verma, P., 2014. Judicial Opinions as Literature-ADM Jabalpur v. Shivakant Shukla. Shivakant Shukla (April 2, 2014).

[19]           . Constitution of India 1950, art 21.

[20]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[21]           . Annie Shahid, Kashmir in the Supreme Court: No Sin to kill this Mockingbird, Opinions: The Wire, https://the

                wire.in/rights/kashmir-supreme-court-lockdown-petition accessed June 30 2020.

[22]           . ibid.

[23]           . Constitution of India 1950, art 370.

[24]           . Constitution of India 1950, art 370.

[25]           . PTI New Delhi,‘Article 370: Supreme Court Reserves Verdict On Pleas Challenging Curbs In Jammu And Kashmir’The Hindu (2019) <https://www.thehindubusinessline.com/news/national/article-370-supreme-court-reserves-verdict-on-pleas-challenging-curbs-in-jammu-and-kashmir/article30095221.ece> accessed June 30 2020.

[26]   Constitution of India 1950, art 19.

[27]   Constitution of India 1950, art 21.

[28]           . Supra at 25.

[29]           . Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. [1973]SCC 4 (SC), p.225.

[30]           . S.P. Gupta v. President of India AIR 1982 SC 149.

[31]           . Prachi Bhardwaj, A walk down the memory lane on SP Gupta (Senior Advocate) 90th Birthday, OP. ED., The SCC Online Blog, Published on: March 15 2019, https://www.scconline.com/blog/post/2019/03/15/a-walk-down-the-memory-lane-on-sp-guptas-senior-advocate-90th-birthday/ accessed June 30 2020.

[32]           .  P. Kannadasan & Ors. v. State of Tamil Nadu 1996(5) SC 670.

[33]           . Ram Jawaya Kapoor v. State of Punjab AIR 1955 SC 549.

[34]           . Sub-Committee on Judicial Accountability V. Union of India & Ors 1991 SCR Supl. (2) 1.

[35]           . A.K. Roy v. Union of India (1982) 1 SCC 271.

[36]           .  Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 on page 415

[37]           . Constitution of India 1950, art 74, clause 1.

[38]           . Ram Jawaya v. State of Punjab [1995] SC 1 AIR 549.

[39]           . Constitution of India 1950, art 368.

[40]           . Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. [1973]SCC 4 (SC), p.225.

[41]           . Constitution of India 1950, art 368.

[42]           . Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. [1973]SCC 4 (SC), p.225.

[43]           . Indira Nehru Gandhi v. Raj Narain [1975] AIR SC 2299.

[44]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[45]           . . ‘How the SC Judges’ Dissent Reminds us of Justice HR Khanna in 1975′ (The Quint, January 12 2018) https://

                www.thequint.com/news/india/sc-judges-dissent-reminds-us-of-hr-khanna-emergency accessed June 30 2020.

[46]           . ibid.

[47]           . Marbury v. Madison, 5 U.S. 137 (1803).

[48]           . Constitution of India 1950, art 13.

[49]           . Constitution of India 1950, art 32.

[50]           . Constitution of India 1950, art 226.

[51]           . Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. [1973]SCC 4 (SC), p.225.

[52]           . Constitution of India 1950, art 13.

[53]           . Anil Yadav & Ors. v. State of Bihar & Anr. 1982 AIR 1008.

[54]           .Constitution of India 1950, art 32.

[55]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[56]           . Raghul Sudheesh, ’43 Years Since Emergency a look back at HR. Khanna the Judge who stood up to Indira Gandhi’ (First Post, June 25 2018) https://www.firstpost.com/india/43years-since-emergency-a-look-back-at-hr-khanna-the-judge-who-stood-up-to-indira-gandhi-365539.html accessed June 30 2020.

[57]           . Anil B. Divan, ‘Cry Freedom’ (The Indian Archive: The Journalism of Courage Archive, March 05 2004) http://archiv

                e.indianexpress.com/oldStory/42937/ accessed June 30 2020.

[58]           . LP Coutinho, M La Torre and SD Smith, Judicial activism: an interdisciplinary approach to the American and European experiences‘, (Vol. 44, Springer 2015).

[59]           . Satyaranjan Purushottam Sathe, Judicial Activism in India, Oxford University Press, June 15, 2002 at A2.

[60]           . Vishakha & Ors. v. State of Rajasthan AIR 1997 SC 3011.

[61]           . Prevention of Harassment of Women at Workplace Act 2012.

[62]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[63]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[64]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[65]           . Revathi Krishnan, ‘When an SC judge’s dissent 43 years ago is relevant to Kashmir clampdown today‘ (The Print, September 03 2019) https://theprint.in/theprint-essential/why-an-sc-judge-dissent-43-years-ago-is-relevant-to -kashmir-clampdown-today/285665/ accessed January 31 2020.

[66]           . Supra at 57.

[67]           . ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 [1976] SC, 1 AIR (SC).

[68]           . Hans Raj Khanna, Making Of India’s Constitution (Eastern Book 2009).

[69]           . ibid.

[70]           . Constitution of India 1950, art 370.

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