Justice HR Khanna- On a Fearless Pillar of the Judiciary

By | October 7, 2021
Justice HR Khanna

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This article titled ‘Justice HR Khanna- On a Fearless Pillar of the Judiciary’ is written by Eshanee Bhattacharya and discusses the life, works and contributions of Justice H.R Khanna.

I. Introduction

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. The imbecility of men, history teaches us, always invites the impudence of power- Justice HR Khanna[1]

Justice Hans Raj Khanna’s name is one of the prominent names which echoes in the corridors of the Indian Judiciary as the lone wolf of dissent. A man of dignified stature, he fearlessly fought to save the essence of the constitution and prevent its Identity by upholding the separation of power of the judiciary in the light of the Indian Constitution and who never cared to pay a hefty price to show his courage and right use of his position

II. Life and Background

Hans Raj Khanna was born in Amritsar, Punjab, in 1912. He was the son of Sarb Dayal Khanna, a lawyer and independence fighter who eventually became the Mayor of Amritsar. He attended DAV High School in Amritsar, Hindu College in Amritsar, and Khalsa College in Amritsar.[2] He went to the Law College in Lahore to pursue his legal education after completing his Bachelor’s degree in Arts.

III. Contribution to the historic verdicts

Justice Khanna was a Supreme Court judge from 1971 until 1977, during which time he presided over the horrific Emergency period. He is remembered now in legal circles all over the world for his dissenting opinion in the ADM Jabalpur v Shiv Kant Shukla[3] case famously known as the Habeas Corpus case, in December 1975, in which he stood up against all odds for fundamental rights – the right to life and liberty not caring for the political brunt to his career post the dissent.

In the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, the Supreme Court’s five-judge Bench ruled in April 1976 that the government has the authority to suspend all Fundamental Rights, including the Right to Life, during a time of emergency.

In an environment in which a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act (MISA), several high courts had granted detainees relief by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution.

Justice HR Khanna, who authored a historical note of dissent protecting democracy, noted the points in his memoirs. He wondered if, in light of Attorney General Niren De’s remarks, there would be any recourse if a police officer killed a man out of personal hostility.

In the case of Keshavananda Bharati v. State of Kerala[4] Khanna joined the majority of judges (who concluded that the Constitution’s amending power was subject to implied constraints) by introducing the “fundamental structure” concept. That phrase has stood the test of time and is now enshrined in the United States Constitution.

Justice Khanna agreed with the majority of the justices and ruled that the word “alteration” implied that the constitution must survive any amendment without losing its identity, which meant that the constitution’s core structure or framework must survive any amendment.

According to Justice Khanna, while it was permissible for Parliament to make changes in the exercise of its amending authority to accommodate the needs of changing circumstances, it was not permissible to change the basis or the basic institutional structure.

In his own words “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”[5]

Other important decision that he wrote includes the concurring opinion in The Ahmedabad St. Xavier’s College Society v. State Of Gujarat[6], whereby he discussed the abundant catholicity of the guarantee in favour of minorities in our multicultural country and the need to balance that with general regulations regarded as minimum standards prescribed by the community.

IV. Life ahead

He was the only judge on a five-judge panel to overturn the conclusion that if a person is ill-treated or his family members are jailed without legal authorization, he cannot seek justice and there is no redress.

While the other four agreed with this assertion and supported the government, Khanna claimed that the state lacked the legal right to deprive a person of his life and liberty. Despite the support and respect of all bar associations and the whole legal profession, he was replaced as Chief Justice of India by Indira Gandhi in January 1977, and he resigned on the same day.

He died in his sleep on February 25, 2008, at the age of 95. A quiet and serene farewell to someone whose boldness and passion changed the face of decision-making and inspired countless people.

Making judgments is difficult, especially in times as critical as an emergency. But Khanna demonstrated his worth by making a historic decision that, while it may not have resulted in significant change at the time, opened the door for many others who wanted to stand up for what they believed in.


References

[1] Khanna, H.R. (2021). Neither Roses Nor Thorns by H. R. Khanna [HB]. [online] Law-all.com. Available Here  [Accessed 18 Sep. 2021].

[2] Indian Liberals. (2021). Justice H.R. Khanna and the Art of Speaking Truth to Power – Indian Liberals. [online] Available Here [Accessed 18 Sep. 2021].

[3] AIR 1976 SC 1207

[4] 1973) 4 SCC 225

[5] The Wire. (2018). Why Uncertainty Still Surrounds the Birth of the “Basic Structure Doctrine.” [online] Available Here.

[6] 1974) 1 SCC 717


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Author: Eshanee Bhattacharya

Eshanee is practicing in the areas of Corporate Commercial, Insolvency and Securities Law. She is an alumnus of the National Institute of Securities Markets. (MNLU Mumbai)

One thought on “Justice HR Khanna- On a Fearless Pillar of the Judiciary

  1. Gopal Gajanan Podhade

    Very informative Article…
    Get to know about Justice H.R.Khanna and His contribution in Indian constitution and system of Justice…
    His historical Judgmental Also mentioned here and that is very important and informative…

    Reply

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