Monday, November 6, 2023

A Reader ‘s View of "Neither Roses Nor Thorns" By Justice Khanna

 

 

         “ Where Fear is, justice cannot be” – Justice Khanna

Neither Roses Nor Thorns is the autobiography of Justice HR Khanna who has become a symbol of independence of judiciary.

In his autobiography he writes of his father as one who is steadfast , hardworking and imbued with patriotic spirit. He was the only person who opposed the welcome resolution of the Municipal Committee   to Lord Reading when he visited Amritsar after the Jallianwala Bagh massacre.  His father was honest to the core and Khanna relates  an incident in which his father rejected and threw out a client who offered him money as a gift for a favourable verdict earlier. After his retirement , he devoted himself to social work and he died of pneumonia. Khanna describes him as “a valiant fighter for most of his life, for causes he believed in.” (7) When the family came back after immersing his asthis in the Ganges , Khanna finds his father’s books and article which were his constant companions.

 There was silence. Perhaps there was a silent query to which we had no answer, as to where was he of whom they were constant companions. We came out of the room. In the distance stood the hills with the lights of KasauIi giving an awareness of another human habitation.(7)

He also gives a pen portrait of his grandmother who has brought up the entire family after the death of Khanna’s mother . She has been endowed with self-lessness, practicality and looked after the children through thick and thin. Her anger has been flashy and  sense of humour subtle. Khanna cherishes her memory , “When she died at the ripe age of ninety-eight  each one of us lost something  within us.”(10)

Khanna also tells how he has grown in reputation through hard work under the tutelage of his father. For five years in the beginning his earnings has not crossed one hundred rupees per month. Later his income grew to one thousand rupees per month in 1943 and thereafter went on rising.  He became a famous lawyer in civil cases and argued on behalf of Master Tarasingh over the control of the Urdu daily Prabhat in 1952.  His comments on the bar room are interesting as he mentions that is the place for humility , catholicity of temperaments, humour and where stress is lifted. He writes about  cases of Billo and Mumtaz, glamourous and unusual clients. In the chapter on “Notable figures of the Amritsar ‘, he mentions Kesho Ram Sekhri, the president of Bar who was imposing, popular and jovial personality and about Pandit Kirpa ram , another member of the bar known for his wit, humour and versatility , an impressive speaker in English, Urdu and Panjabi  and  a cynosure among the  young professionals and whose death  was mourned by one and all.  While writing about prominent Muslims of Amritsar , he writes about Dr.Kitchlew, one of the nationalist leaders and a great orator whose arrest led to the public unrest and the Jallianwala Bagh massacre , Shaik Muhammad  Sadiq,  an aristocrat and lawyer, Sheik Hissamuddin, A Congressite  a forceful speaker  and Khwaja Ghulam Sadiq, a simple and kind-hearted man despite his aristocratic background. The poet Faiz Ahmad Faiz, Mir Maqbool and Justice Munir who later became the chief justice of Pakistan are also mentioned. Such amity as existed gradually evaporated in 1947 and Khanna’s own house was burnt by arsonists during the partition riots. He laments the alienation among different communities who lived  together in peace for generations , separation from his Muslim  friends and  nostalgically remembers warmth and  cordiality of his Muslim friends .

In his career when he was District and Sessions judge at Ferozepur , he was appointed to the Commission of inquiry  in to Kalka firing. In his autobiography, we repeatedly find Khanna’s praise of eminent speakers and lawyers. Writing about Mr. Tek Chand, the  then lawyer on the side of workers , Khanna praises his eloquence. “ I was indeed reminded of the speeches of Burke and Sheridan at the impeachment of Warren Hastings.’(41)

Justice Khanna  in his report of 112 pages concluded that the first round of firing on the striking  workers by  the police to prevent their mobbing of chairman of the railway Board was justified but not well controlled and the second firing was wholly unjustified.  This offers a glimpse of his   impartiality and forthrightness in future when he gave verdict in the case of Smt. Indira Gandhi.

In Delhi, as District and sessions judge,  in an instance he talked to the chief justice to effect the transfer of get three sub judges with shady reputation. He also afforded protection to the sincere sub-judges against the insubstantial allegations by the lawyers who  had “the personal pique or hurt ego”  (49)  When in Punjab High court  he writes about Justice Falshaw known for robust common sense , good memory and is judgements were understandable to laymen and  to men of law. His successor Justice Mehar Singh was endowed with uncanny horse sense, kindness and not given to much social mixing . from there he moved onto become one of the first judges of Delhi High Court.  His love towards his pet dog Lucy comes out when he mentions  “ There is something in the quality of warmth and love shown by a dog which is unparalleled and unmatched. You can sense it in its looks, in the movement of its tail,  in the time it spends under your bed or outside your bathroom or near your chair” and  its “death created an emotional void in us .”  (54)  Justice Khanna had high praise for Pratap Singh Kairon  for his efficiency, vision, dynamism and his efforts for economic  betterment of Punjab  despite criticism from some quarters.

In his observations on Orissa case involving charges of corruption by the ministers and ex-chief ministers, Justice Khanna  writes  that in  a nascent democracy like ours “.. the role of minister has got to be that of a pioneer rather than of a pirate, of a public sentinel rather than of a self-seeker , of one dedicated to the public weal and not one obsessed with the desire of personal gain.” (61) regarding purity in public administration he refers to Biju Patnaik who has started with good hope and development of Paradip port has come under criticism due to business by the members of his family leading to his defeat in elections in 1967. Justice Khanna’s  makes an apt  emphasis with contemporary significance  on people is by quoting  of Judge Learned hand.

   Liberty lies in the hearts of men and women; when it dies there, no constitution , no law, no court can do much to help it. While it lies there it needs no constitution , no law, no court to save it.(64)

Justice Khanna then moved to become the chief justice of Delhi  High Court and elevated as judge  to the Supreme Court in  September 1971.

As Supreme Court judge , he saw the supersession of Justices Hegde, Shelat and Grover by AN Ray and he engrossed himself in judicial work to mitigate his unhappiness. Surprisingly he criticizes orders delivered  in favour of Social justice in favour of govt. which helped some of the  delinquent employees. Regarding the case of Thomas of Kerala, he expressed minority opinion against extending aa of reservations for certain category of employees apart from those covered by   clause (4 ) of the Article 16 “which empowers the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services under the State.” (69) Justice Khanna felt it would undermine efficiency.

   When the case for reconsideration of decision in Keshavananda Bharati came for hearing , he was surprised as “there was no order of any Bench asking for the reference of the matter to a larger Bench’’(80).  Referring to  the arguments followed before the Bench, he praises Palkhivala’s  matchless eloquence which led to the dissolution of the Bench. Regarding minority rights, he emphasises secular character of the State and mentions,  ‘ the rights mentioned in Articles 25 to 30 were made a part of the fundamental rights and religious freedom contained in those articles was guaranteed by the Constitution.” (83) His dissenting  judgement regarding  the inviolability of the rule of law  in Emergency cost him  the Chief Justiceship but his courageous stand brought editorial  appreciation from the New York Times “ about  a grateful nation erecting a monument for Justice Khanna” (88),  some of his colleagues and even from some members of ruling party representatives and the then Attorney General  Niren De.

KJustice khanna’s style of writing is meticulous, anecdotal , his vocabulary is impeccable and his passion for justice palpable. In his farewell speech to the bar , he has given a portrait of a judge in glowing terms. According to him. A great judge must be a great man, comprehension of seamless web of life, grasp of tradition, capable of stern logic coupled with psychology of common man, a glimpse of the universal in the particular, statesman,  jurist, thinker , lawyer , sense of essential power, humility, servant of justice, the conscience of  the community, without ambition for political power and  thinker’s abstraction, selfless, dispassionate observation of the world and ceaseless striving for perfection. He emphasise the rule of law and protection of unpopular citizens against persecution. He says  as follows:

      If there are three prime requisites for the rule of law, they are a strong Bar, an independent judiciary an enlightened public opinion. There can , indeed be, no greater indication of the decay in the rule of law than a docile Bar, a subservient judiciary, and a society with a choked and coarsened conscience.(94)  

He also continues , “ Fear dwarfs human personality, turns even heroes into men of clay and prevents efflorescence of higher values of life. Fear likewise stifles the conscience and dries  up springs of idealism. Where fear is, justice cannot be.”(94)

He refers to freedom struggle and  historical victims of fearful ambience such as Joan of Arc, Galileo, Dreyfus  and says that all philosophers stressed on the freedom from fear.

Justice Khanna rejected the suggestion to  stand as candidate for  parliament by some politicians and his suggestion regarding proclamation and continuation of   Emergency led to 44th amendment of the constitution. According to Justice Khanna

 “ Clause (5) of Article 352 now provides that a proclamation of emergency approved by both Houses of parliament  shall cease to operate on the expiry of six months unless a resolution for its continuation is passed by the both the houses of parliament , while clause  (6) requires a resolution for this purpose to be passed by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of each House present and voting.” (102)

His suggestion regarding the issue of power of the court to issue writ of  habeas corpus  was  also incorporated in the Forty-fourth amendment “ by expressly excluding Articles 20 and 21 from amongst articles , the right to enforce which could be suspended during emergency under Article 359.

He declined the offers to head a commission of inquiry into the affairs of Maruti Company and Chairmanship of the Seventh Finance Commission to be appointed under Article 280 of the Constitution. 

In his capacity as chairman of the Law commission , Justice Khanna  gave proposals to eliminate political interference in the appointment of judges and the possibility of likes or  dislikes into picture.

On Centre-state relations, Justice was asked to prepare a note in May 1979.  He concluded in his report that the Centre can check the misbehaviour of the State but there is no corresponding check on the centre in the case of misbehaviour.  “The best guarantee for  such a situation is the good sense of those in power , the vigilance of the people and the pressure of public opinion.”(128) in case of financial powers   , the States have a case that needs to be examined. In his reply the then prime minister Morarji Desai stated that the centre cannot be weakened in any way due to the increasing divisive outlook  of the States and better to have some flexibility in the provision of funds to the states keeping in view the needs of Special assistance to the backward States.

Justice Khanna also gave up his membership of the UGC as he had already been holding the Honorary chairmanship of the Law Commission . He also met the Prime Minister Morarji when Indira Gandhi was expelled form the House and told him that it such a precedent might endanger democratic apparatus in future . But Morarji who thought otherwise  gave him his speeches made in Parliament and asked him to meet again for further discussion if required.  Justice Khanna also took charge of Law Ministry at the behest of the then Prime Minister   Charan Singh  but being originally reluctant to enter the volatile politics, Juice Khanna resigned after just three days. He also refused to become the Chairman of the Press Commission as requested by the Congressmen Sathe and Shiv Shankar after the re-election of Indira Gandhi in 1980.

Justice Kenna’s love for nature comes out in his autobiography vividly.  Writing about his stay before standing for presidential elections in Dalhousie , he writes as follows:

  I love Dalhousie , its scenic beauty , its salubrious climate, its high hills, deep valleys, the view on one side of the plains and on the other side of the snow-capped peaks. I love Dalhousie because of its col breeze, the deep forests, and the roaring waters of Panchpoola.I love Dalhousie because of the long walks I can take there and see nature in its pristine beauty and virgin glory. And it is during these walks that I become almost a part of nature, forgetting the mundane  world and its affairs, which seem petty and trivial in the midst of those surroundings. A month’s stay in Dalhousie tones me up not only physically but also mentally.’ (149) 

His economy of words and preciseness is observable in his statement  on the eve of elections  presidential elections. About politics that has become a marketable commodity , he says  as follows:

    It is no wonder that chicanery struts about as political acumen, allegiance and votes of legislators are sought to be turned into a marketable commodity and our politics has been defiled by the impact of money power, more particularly black money. The result has been that public conscience  has coarsened, youth is fast losing its idealism, cynicism pervades our mental landscape, nobler impulses have ceased to  operate in our public life , and the moral fiber of the nation has lost its toughness. (151)

On constitution, he writes as follows :

 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. (152)\

Justice Khanna’s  praise of JP are worth quoting.

  He ranks in this respect next only to Mahatma Gandhi. J.P. was an idealist, perhaps the greatest idealist of the post-independence era, with immense love for the country and with no ambition for office. J.P. personified and spoke for the enlightened consciousness of the nation and in doing so, he never shirked form saying what he thought  was the right thing. S is lot of the most idealists, he was often in difficulty and died a sad man.  

     Justice  Khanna lost his race in contest for presidency as expected by himself but remained cool and wished the victor Giani Jail Singh in person  immediately after the election results wer announced . in the retrospection of his life , Justice  Khanna writes that the old age brings more reflection, less sharpness in reflexes , mixed feelings of joy and regret for the  past gone forever. He tells that that he is loner by temperament, lover of nature who derives joy out of gazing at the moon and stars or walking on the hills or on the sea beach. He sees humans as basically good and some noble men live in obscurity like” some unknown gems of purest ray unseen” as the poet Thomas Gray wrote   and admits that he hears  ‘ the still , sad music of humanity , neither harsh nor grating, though of ample power to chasten and subdue” in the Arnoldian manner as found in his poem Dover Beach.

After his retirement he spent time in giving lectures at the meetings  of  various associations of the Bar and at the institutes of  reputation. In his lecture on ‘Judicial restraint and Activism’ delivered as a part of Tagore Law lecture series, he says,

If mankind while  passing through the successive stages of political consciousness has done away with the despotism of kings and dictators, it would be puerile to expect it to put up with despotism of the judicial wing of the State. Of the different types of despotism judicial despotism is not only inexcusable , it is also most irrational” (164)

  Justice Khanna writes of his visits in 1978 to  many European countries such as the UK, Germany, France, Denmark, Italy, Switzerland  Norway  and Asina nations .  in his postscript ,he writes of his visit to  China , its cities such as Canton, Shanghai and  Beijing , its  culture and legal system. What impressed hm was their sense of discipline, orderliness, hard work, law abiding nature, well-clad and nourished appearance, health consciousness , cordiality ,  absence  of begging and lack of  demanding  tips by waiters in hotels and visits to other places.

There are  also “Recollections and Reflections’  of common people, fellow legal men , visits to North East and other memorable   experiences in his life in Justice Khanna’s  autobiography.

It is a worthy book written in  humanistic,  elegant and ennobling manner  to know about a champion of freedom of judiciary and a legal luminary  who has made his mark in the annals of judicial history of post-independence  India.  

 

 

 

 

       

 

            

     

                

 

 

                  

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