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
