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 Next in line to become the Chief Justice, he was superseded, and resigned.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 TheNew 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.
The possibility of entirely vacuous legal norms, in which substance had been drained by form, forced Khanna to examine what factors might sustain rule of law. He came to believe that it was impossible to understand—or resolve—legal disputes without grasping the larger aims of the society they involved. To put the point crudely, the Constitution couldn’t be used to create a lawless society because the whole purpose of the constitutional enterprise was to prevent lawlessness and institute legitimate authority. This was a belief that prefigured and was articulated with much dynamism by Khanna three years before the habeas corpus case. In 1973, the Supreme Court held, by a slim majority of seven to six, that Parliament’s power to amend the Constitution was not unlimited: the power to amend did not include the power to destroy. Here, Khanna was in the majority and delivered the controlling opinion. An amendment to the Constitution, he argued, could not take away its basic structure.
Lurking behind this argument was an insight that is often ignored. Although Parliament speaks for the people—and is the only legitimate voice that can, indeed, speak for the people—it is separate from the people. This distinction was critical to Khanna, whose primary concern was to emphasise that sovereign power rested with the people. He feared, as Rousseau famously did, that government would attempt to usurp sovereignty from the people, a scenario he sought to avoid through the basic structure doctrine. Like Madison had believed during the drafting of the US Constitution, Khanna thought it to be the judicial mandate to prevent the usurpation of sovereignty. Khanna’s emphasis was, and remains, of great importance. He couldn’t quite meet the response that some offered—the basic structure doctrine didn’t only limit Parliament, it also limited the sovereign people because they had no other institutional means for voicing their views—but focused instead on Parliament’s limitations and the inner logic of legal systems. No legal system, he was convinced, could legally provide for its own destruction.
Why did Khanna believe that the judiciary should play such an active part in preserving the integrity of legal norms? Where would their legitimacy arise from? Perhaps he felt, again like Madison, that it was unlikely that courts could, without the sword or the purse, usurp sovereignty. But a deeper sensibility underwrote his views. Unlike many of our present discussions on judicial power, Khanna never believed that the legitimacy of courts rested on the limitations of their power. Their legitimacy was drawn instead from a capacity to make decisions, however far-reaching, that were entirely independent of political decisions. It was drawn from their ability to ensure the sanctity of their processes, rather than the reach of their outcomes. “Courts must earn reverence,” he observed at a dinner to celebrate his retirement, “through the test of truth.” The most serious danger for the judiciary was not its strength but its collusion with forces it was meant to guard. This was something that Khanna kept in mind his entire life and so, when Charan Singh requested him to become India’s Law Minister in 1979, he initially accepted but resigned in three days, believing that the job demanded a degree of political partisanship he was uncomfortable with. In his belief that the power of courts rested on their capacity to cultivate trust, Khanna was also urging judges to be more self-conscious. The great American judge, Billings Learned Hand, once observed in a lecture in New York’s Central Park that “the spirit of liberty is the spirit which is not too sure that it is right”. Hand and Khanna had very different conceptions of the judicial role, but both knew that legitimacy can be located in institutional norms and the working through of arguments. As one of India’s last few respected public institutions, the judiciary often searches for ways to maintain its respect while exercising broad powers. This endeavour would be well served by recognising that aside from the power of judges, the important matter is how they exercise it. Indeed, it is a lesson that is as worth remembering in our time as it was in Khanna’s.