Remembering Justice HR Khanna on his 14th death anniversary

Justice HR Khanna, whose death anniversary falls on February 25, will never pass from the pages of Indian judicial history. His outstanding work and exemplary sacrifice dwells on the story of a crusader against injustice, a legendary judge who lived and worked for giving justice to the people of India at a time when darkness had engulfed personal liberty.

He was a towering and multi-faceted personality. Justice Khanna has inspired generations by his judicial philosophy, and was an ardent advocate of change for better; a person with simple habits, he was a friend of all.

Justice Khanna is one Indian judge who can be treated as a role model for how a judge needs to act in a constitutional democracy. If one has to sum up this incredible personality in one sentence, one would simply say that he preserved the Constitution through his judicial pronouncement(s), enriching it immensely and indeed explicating the intent and aspirations of the noble founding fathers, making it truly a living document of our nationhood.

In any democracy that is governed by the rule of law, there are moments when people face and suffer the dark forces of division and suppression. In the Indian context, we underwent this period during the National Emergency days between 1975-1977. It is during this period that the personal liberty and freedom of the people were suppressed, with the oppression exercised by the government machinery.

As is well-known, thousands of persons were taken into preventive custody during that time. A spate of Habeas Corpus writ petitions came to be filed in various High Courts. These writ petitions were contested by the State with the plea that during the Emergency, citizens did not enjoy any fundamental rights, as these rights, including the right to life and personal liberty enshrined in Article 21, stand suspended under Article 359 of the Constitution.

Rejecting this contention of the State, many High Courts issued writs declaring preventive detention to be bad in law and ordering the release of people detained under the Maintenance of Internal Security Act (MISA).

The matter then reached the Supreme Court and the judgment in ADM Jabalpur & Ors v. Shivkant Shukla was the outcome. In that case, the main plea of the State was accepted by the Supreme Court by a majority of 4:1.

The lone dissenting voice was that of Justice HR Khanna, who proved to be a valiant soul and an embodiment of strength and tenacity.

In his dissent, Justice Khanna observed:

"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…”

He rejected the ruthless formalism of law and its Kafkaesque outcomes. The Nazi regime too had been strictly legal, he tersely observed, in response to the argument that detention was legal. On that day, he single-handedly defended our cherished values and dreams from being trammelled by the forces of tyranny [Fali S Nariman, Before Memory Fades- An Autobiography, New Delhi, 2010, at 170].

But this sacrifice came at a great cost. He was superseded and his junior colleague Justice MH Beg was appointed Chief Justice of India by the then Indira Gandhi government in 1977. He resigned in protest and became a hero of the masses for delivering his courageous dissenting opinion.

It was not that he did not possess any inkling of the repercussions. In his autobiography titled ‘Neither Roses Nor Thorns’, Justice Khanna 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."

Despite knowing that the outcome would be adverse, he did not flinch or waver, and remained true to his oath. This is what is expected from judges, who are duty bound to decide cases without fear or favour. His courageous dissenting judgment made him the prophet of the rule of law, human rights and constitutionalism.

Notably, this lone crusader of democracy upheld the dignity of the Court during the most testing times and has been immortalized for this act ever since.

The New York Times, on April 30, 1976, came out with an editorial praising his dissenting judgement, which has become a classic and is cherished by many. It said that,

“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.” [New York Times editorial, April 30, 1976.]

Justice Khanna may not have had a monument erected in his honour (notwithstanding the portrait adorning the Court Room No. 2 of the Supreme Court), but more than 45 years after the infamous ADM Jabalpur decision, Justice Khanna’s uncompromising integrity and courage has been rewarded.

The Supreme Court, in its recent landmark judgment in Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors (famously known as the Right to Privacy case), set aside the majority judgment in ADM Jabalpur. The nine-judge Bench finally granted an imprimatur of authority to the revered and lauded dissent of Justice Khanna, which has been the shining beacon through the murkiness of our democracy.

In the judgment, Justice DY Chandrachud observed that, “the view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”

Justice RF Nariman included Justice Khanna’s dissent in one of the three great dissents of the Indian Judiciary.

Therefore, I am of the view that Justice Khanna showed courage and independence in upholding human rights, the rule of law and the independence of the judiciary. He upheld the noble values of constitutional democracy during the most difficult time in the country. This continues to inspire and remind generations of judges of their role in a democracy. [H.M. Seervai, Constitutional Law of India, Vol. 2, 4^th Edition, 1993, Appendix at 2229]

So, what is the role of a judge in a democracy that Justice Khanna fulfilled? This question has perplexed jurists, philosophers and judges for as long as democracies have existed. I write this on his fourteenth death anniversary because this is a question which every judge in a modern democracy has, at some time or the other, been confounded with. Justice Khanna too faced this question, and provided us the answer with his action.

At the same time, for crystalizing this role, I am inspired by Justice Aharon Barak, former Chief Justice of the Supreme Court of Israel. He assigns two basic roles of the judge in a democracy. As per Justice Barak, these are: (i) to uphold the Constitution and the rule of law; and (ii) to bridge the gap between the law and the society. In the words of Justice Barak,

"Each Judge is a distinct world unto himself. Ideological pluralism and not ideological uniformity is the hallmark of judges in a legal system.’ [Fali S Nariman, before Memory Fades, Introduction, at xv; See also, Justice Cardozo performed similar examinations—with great success—in his books, particularly in Benjamin N. Cardozo, The Nature of the Judicial Process (1921)].

The common thread amongst all the diverse opinions, however, is that every judge has a minimum role and responsibility in a constitutional democracy. This emanates from the Constitution, the fundamental ethos of a democracy and extends beyond mere dispute resolution.

I view bridging the gap between law and society as a central task of a judge in a democratic society. The balancing approach, tending neither toward activism nor toward self-restraint, is not only the best approach to bridging the gap between law and society, but also applies to protecting the Constitution and its values. Protecting the Constitution requires balancing the different values internal to a particular society. It requires balancing between the principle of majority rule and values that even the majority may not undermine, between the needs of the collective and individual rights, between the rights of one individual and those of another. A judge must protect and maintain this delicate balance, something that requires some measure of activism and some measure of self-restraint. This middle ground, so appropriate for bridging the gap between law and society and protecting the Constitution and its values, is also the right approach to preparing the judicial means with which a court will exercise its discretion.

We, as judges, have a North Star that guides us. The fundamental values and principles of constitutional democracy are the main factors. Justice Khanna embodied the courage to dissent, and it will always remain a treasured value in a constitutional democracy.

Let me conclude this piece with his insightful words mentioned in his book, Making of India’s Constitution, which is a constant reminder to the people of this nation of their duty. He said,

“If the Indian Constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power.”

Justice AK Sikri is an eminent jurist and retired judge of the Supreme Court of India.