Hans Raj Khanna

Infobox Judge
name = Hans Raj Khanna


imagesize = 100px
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office = Judge on Supreme Court of India
termstart = 1971
termend = 1977
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successor =
office2 =
termstart2 =
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birthdate = birth date|1912|7|3
birthplace =
deathdate = death date and age|2008|2|25|1912|7|3
deathplace = New Delhi
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Hans Raj Khanna (July 3 1912–February 25 2008) was a judge of the Supreme Court of India (1971-1977), noted for his independence in decisions such as the Habeas Corpus case during the Indian Emergency.

Khanna studied at the Hindu and Khalsa Colleges, Amritsar beforejoining the Law College, Lahore (1932-1934) [ [http://supremecourtofindia.nic.in/judges/bio/hrkhanna.htm Supreme Court of India biography Hans Raj Khanna] ] . He practised at Amritsar till January, 1952 when he was appointedDistrict and Sessions Judge, Ferozepur, and then Ambala. He moved as District and Sessions Judge, Delhi until he was appointed Judgeof Punjab High Court (1962). On the formation of the Delhi High Court, he joined the bench of thatCourt. He conducted the inquiry into corruption chargesagainst Biju Patnaik and otherMinisters in Orissa: while some of the charges were found true, Biju himself was absolved [ [http://orissagov.nic.in/e-magazine/Orissareview/febmar2005/englishpdf/bpafrofile.pdf Untitled-1 ] ] . He served as Chief Justice of Delhi High Court from 1969 tillSeptember, 1971 when he was appointed Judge of the Supreme Court.

When he was superseded for the post of Chief Justice by Indira Gandhi, he resigned from judicial service on December 3, 1977.

The Habeas Corpus Case

Justice Khanna is known for his courage and independence during the period that has been called the darkest hour of Indian democracycite news
title = Emergency -- Darkest hour in India's judicial history
author = V R Krishna Iyer
publisher = The Indian Express
url = http://www.indianexpress.com/res/web/pIe/ie/daily/20000627/ina27053.html
date = 2000-06-27
accessdate = 2007-09-16] , during the Indian Emergency (1975-1977) of Indira Gandhi.

The emergency was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud by Raj Narain.

In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act, several high courts had given relief to the detainees byaccepting their right to habeas corpus as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the [http://openarchive.in/judis/5622.htm "Additional District Magistrate of Jabalpur v. Shiv Kant Shukla"] , popularly known as the "Habeas Corpus case", which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

During the arguments, Justice Khanna at one point asked the Attorney General Niren De: "Life is alsomentioned in Article 21 and would Government argument extend to italso?". De answered,"Even if life was taken away illegally, courts are helpless".

The bench opined in April 1976, with the majoritydeciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H.Beg, stated in the majority decision:cite journal
title = A.D.M. Jabalpur vs Shukla: When the Supreme Court struck down the Habeas Corpus
author = Jos. Peter D 'Souza
journal = PUCL Bulletin
publisher = People's Union for Civil Liberties
url = http://www.pucl.org/reports/National/2001/habeascorpus.htm
date = June 2001
accessdate = 2007-09-16] :In view of the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion::detention without trial is an anathema to all those who love personal liberty [Granville Austin, "Working a Democratic Constitution: The Indian Experience", Oxford University Press 1999, p. 334-41] ... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed.

Before delivering this opinion, Justice Khanna mentioned to his sister: ‘‘I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.’’cite news
title = Cry Freedom
author = Anil B. Divan
publisher = The Indian Express
url = http://www.indianexpress.com/full_story.php?content_id=42937
date = March 15, 2004
accessdate = 2007-09-16] True to his apprehensions, he was superseded for the post of Chief Justice in January 1977, despite being the most senior judge at the time.

Subsequently, the judiciary has wrested the power of judicial appointments from the executive in a landmark ruling in the "Advocates-on-Record" case in 1993.

The New York Times, wrote at the time:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R 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.

Post-judicial life

After Indira Gandhi lost the elections of 1977, Justice Khanna was for a short while, Chairman of the Law Commission, and also a minister in the central cabinet.

Subsequently, he has written the book, "Making of India's Constitution" (Eastern Book Co, Lucknow, 1981), based on three Sulakshani Devi Mahajan memorial lectureshe delivered. He also is the author of "Neither Roses nor Thorns", (Lucknow, 1985), an autobiography.

Justice Khanna is widely respected among the legal community in India, and his views are often quoted. At one point, during the 1970s when the judiciary expressed the opinion that certain parts of the constitution were "basic" and could not be amended, he held the view that the right to private property is not part of this mandate, and that right to amendment was fundamental: "if no provision were made for amendment of theConstitution, the people would have recourse to extraconstitutionalmethods like revolution".

In the conclusion of his "Making of India's constitution", Justice Khanna writes:

If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power." [cite book
title = Making of India's Constitution
author = H. R. Khanna
publisher = Eastern Book Co, Lucknow, 1981
url = http://webstore.ebc-india.com/product_info.php?products_id=123]

The magazine "Organiser" has said of him: Justice Khanna, in the words of an eminent columnist, is so clean a man that he makes angels look dishevelled and dirty. [ [http://webstore.ebc-india.com/product_info.php?products_id=450 Neither Roses nor Thorns ] ]

A widely respected figure in legal circles, he was awarded Padma Vibhushan in 1999.

Justice Khanna was also for many years the chairman of the Press Trust of India. [ [http://www.hindu.com/thehindu/holnus/002200802252071.htm The Hindu News Update Service ] ]

References