“
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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