‘Where fear is, justice cannot be': The intrepid H R Khanna

Indian Express

11 hours ago

In the 21 months that the Emergency was in force, starting June 25, 1975, more than a lakh people were detained without trial, including top Opposition leaders. During this dark time, a Justice of the Supreme Court left an indelible mark by standing up against Executive power to defend the rights of citizens, at a cost to himself.
The judge was Justice Hans Raj Khanna, who lost the chance to become the Chief Justice of India (CJI), and the case in question was the habeas corpus or ADM Jabalpur vs Shivkant Shukla case. A five-judge Bench of the Supreme Court looked into the question of whether the right to move court under Article 21 — the right to life and personal liberty — remains suspended when Emergency is in operation. By a majority judgment of 4:1, the Court ruled that citizens could not sue against the violation of the right to life and personal liberty during Emergency, with Justice Khanna recording his dissent.
In his autobiography Neither Roses Nor Thorns, Justice Khanna recalled Attorney General (A-G) Niren De arguing that the petitions of people detained without trial were not maintainable during Emergency, adding that 'some of my colleagues who used in the past to be very vocal about human rights and civil liberties were sitting tongue tied'.
Justice Khanna asked De a question: 'Would there be a remedy if a police officer, because of personal enmity, killed another man?' To this, the A-G. replied, 'Consistently with my argument, there would be no judicial remedy in such a case as long as the Emergency lasts. It may shock your conscience, it shocks mine, but consistently with my submissions, no proceedings can be taken in a court of law on that score.'
The arguments continued for six or seven weeks, after which Justice Khanna began to write his judgment. He recalled his line of argument in his autobiography: 'The suspension of the right to enforce Article 21 could not have greater effect than the repeal of Article 21. Supposing Article 21 was not there in the Constitution, no state and no policeman, even in the absence of that Article, could deprive a person of his life or personal liberty without the authority of law. If they did so, they would be guilty of culpable homicide or illegal confinement.'
He added, 'Article 21, in my opinion, was not the sole repository of the right to life and personal liberty. Those rights had existed even prior to the framing of the Constitution. To hold that because of the suspension of the right to move the court for enforcement of Article 21, any policeman could mala fide kill or keep in confinement any man, and there would be no remedy against such killing or detention, was tantamount to declaring that there was no longer any rule of law.'
Before the judgment was pronounced on April 28, 1976, Justice Khanna recalled that he told his wife and sister while on a family trip to Haridwar, 'I have prepared a judgment that is going to cost me the Chief Justiceship of India.'
Being the sole dissenter in favour of the right to life and personal liberty even during Emergency, Justice Khanna said while reading out his judgment, 'Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort.'
Following the judgment, Justice Khanna became persona non grata for the government and stopped getting invitations to official dinners. Yet, many people called him to compliment him. The New York Times wrote an editorial praising him, which was sent to him by his American acquaintances.
Justice Khanna wrote, 'One evening two or three months after the judgment, a Congress member of Parliament from Bihar … came to me and told me that he had come to express the feelings of more than half the Congress members of Parliament that they admired my judgment.' Niren De personally congratulated Justice Khanna personally when they met at a reception.
On January 28, 1977, when he returned home after work, he heard on the radio that Justice Mirza Hameedullah Beg, a judge junior to him, had been appointed CJI. He immediately wrote his resignation and dispatched it to the President of India.
Justice Khanna recalled that after this, lawyers visited him and informed him that their peers nationwide had decided to protest this. Lawyers boycotted courts and passed resolutions at Bar Association meetings against the government's decision to pass over Justice Khanna for the CJI job. 'Two or three days thereafter we all felt overwhelmed to see on the front page of The Indian Express an article by Nani Palkhiwala titled 'Salute to Justice Khanna',' the judge wrote in his autobiography.
At his farewell dinner hosted by the Supreme Court Bar, Justice Khanna said, 'There can be no greater indication of the decay in the rule of law than a docile Bar, a subservient judiciary and a society with a choked or coarsened conscience. Fearlessness is the tradition of the Bar since the days of the struggle for independence … Where fear is, justice cannot be.'