ON Monday, February 25th, 2008, Justice H.R. Khanna, an icon and a legend for judicial independence and courage, passed away. He was 95. I have had the privilege to know him intimately for 50 years.
I had my first contact with him in 1954-55. Justice Khanna was then the District Judge, Ambala. He had been appointed as an inquiry officer to look into the police firing at Kalka, when railway employees demonstrated against the Chairman of the Railway Board. I was a lawyer for the workmen and though comparatively junior, Justice Khanna was very polite and considerate.
In 1960, he was appointed as a Judge of the Punjab High Court. In 1966, when the Delhi High Court was constituted, he was transferred to the Delhi High Court. He became the Chief Justice in 1969. He selected me as a Judge of the Delhi High Court in 1970.
Justice Khanna was elevated to the Supreme Court in September, 1971. In the Keshwanand Bharti case (1973), it was Justice Khanna’s decisive vote which laid down the law that the Parliament could not amend the Constitution to alter its basic features – the greatest assurance against the subversion of democracy in our country.
However the real strength of moral character of Khanna J. was shown in the ADM Jabalpur case during the Emergency (1975), in the wake of the J.P. movement. Thousands were detained. Fundamental Rights, including that under Article 21, were suspended.
At that time the senior most five judges of the Supreme Court were: 1. Chief Justice Ray (whom the Government had appointed by superseding Hegde J and two other senior Judges), 2. Justice H.R. Khanna, 3. Justice Beg, 4. Justice Y.V. Chandrachud, and 5. Justice P.N. Bhagwati.
Everyone was seriously concerned that this matter be heard in an impartial manner and that no effort should be made by Chief Justice Ray to constitute a convenient bench of his own choosing.
Luckily, we had stalwarts at the Bar like Mr. Daphtary, the ex-Attorney General. He and other senior lawyers took the unprecedented step of meeting the Chief Justice and requesting him that the Bench be constituted of five senior most judges.It was, of course, an unusual request but the stakes for the preservation of democracy were very grave. Understandably, Chief Justice A.N. Ray was annoyed at this unusual request but had to concede the request.
Those in the profession know well the rationale for this request. Lawyers assumed that though the Chief Justice and M. H. Beg J. would be taking a pro-government view, they in their innocence assumed that Y.V. Chandrachud J., and P.N. Bhagwati J., who used to tub-thump their commitment to human rights and freedom of expression, would possibly vote against the curtailment of basic rights of citizens.They were, to put it frankly, not sure of Justice Khanna’s thinking (quiet and unassuming as he was) but were prepared to take a chance with him considering his impeccable honesty and commitment to moral values.
But when the judgement came in April, 1976, it was only the quiet and unassuming Justice Khanna, who kept the flag of citizens’ right aloft – once again a reaffirmation of the truth that a Judge with a conscience is far superior to a Judge though more versed in law, but weak on moral strength.
Such occasions are rare in one’s life, but then it is at such times that a person’s commitment to real human rights values comes to the fore – when personal interests are thrown away at the altar of one’s conscience – and Justice Khanna alone came flying high, against the so-called much publicised Judges swearing verbally by human rights.
I know the mind process of this judgement and hearing, a little more intimately because of my close relations with Justice Khanna. I remember after a week or 10 days of the start of hearing, Justice Khanna told me “Rajindar, one Judge (I guessed it was Bhagwati) is going on to the other side.” Another week later Khanna said he was now alone (Chandrachud had also crossed to the other side).
Some time in February or March 1976, I went to pay a courtesy call to Justice Khanna at his official residence. After some talk, he took me inside his office and, pointing to a closed bag, told me that he was deciding against the Government, knowing fully well that it would cost him his Chief Justiceship but that he could not be false to his conscience. The judgement was given in April, 1976, with Justice Khanna being the sole dissent.
I am highlighting this because some interested persons later on, when Khanna J. was superseded and had resigned, uncharitably suggested that Khanna would not have written a dissenting judgement if he knew that he would be superceded, indicating with tongue-in-cheek that he would have also wilted like some of them as they did for personal considerations.
Such suggestions always shocked me, coming as they did from small men who did not have the grace to salute Justice Khanna’s courage. That is why I am emphasising that he was fully conscious of the consequences of his dissent.
I also remember that I met him in Delhi in early January, 1977, hoping that the Government would keep the grace of not denying his rightful claim to Chief Justiceship (Justice A.N. Ray was retiring on 28/1/1977) but Justice Khanna did not think so.
I remember having telephoned him from Jaipur where I had been transferred after the parliamentary elections were announced and expressing hope that the Central Government would not stoop so low, considering that his Chief Justiceship was only for a few months (Ray was retiring in January,1977 and Justice Khanna on 3rd July, 1977), thus most of this period was the vacation period, but Justice Khanna did not think so and insisted that he had no regrets as he had acted at the dictates of his conscience. Justice Khanna was superseded and he resigned on 29/1/1977.
The Bar and the public, it is a matter of supreme satisfaction, duly recognised his moral stand. Apart from the plaudits from the world over, including an editorial in The New York Times, the legal fraternity idolised him as an icon, an example, maybe not the most brilliant, but certainly the most conscientious Judge that we have had in the Supreme Court. The Bar paid him the rare tribute by placing his portrait in Court No. 2 as a mark of its deepest and permanent respect for him.
Had two other Judges in the Jabalpur case shown the moral stamina to have agreed with Khanna – it is accepted in legal circles that Justice Khanna’s view was the correct one – the Emergency would have ended as it would not have been possible to keep J.P. and thousands others in prison any longer with the obvious consequences – and we also would have been spared the taunting remark of President Gerald Ford in 1976 that the USA was now the largest democracy (though his boast lasted a short time)
Such was the shining character of Justice Khanna. His approach to life, law and democracy can be spelled out by some of the passages in the ADM Jabalpur judgement, where he said: “Cannot we also say with justifiable pride that this sacred land shall not suffer an eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the Executive, a power against which there can be no redress in courts of law, even if it chooses to act contrary to law or in an arbitrary and capricious manner”.
But the other two judges did not show the courage, and this case will continue to haunt the judicial fraternity; and we will never be able to live it down. We salute Justice Khanna for his courage and moral fervour.