Today falls the death anniversary of Justice H R Khanna, an outstanding judge, who is well-known for his courageous dissenting judgment in the infamous ADM Jabalpur case, pronounced during the period of National Emergency in 1976, when the President had placed people’s fundamental rights under suspension as per Article 359 of the Constitution.Justice V.R. Krishna Iyer famously observed in an articleentitled ‘A Courageous Voice of Dissent’, “Justice Khanna was a gentle person, true in every respect to Cardinal Newman’s classic definition of gentleman. He was an erudite judge, a daring dissenter to sustain people’s life and liberty, gracious brother on the bench whose ambition for promotionas Chief Justice gave little purchase over his diamond-hard judicial conviction”.
During emergency, it was Justice Khanna alone who refused to give in before a dictatorial government led by then Prime Minister Mrs. Indira Gandhi. In the ADM Jabalpur case, the majority judges upheld the preventive detention of thousands of people detained under the MISA. Justice Khanna had a strong apprehension of his supersession before pronouncing the judgment, but he did not give up his determination to stand against a dictatorial regime. In his autobiography titled, ‘Neither Roses Nor Thorns’, at page 83, Justice Khanna narrates the story of his ADM Jabalpur case in these words: “The draft of my judgment was ready within about ten or twelve days. The judgment was, however, pronounced towards the fourth week of April 1976 because some of the colleagues took time to prepare their judgment. Before the pronouncement of the judgment, on the occasion of Baisakhiwe went to Hardwar, as we generally do, and stayed in Laljiwala canal bungalow on the bank of Ganges. I was accompanied by my wife and sister. On the night preceding Baisakhi i.e., 12th of April, we were sitting in the moonlight in the compound of bungalow while in front of us flowed the Ganges, serene and beautiful. Sitting there and watching the scene, I told my younger sister, Santosh, I have prepared a judgment which is going to cost me the Chief Justiceship of India. My wife and she became glum, and soon thereafter we retired to bed”. So, this was the magnanimous personality of Justice Khanna who delivered a dissenting opinion despite knowing the consequences of his verdict. Situations exist in which the judge is faced with the necessity of choosing between various legal options, without the legal system guiding this choice, Justice Khanna went ahead with an option which upheld democracy and rule of law.
Delivering his dissenting judgment in the Habeas Corpus case, Justice Khanna said: “The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic values affecting life, liberty and the rule of law. More is at stake in these cases than the liberty of a few individuals or the correctconstruction of the wording of an order. What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we also say with justifiable pride that this sacred land shall not suffer 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 arbitrary and capricious manner. The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment, even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of courts shall be absolutely silenced and rendered mute because of such threat”.
As apprehended by Justice Khanna, then Prime Minister Mrs. Indira Gandhi superseded him for the office of the Chief Justice of India and appointed his junior colleague Justice M.H. Beg as the Chief Justice of India. It was just the second judicial supersession in the history of the Republic. The first judicial supersession took place in 1973, after the Kesavananda Bharati judgment, when three senior judges namely Justices Shelat, Grover, and Hegde were superseded, and their junior colleague Justice A. N. Ray was appointed as the Chief Justice of India. The three senior judges had delivered judgments against the then Indira Gandhigovernment in the Fundamental Rights case, while Justice Ray had decided the case in favor of the government.
After his supersession, Justice Khanna resigned in protest and sent his resignation to the President of India. In his autobiography, at page 88, he recalls that sad day in these words: “It was a cold winter day. At five o’ clock we switched on the radio and heard the news about the appointment of the judge next junior to me as Chief Justice. I was mentally prepared for the news and immediately asked for the letter pad. On that I wrote to the President of India the letter of resignation from judgeship of the Supreme Court and asked my secretary Batra to deliver it at Rashtrapati Bhavan”.
Justice Khanna’s supersession was severely criticized by the bar, media, and opposition political parties. The Supreme Court Bar registered protest against his supersession. The New York Times, in its editorial published on 30 April 1976, admired his dissenting opinion in these insightful words: “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 Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week dissenting from the decision upholding the right of Prime Minister Indira Gandhi’s government to imprison political opponents at will or without court hearings”.
Eminent jurist Nani A. Palkhivala, in a newspaper piece, admired Justice Khanna’s verdict in these words: “In deciding the habeas corpus matter as he did, H. R. Khanna played a memorable role at the most critical juncture in our history. Generations unborn will admire his historic judgment as a shining example of judicial integrity, and courage, and cherish it for the abiding values it embodies”.
In 1977, General Elections were held for Lok Sabha and the new Janata Party government came into power. Under the leadership of Prime Minister Morarji Desai, the Janata Government brought a constitutional amendment to dilute the impact of ADM Jabalpur case. The Amendment provided that Articles 20 and 21 of the Constitution will not be placed under suspension even during the operation of National Emergency.It was a great tribute to Justice Khanna who became a hero of the masses for his courageous dissenting view.
As former Chief Justice of the United States Supreme Court,Charles Evans Hughes observed famously, a dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decisionmay possibly correct the error into which the dissenting judgebelieves the court to have been betrayed. Finally, this moment came in 2017, when a larger Constitution Bench of the Supreme Court in the Puttaswamy case expressly overruled the majority judgment of ADM Jabalpur case. The Court heldthat, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right.”
The court further observed in Puttaswamy that, “Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the rule of law. ADM Jabalpur must be and is accordingly overruled.” Indeed Justice Khanna’s dissent in ADM Jabalpur was weighty without being heavy. A morally impeccable judge, Justice H.R. Khanna deservers a lofty place in the story of our age.
Justice Khanna’s supersession was severely criticized by the bar, media, and opposition political parties. The Supreme Court Bar registered protest against his supersession. The New York Times, in its editorial published on 30 April 1976, admired his dissenting opinion in these insightful words: “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 Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week dissenting from the decision upholding the right of Prime Minister Indira Gandhi’s government to imprison political opponents at will or without court hearings”.