THE SOLE DISSENTER

Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people ~JUSTICE HANS RAJ KHANNA.


Eulogised for his sole dissent to majorly criticized by public “Habeas corpus case” during the “Indian Emergency“, in which the remaining four judges of the five-member bench assented to the then government’s perspective of abrogating fundamental rights such as Right to life and liberty during National emergency, where Justice HR Khanna fearlessly stood to his opinion that fundamental rights as enshrined under Article 21 cannot be overshadowed by any Executive action even during the period of National emergency, provided “These rights are inalienable from citizens for these being the foundation of Constitution of India and inheritance of their existence”.

The innuendo of his opportunity of becoming the next CJI will be at stake with his dissent was well known to him as he ,Before delivering his opinion, expressed to his sister that: I have prepared my judgment, which is going to cost me the Chief Justice-ship of India. Which also got sealed when In 1977, despite on the principle of seniority, his appointment as Chief Justice of India being due, Justice M H Beg, one of the assenting judges in the Five judges bench, who decided in the favour of the Indira Gandhi Government, was appointed Chief Justice of India, superseding Justice Hans Raj Khanna.

Immortal in everyone’s memories Justice HR Khanna was one of the reasons democracy stayed alive when even judiciary was allegedly corrupted with intimidation and influence of Government and executive machinery in politically sensitive cases. 

Recalling his oath to the office, A judge has to perform his duties ‘‘without fear or , affection or ill will’’ he mentioned how important it was for him to stand by his opinion neglecting the risk of his job, status and life for the protection of democracy and liberty of citizens. The opinion although did not mark a major change in the judgment beforehand but the mindset of rigidness till the present inculcates the society with the deliberation of penetrative sagaciousness for conscious apprehension of menace antagonistic towards Public interest.

Born in Amritsar, Punjab on July 3, 1912, Justice HR Khanna was the son of a freedom fighter Sarb Dyal Khanna, a lawyer who later became the mayor of Amritsar. Khanna’s mother unfortunately died young and his grandmother looked after the household.

Developing the interest in Law at an early age he graduated with a Law degree in 1934, After which 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.

With many bold judgments, apart from habeas corpus, inclusive of his decision convicting India’s then leading industrialist Ramkrishna Dalmia for corruption where Dalmia was made to serve several years in Tihar Jail to intrepidly conducting the inquiry into corruption charges against Biju Patnaik and other Ministers in Orissa at an early stage of his judicial career itself. To successively ,as a Justice of Hon’ble Supreme court ,discerning his rigid opinions based on concept of delegation of powers and clarifying the point of view over restrictive parliamentary powers to involve and evolve the basic structure of the constitution and how the powers of safeguarding the Constitution of India rest within the judicial authorities solely ( The landmark case of Keshavananda Bharati, 1973) where Justice HR khanna was one of the seven Justices who supported the similar idea with dissenting six justices in the largest ever bench of thirteen judges involved in a case.

The New York Times at that time observing the intra-math with Indian Judicial position quoted remarking:
“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”.
Noting his dissent in the Habeas corpus case, Justice Khanna mentioned, “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…”

The impugned judgment with four senior justices assenting to the “no remedy for illegal detentions, unauthorised demolitions, murders, Confinement and detentions. The Supreme Court although sanctioned “the rule of lawlessness” ,howbeit the courageous opinion of that sole dissenting justice lay the ray of hope in the public to consider the continuance of guardianship confidence in superior authorities.

In addition to his accrued opportunity of deriving the Chief-justiceship being seized given his stand, with intensity he also proffered his resignation the day he was superseded. Not only did he let go the Justiceship but refused several other opportunities as : Contesting offer from Janata Party preferring instead to carry on chamber practice where he was highly active with taking international arbitrations being into his early nineties, declining also the offer to head the commission of inquiry against the illegal impositions of National emergency, He was then offered the Chairmanship of the Finance Commission, a position he also refused. He did however accept the office of Chairman of the Law Commission, a post he held without any pay. He resigned from its chairmanship in 1979 when he was inducted into the cabinet as Union Law Minister by Charan Singh. However, he resigned within 3 days. As it so happened, the entire government fell within six months.

With public interest and safeguard of constitution as priority, he never bothered about chasing ambitions and fearing the government pressure. Rather, he took a decision he believed in which ultimately let him go against even the Prime minister of India.
Praised internationally for his inputs as a transparent senior official he was quoted by George H Gadbois 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.

In the conclusion of his Making of India’s constitution, he writes:
“If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power”.
Aged 95 ,on 25 February 2008 ,he died peacefully in sleep. The end of an era and series of confident commitments with utter loyalty towards the country.

It would not have been easy for him to take such noted decisions, especially in situations where he had to stand all alone backed by the belief he had. A Lionheart who did not fear anybody proving his worth with actions which might not surely have resulted in substantial change at that time, but undeniably inaugurated courage for people to stand by their beliefs without fearing what it may cost them.
Hon’ble Justice Hans Raj Khanna was an eminent jurist, an honourable citizen, a loyal guardian and above all, a free brave man, and this is how we all will remember and celebrate him for many years to come.

Image Source: Times of India

Aishwarya Says:

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