Senior Advocate Menaka Guruswamy told the Supreme Court that police mass detentions of protestors during the CEC Gyanesh Kumar controversy amounted to an undeclared emergency, invoking Justice H.R. Khanna's famous dissent in ADM Jabalpur. She alleged violations of Articles 19 and 21 without any formal Emergency proclamation. The court was hearing a matter arising from protests related to the Chief Election Commissioner appointment, where demonstrators were allegedly detained in large numbers without following due legal procedure.

This case sits at the intersection of two foundational constitutional law pillars: the ADM Jabalpur judgment (1976) and the right to protest as a fundamental right.

ADM Jabalpur v. Shivkant Shukla (1976) was the Supreme Court's most controversial ruling, holding during the Emergency that the right to life under Article 21 could be suspended. Justice H.R. Khanna alone dissented, insisting that no emergency proclamation could extinguish the right to life and personal liberty. His dissent was later vindicated — and treated as correct law — by the nine-judge bench in K.S. Puttaswamy v. Union of India (2017), which declared privacy a fundamental right and explicitly overruled ADM Jabalpur.

Guruswamy's invocation of Khanna's dissent is legally precise: she is arguing that if mass detentions of the kind seen during a formal Emergency are now happening without any Emergency proclamation under Article 352, the constitutional safeguards against arbitrary detention — Article 22, Section 41 CrPC / Section 35 BNSS — are being violated more brazenly than during 1975-77.

The right to protest in a public place is protected under Article 19(1)(b) (freedom of assembly) read with Article 19(1)(a) (freedom of speech). These can be restricted under Articles 19(2) and 19(3) only by a law imposing reasonable restrictions. Detention without such a law, or in excess of it, is unconstitutional. This is the principle the court is being asked to enforce.