Justice H.R. Khanna’s single monumental dissent, and his majestic resignation when superseded, made him a judicial celebrity.
Justice H.R. Khanna, who passed away on February 25, will not pass from the pages of Indian judicial history. He ranks among the rare robed brethren of our age who could sacrifice high office for fine principle.
He was a gentle person, true in every respect to Cardinal Newman’s classic definition of a gentleman. He was an erudite judge, a daring dissenter to sustain people’s life and liberty, a gracious brother on the Bench whose ambition for prom otion as Chief Justice gave little purchase over his diamond-hard judicial convictions.
Khanna and I often sat together on a Division Bench. I was a socialist, a militant radical, in my opinions; he wore a traditional robe and was mild, firm, fair, forward looking and accommodating. We never disagreed and he never objected to my prolixity and occasionally logomachic pronouncements which were departures from orthodox judgment-writing methodologies. He respected my unconventional views and values, and assured me that my opinions had a heterodox approach and people-oriented social philosophy — a heresy he did not like to tamper with through his traditional presentation and divergent diction. It was gentle generosity towards me. (Other colleagues have extended to me the same liberal goodwill.)
Khanna was senior and wiser and could have insisted on a change to suit his thought. I found him free from personal ego and political ideologies. Essentially he was a democrat, open-minded and willing to listen, adjust and learn, and decide without Victorian vintage legalisms that are still regarded as hallmarks of learning. To sit with him on the Bench was an affectionate experience and intellectual pleasure.
Moral, jural titan
That magnanimous man is gone, but he survives vividly in my mind. When I retired, he insisted on my sharing a meal with him and spending a few hours recounting old days together. It was a thrill.Khanna was a titan morally and jurally. Judges make history not by virtue of a long tenure or by pomp of office as Chief Justices. His career was not marked by either of these claims but he is still a lasting legend. His single monumental dissent, and his majestic resignation when superseded, made him a hallowed judicial celebrity. Any student of the Supreme Court will be arrested by the extraordinary event that made Khanna illustrious. For him, the voice of the conscience and the value of human rights were burning realities. As in the case of Lord Coke and Lord Atkin, these were for him non-negotiable noesis and oath-bound obligation.
We have in this country, and elsewhere, pliable ‘brethren’ with pusillanimous loyalties, hidden communalisms, class biases and noxious overbearing and jejune jurisprudence on the Bench. Their social perspectives are malleable and high-brow, their character dubious and performance sicklied by the dependencia syndrome. Some judges do not write judgments at all, or delay their delivery for years. Khanna was a paradigm of judicial promptitude and probity.
True, as a class the Indian judiciary maintains a higher standard of ethics and impartiality than their counterparts in the executive domain, although corrupt curial commodities with pachydermic indifference are craftily creeping in.
Khanna would not bend or bow before executive supremacy although opportunism did appeal to a few senior progressives on the high bench. He was free from the imbecilities of assertive ego and the arrogance of Bench bravado.
Weighty but not heavy verdicts
He was moderate and modest, and reminded me of Felix Frankfurter’s observation: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities.” Khanna’s judgments were weighty without being heavy.
Justice Jagmohan Lal Sinha, a Judge of the Allahabad High Court who heard the case as an election tribunal, set aside Indira Gandhi’s election. Necessarily, that involved the forfeiture of her prime ministership. It was a great calamity for her and her party, which would shake the nation as an event of seismic moment, and throw her many political supporters into confusion and consternation. Inevitably, she had to move the Supreme Court for a suspension of the tribunal’s decision.
I happened to be the vacation judge of the Supreme Court at that time. H.R. Gokhale, Minister for Law and Justice, who was a close friend of mine at a personal level, telephoned me seeking an official interview. Some intangible judicial instinct prompted me to ask him an unusual question: Why do you want to meet me, Mr. Gokhale? He was taken aback by this abrupt and formal enquiry by me, speaking as a judge. I replied briefly but firmly that he need not come to my house for that purpose and that he could present his appeal and stay petition to the Registrar of the court. This upset the Law Minister but he complied. I directed the Registrar to post the case for hearing the very next day.
Under ordinary circumstances, in such a sensational case as Raj Narain vs. Indi ra Nehru Gandhi, eminent advocates would go into eloquent submissions and display dazzling aggressiveness. Days of hearing pass but anfractuous ‘submissions’ never cease. Indira Gandhi was unhappy and in anguish since an unconditional stay was denied to her. Her annoyance and disappointment were expressed strongly to N.A. Palkhivala. In despair, losing her membership of Parliament for a while, she resorted to the extraordinary measure (which eventually proved to be a historic blunder) of the declaration of an Internal Emergency. It obliterated the precious human rights granted to the Indian humanity by the Constitution. The ‘right to life’ in dignity, safety, stability and social justice, which is the quintessence of our democratic culture, was de facto eclipsed by the monstrous Proclamation. But the Supreme Court, by a large majority, upheld this wild ukase — with one courageous voice expressing sublime dissent.
This distinction belongs to Justice Khanna. His distinguished colleagues who blinked at the terror and horror of the Emergency were luminous jurists and became Chief Justices in due course, while the lone glorious dissenter sacrificed his future as Chief Justice.
Here I must express my surprise at the majority who were otherwise fine jurists. Why did they surrender? It is still a riddle.
A tragic but extraordinary dissent which has been a perennial wonder in British jurisprudence is the statement of Lord Atkin in Liversidge vs. Anderson (1942), A.C.206:
“I view with apprehension the attitude of judges who… when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
“A dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” (Hughes, Charles Evans, Supreme Court of the U.S.)
A grave puzzle
However, two events concerning Khanna have astonished me. He resigned as a Judge of the Supreme Court when his dignity was wounded by Indira Gandhi’s act of supersession. The authoritarian act of humiliation found its brave revenge in Khanna quitting office without a wink.
But having despised with dignity the meanness of the top executive, why did Khanna accept the office of Minister for Law and Justice under the Government of Charan Singh which survived but for a short while on the opportunist support of the same absolutist Indira Gandhi’s party? This egregious error is a grave puzzle to me.
But Khanna’s absolute integrity asserted itself when he discovered that ministership was worthless when power was precarious, unscrupulous and, therefore, corrupt. In three days this fine man abdicated his ministership because of the pangs of his conscience. A three-day wonder as Minister, one of the briefest in history. Rare, how rare, it is to jettison office in a world where politicians manipulate unblushingly to bribe and buy a Minister’s post. How I wish there were other Khannas who would give up power when conscience commands you to quit corruption and not to touch political pollution.
Also, why did he, at an advanced age, accept lucrative arbitrations when doing justice to the office needed all your faculties? Of course, some retired ‘robes’ have made arbitration for a fancy fee a regular activity.
A morally impeccable judge, Justice H.R. Khanna deserves a lofty place in the story of our age. I salute him for his humanist courage.
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