A Judgment That Is Going To Cost Me The Chief Justiceship

Two days after our Constitution came into force, the Supreme Court had its first sitting on the 28^th of January 1950 at the Parliament House complex – the building which functioned as the Apex Court, till it moved to its present location at Tilak Marg. At this august gathering of the Judges of the Supreme Court, Chief Justices of High Courts, Advocates General, Prime Minister Nehru, Deputy Prime Minister Patel, and several others, Attorney General Motilal Setalvad, while noting that the Court had “the delicate and difficult task of ensuring to the citizen the enjoyment of his guaranteed rights”,^[2] said:

“We at the Bar, have confidence that the Supreme Court of India which is being inaugurated to-day, will in course of time attain the same judicial eminence, and that memorable and epoch making judgments will illuminate its record.”^[3]

One such “memorable and epoch making” judgment is the remarkable and landmark dissent by Justice H.R. Khanna in the Habeas Corpus case^[4]. What is an astonishing coincidence is that Justice Khanna learnt of his supersession to the Chief Justiceship on the 28^th of January 1977 – and consequently resigned from the Court on that day.^[5] In his autobiography, Justice Khanna described the somber mood of the staff in the corridor when they saw him off with folded hands as “more eloquent than any words”.^[6] He would further write:

“I got into the car and arrived at my house. My elder brother and members of the family were present at the house. I immediately changed my dress and got into my bed. It was a cold winter day. At 5 p.m. 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.”^[7]

It was not an unexpected reaction to the Justice Khanna's dissent. In fact, Justice Khanna wrote:

“…On the night preceding Baisakhi i.e. on the night of 12^th of April, we were sitting in the moonlight in the compound of the 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.”^[8]

In those dark days of the Emergency almost half a century ago, when the Court had surrendered to the autocracy – legitimized as being born to save democracy – what makes Justice Khanna's dissent remarkable is the fact that he knew the consequences to him personally. His dissent is not merely courageous – it is in tune with his oath to “uphold the Constitution and the laws”. Justice Khanna upheld the liberty of the citizenry in a rule of law society under a written Constitution against an illegitimate constitutional tyranny of the executive of the day. The independence of the Judiciary is fundamental to any constitutional order, and this principle cannot be overstated. Our Courts have acknowledged this through elevating the independence of the Judiciary to the basic structure of the Constitution – that which cannot be altered. Perception oftentimes is of the Judiciary in friction with the Executive or the Legislature, and the judicial organ overstepping is much in debate – perhaps giving little heed to what Dr. Ambedkar said in Constituent Assembly of the powers of judicial review being the very soul of our Constitution. The singular act of supersession of Justice Khanna, and as a matter of a terrific coincidence – on the very day that the Supreme Court had had its inaugural sitting, was a nasty blow to the Judiciary – and thus the Constitution.

After the Janata Government had taken to power in the 1977 General Elections, there was a move to replace the incumbent Chief Justice with Justice Khanna – however, he would have none of it, and categorically said that it would be improper to do so. Justice Khanna recorded:

“Some days after Morarji Desai had been sworn in as Prime Minister, I called on him. He received me in a separate room and we were together for about half an hour. In the course of our talk he mentioned that there was a move to ask the incumbent of the office of the Chief Justice of India to step down and to appoint me as Chief Justice of India. I came out with my reaction that they should not do that as it would not be proper….”^[9]

The judicial life of Justice Khanna was that of courage, and constitutional propriety – something for all to emulate. An epitome of judicial independence and an upholder of constitutional values and fundamental freedoms, his magnificent portrait which hangs in Court No. 2, serves as a daily reminder that an independent judiciary is one that stands up to uphold the Constitution, even when the storm of authoritarianism looms large – when the rest of the Court faltered. Fitting are the words of Chief Justice Kania at the inaugural sitting:

“The Supreme Court, an all-India Court, will stand firm and aloof from party politics and political theories. It is unconcerned with the changes in government. The Court stands to administer the law for the time being in force, has goodwill and sympathy for all, but is allied to none….We hope and trust the Court will maintain the high traditions of the Judiciary and perform its duties without fear or favour. If we succeed in doing so we shall contribute our share to the progress of the Republic of India and render a service to the country which none else can render…”^[10]

On this day, which marks the 75^th anniversary of the inaugural sitting of the Supreme Court, my tribute to Justice Hans Raj Khanna. “Here was Caesar, when comes another?”

1. Author is an Advocate on Record, the Supreme Court of India, New Delhi ↑

2. 1950 SCR 1, at Page 4 ↑

3. Ibid., Page 5 ↑

4. ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 ↑

5. His resignation was to take effect from 12^th of March 1977 ↑

6. H.R. Khanna, Neither Roses no Thorns, EBC, 2018 Reprint, Page 91. ↑

7. Ibid., Page 91. ↑

8. Ibid., Page 86. ↑

9. Ibid., Page 98 ↑

10. 1950 SCR 1, at Page 13 ↑

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