Few persons are privileged to leave their footprints on the sands of time. Late Justice HR Khanna was one such individual because of his invaluable contribution to the constitutional jurisprudence of our country and for valiantly upholding the fundamental rights of our citizens. Justice Khanna was a staunch supporter of the fundamental rights of the minorities.
In his celebrated judgment in St Xavier’s College he ruled that constitutional provisions are “a befitting pledge to the minorities and as long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible”. Justice Khanna’s colossal contribution was the enunciation of the doctrine of the basic structure of the Constitution.
According to this doctrine the power of amending the Constitution cannot be exercised so as to impair certain essential features of the Constitution namely (a) the Rule of Law; (b) Democracy; (c) Secularism; (d) Federalism and (e) Judicial Review. The basic structure doctrine has provided an extremely salutary safeguard against wanton amendment of the Constitution especially in the matter of fundamental rights as was in vogue before 1973.
In addition to forensic brilliance and judicial creativity Khanna possessed that rare and lovely virtue, Courage. This was abundantly displayed during the infamous June 1975 emergency in his bold dissent in ADM Jabalpur.
Khanna refused to go along with the spineless majority, which held that no remedy was available during emergency even when an order of detention was vitiated by mala fides. Justice Khanna ruled that “the State has got no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilised society”.
Justice Khanna was conscious that his dissent could cost him the Chief Justiceship of India. His premonition came true. The Congress government vindictively superceded him as Chief Justice of India. Khanna honourably resigned. Khanna lost Chief Justiceship of India but won the hearts of millions of his countrymen and, of course, the legal community to whom he will always be a hero.
We were personal friends. He and late Justice VM Tarkunde persuaded me to accept the office of Attorney General under the Vajpayee government about which I initially had some reservations. I used to meet him occasionally. The last time I met him about four months ago, he could hardly recognise people. It broke my heart to see him in that condition.
Khanna has left us but not without signing the vivid air with his honour. Earth indeed received an honoured guest when Hans Raj Khanna was laid to rest.
— Soli Sorabjee is the Former Attorney General for India