50 Years Later, What Have We Learned?

This year marks the 50th anniversary of the National Emergency imposed by Prime Minister Indira Gandhi under Article 352 of the Indian Constitution. This 21-month period is often touted as the “blackest era” in India’s democratic history.  During this phase, several constitutional provisions and laws such as the Defence of India Act, 1971, and the Maintenance of Internal Security Act (MISA), 1971, were widely weaponised to suppress dissent and consolidate executive power. As an institutional aftermath of the Emergency, the Supreme Court of India effectively silenced the Constitution on 28 April 1976, when it delivered the infamous judgement in  ADM Jabalpur v Shivkant Shukla. The ruling allowed for the suspension of the right to life and liberty during an Emergency and closed the doors of the judiciary to anyone seeking protection for their fundamental rights. 

Much of what we experience today – the unchecked power of the executive and the troubling silences from the Bench – finds its roots in the emergency. A few pages are not enough to list the aftershocks of that constitutional earthquake. What is the status quo today, 50 years past that death of justice, when even the opposition bent before the executive? Not much has changed. As Former CJI D.Y. Chandrachud remarked in the Right to Privacy judgement, “…when histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been”.      State-sponsored surveillance feels more real in 2025 than it did in 1976, from the use of Pegasus spyware on journalists and activists to the Electoral Bonds scheme, where anonymity in political funding masked state scrutiny and undermined transparency. The spirit and logic of ADM Jabalpur might have become immortal. The suspension of the natural and inalienable right to life and liberty, once justified under the guise of emergency, has returned today in quieter forms: through the denial of bail under stringent laws like the PMLA and UAPA, sealed cover jurisprudence, and judicial silence in the face of executive overreach. 

This blog revisits ADM Jabalpur not as a relic of the past but as a warning for the present. It doesn’t refuse to accept the mandate for rigorous bail standards in cases involving national security or economic offences. Rather, it interrogates the procedural fallout, selective urgency, and judicial deference that threaten the democratic constitutional spirit. In doing so, we risk embracing the very logic that enabled ADM Jabalpur: that the individual must bow before the State.

 ADM Jabalpur and the Silence of the Bench

Here lies original constitutional betrayal. Let us study its anatomy before comparing it with today’s failures. 

Article 21 of the Constitution guarantees that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Yet civil liberties suffered a seismic blow in the case, titled Additional District Magistrate, Jabalpur v. Shivkant Shukla. The judgement came from a five-judge bench of then Chief Justice of India A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud, and P.N. Bhagwati. At stake was a foundational question: Can the individual’s liberty be suspended at the discretion of the state during an Emergency? The majority, including the Chief Justice, chose submission over scrutiny. They ruled in favour of the government, holding that the fundamental right to life and personal liberty could be suspended during a National Emergency and that no person could approach the court for a writ of habeas corpus, even in cases of unauthorised, mala fide, or mistaken detention. The Court, regrettably, prioritised executive convenience over constitutional freedom, implicitly declaring that the right to life was not inherent but a privilege granted by the State.

Justice H.R. Khanna, the lone dissenter, stood firm in defence of individual liberty. He asserted that no authority, not even the State, can extinguish the inherent dignity and freedom of the individual. His dissent, which cost him the Chief Justiceship, became a moral milestone in Indian constitutional history. He reminded the nation that rights are not conferred by governments but are inalienable and rooted in natural law and constitutional conscience. Though unheeded at the time, his dissent resonated globally. As The New York Times wrote on 30 April 1976: “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.”

ADM Jabalpur was not merely a legal error; it was a moral collapse. It revealed how courts, when captivated by the rhetoric of national security, can justify silence even in the face of mass illegality.

This error was corrected in the landmark Puttaswamy case (2017), which marked a constitutional renaissance. The nine-judge bench not only recognised the right to privacy as a fundamental right but also explicitly overturned ADM Jabalpur. By describing Justice Khanna’s dissent as a “beacon of light in the darkest hour,” the Court validated his vision of liberty, placing the individual above the omnipotence of the State. This was more than a symbolic reversal. It was an institutional apology and a reaffirmation of liberty, dignity, and the rule of law. It proved that dissent is not a mark of confusion or weakness, but the foundation of future justice. Justice Khanna’s refusal to compromise judicial conscience under political pressure made him a timeless emblem of constitutional morality. In a democratic society, where courts are seen as the epitome of justice, the judiciary must be continually reminded of its duty to uphold checks and balances, not merely as a function of law, but as a matter of faith. The reaffirmation in Puttaswamy must not be the end of that journey, but the standard by which we measure our commitment to liberty today.

On Bail Exceptionalism 

Stringent statutes like the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA) were introduced to combat grave threats to national security and economic integrity. However, their bail provisions reverse the presumption of innocence. Courts are required to believe that the accused is prima facie not guilty before bail can be granted. In theory, this ensures that dangerous offenders remain in custody. In practice, it creates a climate where bail is not the rule, but the rare exception, even for undertrials who remain behind bars for years.

‘Bail is the rule, jail the exception’ is a well-established principle in ordinary criminal jurisprudence. But under UAPA, the statutory language reverses this. Section 43D(5) of UAPA uses the phrase “shall not be released,” unlike Section 437(1) of the Indian Penal Code (now BNS), which uses “may be released.” This shift reflects a legislative intent where jail becomes the rule. Courts, while dealing with UAPA bail matters, can only rely on a prima facie examination based on police reports and early-stage evidence.

Section 45(1) of PMLA follows a similar structure. It states that no person accused under Section 4 shall be released on bail unless the public prosecutor has been given an opportunity to oppose the application. Even then, bail can be denied if the court believes there are “reasonable grounds” for guilt. This dual threshold effectively ties the hands of the judiciary.

UAPA trials typically take 3 to 5 years or more to conclude. Often, it takes just as long to secure bail, if it comes at all. A glaring sign of this systemic abuse lies in UAPA’s abysmally low conviction rate. While NCRB reports a 27.5% conviction rate based on case outcomes, the number plummets to 2.8% when calculated by individuals. Between 2015 and 2020, over 8,136 of 8,371 arrested persons were acquitted after prolonged trials.

These figures echo the history of repealed anti-terror laws like TADA and POTA, which followed a similar arc of mass arrests, low convictions, and high misuse. The question remains: Can a law that incarcerates first and justifies later survive in a constitutional democracy?

The PMLA is no better. As of March 2023, the Enforcement Directorate (ED) had charged 5,906 people, but only 24 had been convicted. These laws, designed to prevent large-scale harm, now function as pre-trial punishment machines, with stringent bail provisions as the weapon of choice.

The most human cost is evident in the case of Father Stan Swamy, a tribal rights activist arrested under UAPA in the Bhima Koregaon case. Diagnosed with Parkinson’s, he struggled to feed and bathe himself, and was reportedly denied a straw and sipper. In 2022, the UN Working Group on Arbitrary Detention called his death in custody “utterly preventable.” Swamy’s haunting words capture the reality: “When each dissenter is put behind bars, a thorn is removed from the flesh of the ruling class.”

In the PMLA case involving BRS leader K. Kavitha, the Supreme Court observed: “Undertrial custody should not turn into punishment.” But this is not merely a matter of legal harshness. It is also about how these laws are applied, who they target, and how long they punish without trial. While only 3% of ED cases involve politicians, over 90% of those are from the Opposition. When politicians switch sides, cases often disappear. Meanwhile, the remaining 97% of PMLA accused, activists, entrepreneurs, and ordinary citizens languish in custody, with trials delayed indefinitely. The ED has secured final judgments in only 25 PMLA cases in over two decades. In this broken system, punishment often precedes conviction, undermining both justice and due process.

There came a ray of hope in Union of India v. K.A. Najeeb, where the Supreme Court granted bail to an undertrial who had approached the court six times since 2015. The Court held that prolonged detention without trial violates the fundamental right to a speedy trial under Article 21. The case was a rare moment of judicial intervention.

Yet, in the bail pleas of Jyoti Jagtap and Umar Khalid, a different picture emerged. Here, the courts seemed to echo the executive’s narrative, relying on speculative “larger conspiracy” theories and treating dissent as guilt. Scholars have termed this the “executive court” model, where judicial reasoning fills gaps in evidence with inference, criminalising political speech and protest. These trends show how UAPA is not only a legal weapon but increasingly a constitutional threat.

This is no longer just a legal anomaly; it is a constitutional failure in slow motion. When the courts demand proof of innocence for bail, when protest is read as conspiracy, and when years in prison come before a day in trial, the spirit of ADM Jabalpur is not dead — it is just wearing a different face. Then, it was Emergency and habeas corpus; today, it is UAPA and judicial deference. The names have changed; the logic hasn’t. What began as exceptional law has become everyday injustice, and the silence from the Bench, once again, risks becoming complicity.

Sealed Cover Secrecy

In a constitutional democracy, justice must not only be done but must be seen to be done. Yet in recent years, Indian courts have repeatedly accepted sealed cover submissions—evidence or sensitive information presented by the State but withheld from the accused and the open court. Justified in the name of “national interest,” this silent practice marks a disturbing departure from the principles of transparency, adversarial fairness, and the right to be heard under Article 21. Sealed cover jurisprudence erodes natural justice. Unless both parties are aware of the evidence being used, it becomes nearly impossible to mount a meaningful defence or seek reasoned adjudication.

In March 2022, the Supreme Court began expressing discomfort with this practice. In the      Muzaffarpur Shelter case and the MediaOne case, benches led by then CJI N.V. Ramana and Justice D.Y. Chandrachud rejected the government’s sealed submissions, citing concerns over transparency and fairness. While the practice may have begun as a narrow exception for sensitive material, it has now evolved into a routine tool of executive privilege. The problems with sealed covers are manifold. First, they violate the principle of open justice, a cornerstone of democratic accountability. Second, they deprive parties of a fair hearing. Third, they prevent judges from offering fully reasoned decisions. Finally, they infringe upon Article 19(1)’s right to information and Article 21’s guarantee of a fair trial.

 Without a uniform, principled framework, sealed cover jurisprudence risks becoming a quiet return to the logic of ADM Jabalpur, where the Court sees without showing, hears without answering, and rules without reasoning.

Conclusion: Not a Relic, But a Mirror

Half a century ago, ADM Jabalpur legitimised the suspension of liberty under the weight of State authority. Today, we do not need an Emergency to watch those liberties erode. They erode each time the court accepts silence over scrutiny, sealed evidence over fair hearing, or selective stringency over equal protection. The architecture of impunity has simply grown more procedural.

What remains at stake is not merely due process or fair bail, but the soul of constitutional morality, whether the individual is treated as a subject of power or a bearer of rights. If ADM Jabalpur was a loud betrayal, the present moment is a quiet echo. As we mark fifty years since that fall, this is not a time the government wanted anyone to reiterate Tagore’s “Where the mind is without fear.”

And yet, that is exactly what we must do.