At a time, when India is rocked with allegations of corruption in the judiciary, it might be hard to imagine a judge who would have the courage to stand up against the government, let alone the Prime Minister! But here is the story of a judge who once did, even if it meant losing the post of the Chief Justice of India. He might be the single reason Democracy is still alive in our country!
A man so honourable that it cost him his job, so brave that he stood up against the Prime Minister when others didn’t dare to, a judge so fair that he did not think of the consequences when he stood for the right decision.
The man in context is Hans Raj Khanna, legendary judge of the Supreme Court of India during 1967-77. He stood for all the qualities required of a judge and his admirable courage is something which has made him immortal in everyone’s memories.
Khanna was born in Amritsar, Punjab in 1912, the son of lawyer and freedom fighter Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans’s father had become a leading lawyer and later, the mayor of Amritsar. Hans’s mother died at a young age, and the household was run by his grandmother. Khanna took interest in law from an early age and did complete his schooling from DAV High School, Amritsar.
After completing his schooling from D.A.V. High School, Amritsar (1918–1928), He studied at the Hindu College, Amritsar and Khalsa College, Amritsar, graduating with a Bachelor of Arts, before joining the Law College, Lahore (1932–1934). He married Uma Mehra in 1934 at the age of 22. After completing his graduation in law, he practised law primarily in Amritsar, dealing mainly with civil cases and soon gathered a large practice which he maintained till his elevation to the bench in 1952.
He had given many life changing decisions in his life but the one thing that we admire him for the most is his stand in the Habeas Corpus case (ADM Jabalpur vs Shivkant Shukla) during Indira Gandhi’s emergency, what is considered to be the darkest hour in Indian democracy.
About ADM Jabalpur case
Justice Khanna is renowned for his courage and independence during the period that has been called the darkest hour of Indian democracy, during the Indian Emergency (1975-1977) of Indira Gandhi.
The emergency was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud, in the case filed by Raj Narain.
In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act (MISA), several high courts had given relief to the detainees by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.
During the arguments, Justice Khanna at one point asked the Attorney General Niren De: “Life is also mentioned in Article 21 and would Government argument extend to it also?”. He answered, “Even if life was taken away legally, courts are helpless”.
The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A. N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:
In view of the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.
Justice Beg even went on to observe: “We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal.”
However, Justice Khanna resisted the pressure to concur with this majority view . He wrote in his dissenting opinion:
The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . 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… detention without trial is an anathema to all those who love personal liberty.
In the end, he quoted Justice Charles Evans Hughes:
A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.
Aftermath of Judgment
He was the only judge in a five-member bench to go against the decision that if a person is ill-treated or his family members are detained without legal authority, he can’t approach the court for any justice and there is no remedy to this situation.
While all the other four agreed to this contention and supported the government, Khanna maintained that the state had no power to deprive a person of his life and liberty without legal authority.
Khanna sensed that after his stand, his judgeship might be in jeopardy. On the day he was to give his opinion for the fated case, he had mentioned to his sister, “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.” He was soon proved right.
In spite of enjoying the support and respect of all the bar associations and the entire legal community, he was superseded for the post of Chief Justice of India by Indira Gandhi in January 1977, and the same day he sent in his resignation.
Unlike his colleagues he did not think about ambition and the government pressure. Rather, he took a decision he believed in even if it required him to go against everyone, even the prime minister.
He got international acclaim for his decision and was praised by many. George H Gadbois noted in his book “Judges of the Supreme Court of India” that later when Justice Khanna became the Chairman of the Eighth Law Commission, he served in this capacity without salary in order to work independently from the government.
He died at the age of ninety-five on 25 February, 2008 during his sleep. A silent end peaceful end to someone who changed the picture of decision-making and inspired many people through his courage and commitment.
It is not easy to take decisions, especially in situations as crucial as the emergency. But Khanna proved his worth and made a most historical decision which might not have resulted in substantial change at the time, but it opened the gates for many who want to take a stand for what they believed in.
Justice Khanna was an amazing judge, an honourable citizen and above all, a free man, and this is how we all will remember him for many years to come.