Justice Hans Raj Khanna, who died at the ripe age of 95 on February 25, 2008, was born in 1912. He joined
the Bar in 1934, was appointed a district and sessions judge in 1952 and was elevated to the Punjab
high court in 1962 and subsequently to the Supreme Court in 1971. He has been universally acclaimed as a fearless champion of human rights for his dissent against the majority judgement of the Supreme Court upholding the suspension of fundamental rights during the emergency, for which he sacrificed his claim to the highest office of chief justice of India. 

Having opposed the emergency since its imposition in June 1975, the judgement of the Supreme Court on April 28, 1976 in the habeas corpus case (ADM Jabalpur vs Shiv Kant Shukla), denying citizens remedy under law against illegal detention, torture or even murder, came to me as a rude shock. It must be recalled that in response to the question posed to the then attorney general (Niren De) about any remedy being available in the event of a police officer killing a person out of personal enmity he had said, "Consistently with my argument, there would be no judicial remedy in such a case as long as the emergency lasts." However, it was heartening to note that there was one judge, Justice HR Khanna, who had the clarity, conviction and courage to write the dissenting judgement upholding the basic tenet of rule of law in India’s darkest hour of its democratic history, in which he stated, "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…"

It is well that The New York Times wrote an editorial on April 30, 1976 in which it rightly observed that "If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the court’s decision upholding the right of Prime Minister Indira Gandhi’s government to imprison political opponents at will and without court hearings… The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society and the Indian Supreme Court’s decision appears close to utter surrender."  

Earlier in 1973, in the Kesavananda Bharati case, Justice Khanna’s judgement helped establish the doctrine of the unamendable basic structure of the Constitution, which has stood the test of time.

It is well that recalling Justice Khanna’s "firmness, courage and disregard of all considerations except his principles and convictions" at a full court reference in the Supreme Court on March 5 the chief justice of India, KG Balakrishnan noted that "it was probably this dissent which led to his supersession. But having a strong belief and conviction in the unassailability of fundamental rights and independence of judiciary, he lost no time in relinquishing the high office of a judge of the apex court for which people keep on aspiring throughout their life." 

My own interaction with Justice Khanna was limited to a couple of seminars and a reception at jurist Soli J. Sorabjee’s residence. In a seminar on ‘Women’s Economic Rights’ it was reassuring for me to find Justice Khanna supporting my plea for insurance cover for breakdown of marriage, treating it as a social accident the burden of whose consequences should not always be borne by even a non-erring husband. Prof Tahir Mahmood (jurist and former chairman of the National Commission for Minorities) was not ready to accept it as a serious proposition; he viewed it as the commercialisation of marriage. Justice Khanna not only came to my rescue but enthusiastically welcomed the idea which he wanted to be sent to the National Commission for Women. During another seminar, on the ‘Educational Rights of Minorities’, at which I read a paper critical of the unreasonable limit of 50 per cent on the admission of minority students laid down in the St Stephen’s College judgement, Justice Khanna did not express his opinion in any precise formulation as, in view of the case being under consideration of the bench, he felt that he should exercise restraint. However, his sympathies for the rights of minorities were transparent. 

The other less known contribution of Justice Khanna is the note that he wrote at the request of the National Commission for Minorities in 1980 on the issue of the right of victims of communal riots to adequate compensation, wherein he made a strong plea for the recognition of the rights of victims under law and for which he cited the examples of Britain, New Zealand, Canada, the US and Australia where the provision for payment of compensation to victims of violent crimes has existed since the 1960s. It is a pity that no law has so far been enacted providing for rights of victims in spite of the strong recommendation from the Justice Malimath Committee (on reforms of the criminal justice system) in this regard. It is a greater pity that in spite of policy research and advocacy by the Minorities Council of India since 1997, minority community forums have not given the issue the priority that it deserves.

Let all those who hold human values and human rights dear pray for Justice HR Khanna’s soul and also for the soul of the Indian judiciary to be saved from all the cardinal sins that mortals are likely to be tempted to. n