Justice H R Khanna - A Monument

Lone dissenter judge during
Emergency all but forgotten

                              Dhananjay Mahapatra | TNN

Seldom does a judge play such a vital role — make citizen’s fundamental rights inviolable and later, show the lamp to luminaries who went with the tide and blinked when these very rights were being consigned to the darkest of nights in the life of a democracy. He was Justice H R Khanna.
   He was a distinguished presence on the Benches of the SC, which delivered two landmark judgments. They continue till date to be the spirit behind judicially-protected fundamental rights wick. Keshavananda Bharati judgment of April 24, 1973, codified the inviolability of a citizen’s fundamental rights. These cannot be changed or abridged as per the whims and fancies of a political party commanding brute majority in Parliament.

   Justice Khanna, being part of this verdict, felt it should not be too easy or too difficult to amend the Constitution. Giving glimpses of great foresight, he said: ‘‘No generation has a monopoly of wisdom nor has a right to put fetters on future generations to mould the machinery of governments. If no provisions were made for amendment of the Constitution, the people would have recourse to extra-constitutional methods like revolution to change the Constitution.’’

   Two years later, proclamation of emergency by the then PM Indira Gandhi made fundamental rights an illusion. The government of the day brutalized a nation under the cloak of emergency, and through its macabre powers. In the life of any great institution, there comes a moment to prove its mettle. Such an opportunity came before the Supreme Court in 1976, during those dark days, in the form of a case titled ‘ADM Jabalpur vs Shiv Kant Shukla’.

   It provided the perfect wicket for a five-judge bench of Chief Justice A N Ray and Justices Khanna, M H Beg, Y V Chandrachud and P N Bhagwati to bat on even though the weather was inclement. They simply had to follow Keshavananda Bharti case judgment to state that the government could not violate citizen’s right to life. The next-generation luminaries on the bench, except Justice Khanna, caved in and agreed with the then attorney general Niren De that if a policeman killed a passerby just for fun, there would be no remedy available to the kin as right to life had zero value during emergency.

   All of them — Justices Ray, Beg, Chandrachud and Bhagwati — failed to honour their oath which compelled them to uphold the majesty of law. They simply flowed with the tide. Showing the lamp to these luminaries was Justice Khanna, who penned the golden line — fundamental rights, especially the right to life, cannot be violated even during Emergency. The dissent cost him heavy. The government carried the day with the help of a 4:1 majority but was wounded by Justice Khanna’s sharp pen. It wreaked vengeance by appointing Justice Beg as CJI in 1977 by superseding Justice Khanna.

   One of the finest tributes to Justice Khanna came from the ‘New York Times’ two days after the verdict. In its April 30, 1976 editorial, NYT wrote: ‘‘If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R 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 Indian Supreme Court’s decision appears close to utter surrender.’’

   Surrender it was. But, we did get back to democracy. Lamentably, no one cared to build a monument for Justice Khanna. But, does anyone build a monument for a monument, which Justice Khanna was?

                                                                                                                                                   (Courtsey: Times of India: 03.03.2008)


Speaking justice to power

T. R. Andhyarujina

On February 25, Justice H.R. Khanna, a former judge of the Supreme Court died at the age of 96. His memory will remain so long as we cherish the ideal of an independent and courageous judge.

Justice Khanna was not a brilliant or learned judge. He wasn’t a judge with a flair for writing judgments, or a judge known for a popular ideological stance. This unassuming judge left his mark in a manner in which no judge in India has done by his courage to decide issues on his own convictions without succumbing to any pressure from outside or within the Court.

Two instances stand out in Justice Khanna’s tenure as a Supreme Court judge between 1971 and 1977. One was his dissenting judgment in 1976 in what is known as the ‘habeas corpus’ case in the Supreme Court. In the dark days of the Emergency between 1975 and 1977, the fundamental right of personal liberty was suspended. A large number of persons were detained under detention laws. Did such persons have a right to ask for their liberty if their detention was without authority of law? Nine high courts said that they could. The Government of India appealed to the Supreme Court against these decisions of the high courts. What would be the opinion of the highest court of the country? People eagerly awaited the verdict from a bench of five judges presided over by Chief Justice A.N. Ray which included Justice Khanna.

A majority of four judges held that no person could ask for any relief from a court as the fundamental right to personal freedom had been suspended, not even if the order of detention was without authority of law or was made by an unauthorised person or was mala fide or even if a wrong person was detained. It was left to Justice Khanna alone to dissent. In a powerful dissent he said that even though the right to personal freedom was suspended, no person could be detained without authority of law as it was a cardinal principle of our jurisprudence that no person’s life or liberty could be taken away without authority of law.

It required courage of the highest order for a judge to take a bold stand against the government during the Emergency and to differ from his eminent colleagues. The New York Times editorially applauded Justice Khanna’s dissent: “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. 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.”

Justice Khanna was next in line of seniority to become Chief Justice of India after the retirement of Chief Justice Ray. He writes in his memoirs that when he wrote his dissent, he was fully conscious that he would not be appointed chief justice but he was undaunted. Nine months after his dissent, when Chief Justice Ray retired on January 28 1977, as he had anticipated Justice Khanna was superseded and his immediate junior, Justice M.H. Beg, who had written a judgment with the majority, was appointed Chief Justice of India. Immediately after the news was announced, Justice Khanna resigned. He thus lost the office of Chief Justice of India, but gained the eternal admiration and affection of the bar and the public. In a singular honour to him, his portrait was put up in a court room of the Supreme Court during his lifetime.

Earlier in 1973, Justice Khanna had shown the courage of his convictions in the famous Kesavananda Bharati Case. Today, it has become an axiom of our constitutional law that Parliament cannot amend the Constitution to destroy ‘the basic structure of the Constitution’. It was Justice Khanna who was the author of the theory of the basic structure of the Constitution. How this came about is an interesting story.

The Kesavananda Bharati case was one of the biggest cases to be decided by a bench of 13 judges of the Supreme Court over 76 days of hearings in court. It had to decide whether Parliament had the unfettered right to amend the Constitution or not. On April 24 1973, six out of 13 judges held that Parliament’s power to amend the Constitution was limited. Six other judges in the case were of the view that Parliament’s power was unrestricted. Justice Khanna took the position that though Parliament’s power to amend the Constitution was plenary, Parliament did not have the power to abrogate what he called ‘the basic structure of the Constitution’.

Justice Khanna’s opinion tilted the balance in this delicate situation for the majority of the judges to hold that Parliament did not have the power to abrogate the basic structure. He showed a rare courage of his conviction even in this case in which the other judges were sharply divided in favour of Parliament or against it.

In the galaxy of eminent judges of our Supreme Court, Justice Khanna will be remembered as one who won the admiration of the people by his conviction.  

The writer is a senior advocate of Supreme Court and former solicitor general of India

(Courtsey: Indian Express: 06.03.2008)