Justice H R Khanna: Hero of the 4:1 scenario during emergency

2 January 2011
Vinay Joshi
MNN
India has much to be grateful to Justice HR Khanna.
A man who stood by his principles against odds and his peers.
Lone dissenter judge during Emergency all but forgotten

Seldom does a judge play such a vital role — make citizen’s fundamental rights inviolable and later, show the lamp to luminaries who went with the tide and blinked when these very rights were being consigned to the darkest of nights in the life of a democracy. He was Justice H R Khanna.
He was a distinguished presence on the Benches of the SC, which delivered two landmark judgments. They continue till date to be the spirit behind judicially-protected fundamental rights wick. Keshavananda Bharati judgment of April 24, 1973, codified the inviolability of a citizen’s fundamental rights. These cannot be changed or abridged as per the whims and fancies of a political party commanding brute majority in Parliament.

Justice Khanna, being part of this verdict, felt it should not be too easy or too difficult to amend the Constitution. Giving glimpses of great foresight, he said: ‘‘No generation has a monopoly of wisdom nor has a right to put fetters on future generations to mould the machinery of governments. If no provisions were made for amendment of the Constitution, the people would have recourse to extra-constitutional methods like revolution to change the Constitution.’’

Two years later, proclamation of emergency by the then PM Indira Gandhi made fundamental rights an illusion. The government of the day brutalized a nation under the cloak of emergency, and through its macabre powers. In the life of any great institution, there comes a moment to prove its mettle. Such an opportunity came before the Supreme Court in 1976, during those dark days, in the form of a case titled ‘ADM Jabalpur vs Shiv Kant Shukla’.
It provided the perfect wicket for a five-judge bench of Chief Justice A N Ray and Justices Khanna, M H Beg, Y V Chandrachud and P N Bhagwati to bat on even though the weather was inclement. They simply had to follow Keshavananda Bharti case judgment to state that the government could not violate citizen’s right to life. The next-generation luminaries on the bench, except Justice Khanna, caved in and agreed with the then attorney general Niren De that if a policeman killed a passerby just for fun, there would be no remedy available to the kin as right to life had zero value during emergency.
All of them — Justices Ray, Beg, Chandrachud and Bhagwati simply flowed with the tide. Showing the lamp to these luminaries was Justice Khanna, who penned the golden line — fundamental rights, especially the right to life, cannot be violated even during Emergency.
The dissent cost him heavy. The government carried the day with the help of a 4:1 majority but was wounded by Justice Khanna’s sharp pen. It wreaked vengeance by appointing Justice Beg as CJI in 1977 by superseding Justice Khanna.
One of the finest tributes to Justice Khanna came from the ‘New York Times’ two days after the verdict. In its April 30, 1976 editorial, NYT wrote: ‘‘If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 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 Indian Supreme Court’s decision appears close to utter surrender.’’
Surrender it was. But, we did get back to democracy. Lamentably, no one cared to build a monument for Justice Khanna. But, does anyone build a monument for a monument, which Justice Khanna was?