BY IQBAL A. ANSARI
Justice Hans Raj Khanna, who died at the ripe age of 95 on
February 25, 2008, was born in 1912. He joined
the Bar in 1934, was appointed a district and sessions judge in 1952 and
was elevated to the Punjab
high court in 1962 and subsequently to the Supreme Court in 1971. He has
been universally acclaimed as a fearless champion of human rights for his
dissent against the majority judgement of the Supreme Court upholding the
suspension of fundamental rights during the emergency, for which he
sacrificed his claim to the highest office of chief justice of India.
Having opposed the emergency since its imposition in June
1975, the judgement of the Supreme Court on April 28, 1976 in the habeas
corpus case (ADM Jabalpur vs Shiv Kant Shukla), denying
citizens remedy under law against illegal detention, torture or even
murder, came to me as a rude shock. It must be recalled that in response
to the question posed to the then attorney general (Niren De) about any
remedy being available in the event of a police officer killing a person
out of personal enmity he had said, "Consistently with my argument, there
would be no judicial remedy in such a case as long as the emergency
lasts." However, it was heartening to note that there was one judge,
Justice HR Khanna, who had the clarity, conviction and courage to write
the dissenting judgement upholding the basic tenet of rule of law in
India’s darkest hour of its democratic history, in which he stated, "What
is at stake is the rule of law… the question is whether the law speaking
through the authority of the court shall be absolutely silenced and
rendered mute…"
It is well that The New York Times wrote an
editorial on April 30, 1976 in which it rightly observed that "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 HR 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 submission of an independent
judiciary to absolutist government is virtually the last step in the
destruction of a democratic society and the Indian Supreme Court’s
decision appears close to utter surrender."
Earlier in 1973, in the Kesavananda Bharati case, Justice
Khanna’s judgement helped establish the doctrine of the unamendable basic
structure of the Constitution, which has stood the test of time.
It is well that recalling Justice Khanna’s "firmness,
courage and disregard of all considerations except his principles and
convictions" at a full court reference in the Supreme Court on March 5 the
chief justice of India, KG Balakrishnan noted that "it was probably this
dissent which led to his supersession. But having a strong belief and
conviction in the unassailability of fundamental rights and independence
of judiciary, he lost no time in relinquishing the high office of a judge
of the apex court for which people keep on aspiring throughout their
life."
My own interaction with Justice Khanna was limited to a
couple of seminars and a reception at jurist Soli J. Sorabjee’s residence.
In a seminar on ‘Women’s Economic Rights’ it was reassuring for me to find
Justice Khanna supporting my plea for insurance cover for breakdown of
marriage, treating it as a social accident the burden of whose
consequences should not always be borne by even a non-erring husband. Prof
Tahir Mahmood (jurist and former chairman of the National Commission for
Minorities) was not ready to accept it as a serious proposition; he viewed
it as the commercialisation of marriage. Justice Khanna not only came to
my rescue but enthusiastically welcomed the idea which he wanted to be
sent to the National Commission for Women. During another seminar, on the
‘Educational Rights of Minorities’, at which I read a paper critical of
the unreasonable limit of 50 per cent on the admission of minority
students laid down in the St Stephen’s College judgement, Justice Khanna
did not express his opinion in any precise formulation as, in view of the
case being under consideration of the bench, he felt that he should
exercise restraint. However, his sympathies for the rights of minorities
were transparent.
The other less known contribution of Justice Khanna is the
note that he wrote at the request of the National Commission for
Minorities in 1980 on the issue of the right of victims of communal riots
to adequate compensation, wherein he made a strong plea for the
recognition of the rights of victims under law and for which he cited the
examples of Britain, New Zealand, Canada, the US and Australia where the
provision for payment of compensation to victims of violent crimes has
existed since the 1960s. It is a pity that no law has so far been enacted
providing for rights of victims in spite of the strong recommendation from
the Justice Malimath Committee (on reforms of the criminal justice system)
in this regard. It is a greater pity that in spite of policy research and
advocacy by the Minorities Council of India since 1997, minority community
forums have not given the issue the priority that it deserves.
Let all those who hold human values and human rights dear
pray for Justice HR Khanna’s soul and also for the soul of the Indian
judiciary to be saved from all the cardinal sins that mortals are likely
to be tempted to. n