Former Chief Justice of India (CJI) Bhushan R Gavai on Saturday made a scathing comment on the constitutional collapse during the 1975 Emergency, saying the period exposed how the judiciary, instead of acting as a safeguard against state excesses, “goes along with state power”, while Parliament, the executive and the judiciary fail to discharge their constitutional duties.
Addressing the 19th Annual Sujata Jayawardena Memorial Speech in Colombo on the topic “In a true democracy, is Parliament supreme?”, Justice Gavai said that the judgment of the notorious Additional District Judge (ADM) Jabalpur v Shivkant Shukla represented “perhaps the most extreme judicial deference to the executive and the legislature in the constitutional history of India”.
“What, then, does the Jabalpur court judgment mean? It marked a moment when Parliament and the executive seemed unchecked, and where the judiciary, instead of acting as a safeguard, sided with state power,” Justice Gavai said.
He added: “The state of emergency has revealed that Parliament, the executive and the judiciary have all failed in their constitutional duties. Together, these failures have revealed the fragility of constitutional guarantees when institutional duties do not work as intended.”
These statements are significant because they come from a former ICJ member reflecting on one of the darkest constitutional chapters in independent India, where civil liberties were suspended during the Emergency imposed by the Indira Gandhi government between 1975 and 1977.
Justice Gavai revisited the constitutional crisis that culminated in the Supreme Court’s majority judgment in the ADM Jabalpur case, wherein the Supreme Court held that during the emergency, when enforcement of fundamental rights was suspended, citizens had no recourse to the courts against illegal detention.
He said several high courts across the country, including the high courts of Allahabad, Delhi, Karnataka and Madhya Pradesh, had initially held that the state cannot deprive anyone of life or liberty without the authority of law even during a state of emergency. However, the Supreme Court overturned those decisions in the ADM Jabalpur case.
Justice Gavai also paid tribute to Justice HR Khanna, whose sole dissent in ADM Jabalpur has since come as a high water mark of judicial courage.
“In this case, Justice HR Khanna, in his dissent, held that the right to life and personal liberty is not a gift of the Constitution, but is a fundamental postulate of the rule of law, which cannot be extinguished even during a state of emergency,” Justice Gavai said. He stressed that Justice Khanna’s opposition came at a “personal cost”, recalling that the judge was replaced to be appointed Chief Justice of India after he refused to submit to the majority opinion.
The former judicial center also pointed to the consequences faced by constitutional court judges who resisted the suspension of freedoms during the state of emergency. “Justice AP Sen of the Madhya Pradesh High Court, whose decision affirmed the continued protection of liberty, was transferred soon after,” Justice Gavai said.
Justice Gavai noted that the constitutional order eventually corrected itself after the state of emergency. He referred to the 44th Constitutional Amendment, which guarantees that the right to life and personal liberty may not be suspended under Article 21 even during a state of emergency. He also pointed out that decades later, in the case of Justice K.S. Puttaswamy v Union of India (2017), the Supreme Court formally recognized that ADM Jabalpur was “seriously defective”.
Tracing the constitutional development in India, Justice Gavai said that the Indian model rejects absolute parliamentary supremacy in favor of constitutional supremacy. “In the Indian constitutional system, Parliament is not supreme in any absolute sense. Nor is any other organ. The only sovereignty recognized by the Constitution is its own,” he said, citing Dr BR Ambedkar’s speeches in the Constituent Assembly.
The previous ICJ also discussed the development of the basic structure doctrine through landmark cases such as Kesavananda Bharati v. State of Kerala (1973) and Minerva Mills v. Union of India (1980), noting that constitutional guarantees arose from recurring institutional conflicts between Parliament and the judiciary.
He also pointed to recent rulings involving abuse of Article 356, governors’ abstention from approving state bills, anti-dissent disputes, frequent issuance of decrees, and “bulldozing operations” to underscore the need for institutional controls and constitutional accountability.
At the same time, Justice Gavai warned that judicial review must remain within constitutional bounds. He said: “Judicial review must not descend into judicial abuse. The activity must not turn into an adventure.”
Concluding his speech, Justice Gavai answered the central question posed by the Memorial Lecture in emphatic terms: “Ultimately, it is not Parliament, nor the executive, nor even the judiciary, that has supreme authority – but the Constitution.”
