A profile in judicial courage


Anil Divan

H.R. Khanna’s courage and independence must continue to inspire and remind generations of lawyers and judges of the sacrifice he made in upholding human rights, the rule of law and the independence of the judiciary.

On February 25, 2008, Justice Hans Raj Khanna passed away at the age of 95. He stood for all that is respected and admired in a great judge — patience, courtesy, wisdom, but above all courage. A courage unsurpassed by any other judge of the Supreme Court since Independence.

Khanna was born in 1912, joined the Bar in 1934, was appointed a District and Sessions Judge in 1952 and was elevated to the Punjab High Court in 1962 and finally to the Supreme Court in 1971. He has become immortal in the collective memory of the legal profession because of his judgment in 1973 in the fundamental rights case (Kesavananda Bharati). This judgment tilted the balance seven to six against the government, and curtailed the unrestricted power of Parliament to amend the Constitution on the doctrine of an un-amendable basic structure. Outspoken critics of the judgment like H.M. Seervai, a great constitutional lawyer, changed their view after seeing the excesses of the Emergency.

Habeas corpus case

But Justice Khanna’s finest hour came on April 28, 1976 when he delivered his lone dissent in the habeas corpus case. Indira Gandhi lost her election case on June 12, 1975 and on her appeal in the Supreme Court she was only granted a conditional stay. As a result, she could neither vote nor speak in the Lok Sabha. She became a dysfunctional Prime Minister. Immediately thereafter, on June 25, 1975, she proclaimed a state of internal Emergency. In a midnight swoop, most of the prominent Opposition leaders, including Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee and L.K Advani, were detained without charges and trial. The fundamental right to life and liberty (Article 21) and equality (Article 14) were suspended. The Press was gagged and censored and orders were passed not to report unfavourable court judgments. Many persons were detained and habeas corpus petitions were presented for their release on the ground that such orders were ultra vires and beyond the statute, or were mala fide.



A Bench of five judges of the Supreme Court (Chief Justice A.N. Ray; Justices Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati) heard what has come to be known as the habeas corpus case (A.D.M. Jabalpur v. Shiv Kant Shukla). The only question before the court was whether a petition for habeas corpus and other similar petitions under Article 226 were maintainable (notwithstanding the suspension of the fundamental rights) on the ground that the orders were beyond the statute or were issued with mala fide or were not in accordance with law. Shanti Bhushan led the argument. Ram Jethmalani, Soli Sorabjee and I came from Bombay to argue for various detenus. We thought our case was unanswerable, with nine High Courts in our favour. We were hopelessly wrong.

On April 28, 1976, four judges decided in favour of the government, holding that the petitions were not maintainable. Justice Khanna was the lone dissenter. The government’s argument was accepted by the majority. The Supreme Court by a majority closed its door to the citizen and there was no remedy against illegal detentions, unauthorised demolitions, official tyranny, torture, murder, and mayhem. The Supreme Court sanctioned “the rule of lawlessness.”

H.M. Seervai later commented: “The four judgments were delivered in the darkest hour of India’s history after independence, and they made the darkness complete… ordinary men and women would understand Satan saying ‘Evil be thou my good,’ but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.’”

Justice Khanna in his autobiography writes about the habeas corpus case graphically. He says: “In view of his (Attorney-General’s) submissions would there be any remedy if a police officer because of personal enmity killed another man?” The answer of Mr. De (Attorney-General) was unequivocal: “Consistently with my argument,” he said, “there would be no judicial remedy in such a case as long as the Emergency lasts”.”

Heartening reaction

Khanna’s dissent rejecting the Attorney-General’s argument held the petitions maintainable. It was the only light in an atmosphere of total gloom. But the reaction in other democratic countries was heartening. The New York Times on April 30, 1976, came out with an editorial which has become a classic and is cherished by many of us who lived through those dark days.

It said: “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… The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.”

Justice Khanna did not surrender. But it cost him his appointment as Chief Justice of India. He was superseded in January 1977 and Justice Beg who was next in seniority, appointed Chief Justice of India. Khanna promptly resigned. In his autobiography he writes of what he had told his sister, “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India” — but he did not flinch or waver and remained true to his oath.

Justice Jackson of the U.S. Supreme Court said: “Judges are more often bribed by their ambition and loyalty than by money.” Unlike his four colleagues, Justice Khanna did not succumb to ambition or loyalty. His judgment was reminiscent of Lord Atkin’s celebrated dissent in Liversidge v. Anderson during the dark days of the Second World War when he invalidated an order of detention without trial and observed: “I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive… In this country, amid the clash of arms the laws are not silent.”

Justice Khanna in his dissent stated: “What is at stake is the rule of law… the question is whether the law speaking through the authority of the Court shall be absolutely silenced and rendered mute…”

His dissent does the Indian judiciary and the legal profession proud. The doctrine of basic structure which is now firmly rooted in our constitutional jurisprudence is his great gift to posterity. To adapt Winston Churchill’s felicitous phrase, never did so many owe so much to a single judge. He was enticed into becoming Law Minister in the Charan Singh government supported by Indira Gandhi in July 1979 but he suffered pangs of conscience and resigned in three days. Again, a principled sacrifice and the courage to recognise his error publicly. His portrait adorns Court No. 2 in the Supreme Court. His courage and independence must continue to inspire and remind generations of lawyers and judges of the sacrifice he made in upholding human rights, the rule of law and the independence of the judiciary.

It is essential for each generation to share with successive generations the experiences and struggles of the past for preserving a constitutional democracy and the rule of law. It is an ever-greening process and Justice Khanna’s role must encourage each one of us — judge, lawyer and citizen — to play our little part in this never-ending battle. This is my small tribute to a great son of India.

(The writer is a Senior Advocate. e-mail: abdsad@airtelmail.in)


Speaking justice to power


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



One Comment

  1. Men like Hans Raj Khanna is the need of the hour to uphold the rule of Law. Lawyers and Judges should follow the footsteps of Late. H.R. Khanna.

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