A few days ago, on October 24 to be precise, the Central government headed by Prime Minister Narendra Modi appointed Justice Sanjiv Khanna as the next Chief Justice of India (CJI). A week earlier, the outgoing CJI D Y Chandrachud had made a recommendation to this effect. Justice Khanna is the senior-most judge in the apex court and will be CJI for a period of five months till his superannuation in March 2025.
The new CJI is the nephew of Justice H R Khanna who was superseded and overlooked by the Indira Gandhi government from the top position. This was done by the government as Justice Khanna had dissented and given a verdict against the government while sitting on a five-judge Bench headed by then CJI A N Ray. Ray had been appointed to the top post by superseding three senior judges of the Supreme Court, Jaishanker Manilal Shelat, AN Grover and K. S. Hegde, and this was viewed as an attack on the independence of the Judiciary.
What cannot be said it that Justice Ray did not repay the favour done to him by Indira Gandhi. Justice Mohammad Hidayatullah (who was CJI earlier) remarked that “this (read Justice Ray’s appointment as CJI’’) was an attempt of not creating ‘forward looking judges’ but the ‘judges looking forward’ to the plumes of the office of Chief Justice”.
During Emergency, Indira Gandhi suspended Fundamental Rights enshrined in the Constitution. However, several high courts kept on giving relief to petitioners upholding these rights to be inalienable. However, the government decided to challenge the verdicts in the Supreme Court in a case known as ADM Jabalpur versus Shivkant Shukla case.
In this case, the decision was given by a five-judge Bench comprising Chief Justice of India A N Ray, Justice M H Beg, Justice Y V Chandrachud, Justice P N Bhagwati and Justice H R Khanna. Four of the judges gave concurring judgement but Justice H R Khanna dissented from the majority opinion. He had to pay a high price for his standing up to Indira Gandhi and her government.
Justice H R Khanna was the senior-most judge in line to be next CJI but this dissenting decision sealed his fate. The government superseded him and appointed Justice M H Beg as the next CJI and he resigned.
Interestingly, all the four concurring judges of the Supreme Court became Chief Justices later. The one who gave the dissenting judgement and whose judgement holds field today, was the only one not reach the top position. In 2017, Justice H R Khanna’s judgement was held as the right one and the ruling of the concurring judges got over-ruled in Puttuswamy versus Union of India.
The ADM Jabalpur case, also known as habeas corpus case, was overruled 41 years later by a nine-judge constitutional Bench. On the doctrinal grounds concerning fundamental rights by the Puttaswamy v. Union of India. The Bench ruled: “The judgments rendered by all the four judges constituting the majority in Additional District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law.
“”Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights.
“The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article of the Constitution.
“Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual.
“The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the rule of law.”
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