Excerpts from N.A. Palkhivala’s tribute to Justice H.R. Khanna, the senior-most of the Supreme Court puisne judges, who resigned after he was passed over for the chief justiceship:…With the exception of lawyers who are involved in politics, there is a near unanimous view among members of the bar that Justice Khanna should not have been superseded and that he has been made to pay the price for his independence and intellectual integrity. H.R. Khanna combines these qualities with great perspicacity and modesty, remarkable dignity and gracious manners.
…Khanna’s independence and judicial integrity are exemplified in his judgment in the habeas corpus case, decided by a five-judge bench of the Supreme Court last April, in which he delivered the sole dissenting judgment. The majority held that upon the suspension of fundamental rights, a detenu cannot ask for a writ of habeas corpus, or any other order from the court even if he is able to show that his detention is illegal or mala fide or is not authorised under the very law under which he is sought to be detained. Justice Khanna rejected this view and held that the suspension of fundamental rights puts the Indian citizen in no worse position than the citizen of the United Kingdom where there are no guaranteed fundamental rights or the citizen of British India before Independence, and that an illegal or mala fide order of detention can always be challenged in a court of law even during times of Emergency.
The key to his judgment is in his opening words: “The law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life.” He further held that even in the absence of fundamental rights, “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”. In deciding the habeas corpus matter as he did, Justice Khanna played a memorable role at the most critical juncture in our history. Generations unborn will admire his historic judgment as a shining example of judicial integrity and courage and cherish it for the abiding values it embodies…