Speaking justice to power
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On February 25, Justice H.R. Khanna, a former judge of the Supreme Court died at the age of 96. His memory will remain so long as we cherish the ideal of an independent and courageous judge.
Justice Khanna was not a brilliant or learned judge. He wasn't a judge with a flair for writing judgments, or a judge known for a popular ideological stance. This unassuming judge left his mark in a manner in which no judge in India has done by his courage to decide issues on his own convictions without succumbing to any pressure from outside or within the Court.
Two instances stand out in Justice Khanna's tenure as a Supreme Court judge between 1971 and 1977. One was his dissenting judgment in 1976 in what is known as the 'habeas corpus' case in the Supreme Court. In the dark days of the Emergency between 1975 and 1977, the fundamental right of personal liberty was suspended. A large number of persons were detained under detention laws. Did such persons have a right to ask for their liberty if their detention was without authority of law? Nine high courts said that they could. The Government of India appealed to the Supreme Court against these decisions of the high courts. What would be the opinion of the highest court of the country? People eagerly awaited the verdict from a bench of five judges presided over by Chief Justice A.N. Ray which included Justice Khanna.
A majority of four judges held that no person could ask for any relief from a court as the fundamental right to personal freedom had been suspended, not even if the order of detention was without authority of law or was made by an unauthorised person or was mala fide or even if a wrong person was detained. It was left to Justice Khanna alone to dissent. In a powerful dissent he said that even though the right to personal freedom was suspended, no person could be detained without authority of law as it was a cardinal principle of our jurisprudence that no person's life or liberty could be taken away without authority of law.