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The great dissenter

The great dissenter

Author: Soli J. Sorabjee
Publication: The Indian Express
Date: March 5, 2009
URL: http://www.indianexpress.com/news/the-great-dissenter/430826/

Introduction: Remembering Justice H.R. Khanna on his first death anniversary Justice Khanna was fully conscious that his dissent delivered on 28th April 1976 would cost him dearly. We witnessed his vindictive supercession as Chief Justice of India, the high office which was his legitimate entitlement

In the crowded hours of our daily lives we unfortunately tend to forget the deeds of great individuals who have left their indelible footprints on the sands of time. Justice H.R. Khanna is one such individual. In the course of his distinguished judicial career Justice Khanna delivered several important judgments. His sterling contribution to our constitutional jurisprudence was his enunciation of the unique doctrine of the basic structure of the Constitution. This doctrine has had an immense impact on the development of our Constitution and the expansion of judicial review to pronounce upon the constitutionality of not merely ordinary legislation but also of a constitutional amendment.

The rationale of the basic structure doctrine is that however wide the power of amendment under Article 368 of our Constitution, the essential features of the Constitution cannot be done away with under the guise of amendment. For example the Constitution cannot be amended so as to convert India into a theocratic state. Again the amending power cannot be exercised to delete federalism from the Constitution, nor can a constitutional amendment provide that the legality of executive action and validity of legislation will be determined by the executive and parliament and not by courts exercising the power of judicial review. Such amendments by abrogating these essential features of the Constitution would damage its basic structure and are liable to be struck down as unconstitutional.

Initially the basic structure doctrine encountered severe criticism and even ridicule. It is now firmly entrenched in our jurisprudence. It has proved an invaluable bulwark against Parliament's voracious appetite to abrogate the fundamental rights of citizens. As a matter of interest, the Bangladesh Supreme Court has endorsed it and struck down a constitutional amendment.

In his celebrated judgment in the St. Xavier's College case in April 1974, Justice Khanna placed a generous interpretation on Articles 29 and 30 of the Constitution which guarantee fundamental rights to minority educational institutions. By his judgment he rekindled the faith of the minorities in the independence of our judiciary to implement the constitutional pledges and assurances made to the minorities whilst drafting the Constitution. In the course of his judgment Justice Khanna declared: "These provisions enshrined a befitting pledge to the minorities in the Constitution of the country whose greatest son had laid down his life for the protection of the minorities. As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible." Justice Khanna further observed that "secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion."

A suit was filed in the Delhi High Court which involved the legality of certain acts pertaining to the Indian National Congress. A contempt application was filed against counsel A.K. Sen for making statements in the Hindustan Times about matters in the pending suit. The contempt application was dismissed. As Chief Justice of the Delhi High Court he ruled that public discussion of a matter of national importance cannot be stifled by an individual filing a suit in court because "the right to discuss is inalienable and the very essence of free and democratic society."

The average citizen is not aware of these judgments nor of the significance of the basic structure doctrine. Yet I have hardly come across a judge who has earned such universal affection of the common person. Whenever he would enter a hall to deliver a lecture or be present as a member of the audience people would spontaneously cheer and applaud him. And that was primarily because of his brave dissent in the habeas corpus case delivered in May 1976 during the height of the spurious June 1975 emergency. Khanna ruled that "Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Even in the absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilised society." He refused to endorse the disgraceful conclusion of the majority that during the emergency a detention order cannot be challenged on the ground that the order is not in compliance with the act or is illegal or even if it is vitiated by mala fides.

Dissents which are fraught with risks and which are bound to incur official displeasure are rare. Justice Khanna was fully conscious that his dissent delivered on 28th April 1976 would cost him dearly. And it did. But he was true to his judicial oath of dispensing justice without fear. We witnessed his vindictive supercession as Chief Justice of India, the high office which was his legitimate entitlement.

The New York Times in an editorial dated April 30, 1976 stated "if India ever finds its way back to freedom and democracy, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court." We did win back our freedom and democracy in March 1977 but we have not yet built a monument. However without a monument Khanna became a national hero and has found a secure place in our hearts because of the unamendable essential feature of his own basic structure, courage, which he displayed in ample measure.

It is during emergencies, when the power of the state is vastly expanded that a citizen needs judicial protection most, and has to depend upon bold judges like Justice Khanna, a man whom the lust of office did not kill and the spoils of office could not buy. It is extraordinary that wherever and whenever Justice Khanna is remembered there is an air of freshness, an aura of goodness and decency because the actions of the good and the just forever smell sweet and blossom in the dust.

Khanna departed from our midst in late February last year. It befits all who value freedom and cherish courage to remember Justice Khanna, a noble soul and one of the greatest judges of India.

- The writer is former Attorney General of India

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