Hans Raj Khanna
Encyclopedia
Justice Hans Raj Khanna was a judge of the Supreme Court of India
(1971–1977). In the Habeas Corpus
case during the Indian Emergency, four other judges went with the government view that even right to life stood abrogated during Emergency. Khanna's dissenting opinion, claiming that the Constitution did not permit right to life and liberty to be subject to executive decree, is widely regarded as a landmark in Indian democracy.
On January 3, 1977, he was superseded for the post of Chief Justice by Indira Gandhi
, and he resigned from judicial service. He later served as Law Minister
of India, and was an opposition sponsored candidate for election as President
in 1982 though he lost the election to Giani Jail Singh.
, Punjab
in 1912, the son of lawyer
Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans' father had become a respected lawyer and later, the municipal commissioner of Amritsar. Hans's mother died at a young age, and the household was run by his grandmother. He did his schooling at DAV High School, Amritsar.
He studied at the Hindu and Khalsa Colleges, Amritsar
, graduating with a Bachelor of Arts
, before joining the Law College, Lahore
(1932–1934). He practiced at Amritsar till January, 1952 when he was nominated by
Sir Eric Weston, Chief Justice of Punjab, as District and Sessions Judge. This was "an uncommon appointment.... it had long been the practice to appoint only from the civil service". He served in the district courts at Ferozepur, and then Ambala
.
He moved as District and Sessions Judge, Delhi
until he was appointed Judge
of Punjab High Court in 1962. On the formation of the Delhi High Court
, he joined the bench of that Court. He conducted the inquiry into corruption charges against Biju Patnaik
and other
Ministers in Orissa
: while some of the charges were found true, Biju himself was absolved. He served as Chief Justice of Delhi High Court from 1969 till
September, 1971 when he was appointed Judge of the Supreme Court.
the Indian Emergency (1975-1977) of Indira Gandhi
.
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 by Raj Narain
.
In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act
, several high courts had given relief to the detainees by
accepting their right to habeas corpus
as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the
Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.
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?". De answered, "Even if life was taken away illegally, courts are helpless".
The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A. N. Ray
, P. N. Bhagwati, Y. V. Chandrachud
, and M.H.Beg, stated in the majority decision:
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."
However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:
In the end, he quoted Justice Charles Evans Hughes
:
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.
True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in January 1977. This was against legal tradition and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day.
Eventually, the Judiciary wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993.
The New York Times, wrote at the time:
.
He became known for his judgment in case of Kesavananda Bharati, 1973, a landmark case in which he agreed with the court to limit the extent to which Parliament could
amend the Constitution, particularly the right to property
.
He also conducted corruption inquiry against the noted politician Biju Patnaik
.
. In 1979, he was inducted in the cabinet as Law Minister by Charan Singh, but the ministry fell within six months. He was also for many years the chairman of the Press Trust of India
.
Among the books he has authored, Constitution and civil liberties (1978, based on the B. R. Ambedkar
memorial lectures), and
Making of India's Constitution (1981, Sulakshani Devi Mahajan lectures), deal with Indian law and the constitution
. He also wrote an autobiography, Neither Roses nor Thorns, (Lucknow, 1985).
In 1982 Khanna was nominated for President of India
, as a combined opposition candidate supported by Charan Singh. However, he lost to Giani Zail Singh.
Justice Khanna is widely respected among the legal community in India, and his views remain influential. The magazine Organiser wrote: "Justice Khanna, in the words of an eminent columnist, is so clean a man that he makes angels look dishevelled and dirty."
At one point, during the 1970s when the judiciary expressed the opinion that certain parts of the constitution were "basic" and could not be amended, he held the view that the right to private property is not part of this mandate, and that right to amendment was fundamental:
"if no provision were made for amendment of the Constitution, the people would have recourse to extra-constitutional methods like revolution".
In the conclusion of his Making of India's constitution, Justice Khanna writes:
A widely respected figure in legal circles, he was awarded Padma Vibhushan
in 1999. Justice Khanna died in his sleep in February 2008.
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
(1971–1977). In the Habeas Corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
case during the Indian Emergency, four other judges went with the government view that even right to life stood abrogated during Emergency. Khanna's dissenting opinion, claiming that the Constitution did not permit right to life and liberty to be subject to executive decree, is widely regarded as a landmark in Indian democracy.
On January 3, 1977, he was superseded for the post of Chief Justice by Indira Gandhi
Indira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
, and he resigned from judicial service. He later served as Law Minister
Ministry of Law and Justice (India)
The Ministry of Law and Justice is a prominent Ministry of Government of India. Under the , the Ministry is vested with the responsibility of administration of legal affairs, justice, and legislative affairs in India....
of India, and was an opposition sponsored candidate for election as President
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
in 1982 though he lost the election to Giani Jail Singh.
Early life
Khanna was born in AmritsarAmritsar
Amritsar is a city in the northern part of India and is the administrative headquarters of Amritsar district in the state of Punjab, India. The 2001 Indian census reported the population of the city to be over 1,500,000, with that of the entire district numbering 3,695,077...
, Punjab
Punjab (India)
Punjab ) is a state in the northwest of the Republic of India, forming part of the larger Punjab region. The state is bordered by the Indian states of Himachal Pradesh to the east, Haryana to the south and southeast and Rajasthan to the southwest as well as the Pakistani province of Punjab to the...
in 1912, the son of lawyer
Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans' father had become a respected lawyer and later, the municipal commissioner of Amritsar. Hans's mother died at a young age, and the household was run by his grandmother. He did his schooling at DAV High School, Amritsar.
He studied at the Hindu and Khalsa Colleges, Amritsar
Amritsar
Amritsar is a city in the northern part of India and is the administrative headquarters of Amritsar district in the state of Punjab, India. The 2001 Indian census reported the population of the city to be over 1,500,000, with that of the entire district numbering 3,695,077...
, graduating with a Bachelor of Arts
Bachelor of Arts
A Bachelor of Arts , from the Latin artium baccalaureus, is a bachelor's degree awarded for an undergraduate course or program in either the liberal arts, the sciences, or both...
, before joining the Law College, Lahore
Lahore
Lahore is the capital of the Pakistani province of Punjab and the second largest city in the country. With a rich and fabulous history dating back to over a thousand years ago, Lahore is no doubt Pakistan's cultural capital. One of the most densely populated cities in the world, Lahore remains a...
(1932–1934). He practiced at Amritsar till January, 1952 when he was nominated by
Sir Eric Weston, Chief Justice of Punjab, as District and Sessions Judge. This was "an uncommon appointment.... it had long been the practice to appoint only from the civil service". He served in the district courts at Ferozepur, and then Ambala
Ambala
Ambala is a city and a municipal corporation in Ambala district in the state of Haryana, India, located on the border of the states of Haryana and Punjab in India. Politically; Ambala has two sub-areas: Ambala Cantt and Ambala City, approximately 3 kilometers apart from each other...
.
He moved as District and Sessions Judge, Delhi
Delhi
Delhi , officially National Capital Territory of Delhi , is the largest metropolis by area and the second-largest by population in India, next to Mumbai. It is the eighth largest metropolis in the world by population with 16,753,265 inhabitants in the Territory at the 2011 Census...
until he was appointed Judge
of Punjab High Court in 1962. On the formation of the Delhi High Court
Delhi High Court
The High Court of Delhi was established on 31 October 1966. The High Court of Delhi was established with four judges. They were Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. K. Kapur.-History:...
, he joined the bench of that Court. He conducted the inquiry into corruption charges against Biju Patnaik
Biju Patnaik
Biju Patnaik was an Indian politician. Also known as Biju Babu.Son of Lakshminarayan and Ashalata Patnaik, Bijayananda Patnaik was born in Cuttack, Orissa on March 5, 1916..-Role in Indonesian freedom struggle:Biju...
and other
Ministers in Orissa
Orissa
Orissa , officially Odisha since Nov 2011, is a state of India, located on the east coast of India, by the Bay of Bengal. It is the modern name of the ancient nation of Kalinga, which was invaded by the Maurya Emperor Ashoka in 261 BC. The modern state of Orissa was established on 1 April...
: while some of the charges were found true, Biju himself was absolved. He served as Chief Justice of Delhi High Court from 1969 till
September, 1971 when he was appointed Judge of the Supreme Court.
The Habeas Corpus Case
Justice Khanna is known for his courage and independence during the period that has been called the darkest hour of Indian democracy, duringthe Indian Emergency (1975-1977) of Indira Gandhi
Indira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
.
The emergency was declared when Justice Jagmohanlal Sinha
Jagmohanlal Sinha
Jagmohanlal Sinha was a former Indian Permanent Judge. He was known mostly for his 1975 ruling in State of Uttar Pradesh v. Raj Narain on the election of then Indian Prime Minister, Indira Gandhi, in which he declared the election invalid...
of the Allahabad High Court
Allahabad High Court
The Allahabad High Court or the High Court of Judicature at Allahabad is a high court having jurisdiction over the Indian state of Uttar Pradesh since 1950...
invalidated the election of Indira Gandhi
Indira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
to the Lok Sabha
Lok Sabha
The Lok Sabha or House of the People is the lower house of the Parliament of India. Members of the Lok Sabha are elected by direct election under universal adult suffrage. As of 2009, there have been fifteen Lok Sabhas elected by the people of India...
in June 1975, upholding charges of electoral fraud by Raj Narain
Raj Narain
Raj Narain was an Indian politician who, as a candidate of Janata Party for the Lok Sabha in 1977, ran for office in Rae Bareli constituency and defeated Indira Gandhi, the then Prime Minister of India...
.
In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act
Maintenance of Internal Security Act
The misa was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers - indefinite "preventive" detention of individuals, search and seizure of property without warrants, and wiretapping -...
, several high courts had given relief to the detainees by
accepting their right to habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the
Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.
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?". De answered, "Even if life was taken away illegally, courts are helpless".
The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A. N. Ray
A. N. Ray
Ajit Nath Ray was the Chief Justice of the Supreme Court of India from 25 April 1973 until his retirement on 28 January 1977.-Controversial Appointment:...
, P. N. Bhagwati, Y. V. Chandrachud
Y. V. Chandrachud
The Honourable Justice Yeshwant Vishnu Chandrachud served as the Chief Justice of India from February 22, 1978 to the day he retired on July 11, 1985. Born in Pune in the state of Maharashtra, he was first appointed Judge to the Supreme Court of India on August 28, 1972 and is the longest...
, and M.H.Beg, stated in the majority decision:
- In view of the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
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."
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 absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.
In the end, he quoted Justice Charles Evans Hughes
Charles Evans Hughes
Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...
:
- A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.
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.
True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in January 1977. This was against legal tradition and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day.
Eventually, the Judiciary wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993.
The New York Times, wrote at the time:
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 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.
Other notable cases
While the Habeas Corpus case is Justice Khanna's most celebrated ruling, he is also known for his decision convicting India's leading industrialist Ram Kishan Dalmia for corruption. Dalmia was to serve several years in Tihar JailTihar Jail
Tihar Prisons , also called Tihar Jail and Tihar Ashram , is the largest complex of prisons in South Asia. It is located at Tihar village, approximately 7 km from Chanakya Puri, to the west of New Delhi, India. The surrounding area is called Hari Nagar.The prison is maintained as a...
.
He became known for his judgment in case of Kesavananda Bharati, 1973, a landmark case in which he agreed with the court to limit the extent to which Parliament could
amend the Constitution, particularly the right to property
Right to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
.
He also conducted corruption inquiry against the noted politician Biju Patnaik
Biju Patnaik
Biju Patnaik was an Indian politician. Also known as Biju Babu.Son of Lakshminarayan and Ashalata Patnaik, Bijayananda Patnaik was born in Cuttack, Orissa on March 5, 1916..-Role in Indonesian freedom struggle:Biju...
.
Post-judicial career
After Indira Gandhi lost the elections of 1977, Justice Khanna was for a short while, Chairman of the Law CommissionLaw Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
. In 1979, he was inducted in the cabinet as Law Minister by Charan Singh, but the ministry fell within six months. He was also for many years the chairman of the Press Trust of India
Press Trust of India
Press Trust of India is the largest news agency in India. It is headquartered in Delhi and is a nonprofit cooperative among more than 450 Indian newspapers and has a staff of about 2,000 writers spread across 150 offices nationwide...
.
Among the books he has authored, Constitution and civil liberties (1978, based on the B. R. Ambedkar
B. R. Ambedkar
Bhimrao Ramji Ambedkar , popularly also known as Babasaheb, was an Indian jurist, political leader, philosopher, thinker, anthropologist, historian, orator, prolific writer, economist, scholar, editor, a revolutionary and one of the founding fathers of independent India. He was also the Chairman...
memorial lectures), and
Making of India's Constitution (1981, Sulakshani Devi Mahajan lectures), deal with Indian law and the constitution
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
. He also wrote an autobiography, Neither Roses nor Thorns, (Lucknow, 1985).
In 1982 Khanna was nominated for President of India
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
, as a combined opposition candidate supported by Charan Singh. However, he lost to Giani Zail Singh.
Justice Khanna is widely respected among the legal community in India, and his views remain influential. The magazine Organiser wrote: "Justice Khanna, in the words of an eminent columnist, is so clean a man that he makes angels look dishevelled and dirty."
At one point, during the 1970s when the judiciary expressed the opinion that certain parts of the constitution were "basic" and could not be amended, he held the view that the right to private property is not part of this mandate, and that right to amendment was fundamental:
"if no provision were made for amendment of the Constitution, the people would have recourse to extra-constitutional methods like revolution".
In the conclusion of his Making of India's constitution, Justice Khanna 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. Imbecility of men, history teaches us, always invites the impudence of power."
A widely respected figure in legal circles, he was awarded Padma Vibhushan
Padma Vibhushan
The Padma Vibhushan is the second highest civilian award in the Republic of India. It consists of a medal and a citation and is awarded by the President of India. It was established on 2 January 1954. It ranks behind the Bharat Ratna and comes before the Padma Bhushan...
in 1999. Justice Khanna died in his sleep in February 2008.