Even as we hear the roar of the bulldozers as they became a part of the State policy of punitive demolitions, Justice H.R. Khanna’s courage speaks eloquently and insistently as we ask ourselves whether our time will find its own Justice Khanna.
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ON June 25, we mark the 47th anniversary of the declaration of Emergency by the then Prime Minister, Indira Gandhi. The events of the emergency have long since faded into history, but there are uncanny resonances with the contemporary context.
The midnight knock on the door and the experience of arrest was a defining feature of the emergency. The Justice J.C. Shah Commission of Inquiry Report documents that the Maintenance of Internal Security Act (‘MISA’) was the blunt instrument used by the regime to arrest politicians, student leaders, civil society activists, trade unionists and so called ‘anti-social elements’.
When MISA was passed by Indira Gandhi in 1971, those who opposed it in Parliament included Jan Sangh stalwarts, Atal Behari Vajpayee and L.K. Advani. Vajpayee said that, “this is the beginning of a police state and a blot on democracy” and “the first step towards dictatorship”. Advani presciently noted that “this preventive detention law or MISA will be used against Shri Morarjee Desai, Shri Shyam Dhar Mishra and Shri Gurupadswamy.”
Sachar was arrested for having written an open letter to the Prime Minister in July 1975, in which he criticized the Emergency as having engendered an “atmosphere of fear and political repression” which led to the “common people of Delhi”, talking in “hushed tones” as if they were in a “communist societ[y]” with people being afraid of the “mid-night knock on their door”.
Among the arrestees was 82-year old Bhim Sen Sachar, veteran freedom fighter, first chief minister of Punjab, and former governor of Andhra Pradesh. He was also the father of Justice Rajinder Sachar, the former chief justice of the Delhi High Court. Sachar was arrested for having written an open letter to the then Prime Minister in July 1975, in which he criticized the Emergency as having engendered an “atmosphere of fear and political repression” which led to the “common people of Delhi”, talking in “hushed tones” as if they were in a “communist societ[y]” with people being afraid of the “mid-night knock on their door”.
The Emergency is also infamous for the massacre at Turkman Gate in Delhi where the minority community was subjected to a lethal cocktail of forced sterilizations and home demolitions. All attempts to save the locality at Turkman Gate failed, with the Delhi Development Authority sending in bulldozers. Resistance by the Muslim community was met by police firing. The number of people who were killed is still unknown, and the Turkman Gate massacre remains one of the forgotten tragedies of independent India; as British anthropology professor Emma Tarlo poignantly notes, there is not even a “simple memorial plaque” to commemorate it.
Also read: Remembering the Global Epic we Call Emergency
Present-day undeclared emergency
The above narrative of a fragment of what happened during the Emergency has striking resonances with the contemporary period.
While under MISA you could be detained for a maximum period of one year, under the UAPA, due to the onerous bail provisions, there are many who have faced detention for over 10 years before being acquitted. The UAPA is not subject to parliamentary scrutiny (as MISA was) and has become a permanent part of the criminal law (TADA, POTA and MISA were laws which had sunset clauses and had to be renewed by parliament).
If it was the de jure preventive detention law called MISA which was used from 1975-77, today it is a combination of the Unlawful Activities (Prevention) Act (‘UAPA’) and the National Investigation Agency (‘NIA’) which functions as a de facto prevention detention law. While under MISA you could be detained for a maximum period of one year, under the UAPA, due to the onerous bail provisions, there are many who have faced detention for over 10 years before being acquitted. The UAPA is not subject to parliamentary scrutiny (as MISA was) and has become a permanent part of the criminal law (the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Prevention of Terrorism Act, 2002 and MISA were laws which had sunset clauses and had to be renewed by Parliament).
The use of the UAPA and the NIA by the current regime is, in Vajpayee’s language, the ‘beginning of the police state’ and a ‘blot on democracy’. Advani’s warning of the use of MISA against the opposition finds a resonance in the use of UAPA and NIA against protestors, be it the Bhima Koregaon 16, anti-Citizenship (Amendment) Act protestors, Kashmiri protestors or a range of dissenters across the country. The arrest of 82-year old Bhim Sen Sachar finds its tragic contemporary echo in the arrest of 83-year old Fr. Stan Swamy. To the eternal shame of Indian democracy, Fr. Stan Swamy died under the watch of the judiciary. The bulldozers at Turkman gate, reminds us of the bulldozers in Jahangirpuri, Khargaon and Allahabad today, where, too, minority homes, dreams and aspirations have been destroyed in defiance of the rule of law and the Constitution.
Also read: Why the trend of summarily demolishing properties of alleged criminals is patently illegal
ADM Jabalpur and Justice Khanna’s dissent
The Emergency should be remembered not just for the litany of horrors and the feeling of helplessness which it provoked, but also for the courage of those who opposed it regardless of personal cost. One such figure was Justice H.R. Khanna, who was the sole dissenter in the Supreme Court judgment in ADM Jabalpur versus Shivakant Shukla (1976), in which the majority opinion overruled nine high courts and held that during an Emergency, the right of persons to move the court for enforcement of fundamental rights and statutory rights stood suspended.
As jurist, lawyer, writer and Constitutional expert H.M. Seervai wrote of the judgment, “Coming at the darkest period in the history of independent India, it made the darkness complete.” However, the brave dissent by Justice Khanna, who forcefully asserted the role of the judiciary even in a time of national Emergency, spoke to the future.
Justice Khanna was fiercely critical of the then Attorney General for India, Niren De’s submission that Article 21 of the Constitution was the sole repository of the right to life. He went on to hold that the protection of the right to life and personal liberty is the “essential postulate and basic assumption of the rule of law”. He forcefully said:
“… this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law, even if it chooses to act contrary to law or in an arbitrary and capricious manner.”
Justice Khanna was conscious that his was a voice in the wilderness and that his colleagues on the bench were not with him. He ended his dissent by invoking the words of the former U.S. chief justice Charles Evans Hughes: “A dissent in a court of last resort to use his words, 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.”
Also read: ADM Jabalpur: The Case that was but should never have been!
However, such was the censorship regime surrounding the decisions of the court that Justice Khanna’s heroic dissent was not allowed to be published during the Emergency. There were personal consequences to Justice Khanna too. Although he was in line to be the next chief justice, in January 1977, nine months after he delivered his historic dissent, he was unjustly overlooked. On being superseded, Justice Khanna resigned from the Supreme Court.
Justice Khanna’s dissent kept alive the possibility of justice and became a beacon of inspiration in Indian history. Today, Justice Khanna is a byword for judicial courage.
On his resignation, one of India’s most eminent lawyers, Nani Palkhivala penned a moving tribute in the Sunday Standard, saying that Justice Khanna would be remembered for “his historic judgment” in the habeas corpus case which was a “shining example of judicial integrity and courage”. He ended by saying that “to the stature of such a man, the Chief Justiceship of India can add nothing”.
The legacy of Justice Khanna’s dissent
In 2017, the Supreme Court in Puttaswamy versus Union of India, the judgment in which privacy was declared to be a fundamental right, excoriated the majority decision in ADM Jabalpur as a “discordant note” in the evolution of a jurisprudence which “places the dignity of the individual [at] the forefront”. The majority opinion said that the ADM Jabalpur judgement would “have to be consigned to the archives, reflective of what was, but should never have been”. The Supreme Court overruled the past judgement, with Justice D.Y. Chandrachud noting that “the view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions”. Justice S.K. Kaul said that ADM Jabalpur was “an aberration in the constitutional jurisprudence of our country” and expressed the “desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”.
Justice Khanna’s dissent kept alive the possibility of justice and became a beacon of inspiration in Indian history. The fact that today Justice Khanna is a byword for judicial courage can be seen in a valedictory address for judges by a former chief justice of the Chhattisgarh High Court Justice Yatindra Singh, who in 2014 referenced the dissent as the “silver lining” in “the failure of the rule of law during the emergency”. He compared it to the great dissent of British judge Lord Dick Atkin in Liversidge v Andersen (1941), during which Justice Atkin had famously said that when it came to the “liberty of the subject”, judges should not become “more executive-minded than the executive”.
Justice Singh went on to say, “With one judgment, Justice Khanna became more famous, more respectable, more celebrated than any judge to have ever adorned the bench in our judiciary,” and told the assembled judges, “May you go on to follow “rule of law” and become a judge like Justice H.R. Khanna.” It is precisely when the executive overreaches in contemporary times that his dissent moves from being a part of the judicial archive to becoming a conversation about the future of Indian democracy.
Also read: Déjà vu- Undeclared Emergency 2020
Even as we hear the roar of the bulldozers as they became a part of the State policy of punitive demolitions, Justice Khanna’s courage speaks eloquently and insistently as we ask ourselves whether our time will find its own Justice Khanna.
