One Judge’s Dissent During Emergency 1975 Is Still Relevant Today

Remember, remember not the Fifth of November but our own gunpowder, treason and plot. We see of no reason why this censored out season should ever be forgot. 

[25th June marks the 40th Anniversary of Indira Gandhi’s declaration of an internal Emergency.What happened at Turkman Gate? How many countless lives were lost and destroyed by forced sterilisation? Who ultimately was the figurehead running India then?  The deeply censored and scarcely talked about event has been clouded under a veil. Until now.]

The relationship which Indian democracy and liberty shares with the judiciary is a tumultuous one to say the least. The progressive recognition of India’s transgender community and the preservation of India’s freedom of speech through the striking down of Section 66A lose their sheen when they are balanced with the impunity enjoyed by famous personalities and celebrities in serious crimes as well as the recent judgement which held that one cannot insult “historically respectable personalities” while stating freedom of speech and expression cannot be absolute. This fluctuating faith in our judiciary is not a new one but there are a few iconoclastic examples peppered through it, one of which happened in perhaps the darkest period of Indian democracy.

Indira Gandhi’s 1971 election was embroiled in legal hurdles until a ruling of the Allahabad High Court on 12th June, 1975, which rendered her election null and void. The Prime Minister quickly appealed the judgement in the Supreme Court which upheld the verdict on June 24th while offering a conditional stay whereby she could continue being the Prime Minister but could not speak or vote in the Lok Sabha.

Gandhi went on to declare an internal emergency on June 25th by which she suspended the fundamental rights of people, censored the press and arrested several political leaders.

The three branches of the government ceased to matter as the sovereignty of the nation was usurped by one person. Indira was particularly distasteful of judges, many of whom she would have superseded or transferred if they had ruled against her in previous cases. This is the reason why the actions of Hans Raj Khanna in 1976 deserve to be lauded for their bravery.

The illegal detentions and arrests by the government were challenged in the Supreme Court in the form of Habeas Corpus case of (A.D.M. Jabalpur v. Shiv Kant Shukla).

The court was asked to decide on whether petitions for habeas corpus, where an individual can protest illegal arrests and detention of himself or others, and similar petitions under Article 226 were maintainable, notwithstanding the suspension of fundamental rights by the government, on the grounds that the orders were beyond the statute, or were not in accordance with the law. 

A bench consisting of Chief Justice A.N. Ray; H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati heard the case, which would essentially determine if the constitutional provision which ensured that the judiciary would have powers to protect the rights of citizens, even if encroached upon by the government.

The judgement in the case came out on 28th April 1976 but Justice Khanna had already made a premonition about what his verdict might entail - “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.” 

Khanna gave an example of the climate in the country during the Emergency in his autobiography as he described the case in vivid detail. He talked about his question to the then Attorney General whether as per his submission - there might be a remedy if a police officer killed another man because of personal enmity?

The Attorney General conceded, “Consistently with my argument, there would be no judicial remedy in such a case as long as the Emergency lasts.” Four judges decided in favour of the government while Justice Khanna was the lone dissenter noting, “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...”

The simple act of dissent lead to Justice Khanna entering the annals of history as Indira Gandhi superseded him with Justice Beg for the position of Chief Justice of India in 1977. Khanna resigned post the supersession even after an illustrious career of upholding law and justice even in its most crucial challenges.

A lawyer since 1934, Khanna had earned the respect of the law fraternity even before the 1976 judgement when he was the deciding vote in the fundamental rights case of 1973. The Supreme Court had held that the Parliament’s power to amend the Constitution was not unlimited and that the power to amend did not include the power to destroy.

The slim majority judgement of seven judges against six was achieved by the deciding vote of Justice Khanna. The stature enjoyed by Khanna was so revered that he was offered the position of Law Minister under the Charan Singh government. But Khanna found himself to be unsuitable for the executive as he resigned from his post within three days.

“Courts must earn reverence through the test of truth,” remarked Khanna at a dinner thrown in honour of his retirement. The celebrated hero of Indian judiciary passed away on February 28th, 2008.

The New York Times in its editorial for the Habeas Corpus Judgement had remarked,  “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.”

While a portrait of Khanna adorns Room no. 2 of the Supreme Court, we’re glad no such monument for him has been erected especially when every third government scheme was named after the adversarial and autocratic forces of the ‘70s that he fought.

For a country, which is obsessed with symbolism, monuments and portraits, often with their own political and social agendas, which cease to retain any essence of the individual’s philosophy...we need to be reminded of Justice Khanna’s legacy and contribution in spirit and action rather than hollow symbolism.