Sunday, August 10, 2008

Why one man's conscience mattered to all

Hans Raj Khanna
Photo Credit : Supreme Court of India

Who is Free India's most courageous judge? We'll have to recall the terror of the Emergency era to appreciate Hans Raj Khanna's claim to that title.

Those were days when the police could pick up any one and torture or kill him and no questions could be asked. There would be no information either, for news was censored, telephones tapped. People were scared to meet in street corners or coffee shops. Fear stalked the land; there were informers everywhere.

Today's generation would hardly believe that such conditions existed in India. They not only did; Indira Gandhi's India was quite brazen about it. The day after Emergency was imposed, a Presidential Order specifically deprived citizens of the most fundamental of all rights _ the right to life, liberty and equality. As in Stalin's Russia and Pinochet's Chile.

As a wave of arrests swept across the country, many did approach the courts. As many as nine High Courts ruled that courts could hear habeas corpus petitions. The Supreme Court ruled otherwise. It justified the Government's arbitrary powers and the denial of citizen's right to seek judicial remedy. In a five-member bench, it was a four-to-one majority judgement. The One was Justice H.R. Khanna.

The Supreme Court judgement of August 28, 1976, will remain a document of disgrace in our history. The four judges mangled their commonsense, to say nothing of their judicial instincts, in their effort to defend the illegal autocracy of the Government.

Justice M.H. Beg, for example, made the astonishing statement that "the care and concern with which the State is looking after detenues who are well-housed, well-fed and well-treated is almost maternal." Even as that insult to maternal virtues was being written, George Fernandes' brother was being tortured in Karnataka and engineering student Rajan was being beaten to death by the Kerala police _ to mention just two of thousands of such cases.

In a few months, Beg, with no sense of shame, accepted the post of Chief Justice of India. It was not his due, for H.R. Khanna was the senior most. But in an outrageously undemocratic moment of history, an outrageously unjudicial judge got his thirty pieces of silver. It is not known whether Beg had the decency of Judas Iscariot to repent in due course.

Khanna of course resigned. But he could hold his head high because he had summoned the courage, alone among five, to honour his oath, his conscience and the faith of his countrymen in the judiciary. He not only upheld the inalienable rights of man to life and liberty. He also quoted an American judge to assert that "a dissent in a court of last resort 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 has strayed."

We proudly enjoy our freedoms today because of the brooding spirit of men like H.R. Khanna. Last week Justice Khanna, aged 95, died peacefully in his sleep. The gods blessed him. Observe a moment's silence in salute to his soul.