JUSTICE HR Khanna was the senior most judge who should have been elevated to the post of Indian Chief Justice during the days of Emergency in 1975. He was a judge who commanded the trust of all by his humility, scholarship and justice. It was hardly 9 months before Justice Khanna’s retirement that nine appeals came before the constitution bench of the Supreme Court which sought to find out whether the administration could stop the citizens’ right to live and if such action could be examined by Supreme Court and High Courts. So those appeals were of serious legal implications. Union government came before the highest court when the fundamental rights were suspended as per Emergency provisions.
While drafting the judgment Justice Khanna was fully aware of the fact that he would definitely lose the Chief Justiceship due to this. Should I bag the Indian Chief Justiceship by sticking on to the majority verdict? Or should I invite the wrath of the establishment and lose the Chief Justiceship by upholding own conscience and writing the dissent note? These were the questions stirred his thoughts. The uniqueness of Justice Khanna was ignoring the temptation of the position of Chief Justiceship and inviting the enmity of the establishment and insult for the prestige of Indian judiciary.
What took place in India is something rarity in rares in the realm of jurisprudence. That is the 44th constitutional amendment-Justice Khanna’s dissent note became the law of the country. In that habeas corpus case Justice Khanna concluded his dissent note like this: “A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed”.
It is the sharp and severe criticism the Indian judiciary has been facing now that made me write about the supreme sacrifice of Justice Khanna. Unpleasant news damaging the credibility of the Indian judiciary creates restlessness quite often. When the roots of the pillars holding the Indian judiciary decay, the judiciary, the last resort of the citizen gets trapped in it. When the judges who have been considered as the angels of the justice are pictured tainted what crumble down are the concepts of best governance which stresses on democracy, lawfulness and purity. A spot on white dress is always conspicuous and it draws the attention of the onlookers. Justice GS Singhvi and Justice AK Ganguli, both of Supreme Court of India, told publicly in the court room that basic pillars of democracy including judiciary has been affected by the degradation. They added: “The decay and degradation of the judiciary started during Emergency in 1970s. The problem started when the constitution bench of the Supreme Court decided in 1976 that government can cancel the right to live. Today law-abiding citizens tell themselves and believe that they are fools”. Supreme Court’s self criticism is an eye opener to those who love and believe in judiciary. During the last couple of months Supreme Court had taken decisions in the Sidharam Salimgappa case, Ramdev Chouhan case, etc. These judgments show the degradation of the judiciary. At the same time it contains Justice Khanna’s quotation as well.
The need for committed judiciary was commented on the floor of the Parliament during Emergency. The formation of “shouting squads” to shout at the speakers of the opposing groups is the part of the history. When the media was asked to kneel, they started to crawl, another gloomy fact. Most of the political parties which were supposed to fight for the democracy and political freedom were sleeping in their cocoons. But, nine High Courts of India, some lower courts and several bar associations raised their voice against the violation of citizens’ rights. Verdict of the Supreme Court’s constitutional bench on habeas corpus case served to suppress those voices. Post Emergency, political parties, media houses, law-making apparatus, etc. had apologised to the people of Kerala for their faults. But, in this regard judiciary did not rise to the occasion. It is after three decades that they came up to tell about the consequences of this historical error.
In the history of judiciary after 1975, the transfer of 4 judges of Bombay High Court, the way the resolution for the impeachment of Justice Rama Swamy was defeated in Parliament, the circumstances which led to the resignation of Justice Bahuguna, the smartest judge in Bombay High Court, etc. are the incidents which caused worst sort of damages to the judiciary. The controversies rose recently concerning Allahabad High Court and former Chief Justice of the Supreme Court of India has spread dark shades on our great judicial system.
Supreme Court verdict concerning Sidharam Sadlimgappa case during last December speaks out “the depth and extent of the deterioration our judicial system has landed up. The Supreme Court verdict’s spirit should be followed by all courts in the country as per the Article 141 of our constitution. Courts with less number of judges and lower courts do not accept these judgments under the alibi of silly reasons”. This is judicial violation of the discipline, Supreme Court adds. There was specific reasons for provisions for anticipatory bail which had been included in 1973. In 1980, Supreme Court did state that this should not be taken as something a citizen can claim under rare circumstances. But, the latest judgment point out that Supreme Court benches with less number of judges, High Courts and lower courts have degraded the status of anticipatory bail. Several legal pundits believe that it was due to lack of proper interpretation of anticipatory bail that prominent Malaylai industrialist Rajan Pillai died in Tihar jail sans necessary medical aid.
The biggest plaintiff is the government. Studies proved that police and paramilitary forces are the official sections who indulge in maximum number of criminal offences. Under these circumstances the serious demerit the judiciary suffers from is the presence of at least a section of the courts who maintain commitment-like approach towards government and prosecution. Powerful section of the Indian judges are famous for highest sense of justice, honesty, sincerity and they are hardworking. If judiciary fails it is not the failure of judges and lawyers alone; it is the failure of the country and the people.