Rohinton Nariman J on “Three Great Dissents” by Justices Fazl Ali, Subba Rao and HR Khanna

The judgment in the Right to Privacy case delivered by the Supreme Court today has discussed myriad aspects concerning life and personal liberty..It is likely to have significant implications on various other cases including the case on validity of Aadhaar and Section 377 of IPC..Justice Rohinton Nariman, who is known for writing crisp judgments, has made an exception in this case. His judgment runs into 122 pages. And in those 122 pages, Justice Nariman has devoted a good amount of space and attention to discuss, what he calls – “Three Great Dissents”..In his own words:.Fazl Ali J. in AK Gopalan v. State of Madras.The first great dissent referred to by Nariman J is by Justice Fazl Ali in the case of AK Gopalan v. State of Madras. He does not hold back in waxing eloquent about Fazl Ali J. stating that the “great judge’s” dissent “simply takes our breath away.”.“Whichever way one looks at it, the foresight of Fazl Ali, J. in A.K. Gopalan v. State of Madras, 1950 SCR 88, simply takes our breath away. The subject matter of challenge in the said case was the validity of certain provisions of the Preventive Detention Act of 1950. In a judgment which anticipated the changes made in our constitutional law twenty years later, this great Judge said:.‘To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19(1)(d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19(1)(f) and article 31 both of which deal with the right to property and to some extent overlap each other….’.He went on thereafter to hold that the fact that “due process” was not actually used in Article 21 would be of no moment…...He also went on to state that “law” in Article 21 means “valid law”..Justice Nariman calls Justice Fazl Ali’s judgment a cry in the wilderness and that it took the Supreme Court twenty years to realise how correct Justice Ali was..“On all counts, his words were a cry in the wilderness. Insofar as his vision that fundamental rights are not in distinct watertight compartments but do overlap, it took twenty years for this Court to realize how correct he was, and in R.C. Cooper (supra), an 11-Judge Bench of this Court, agreeing with Fazl Ali, J., finally held:……”.Subba Rao J. in Kharak Singh v. State of UP.The second great dissent referred to by Nariman J. is Justice Subba Rao’s dissent in Kharak Singh v. State of UP..“The second great dissent, which is of Subba Rao, J., in Kharak Singh (supra), has a direct bearing on the question to be decided by us. In this judgment, Regulation 237 of the U.P. Police Regulations was challenged as violating fundamental rights under Article 19(1)(d) and Article 21..All 6 Judges struck down sub-para (b), but Subba Rao, J. joined by Shah, J., struck down the entire Regulation as violating the individual’s right to privacy”.At footnote number 6, Justice Nariman alludes to the farewell speech of Chief Justice SR Das,.“Chief Justice S.R. Das in his farewell speech had this to say about Subba Rao, J., “Then we have brother Subba Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some illconceived judgments of his colleagues which require reconsideration.” .HR Khanna in ADM Jabalpur v. SS Shukla.The third judgment is the famous dissent by Justice HR Khanna in ADM Jabalpur. In Nariman’s words:.“In Additional District Magistrate, Jabalpur v. S.S. Shukla, (1976) 2 SCC 521, a Constitution Bench of this Court arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether. A remarkable dissent was that of Khanna, J..At footnote 12 of his judgment Nariman J., states,.“Khanna, J. was in line to be Chief Justice of India but was superseded because of this dissenting judgment. Nani Palkhivala in an article written on this great Judge’s supersession ended with a poignant sentence, “To the stature of such a man, the Chief Justiceship of India can add nothing.” Seervai, in his monumental treatise “Constitutional Law of India” had to this to say:.‘53. If in this Appendix the dissenting judgment of Khanna J. has not been considered in detail, it is not for lack of admiration for the judgment, or the courage which he showed in delivering it regardless of the cost and consequences to himself. It cost him the Chief Justiceship of India, but it gained for him universal esteem not only for his courage but also for his inflexible judicial independence. If his judgment is not considered in detail it is because under the theory of precedents which we have adopted, a dissenting judgment, however valuable, does not lay down the law and the object of a critical examination of the majority judgments in this Appendix was to show that those judgments are untenable in law, productive of grave public mischief and ought to be overruled at the earliest opportunity. The conclusion which Justice Khanna has reached on the effect of the suspension of Article 21 is correct. His reminder that the rule of law did not merely mean giving effect to an enacted law was timely, and was reinforced by his reference to the mass murders of millions of Jews in Nazi concentration camps under an enacted law.’.Nariman J. goes on to state that “developments after this judgment have also made it clear that the majority judgments are no longer good law and that Khanna, J.’s dissent is the correct version of the law.”.Read Justice Rohinton Nariman’s judgment below. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.