He stood up to Indira Gandhi
A Surya Prakash 11 Mar 08 (http://dailypioneer.com/indexn12.asp?main_variable=EDITS&file_name=edit3%2Etxt&counter_img=3)
The news of the demise of Justice HR Khanna, one of the greatest heroes of the second freedom struggle that India's citizens were called upon to wage after Mrs Indira Gandhi imposed her infamous Emergency, brings back memories of the sacrifices that this judge made in order to preserve core constitutional values and uphold the democratic rights of citizens. As students of constitutional law are well aware, a tribute to this great judge will necessarily revolve around his valiant defence of the citizen's right to life and personal liberty even as his brother judges bartered away this right in that indefensible majority-decision of the Supreme Court in what is known as the Habeas Corpus case.
In this case, also known as ADM Jabalpur vs Shiv Kant Shukla, the Supreme Court was called upon to determine whether citizens had the right to move the courts to safeguard their right under Article 21 of the Constitution, when Emergency was in force. While four of his colleagues on the Bench said "No", Justice Khanna dissented and said, "The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive."
While all Articles in Chapter III of the Constitution dealing with Fundamental Rights are important, Article 21 is rather special. It says, "No person shall be deprived of his life and personal liberty except according to procedure established by law." This is a kind of constitutional provision that highlights the distinction between democracy and dictatorship, between rule of law and the law of the jungle. Such is the importance of this fundamental right that no nation that does not have such a provision in its Constitution can ever claim to be a democracy. The first act of Mrs Gandhi after imposing Emergency was to get the President to rubber stamp an order suspending all Fundamental Rights, including the right to life and personal liberty.
However, those jailed by the Government moved the High Courts, challenging this order and claiming that Article 21 cannot be suspended. Many political leaders like Mr LK Advani and Madhu Dandavate were among the petitioners. Nine High Courts rejected the Government's contention. The Supreme Court directed the transfer of all these cases to itself. A five-judge Bench comprising Chief Justice AN Ray and Justice HR Khanna, Justice MH Beg, Justice YV Chandrachud and Justice PN Bhagawati heard these petitions. During the hearing then Attorney-General Niren De contended that so long as Emergency was in force, no citizen could knock on the doors of a court to seek enforcement of the right to life and personal liberty.
Any democrat would have been aghast to hear such an argument. But most of the judges heard the Attorney-General in silence. Justice Khanna notes in his autobiography, Neither Roses Nor Thorns, that he found some of his colleagues, otherwise vocal about human rights and civil liberties, "sitting tongue-tied". Their silence "seemed rather ominous". He, therefore, decided to confront the Attorney-General. He asked him whether, in view of his submissions, there would be any remedy "if a police officer because of personal enmity killed another man"? Justice Khanna says the Attorney-General's answer was unequivocal. Consistent with his argument, he said, "There would be no judicial remedy in such a case so long as Emergency lasts". De further said, "It may shock your conscience, it shocks mine, but consistent with my submissions, no proceedings can be taken in a court of law on that score."
Although it "shocked" the conscience of the Attorney-General, it did not stir the conscience of the majority on the Bench. Chief Justice Ray and Justice Beg, Justice Chandrachud and Justice Bhagwati upheld the Government's contention that courts cannot entertain such petitions. Justice Khanna dissented. The case raised questions "which impact the basic values affecting life, liberty and the rule of law", he said while rejecting the Government's contention.
Even as he did so, Justice Khanna knew the consequences that would follow. This judgement was delivered in the last week of April, 1976. Nine months hence, Chief Justice Ray was to retire and Justice Khanna, as the senior-most judge in the court, was in line for the office of Chief Justice. The Congress wanted "committed judges" and had, therefore, superseded Justice Hegde, Justice Shelat and Justice Grover soon after the court delivered the judgement in the Keshavananda Bharati case on April 24, 1973. Justice Khanna was also on this Bench; he was a key player in formulating the doctrine of "basic structure" propounded by the majority. Now, in the Habeas Corpus case, too, Justice Khanna had displeased the Government.
The Government's response was as anticipated. It superseded him and appointed Justice Beg as Chief Justice in January 1977. Soon after Justice Beg's appointment was announced, Justice Khanna sent in his resignation.
But even before his supersession, the Congress Government did everything possible to tell Justice Khanna that he was persona non grata. It struck his name off the list of invitees for official functions and Congress Ministers and Government officials shunned him like the plague. Justice Khanna bore all this humiliation with utmost dignity. However, what really gave him solace in those trying months were the congratulations conveyed clandestinely to him by some persons in Government for his "bold" judgement. The supreme irony was the conduct of the Attorney-General, who had argued in court that citizens had no right to life during Emergency. He drew Justice Khanna aside at a judge's party and said, "Judge, may I express my admiration and congratulations to you for that great judgement."
Granville Austin, the author of the most definitive book on India's constitutional history, Working a Democratic Constitution -- The Indian Experience, offers an explanation for the Attorney-General's apparent dishonesty. He says, "The Attorney-General feared he and his foreign-born wife might be harassed if the Government and the coterie became aware of his doubts about Emergency and its Constitution Amendments. His friends noticed his tension and heavy smoking."
Justice Khanna's sacrifice for the sake of democracy and constitutional principles is best understood when one notices that after Justice Beg, the other two judges who concurred with the Government in this case -- Justice Chandrachud and Justice Bhagawati -- also went on to become Chief Justices of the Supreme Court. Later, after the ouster of the Congress in 1977, Justice Khanna got the successor Government to embed safeguards vis-à-vis Article 20 and Article 21 in Article 359, which deals with the imposition of Emergency. He thus ensured that his dissenting judgement had not been in vain.
The story of Justice Khanna's judgeship must be told to every new generation so that it may inspire citizens in different walks of life to stand up and be counted when there is a threat to democracy and the rule of law.
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