IN AN EDITORIAL IN 1976, after the Emergency, The New York Times predicted that if India ever returned to being a democracy, “someone will surely erect a monument to Justice HR Khanna of the Supreme Court.” The editorial covered a controversial Supreme Court decision in which persons detained under the Maintenance of Internal Security Act, 1971 had sought relief from illegal detention, and asked for the grand writ of habeas corpus. The facts of the case were sordid—it was clear that persons had been thrown in jail without legal bases—but four of the five judges on the bench were unmoved, as was evident from the judgement delivered on 28 April 1976. Indira Gandhi’s government had suspended a Constitutional provision that guaranteed the “right to life and personal liberty”. With this provision abrogated, the four judges found themselves helpless. Justice Hans Raj Khanna alone disagreed. He believed that the suspended provision was not the only repository of the guarantee against unlawful imprisonment.
Khanna’s courageous decision and its aftermath are widely known. Next in line to become the Chief Justice, he was superseded, and resigned. His supersession was only a little surprising—Indira Gandhi had, in 1973, effected the supersession of three judges who had handed her an adverse verdict—and he suspected the same would follow from his dissent. This was not the only important marker of his legacy. Although Khanna never got the monument The New York Times promised, his portrait now adorns the Supreme Court. After the Emergency, he was asked to draft constitutional provisions that could prevent such instances in the future, and the amendment he helped author bars future ‘emergencies’ from suspending the judicial power to investigate imprisonment. His scandalous supersession too had its impact: the norm of seniority has never been breached since 1976. Yet his deeper judicial philosophy has been largely ignored and, as we celebrate his birth centenary this summer, it is important to appreciate how they might inform present concerns about judicial legitimacy and the rule of law.
Khanna served on the Supreme Court during a rare historical moment. It was one that presented him the opportunity to witness some peculiar qualities about legal norms. In the habeas corpus case that immortalised him, he struggled to make sense of how the law itself could be used to undermine the rule of law. On the one hand, he saw that the right to life and personal liberty had been legally suspended. On the other, he recognised that ignoring illegal detentions had the effect of creating a lawless society. Persons across the country had been legally destined to be illegally detained. Here was a world in which the law began, as it were, to lose meaning. And the vision of such a world—perhaps most famously portrayed by Franz Kafka—made Khanna suspect the ruthless formalism of law. He sharply observed, while justifying his dissent, that the Nazi regime too had been strictly legal.