Wednesday, March 19, 2008

Justice Khanna & his solitary dissent


I just finished reading Justice H.R.Khanna’s autobiography, Neither Roses Nor Thorns. Everyone is aware of his solitary dissent in the ADM Jabalpur case. I was pleasantly surprised to find that he inherited this courage of conviction from his father, Sarv Dayal Khanna. As he records:

A couple of years after the Jallianwala Bagh massacre, Lord Reading was appointed the Viceroy of India. Soon after taking over his new assignment, he came to Punjab. The Punjab Government was very keen that he should be presented a welcome address by the Amritsar Municipal Committee (AMC). Pressure was put on members to support the motion carrying the welcome address to be passed unanimously by the committee. The AMC consisted of 30 members including its President, Gopal Das Bhandari. Twenty-nine Members supported the resolution to present the welcome address to the Viceroy. The Government was keen to convey the message that the massacre left no scar and the bitterness had been erased from people’s mind. But one member whom the Government could not win over despite all pressures was Sarv Dayal Khanna. He opposed the resolution tooth and nail and when it was carried out, he was the only member who did not participate in the function for the presentation of welcome address to the Viceroy.


If A.D.M.Jabalpur case is one dissent for which Justice Khanna would be ever remembered, his judgment in the Keshavananda Bharati case is perhaps one on which there has been no clarity yet. Could his judgment in the Keshavananda Bharati case be called again as a “solitary dissent”, considering that he stood somewhere between the "majority" six and the "minority" six. After reading T.R.Andhyarujina’s revealing article in The Hindu last year, I wondered whether Justice Khanna knew of this criticism during his lifetime, before his faculties failed him during the last few years. Even as he was eager to “clarify” his Keshavananda Bharati Judgment in the Indira Gandhi case subsequently (on whether fundamental rights were part of the basic structure – in the former he said they were not part, while in the latter he clarified that he did mean they were part), why did he allow the slur that he contradicted his own judgment in the Keshavananda case go entirely unchallenged?

1 comment:

Suresh said...

Yes, Justice Khanna's logic for his judgment in the Kesavananda Bharathi case is not well understood. For that matter, the entire notion of the "basic structure" doctrine itself is strange. I am in the same camp as Justice K. K. Mathew [personally, I think, a great and erudite judge] who said something to the effect that "I have tried wrestled all night like Jacob with the angel trying unsuccesfully to understand where the "basic structure" doctrine comes from." From what I understand, the "basic structure" is not defined in the constitution itself, it is basically what a few judges of the Supreme Court, at a particular point in time and in particular circumstances, decreed it to be. This is what makes it strange.

Having said that, I am glad for the Kesavananda Bharathi decision. To understand it, one has to appreciate that the Indian democracy in 1970 was even more elitist than it is now. Effectively, a few people wielded enormous powe and could change the constitution in any manner they wanted. I remember my father tell me that in the Indira Gandhi era, not even the ministers knew what decisions were taken by the cabinet until the minutes came out! The Kesavananda Bharathi ruling put a limit on how far Parliament could go - at that point in time, I think, we needed that. I am not so sure about the need for a Kesavananda Bharathi type ruling right now.

Just some random thoughts from a non-lawyer; please do excuse my ramblings.