Monday, September 07, 2015

Reminiscing Justice H.R.Khanna and the Emergency

LAOT is pleased to offer excerpts from the speeches of Justice J. Chelameswar and Justice A.K.Sikri at the Indian Law Institute, New Delhi, while releasing a book, on September 3.

Addressing a gathering of academics and lawyers at the Indian Law Institute, New Delhi,  Justice J.Chelameswar on September 3 released a book on Justice H.R. Khanna, co-authored by Lokendra Malik and Manish Arora.  The book, Justice HR Khanna: Law, Life and Works has been published by Universal Law Publishing, an imprint of Lexis Nexis.

Recalling Gibbon’s famous words that as long as mankind shall continue to bestow more liberal applause on their destroyers than on their benefactors, the thirst of military glory will ever be the vice of the most exalted characters, Justice Chelameswar said the late Justice HR Khanna is more remembered for his dissent in ADM Jabalpur judgment,
delivered during the Emergency, while people rarely recall the respondent in that case, Shivkant Shukla, who had suffered imprisonment.

While Justice Chelameswar underlined Justice Khanna’s contribution in Kesavananda Bharati and Indira Gandhi election cases, he said Justice Khanna’s judgment in Balmadies Plantation Ltd vs State of Tamil Nadu,  delivered in 1972 was equally noteworthy for his insights in the subject of land tenure, although he did not have to deal with the subject before he came to the Supreme Court.

While Justice Khanna demonstrated judicial statesmanship in the cases of Kesavananda Bharati and Indira Gandhi election appeal, it was in Shivkant Shukla that his courage of conviction and commitment to liberty of human beings stood out as his unique attributes, Justice Chelmaeswar said.

Justice Sikri compared Justice Khanna’s dissent in Shivkant Shukla to Victor Frankl’s tragic optimism.  Echoing Frankl’s book, Man’s search for meaning, Justice Khanna created feelings of hope through a very small window in his dissent, Justice Sikri said.

In Shivkant Shukla, Justice Khanna knew that he was in a minority; still, he wrote according to his conscience.  He wrote that the SC would correct itself; but that opportunity never came, because the judgment in Shivkant Shukla was buried by constitutional amendment, Justice Sikri recalled.

Justice Sikri said in the history of the Supreme Court, there were only two Judges who never became the Chief Justice of India, but were taller than the CJIs.  They were Justice Khanna and Justice Krishna Iyer.

Recalling the days of Emergency when he was a student, Justice Sikri said in those days the atmosphere was such that he used to whisper in the Delhi Law Faculty’s coffee house, so that he did not openly say anything which was not palatable to others. But Justice Khanna did not come under pressure, even though it cost him the post of the CJI, [as he was superseded by the  then Indira Gandhi Government as a punishment for his dissent in Shivakant Shukla, following which he quit], Justice Sikri recalled.

Senior advocate, PP Rao, who also spoke on the occasion, described Justice Khanna as a ‘tilting Judge’, who gave the basic structure doctrine to the nation and saved the country from elected representatives who were uncontrollable.  It was Justice Khanna who stood between the six pro-basic structure doctrine Judges and the six anti-basic structure doctrine Judges in the Kesavananda Bharati case, and tilted the scales in favour of basic structure doctrine, considering the future of the country, Rao said.  He was also a picture of balance, as he held that the right to property was not a part of basic structure doctrine, in order to prevent the right from halting the progress of the country, Rao recalled.  Rao represented the Andhra Pradesh Government in the Kesavananda Bharati case, and was a witness to the great arguments advanced by Nani Palkhiwala and H.M.Seervai in that case.

Lokendra Malik and Manish Arora’s book carries two Forewords,one by Justice TS Thakur and another by Justice Sikri. The book is divided into three parts, namely, biographical sketch, selected articles of Justice Khanna and Justice Khanna’s Memorial lectures.

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