February 25th is the 18th death anniversary of justice H.R.Khanna who name has become synonymous with a fervent apostle of human rights because of his brave and lone efforts to salvage the supremacy of the Constitution and the fundamental rights it contained during the period of political turmoil in the country in 1976 during the emergency.
Many a time I have heard lawyers sitting in court no.2 in the Supreme Court exclaim, 'what an intrepid judge Khanna was!' gazing at the life size portrait of Justice Khanna which was got drawn by the members of the Supreme Court Bar through an artist raising funds as a mark of respect for Justice Khanna for being a lone dissenter on the bench in the Habeas Corpus case to defend human rights. The portrait has come a long way to become the most treasured possession of the Supreme Court.
Justice Khanna, as the author of one of the most widely read dissenting judicial verdict in the judicial history of India stands immortalized in the portrait. The portrait of Justice Khanna deserves to be captioned with the famous quote of Thomas Paine, an English-born American founding father, which runs as under:
“Those who expect to reap the blessings of freedom must,like men, undergo the fatigues of supporting it”.
Khanna embarked on his career as a lawyer by joining the Bar at Amritsar under the watchful eyes of his father who was a busy lawyer, a great disciplinarian and brooked no casual attitude for legal profession. Justice Khanna's father was known for his painstaking research and accuracy in preparing for his cases and he rubbed off all his qualities on his son. A young Khanna groomed himself as a complete lawyer by taking up entire work of his father who was bed-ridden with a dormant liver and passed away in 1965.
One of the notable traits of lawyer Khanna was speaking fearlessly and truthfully, and this quality of Khanna was largely responsible for him to be selected as a District and Sessions judge. In those days, in the beginning of 1950's for no apparent reason the selection of District and Sessions judges was confined to only members of the High Court Bar at Shimla. Khanna as a lawyer was somewhat piqued by this and had rightly summoned his courage on a visit of a High Court judge to the Bar room to say in the course of his speech that, “genius and merit were not like an elusive fairy that believed in residing only on the Olympian heights of Shimla”.
Khanna's tenure as District and Sessions judge of Delhi was an uphill task which gave him vast administrative powers with a large number of judicial officers under his control. Justice Khanna took the initiative of weeding the subordinate judiciary by suggesting the transfer of indolent judges and strictly instructed the judges to take objective approach to decide cases without any fear or favor.
As a judge of the Punjab High Court for over four years Justice Khanna spent the first two years in Chandigarh and found the work comparatively moderate. The light work afforded Justice Khanna the opportunity to enjoy the forest nearby his official bungalow and was awestruck by the majestic beauty of the hills and twinkling lights of Kasauli in the distance.
In 1966 when separate High Court was formed for Delhi many judges jockeyed for posting as a High Court judge in Delhi. Delhi High Court Chief Justice Subba Rao had decided that Justice Khanna should be one of the first judges of Delhi High Court. Justice Khanna moved to Delhi.
After having worked for a few months as a Delhi High Court Judge Justice Khanna was appointed as Commission of Inquiry to probe into charges against former ministers of Orissa including three Chief Ministers, one of whom was, Mr. Biju Patnaik. Justice Khanna rendered his report in January 1969 and returned to Delhi. A few weeks later Justice Khanna was appointed Chief Justice of Delhi High Court. Justice Khanna had called his period as Chief Justice of Delhi High Court one of the happiest periods of his judicial life.
Justice Khanna joined Supreme Court in 1971 to script a new chapter in the Judicial History of enforcement of the right to move the court for enforcement of Article 21 of the Constitution which was facing the threat of being hamstrung by executive interferences during the emergency. It did not take Justice Khanna long to acclimatize himself with functioning of Supreme Court. It is interesting to know that at the start of Justice Khanna's judgeship in the Supreme Court dissidence sprouted in the mind of Justice Khanna in a case relating to car price. A team of lawyers lead by Palkhivala appeared for the car manufacturers while the Union was represented by Attorney General Niran De. Although Justice Khanna mentally did not agree with a view taken by Justice Hegde and Justice Grover which jacked up the prices of cars from that which had been fixed by the committee appointed by the Supreme Court earlier. Justice Khanna did not express himself openly to strike a discordant note considering his situation as a novice in the Supreme Court.
The stormy conditions brewing in the Supreme court over the pronouncement of the judgement in the Kesavananda Bharati case by a bench of thirteen judges which had resulted in the supersession of three senior judges (Justice Hegde, Justice Grover and Justice Shelat) who had handed in their resignations perturbed Justice Khanna and helped him develop an iron determination to stand up for the preservation of independence of judiciary.
The highlight of Justice Khanna's judgeship in the Supreme Court came in 1976 when the clamp down of emergency on the nation coincided with Justice Khanna finding himself in the groove as a Supreme Court judge to write fearlessly bold judgements. A batch of Writ Petitions were filed on behalf of some of the political leaders who were languishing in detention with failing health. The State took an objection that the petitions on behalf of the detinues were not maintainable as the Presidential order had scrapped the right to move the court for enforcement of fundamental rights guaranteed by Article 21 of Constitution which enjoins that no person shall be deprived of his life or personal liberty except according to procedure established by law. Nine High Courts had brushed aside this objection and ruled that the petitions be heard on merits.
Appeals were carried to the Supreme Court by the State challenging those orders rejecting the preliminary objections. Justice Khanna on the bench while hearing the matter was caught by surprise that some of his colleagues, who in the past would be very forthcoming about human rights and civil liberties, were not darting questions about the brazen violation of human rights in the case at hand. For Justice Khanna the brooding silence of his colleagues was enigmatic.
Justice Khanna had all most started writing a judgement in his mind when the answer of Attorney General Niran de was an emphatic “no” to any judicial remedy to the question of Justice Khanna that would there be any remedy if a police officer because of personal enmity killed another man? It dawned upon Justice Khanna in the middle of the hearing of the case that he was the solitary judge on his way to take up the cudgels against the Presidential order to safeguard Article 21 of the Constitution.
The draft of Justice Khanna's judgement was ready within about ten or twelve days, but the judgement was pronounced towards the fourth week of April 1976 as some of the colleagues took time to ready their judgement. Justice Khanna was certain that he had written one of the best judgements of his judicial career at the cost of Chief Justiceship of India.
Nearly forty-eight years have rolled by, but even today the editorial page of New York Times about a grateful nation erecting a monument for justice Khanna stands as the tallest tribute to Justice Khanna and his show of strength at a critical juncture of the Supreme Court's journey.
The author is an Advocate practicing at Supreme Court Of India. Views are personal