A Cloud Without a Silver Lining: India’s Justice Khanna, his Resignation, and a Constitution in Crisis

Anant Sangal

National Law University, Delhi

January 1977 witnessed two significant losses in the constitutional framework of India – a supersession and a resignation. Supersessions in the higher judiciary (where the judges next in line for appointment to a particular position, by virtue of seniority, are passed over) were common at that time, but resignations were not. Shortly before the national emergency declared in 1975 was brought to an end, the then Prime Minister Indira Gandhi superseded Justice Hans Raj Khanna, the most-senior judge of the Supreme Court of India, and appointed instead Justice Mirza Hameedullah Beg as Chief Justice of India. Khanna J. resigned in protest – when that happened the Supreme Court (the apex Indian court) lost an able judge and the Constitution lost an able protector. This post aims to trace the history of this development, and hence paint a picture of the man who was its main actor.

On 27 June 1975, shortly after the proclamation of a national emergency, under Article 352 of the Indian Constitution, by then Prime Minister Indira Gandhi, the President of India issued a Presidential Order barring anyone detained or arrested from seeking relief through a writ of habeas corpus, under Article 226 of the Constitution, before the High Court. In part this was possible because the Constitution makes provision (Article 359) for the suspension of constitutionally protected fundamental rights (excepting those protected by Articles 20 and 21), by way of a Presidential Order.

The political rivals of the ruling government who were jailed, subsequently challenged their detention under Article 226 of the Constitution. Despite the Presidential Order, several High Courts rejected the government’s contention (that the imprisonment was violative only of Article 21 and no other Article and that no writ of habeas corpus could therefore be issued) and held that, despite the imposition of the state of emergency, a person could demonstrate that their detention or arrest was not in compliance with the law. In view of the conflicting judgments of different High Courts, a five-judge constitution bench was constituted by the Supreme Court to examine the issue.

On 28 April 1976, a majority of 4-judges of the bench in A.D.M. Jabalpur & Ors. v. Shivakant Shukla & Ors. [(1976) 2 SCC 521] decided this issue on two major points. The first, was whether Article 21 of the Constitution is the sole repository of the right to life and personal liberty against the State. The second was whether, in view of the Presidential Order dated June 27, 1975, Article 359(1) of the Constitution could be read to exclude the locus standi of any person wanting to invoke the writ jurisdiction of the High Court under Article 226. Whether that be a for writ of habeas corpus or any other writ or order or direction challenging the legality of an order of detention on the ground that it is not in compliance with the Maintenance of Internal Security Act, is illegal, is vitiated by mala fides (factual or legal) or is based on extraneous considerations.

Of significance for this post is the Court’s decision on the first point. The majority bench observed, that Article 21 enacted one aspect of the principle of rule of law, namely, that the Executive cannot deprive a person of his life or personal liberty without authority of law, which law must also prescribe a procedure for this purpose. He therefore found it difficult to comprehend how the principle of rule of law could possibly have an existence distinct from Article 21, where this principle has been given explicit ‘constitutional vesture’.

The lone dissenter on the bench was Justice HR Khanna. He, contrary to this majority position, held that even in the absence of Article 21 in the Constitution, the State has no power to deprive a person of her life or liberty without the authority of law. He clarified the logical correlation between Article 21 and the right to life in the following observation -  

“The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not, however, follow from the above that if Article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law.”

In so doing, Khanna J. was certainly writing a dissent for the ages to come. He held that life and liberty are essential, not limited to the text of a particular Article, and found in the general theme and culture of the Constitution itself. In his view, Article 21 was just a manifestation of that right and even if the operation of that Article was suspended, it was incorrect to hold that the life or liberty of an individual could then be taken away by the authority of law. The right that one should not be unduly deprived of her life or personal liberty, as per Khanna J., did not arise because of its express recognition in the Constitution. The right predates the coming into existence of the Constitution in 1950. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and did not make Article 21 the sole repository of that right. 

During argument, Niren De, the then Attorney General for India, argued not only that the liberty guaranteed in Article 21 could be constitutionally deprived without redress, but also that the same position extended to life itself. The response of the AG was essentially that the courts would be helpless even if life was taken away illegally during such an imposition. This draconian and principally indefensible position was nevertheless accepted by the majority of the Court and held to be good in law. It took a Khanna J. to come out openly against this majority decision and demonstrate its moral and principled bankruptcy. Khanna J. recognized the sacrosanct nature of life and as a result held that its basis, value and existence pre-dates and goes beyond the text of the Constitution.

The foundational notion of using the Constitution as a mechanism to protect the value of human life and liberty means that every single officer of that Court should have reached the same outcome as J. Khanna. Nevertheless, in the specific circumstances prevailing at the time, what Khanna J. did was radical. To decide contrary to the majority opinion, and to sit in a Supreme Court created by the Constitution and yet locate fundamental rights in moral principles independent of the Constitution, was indeed radical and revolutionary. On the day he pronounced his dissent in Shivakant Shukla, it is reported he told his sister how his decision would cost him the Office of the Chief Justice of the apex Court of India. However, despite the apprehensions that he held, he did not flinch and went on to dissent from the majority. As he had anticipated, Justice Khanna was passed over for the Chief Justice position, despite his seniority and qualification for the position, and superseded instead by Justice Beg.

It is worth noting that Khanna J.’s controlling opinion in the landmark judgment of His Holiness Sripadagalvaru Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], in which he had again championed the cause of individual rights, could also have added to his being overlooked.

Following his resignation from the Supreme Court, he held the Office of the Chairperson of the Law Commission of India, where he refused to draw any salary. He insisted on maintaining distance from any and every kind of influence from the government – even in the form of a fixed salary. In its editorial column on the idea of democracy in peril in India, the New York Times extolled Justice HR Khanna and went on to write that,

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court.”

Forty-three years have passed since these words were printed – unfortunately the monument to Justice Khanna is yet to be erected. His portrait does however still adorn the walls of Court Room No.2 of the Supreme Court– the last Court Justice Khanna occupied before being superseded. The portrait is a reminder to those in its midst of the heights to which judicial integrity and independence could lift a courtroom, higher even than the domed vault next door occupied by the Chief Justice.

Anant Sangal is reading B.A. LL.B. (Hons.) at the National Law University Delhi, India.

Suggested citation: ‘Anant Sangal, ‘A Cloud Without a Silver Lining: India’s Justice Khanna, his Resignation, and a Constitution in Crisis’ IACL-AIDC Blog (26 July 2019) https://blog-iacl-aidc.org/indian-young-scholars/2019/7/26/a-cloud-without-a-silver-lining-indias-justice-khanna-his-resignation-and-a-constitution-in-crisis