Justice Khanna and civil rights (Publised in the New Indian Express, Thursday February 28 2008)
IN the passing away of Justice H.R. Khanna, the nation has lost a man to whom democracy was an ethical concern. Khanna staked his elevation as Chief Justice to uphold the cause of democracy and civil rights of the people. His courage and conviction were in vain because his was a lone voice in those dark days when Indira Gandhi went about pulling all the stops to undo all that the Constitution sought to establish.

It will be appropriate to recall the case — A.D.M. Jabalpur vs. S.K.Shukla —and the backdrop to it that made Khanna a hero. Madhu Dandavate, A.B.Vajpayee and L.K.Advani, all MPs then, were arrested and detained under the MISA while they were in Bangalore as part of a Parliamentary delegation. They approached the Karnataka High Court on grounds that they were not served with the grounds for detention when they were picked up late in the night on June 25, 1975. An Ordinance issued on June 27, 1975 amending MISA, to exempt the police from disclosing the grounds for detention could not be applied in this case.

The plea was to be taken up by the Karnataka High Court and it was clear that the arrests would not be upheld because criminal law cannot be applied retro-effective.Indira’s regime found a way out. They were released just before the case was to come up before the Karnataka High Court on July 17, 1975 and arrested afresh, immediately and this time it was legal to detain them without disclosing the grounds! The detention this time was under the provisions of the June 27 Presidential Order amending MISA.

The Karnataka High Court, meanwhile, admitted a habeas corpus petition on their behalf under Article 226 of the Constitution. And similar petitions were moved in high courts across the country. All these petitions challenged the constitutional validity of the June 27, 1975 Presidential Order barring the courts from entertaining petitions seeking a writ of habeas corpus. Among them was one in the Jabalpur Bench of the Madhya Pradesh High Court moved by another detenue, S.K. Shukla. The court admitted the petition and issued a writ of habeas corpus on September 1, 1975.

The High Court verdict was challenged by Indira’s Government in the Supreme Court. A five-member bench consisting of Chief Justice A.N.Ray along with Justices H.R.Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati before whom all the cases of that kind from the various high courts were bundled passed its order on April 28, 1976.In a 4 to 1 judgment, the majority upheld the June 27 Presidential Order as valid and denied the political prisoners the right to legal remedy against arbitrary arrests and detention.

Justice Khanna dissented with the majority and paid the price. Despite being the senior-most judge, he was superseded by Justice Beg in January 1977 to become the Chief Justice and resigned in protest.

In an exemplary display of courage and conviction, Justice Khanna declared: “As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, 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.”

The story will not be complete without quoting what the others stated to justify their verdict. Chief Justice Ray admonished the counsel for the detenues who brought to mind the Nazi gas chambers and said: “People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.” Justice Beg said: “ 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.”

And Justice Chandrachud went a step further to say: “Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamondhard hope that such things will never come to pass.”

While all those who appealed against their detention (despite losing the case) survived to be released in early 1977, there were others like Rajan, a student of the Regional Engineering College, Calicut, who was killed in the torture camp. And Snehlatha Reddy, an eminent film actor from Bangalore, did not live for long after she was released from a torture cell.

Lawrence Fernandes, picked up from his home in Bangalore during the night, held in illegal custody for a few days, beaten up continuously suffering several fractures all over his body and finally sent to jail as a MISA prisoner.Udaya Shankar, a college student from Mangalore was held in custody without a warrant, beaten until his body turned blue. He was left in that condition without medical attention. Rabin Kalitha, a CPI(M) activist in Guwahati was picked up, tortured and was held in handcuffs even when he was hospitalised for treatment. He died in hospital.

And Chitti Babu and Sattur Balakrishnan, both from the DMK, were killed after police torture in Chennai.This, probably, was the “maternal” care that Justice Beg talked about. JP, now on parole because his health had deteriorated while being held at Chandigarh and diagnosed to be suffering from renal failure, had this to say about the apex court’s verdict: “The decision has put out the last flickering candle of individual freedom. Mrs. Gandhi’s dictatorship both in its personalised and institutionalised forms is now almost complete.”

The implication of the April 28, 1976 verdict by the Supreme Court was that Rajan’s father, Professor Eachara Warrier could not seek a writ of habeas corpus (even to realise that his son was dead) until Indira’s Congress was defeated in the elections and the Emergency was lifted on March 21, 1977.

The stamp of approval by the apex court that Articles 14, 21 and 22 of the Constitution did not operate in case of the Emergency prisoners meant that the bold pronouncements by a number of High Court judges, across the country, ordering the release of MISA detenues on bail and quashing the charges against them were nullified. All those arrests and subsequent detention without charge were now perfectly legal.

Justice Khanna will be remembered for the exemplary courage he showed in that case. And he was prepared to jeopardise his own rise as Chief Justice of the Supreme Court only because he considered it his moral duty to protect the democratic rights that the Constitution guaranteed to the citizens.