Hans Raj Khanna
Hans Raj Khanna | |
---|---|
Minister of Law and Justice | |
In office 1979 (3 days) | |
Chairman, 8th Law Commission of India | |
In office 1977–1979 | |
Judge of Supreme Court of India | |
In office 22 September 1971 – 12 March 1977 | |
Chief Justice of Delhi High Court | |
In office 1969–1971 | |
Personal details | |
Born | Panjab University | 3 July 1912
Hans Raj Khanna (3 July 1912 – 25 February 2008)[
He is most notably remembered for his minority judgment in the highly publicized
In January 1977, nine months after delivering his dissent in the Shiv Kant Shukla case, Khanna was superseded to the office of the Chief Justice of India by Prime Minister of India Indira Gandhi in favour of Justice M. H. Beg. This went contrary to the convention of appointing the senior-most judge as the next Chief Justice upon the retirement of the incumbent (at the time Khanna was the most senior judge in the Supreme Court). As a result of this, he promptly resigned from the court which was effected in March.
Khanna had previously authored the basic structure doctrine of the Constitution of India in Kesavananda Bharati v. State of Kerala, which curtailed Parliament's seemingly unfettered amending power under article 368, restricting its scope of amendment in areas which were part of the Constitution's "basic structure". In addition, he delivered noted judgments in the Ahmedabad St. Xavier's College v. State of Gujarat (1974) and State of Kerala v. N. M. Thomas (1975) cases.
After resigning from the Supreme Court, he served as the central
In 1999, he was awarded the Padma Vibhushan in recognition of his career in judicial service, the second-highest civilian honor given by the Government of India.
Early life and background
Khanna was born in Amritsar, Punjab in 1912, the son of lawyer and freedom fighter Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans's father had become a leading lawyer and later, the mayor of Amritsar.[3] Hans's mother died at a young age, and the household was run by his grandmother. Khanna took interest in law from an early age and did complete his schooling at DAV High School, Amritsar.
After completing his schooling at
Early judicial career
In January 1952 he was nominated by Sir
He became known for his decision to convict India's leading industrialist
He moved as District and Sessions Judge, Delhi until he was appointed Judge of the
Judge of the Supreme Court
Keshavananda Bharati v. State of Kerala (Basic Structure Doctrine)
While the Habeas Corpus case is Justice Khanna's most celebrated ruling, almost as well known is his judgment in the landmark case of Kesavananda Bharati. In 1973, the Supreme Court constituted its largest-ever bench of 13 judges to decide whether Parliament had the unfettered right to amend the Constitution or not. On 24 April 1973, seven out of 13 judges held that Parliament's power to amend the Constitution was limited. Six other judges in the case were of the view that Parliament's power was unrestricted. Justice Khanna's judgment held that, although the Constitution is amenable to amendments, changes that ultra vires, tinker with its basic structure[6] cannot be made by Parliament, that is – certain parts of the constitution were "basic" and could not be amended. However, he also said the amendment of the right was fundamental – as he explained, "If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution".
The judgment clarified and partially overruled the court's earlier verdict in
The Habeas Corpus Case
Justice Khanna is renowned for exhibiting immense courage during the
The emergency was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud,[7] in the case filed by Raj Narain.
Owing to the repressive
During the arguments, Justice Khanna at one point asked the Attorney General Niren De: "Life is also mentioned in Article 21, and would Government argument extend to it also?". He answered, "Even if life was taken away legally, courts are helpless".[8]
The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during an emergency. Justices A. N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:[8]
Given the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.
Justice Beg even went on to observe: "We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well-fed, and well treated, is almost maternal."[9]
However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:
The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.[1][10]
In the end, he quoted Justice Charles Evans Hughes:
A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the court to have been betrayed.[8]
Before delivering this opinion, Justice Khanna mentioned to his sister: I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.[11]
Aftermath of the judgment
True to his apprehensions, his junior,
The
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. 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 an 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.[11]
This judgment has been consistently lauded by lawyers, scholars, and intellectuals alike and has been compared to the dissent of
In December 1978, his full-size portrait was unveiled in his former court, courtroom number 2 of the Supreme Court.[16] To this day, nobody else has had the singular honor of having their portrait put up in the Supreme Court during their lifetime.[17]
In fact, when the Supreme Court Bar Association asked for contributions from its members to collect Rs 10,000 for the portrait, within half an hour Rs 30,000 was on the table and the members of the bar had to be forcibly stopped.
Post-judicial career
Upon the suspension of the emergency, the Janata Party which was preparing for the impending elections urged him to contest them but he refused and preferred instead to carry on chamber practice. He was highly active with it, taking international arbitrations into his early nineties.
After Indira Gandhi lost the elections of 1977, the ruling Janata Party wanted him to head the Commission of Inquiry against the illegal imposition of the emergency and the various atrocities committed during it but Khanna refused, as he felt he would appear biased against Indira Gandhi and her son Sanjay Gandhi.
He was then offered the Chairmanship of the
In 1982 Khanna was nominated for President of India, as a combined opposition candidate supported by as many as nine opposition parties.
From 1985 until 2000, he was the national president of the Bharat Vikas Parishad, after which he became patron to the organisation.[19] He was a long time board member of, and for many years the chairman of the Press Trust of India.[13]
In 1998, the Justice HR Khanna committee was constituted by the railway ministry with the mandate of "reviewing the implementation of previous accident inquiry committees, of examining the adequacy of existing practices for the safe running of trains and to suggest safety measures." Under his chairmanship, the Railway Safety Review Committee made 278 recommendations, out of which 239 were accepted by the railways.[20]
In 2001 he chaired the advisory panel to the Government of India on strengthening the institutions of parliamentary democracy.[21]
A prolific writer, he also lectured regularly and many of his lectures were later published in book form. Among the books he has authored, are "Judicial Review or Confrontation" (1977), Constitution and civil liberties (1978, based on the B. R. Ambedkar memorial lectures), Making of India's Constitution (1981, based on the Sulakshani Devi Mahajan lectures), "Judiciary in India and Judicial Process" (1985, based on the Tagore Law Lectures), Liberty, Democracy and Ethics, Society and the Law, which mainly deal with Indian law and the constitution. He also wrote an autobiography, Neither Roses nor Thorns, (Lucknow, 1985).
In the conclusion of his Making of India's constitution, he writes:
If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power."[22]
He published his autobiography, Neither Roses Nor Thorns in 2003. Khanna died on 25 February 2008 at the age of 95.[23]
Honours and tributes
The government of India honored him with the Padma Vibhushan, India's second-highest civilian award, in 1999.[24]
He has been awarded honorary
On the occasion of his 90th birthday, the Supreme Court Bar Association presented him with a plaque conferring upon him the title of "Living Legend of Law".
Two sets of lectures are held in Justice Khanna's honor.
A series of lectures were organized by Justice Khanna's family for some years after his death but were subsequently discontinued. They were presided over by Soli Sorabjee, who was a very close friend of Justice Khanna's.
The first lecture was delivered by
The
International Journal of Law & Management Studies holds an Essay Competition in honor of Justice Khanna called the IJLMS Justice H.R. Khanna Memorial Essay Competition in May annually. The First Edition of this competition was held in association with IPMarkets, Hyderabad.[26]
Bibliography
- Hans Raj Khanna (1 July 1977). Judicial review or confrontation?. Macmillan, India. ISBN 9780836400243.
- Hans Raj Khanna (1978). Constitution and Civil Liberties. Radha Krishna.
- Hans Raj Khanna (1979). Constitution and Socio-economic Changes: Two Lectures. Publications Division, Government of India.
- Hans Raj Khanna (1979). Liberty, Democracy, and Ethics. Rādhā Krishna.
- Hans Raj Khanna (1980). The Judicial System. Indian Institute of Public Administration.
- Hans Raj Khanna (1980). The Reform of the Judiciary. Forum of Free Enterprise.
- Hans Raj Khanna (1980). Law and the Layman. PHD Chamber of Commerce and Industry.
- Hans Raj Khanna (1981). Law, Men of Law, and Education. Tripathi.
- Hans Raj Khanna (1981). Society and the Law. Ashok Publishing House.
- Hans Raj Khanna (1984). Federal element in the Indian Constitution. Board of Extra-Mural Studies, University of Poona.
- Hans Raj Khanna (1985). Judiciary in India and judicial process. Ajoy Law House.
- Hans Raj Khanna (1985). The States and the Centre in India. Popular Prakashan, for Jayaprakash Foundation.
- Hans Raj Khanna (1987). Terrorism in Punjab: Cause and Cure. Panchnad Research Institute.
- Hans Raj Khanna (1988). Issues Before The Nation. B.R. Publishing Corporation. ISBN 978-81-7018-479-9.
- Hans Raj Khanna (2008). Making of India's Constitution. Eastern Book Company. ISBN 978-81-7012-108-4.
- Hans Raj Khanna (2003). Neither Roses Nor Thorns. Eastern Book Company. ISBN 978-81-7012-785-7.
- Hans Raj Khanna (2013). Selected Writings of Justice H.R. Khanna. ISBN 978-93-5035-349-3.
References
- ^ a b Granville Austin, Working a Democratic Constitution: The Indian Experience, Oxford University Press 1999, p. 334-41
- ^ "Fading Hope in India". New York Times. 30 April 1976. Retrieved 1 November 2016.
- ^ a b c Scrupulous Indian judge who defended the constitutional rule of law, Times UK
- ^ a b Hans Raj Khanna biography Supreme Court of India .
- ^ "Biju Patnaik: A profile" (PDF). Orissareview Magazine. February–March 2005. Archived from the original (PDF) on 27 February 2008.
- ^ V. Venkatesan, Revisiting a verdict Frontline (vol. 29 – Issue 01:: 14–27 Jan 2012)
- ^ a b V R Krishna Iyer (27 June 2000). "Emergency – Darkest hour in India's judicial history". The Indian Express. Archived from the original on 23 August 2007. Retrieved 16 September 2007.
- ^ a b c Jos. Peter D 'Souza (June 2001). "A.D.M. Jabalpur vs Shukla: When the Supreme Court struck down the Habeas Corpus". PUCL Bulletin. People's Union for Civil Liberties. Archived from the original on 26 May 2018. Retrieved 16 September 2007.
- ^ Akshayakumar Ramanlal Desai (1986). Violation of democratic rights in India, v. 2. Popular Prakashan, New Delhi. p.84
- ^ Hans Raj Khanna (1978). Constitution and civil liberties (Dr. B. R. Ambedkar memorial lectures). Radha Krishna on behalf of the Institute of Constitutional and Parliamentary Studies. pp. 94 pages.
- ^ a b Anil B. Divan (15 March 2004). "Cry Freedom". The Indian Express. Retrieved 16 September 2007.
- ^ "Supreme Court Bar Association". Archived from the original on 4 October 2009. Retrieved 18 November 2009.
- ^ a b "Justice Khanna passes away at 95". The Hindu. 25 February 2008.
- ^ Reeta Sharma (15 July 1999). "Justice Khanna: Hero of a lost battle". The Tribune.
- ^ "Justice Khanna was a crusader for civil rights". The Hindu. 29 February 2008. Archived from the original on 3 March 2008.
- ^ "A profile in judicial courage". 1 February 2010.
- ^ T. R. Andhyarujina (6 March 2008). "Speaking Justice to Power". The Indian Express.
- ^ Janak Raj Jai (1996). Commissions, and Omissions by Indian Prime Ministers: 1947–1980.
- ^ "Justice Hans Raj Khanna". Bharat Vikas Parishad, News. 2007–2008. Retrieved 31 July 2014.
- ^ "Railways accepts Khanna committee report". 4 December 2010. Archived from the original on 2 February 2013.
- ^ "National Commission to Review The Working of the Constitution". Ministry of Law. 26 September 2001. Archived from the original on 4 March 2016. Retrieved 31 July 2014.
- ^ H. R. Khanna. Making of India's Constitution. Eastern Book Co, Lucknow, 1981.
- ^ Anil Divan (7 March 2008). "A profile in judicial courage". Archived from the original on 12 June 2012. Retrieved 31 July 2014.
- ^ "Padma Awards Directory (1954–2013)" (PDF). Ministry of Home Affairs.
- ^ "2nd HR Khanna Memorial Lecture at KIIT School of Law". 8 April 2012.
- ^ "1st Justice H.R. Khanna Memorial Essay Competition 2016". 5 May 2016.