Justice HR Khanna: The lone judicial glow in the dark days of Emergency

The month of June bypasses every year, turning the dark pages of Indian democratic history, leaving the true lovers of democracy appalled, over a phase where the rule of law faded, tyranny prevailed and a deafening silence was forcibly imposed on the citizens. The entire opposition was thrown behind the bars, those resisted were put to untold miseries, and the wounds in the custody were to last for a lifetime, making many among them permanently ill. The official might fell on all those who offered a resistance, the brave among them took up the challenge, and the meek who surrendered were allowed to see the light. But, none could gauge, history was on its own, jotting down the names of all those brave hearts in golden letters, who declined to be cowed down, the history has been illuminating their sacrifices all these years.

The Allahabad High Court verdict against Mrs. Gandhi the then Prime Minister and the consequent relief granted by the Supreme Court by way of a conditional stay on her appeal, curtailed her right to speak and vote in the floor of the house. The wrath flowed in the form of emergency, in an attempt to silence the popular dissent, the emergency came hunting all those who raised a dissent. None were spared, the official might fell on opposition as well as the media, those who didn’t fall on line were put to horrendous torture.

Apart from the valiant battle the opposition put up against the tyranny and for restoration of the democracy, there was a lone battle in the Bench which has become an epoch in Indian Judicial history. The unlawful detention, custodial torture, third degree methods inflicted on opponents were entirely new to the citizens, as these were colonial tools of oppression employed against the freedom fighters. The guardian of the Fundamental rights, the “Hon’ble Supreme Court” in ADM Jabalpur vs Shivkant Shukla was put to answer whether a petition of Habeas Corpus or other Article 226 Petitions were maintainable, in case of malafide orders and actions beyond stautory limits, despite suspension of the fundamental rights in an emergency. The said question had far reaching consequences, as the illegal detentions and disappearances became a norm during the said dark phase. The Supreme Court comprised of a bench of five judges led by Chief Justice A.N.Ray, Justices P.N.Bhagwati, Y.V.Chandrachud, M.H.Beg and H.R.Khanna. The majority Bench of four, except Justice Khanna ruled against the right to approach any High Court invoking Article 226 against any illegal detention or any order actuated by malafides.

Justice Khanna lighted a lamp of dissent, which has been glowing ever since he chose not  to concur with the majority view .Justice Khanna was unknowingly immortalizing himself when he wrote  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.

Those who take an honest stand is set to face trials and tribulations but they carve out a space for themselves forever in the respective arena, the lone dissenting opinion expressed by him resulted in his junior being elevated to the post of Chief Justice of India, Justice M.H.Beg was made the Chief Justice. Justice H.R.Khanna resigned on the same day, not to walk into oblivion but to shine forever in Indian Judicial History, being the one who lighted the lamp of liberty in the darkness of emergency.

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