Justice H.R. Khanna: The Conscience of the Constitution

We are proud to present the two winning essays from the Intra-University Essay Writing Competition conducted by CCAL on the theme: "Justice H.R. Khanna: The Conscience of the Constitution”.

First Place: Raghunandan N

Runner-Up: Mohak Dua

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Justice H.R. Khanna: The Conscience of the Constitution

*Raghunandan N

During the time when the effects of the emergency hit the judiciary like dark clouds in the clear night sky, Justice H.R. Khanna remained unfettered like the moonlight, piercing through those dark constitutional nights, demonstrating the importance of dissent in the judiciary. His famous dissent in the ADM Jabalpur case makes him tower over many others in the legal realm. His strong stance in protecting the essence of the judiciary despite governmental opposition and repercussions makes him an idol to both young and old members of the bar and the bench even today. 

After practising for a score of years as a pleader at Amritsar, Justice Khanna transitioned from the bar to the bench in 1952, when he was directly appointed as the District and Sessions Judge upon recommendation by the High Court. While in the district judiciary, he played a key role in major cases including the Kalka firing enquiry (1956), where the police, fearing a riot, opened fire on railway workers. He ruled the shooting unjustified, noting the fact that the workers were merely fleeing, and posed no threat.

He was a bulwark of human rights all his career. for instance, when appointed as the claims commissioner in the Mohri train accident case in 1958, he worked diligently to make sure to finish each case in just two hearings to provide speedy justice for victims’ families. 

One of his laudable attributes was that he was uncompromisingly transparent. His time in the Delhi High Court illustrates the same. He was one of the four judges who started the Delhi High Court, and only a few months later, Chief Justice Subba Rao recommended his name for the Orissa Enquiry of 1967. The request was actually made for a Supreme Court Judge, by expressing the fact that the task needed someone who was absolutely unapproachable since the matter was related to political personalities. Such was the personality of Justice Khanna which made people recognise and choose him. 

Justice Khanna became a judge at the Supreme Court in 1971. The work for him was rather absorbing and pleasant. He, in fact, wrote in his book that the atmosphere in the court was generally cordial. But this period did not last very long for him. The Keshavananda Bharati case of 1973, flipped the tables upside down, not in terms of his judicial liberty but in terms of the pervasive threat of administrative supersession. This case was one of a kind. The constitutional bench consisted of an astronomical number of thirteen judges, the largest constitutional bench to have ever formed, a record which is still intact. The matter was of such significance that retiring judges, as well as some of the retired judges, were retained in the court to handle other matters. The fundamental takeaway of this judgment is that it is beyond the purview of legislative power to amend the basic structure of the Constitution. This judgment was passed with a thin majority of 7:6, and it is believed that Justice Khanna was mid-spot, who subsequently tipped the balance in favour of the majority. 

Diversity was present within the majority on fundamental issues raised for consideration. The primary issue was whether fundamental rights could be abrogated in their entirety. The then Chief Justice SM Sikri was of the opinion that fundamental rights are basic inalienable rights and it is outside the power inventory of the parliament to take away these rights. However, he agreed that reasonable restrictions could be imposed in public interest. This opened the doors for the theory of implied limitations, which was shared by the other majority judges, although the extent and the scope of application differed. 

But Justice Khanna’s stance was so different, that some even questioned whether his views could even be clubbed with the “majority view.” He rejected the Implied Limitations Theory. This theory says that even a powerful amendment body cannot change the core structure that gives it constitutional authority. Some parts of the Constitution are protected by "implied limitations," meaning that they cannot be altered, no matter the extent of power with the amending body. He examined the intent of the framers to arrive at his stance. He said that an implication under Article 13(2) cannot be made when the framers of the Constitution themselves put no express limitations under Article 368 which gives the legislature the power to make amendments. He continued, that if the preservation of fundamental rights was so important, the framers would have had added a proviso in Article 368, expressly guaranteeing the continued existence of fundamental rights in an abridged form. 

Justice Khanna’s conception of ‘basic structure’ was very limited, and only extended to extremely drastic measures such as a shift to a dictatorship. “Only then can the basic structure idea be given prevalence”, he concluded. Post the pronouncement of this judgment, he witnessed the supersession of three judges who gave judgments against the government. Justice A.N. Ray,  who was the minority judge in the case, was appointed as the Chief Justice. As a result, all the three judges, Justice Hegde, Justice Shelat, and Justice Grover tendered their resignations.

After this incident, his perception of the Supreme Court took a shift. He found a noticeable change in the atmosphere of the court. He feared these incidents could generate a fear complex or hopes of rewards, amongst the judges. He noticed a trend where courts began to tilt in favour of the government. In the Thomas case, where he was one of the dissenters, he opined that the Supreme Court was projecting power into the hands of the government, allowing them to pass laws to enlarge areas of reservation for public services posts to an unreasonable extent under Article 16 of the Constitution. According to him, this would have severely undermined the quality and efficiency in services. Thereafter, he dedicated all his work hours to judicial work, which he thought was more rewarding than being a sycophant. 

However, in 1976, just a few years after Keshavananda Bharati, he fell prey to the identical act of supersession for his judgment in the ADM Jabalpur case. The then Prime Minister Indira Gandhi imposed emergency rule on 25th June 1975. “The president has proclaimed emergency, there’s nothing to panic about,” said Indira, in her midnight address to the general public, as a series of arrests of the opposition leaders were already in the process. Only if having your fundamental rights compromised was not considered to be an event of panic, Indira’s speech would not have been regarded as empty rhetoric. But that was not the case. The immediate effect of the announcement was in fact an event of sheer panic, as a spate of Habeas Corpus writ petitions were filed in various High courts as a reaction to the preventive custody arrests of thousands of persons which were made during that time.  

In response, the state contended that citizens did not enjoy any fundamental rights, including the right to life and personal liberty given under Article 21 of the Constitution, as the same were suspended under Article 359 of the Constitution. However, many High Courts opined and subsequently declared that preventive detention was bad in law, and thereby ordered the release of  the detainees. Against this backdrop, the matter reached the Supreme Court in the form of ADM Jabalpur case. The state’s contention was accepted by the court with a 4:1 majority, and the arrests were validated. The court took a formalistic approach by employing a literal interpretation of the statute. It was ruled by the majority that a person’s right to take shelter under Article 226 of the Indian Constitution for any form of writ would remain suspended during the emergency. However, Justice HR Khanna, the lone dissenter, differed from the egregious formalism of law and its flagrant outcomes. 

Justice Khanna compared the strict interpretation of law to the Nazi regime, while rejecting the legality argument put forth by the government. While observing that  ‘rule of law’ is the antithesis of arbitrariness, he sharply pointed out that the right to life and liberty was not a gift given by the Constitution. Instead, he opined that the text granting fundamental rights was just a mere corollary to the concept of sanctity of life and liberty, which existed even before the nation’s grundnorm came into being. In the absence of such sanctity of life and liberty, he said, there would exist no distinction between a society governed by laws and a lawless society. He concluded by saying that even if Part III of the constitution was not drafted and inserted into the constitution, the state would still not have the power to deprive a person of this right to life and liberty. 

Although he was the dissenter, the public held his opinion on a higher pedestal as opposed to the judgment itself. He was considered the beacon of the spirit of the Constitution for taking that stance despite being aware of the potential repercussions he was about to face. “It was obvious that I had become in the eyes of the government, persona non grata,” he wrote, expressing his disappointment over the sudden change in the attitude of his acquaintances. The ultimate consequence of the judgment for him, however, is best elucidated through a direct textual reference where he wrote, “I have prepared a judgment which is going to cost me the Chief Justiceship of India.” Post this episode, he tendered his recognition and exited from the judiciary. However, he continued to serve the nation by holding the positions of the Chairman of the Law Commission (1977-1979), and served as the Union Law Minister (1979), although for a short span of three days. 

However, the people, the members of the bar, and the bench did not think he was persona non grata, as he took a firm stance in upholding constitutional values through his judicial discourse despite various opposing forces. To the relief of the people of the nation, the ADM Jabalpur case was finally overruled in the K.S. Puttuswamy judgment of 2017, which upheld the dissenting opinion of Justice Khanna.

But no judge is infallible. Despite all his remarkable contributions to the Indian Judiciary, it is also imperative to look into some elements of judicial inconsistency he possessed. Although his goal was stationary and fixed, his methodology vacillated between strict and purposive interpretation. In the Keshavananda Bharati case, even though he sided with the majority, he took a strict view of the Constitution, rejected the notion of implied limitation, and considered a view which would give powers to the government to suspend the fundamental rights of the citizens. But his approach took a shift when he heard the ADM Jabalpur case where he advocated for a purposive interpretation and went on to say that fundamental rights cannot be compromised under any circumstance. Although there was an element of inconsistency, his goal remained the same — to uphold the fundamental values of life. 

In conclusion, Justice Khanna was not just a judicial functionary, but was a constitutional conscience that illuminated India’s dark constitutional days in the 1970s. His legacy is something more than a legal narrative — a profound moral argument that constitutional principles are immortal, and resilient against institutional compromise. Even the governmental barricade jeopardizing his professional prospects did not alter his unwavering commitment towards justice, thereby going down as one of the most inspiring personalities in the legal realm across the globe. Adding to the words of Justice A.K. Sikri, “We, as judges, have a North Star that guides,” this North Star guides not just the judges but all the members of the legal fraternity. 

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The Enduring Legacy of Justice HR Khanna

*Mohak Dua

Introduction

Around 80 years ago, close to 1.5 million Americans gathered in Manhattan’s Central Park in order to recite the pledge of allegiance, and explore their identity and what it meant for them to be an American. It was in this event, now known as the “I am an American Day”, that Judge Learned Hand gave his speech titled “The Spirit of Liberty”. In this deeply revered address, Judge Hand shared his notion of liberty. He declared-

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Justice Hand’s speech came long after its actualisation in his life in the case of Masses where, as a district-judge, he had restrained the New York Post master from banning The Masses magazine for the alleged violation of the controversial, first-world-war-influenced Espionage Act - which made mere criticism of the government a federal crime. The government, in the Masses case, alleged that the magazine undermined American war efforts and hindered military recruitment. 

In his ruling, Hand attempted to narrow the meaning of the law as passed. He opined, maintaining the presumption of sovereignty, that Congress must have intended to restrict “direct incitement” to lawbreaking, and not a broad prohibition against all government criticism, giving The Masses immunity; he went on to explain that such an exercise of power would “disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.”

Hand’s decision was soon reversed by the Second Circuit. However, believing strongly in his righteousness, he envisioned the law as a flexible framework, open and tolerant in its application, yet designed to empower people to critically challenge entrenched values, attempting to provoke change. It was this very vision and will that led to his interaction with the prominent juridical figure - Justice Oliver Wendell Holmes, Jr. The two judges met on a train journey from New York to Boston, and Hand steered the conversation towards the topic of ‘tolerance’. This short interaction then turned to penpalship, leading to comprehensive discussions about the limits of liberty, and the role of judges in offering protection to free speech. Though Hand had little to work with due to Holmes’ strict darwinian views, Holmes was also, like Hand, a skeptic; He questioned absolutes, and was doubtful by nature. It was this attitude and their correspondence that led Holmes to pen his dissent in the case of Abrams v. US, revered as ‘The most Powerful Dissent in American History’. Holmes’ dissent, marked by his theory of the ‘marketplace of ideas’, came to become American Law close to half a century later, in 1969, when the Supreme Court adopted Hand’s test in the Masses case, naming it- “incitement to imminent lawless action.”

It was close to two decades after Holmes’ dissent, in Central Park, that Hand pared his, and what translated to be the American, notion of liberty, concluding that the spirit of liberty is “the spirit which is not too sure that it is right.”

While there is no living record of Justice Hand ever having met an Indian Supreme Court Judge, his ideas on liberty and fundamental rights found cross-pollination in the Indian Constitution, when he met one of its key drafters, Sir B.N. Rau, to whom he emphasized that fundamental rights should be viewed as moral precepts, reflecting his broader philosophical views on law and rights. 

If there is one figure in India’s legal legacy who embodies the undying spirit of these three jurists, it is Justice Hans Raj Khanna. His profound sense of liberty echoed Justice Hand’s belief that true freedom resides beyond the written word, in the hearts and conscience of individuals. Khanna’s courageous dissent in ADM Jabalpur - regarded as one of the ‘Three Great Dissents’- parallels Justice Holmes’ legendary dissent in Abrams v. United States, both standing as timeless defenses of civil liberties against state overreach. Furthermore, Khanna’s invocation of due process in ADM Jabalpur, inspired by B.N. Rau’s discussions with American jurists, one of whom was co-incidentally Justice Hand, during the drafting of the Indian Constitution, exemplifies his commitment to embedding moral and constitutional safeguards into Indian jurisprudence. His legacy today remains that of a guardian of constitutional values, whose stature transcended the titles denied to him.

Khanna’s Discordance- ADM Jabalpur, and the trail. 

Khanna served on the Supreme Court’s bench during one of the most monumental times in India’s history. Penning his judgment in the aforestated Habeas Corpus case, a dissenting verdict that immortalised him, he was faced with a rather peculiar question - how could a law itself be used to undermine the rule of law? Khanna’s dilemma was only exacerbated by the factum of the said law’s application.  This dilemma was set against the backdrop of India’s third Emergency in just over a decade, during which fundamental rights were suspended, and detentions were made without trial. While these actions were legally sanctioned, they posed a deep moral question; for Khanna, no society governed by the rule of law could deem the detentions effectuated conscionable. In his lone dissent, he staunchly observed that the Nazi Regime had also been perfectly legal. A stark contrast as such is indicative not just of the deplorable state of affairs at the time, but also Khanna’s resilience at a time where judges chose conformity over conscience. 

A few years before the habeas corpus case, in 1973, Khanna had delivered, perhaps, the most impactful judgement by the Supreme Court in its history till date. Delivering the controlling opinion of a thin majority of 7:6, in a case concerning the Parliament’s power to amend the constitution, Khanna had declared that a constitution itself could not be used to create a lawless society because the whole purpose of the constitutional enterprise was to prevent lawlessness, and supply legitimacy to authority. Khanna’s decision in Keshvananda Bharati was made based on his skepticism - in situations where the law is portrayed to be nothing but a mechanism of vacuous legal norms, with no substance but only form, where then would one find and base the rule of law? 

Throughout the text of the judgment, Justice Oliver Holmes finds mention 36 times, the most important of which comes while discussing the scope of the word ‘amendment’, noting the citation of a multitude of dictionaries, the court examined Justice Holmes’ words in Towne v. Eise, wherein he stated- "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary, greatly in colour and content according to circumstances and the time in which it is used". 

Khanna’s argument in Kesavananda, similar to that of Holmes in Abraham, is based upon an ignored premise - Although the parliament [or any other sovereign body] speaks for the people, it is still separate from the people. This insight, forming a core part of his legacy, constantly faces challenges in today’s world. Though his dissent(s) has found footing in the form of judicial precedents, forming law, akin to that of Justice Hand in the Masses case, it would be naive to state that there is no  discrepancy in its application.  

Khanna’s Legacy, and the challenges

On 28th of January, 1977, Justice Khanna bid adieu to the Supreme Court of India, In his autobiography, Justice Khanna described the somber mood of the staff in the corridor when they saw him off with folded hands as “more eloquent than any words”. He further went on to state that upon hearing news of his junior being elevated as the Chief Justice on that very evening, he wrote to the President, tendering his resignation. 

The news of his succession was not unforeseen. Justice Khanna also notes in his autobiography that a mere two weeks before the announcement, “sitting in the moonlight in the compound of the bungalow while in front of us flowed the Ganges, serene and beautiful. Sitting there and watching the scene, I told my younger sister, “Santosh, I have prepared a judgment which is going to cost me the Chief Justiceship of India.” Such was his foresightedness. However, Khanna knew his burden as a member of the bench. It was quite accurately stated by the erstwhile Attorney General Motilal Setalvad, that the court had “the delicate and difficult task of ensuring to the citizen the enjoyment of his guaranteed rights”.

Khanna did not live long enough to see his dissent turn into law. In 2017, ruling that the right to privacy was a fundamental right under Article 21, a 9 judge bench of the Supreme Court overruled the precedent set in ADM Jabalpur. Justice D Y Chandrachud, authoring the majority opinion, and referring to Khanna, stated “Khanna, J. was clearly right in holding that the recognition of  the right to life and personal liberty under the Constitution does not denude the existence of that right…”. 

As a result, Khanna’s legacy is not confined to dissent; it lies in creating a framework where dissent itself is valorized. His courage redefined judicial independence, making it not just a professional trait, but a public duty. Khanna was a firm believer of the judiciary, believing that it could be undermined not by its own strength, but by collusion with forces it was meant to check. He also believed that its legitimacy was supplied from its own capacity (and what he believed to be also its duty) to ensure the sanctity of its process. Khanna’s opinions about, and faith in, the judiciary can be summed up in his words stated at a dinner, celebrating his retirement- “[The] courts must earn reverence, through the test of truth”. 

Conclusion

Justice H.R. Khanna's legacy is a profound testament to the enduring spirit of liberty, echoing the sentiments of Judge Learned Hand, who believed that true freedom resides in the hearts of individuals, independent of any constitution or law. Both jurists championed the idea that liberty is not merely a legal construct but a fundamental human condition that flourishes in the conscience of society. Despite facing significant opposition, Khanna's dissent became a pivotal moment in Indian jurisprudence, much like Hand's decision in Masses. Interestingly, Hand himself was once passed over for a judgeship on the Second Circuit Court of Appeals, a decision that many viewed as a significant oversight given his legal acumen and contributions to American jurisprudence. 

The erection of Khanna’s portrait at the Supreme court symbolizes his indelible impact on Indian democracy. The note by The New York Times, if India were to return to democracy, “someone will surely erect a monument to Justice H.R. Khanna.”, does little towards his immortalisation, as opposed to the poignant words of F. Nariman- “[T]o the stature of such a man, the Chief Justiceship of India can add nothing.”.