Author: Anil B. Divan
Publication: The Indian Express
Date: March 15, 2004
URL: http://www.indianexpress.com/full_story.php?content_id=42937
Introduction: At the height of the
Emergency, at the cost of his own career, Justice H R Khanna stood like
a rock for citizens' rights
Recently on the lawns of the Supreme
Court, President A P J Abdul Kalam spoke at a function to honour Nani Palkhivala.
A frail but erect, old gentleman occupied the front row. Some young members
of the Bar inquired who he was. He was none other than Justice H R Khanna.
I resolved that day to share with a wider circle of young lawyers and citizens
the story of his matchless courage.
In a democracy, it is essential
to share with each new generation the experiences of the past - great sacrifices
made for the cause of the independence of the Judiciary, the Rule of Law
and Human Rights. On January 28, 1977 Justice Khanna was superseded for
appointment as Chief Justice of India. He sent in his resignation on that
very day, but effective on March 12, 1977. It is almost 27 years to the
day. The Habeas Corpus Case was the trigger which led to his supersession
and resignation.
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 Behari Vajpayee and L K Advani
were detained without charges and trial. The fundamental rights to life
and liberty (Article 21) and equality (Article 14) were suspended. Many
persons were detained and presented petitions of habeas corpus for their
release on the ground that such orders were ultra vires and beyond the
statute or were malafide.
A Bench of five judges of the Supreme
Court (C J Ray, Khanna, Beg, Chandrachud and Bhagwati) heard what has come
to be known as the Habeas Corpus Case (ADM Jabalpur vs 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 malafide 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. N M Ghatate was actively in the fray. We thought our case was
unanswerable with nine High Courts in our favour. We were grievously 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 argument which was accepted by the majority was that even if a person
is tortured or deprived of his property, or his wife is spirited away,
or members of his family are detained or harassed without legal authority
or malafide there was no remedy and the Court's doors were closed. This
was a complete negation of the Rule of Law which means that no Government
officer can act against a citizen or his property unless authorised by
some law or rule.
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.''
His 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 classic and is cherished by many of us who lived through
those dark days.
''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.''
In 1977, on the principle of seniority,
Justice Khanna was due for appointment as Chief Justice of India. His dissent
in the Habeas Corpus Case sealed his fate. On January 28, 1977 Justice
M H Beg, who had decided in favour of the Government, was appointed Chief
Justice of India, superseding Justice Khanna.
By the oath of office, a judge has
to perform his duties ''without fear or , affection or ill will''. In politically
sensitive cases, many a judge asks himself the question - how will my decision
affect me personally and my future prospects? Will it displease the powers
that be? It is to Justice Khanna's eternal credit that the question went
through his mind when he told his sister before delivering his judgment.
''I have prepared my judgment, which is going to cost me the Chief Justice-ship
of India.'' He remained true to his oath and displayed neither fear nor
favour to a most powerful and tyrannical Executive.
A lesser man would well have agreed
with the majority of four without jeopardising his Chief Justice-ship.
It was Justice Khanna's finest hour. He became a beacon and a symbol of
selfless courage and lion-hearted resolve to stand up for what he considered
to be right without regard to personal consequence. Today he is still among
us, honored and venerated by members of the Bar and Bench wherever he goes.
The writer is a senior advocate
