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 On January 28, 1977 Justice Khanna was superseded for appointment as Chief Justice of India.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