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Hans Raj Khanna

In office
1971 – 1977

Born July 3, 1912(1912-07-03)
Died February 25, 2008 (aged 95)
New Delhi

Justice Hans Raj Khanna (July 3 1912–February 25 2008) was a judge of the Supreme Court of India (1971–1977). In the Habeas Corpus case during the Indian Emergency, four other judges went with the government view that even right to life stood abrogated during Emergency. Khanna's dissenting opinion, claiming that the Constitution did not permit right to life and liberty to be subject to executive decree, is widely regarded as a landmark in Indian democracy[1].

On January 3, 1977, he was superseded for the post of Chief Justice by Indira Gandhi, and he resigned from judicial service. He later served as Law Minister of India, and was nominated for President.


Early life

Khanna was born in Amritsar, Punjab in 1912, the son of lawyer Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans' father had become a respected lawyer and later, the municipal commissioner of Amritsar[2]. Hans’s mother died at a young age, and the household was run by his grandmother. He did his schooling at DAV High School, Amritsar.

He studied at the Hindu and Khalsa Colleges, Amritsar, graduating with a Bachelor of Arts, before joining the Law College, Lahore (1932–1934).[3] He practiced at Amritsar till January, 1952 when he was nominated by Sir Eric Weston, Chief Justice of Punjab, as District and Sessions Judge. This was "an uncommon appointment.... it had long been the practice to appoint only from the civil service"[2]. He served in the district courts at Ferozepur, and then Ambala. He moved as District and Sessions Judge, Delhi until he was appointed Judge of Punjab High Court in 1962. On the formation of the Delhi High Court, he joined the bench of that Court. He conducted the inquiry into corruption charges against Biju Patnaik and other Ministers in Orissa: while some of the charges were found true, Biju himself was absolved.[4] He served as Chief Justice of Delhi High Court from 1969 till September, 1971 when he was appointed Judge of the Supreme Court.

Judge of the Supreme Court


The Habeas Corpus Case

Justice Khanna is known for his courage and independence during the period that has been called the darkest hour of Indian democracy[5], during the Indian Emergency (1975-1977) of Indira Gandhi.

The emergency was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud[5] by Raj Narain.

In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act, several high courts had given relief to the detainees by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

During the arguments, Justice Khanna at one point asked the Attorney General Niren De: "Life is also mentioned in Article 21 and would Government argument extend to it also?". De answered, "Even if life was taken away illegally, courts are helpless"[6].

The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A. N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H.Beg, stated in the majority decision:[6]

In view of the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

Justice Beg even went on to observe: "We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal."[7]

However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:

The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty [8][1].

In the end, he quoted Justice Charles Evans Hughes:

A dissent 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.[6]

Before delivering this opinion, Justice Khanna mentioned to his sister: ‘‘I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.’’[9] True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in December 1977. This was against legal tradition and was widely protested by bar associations and the legal community[10]. Justice Khanna resigned on the same day.[11]

Eventually, the Judiciary wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993.

The New York Times, wrote at the time:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.[9]

Other notable cases

While the Habeas Corpus case is Justice Khanna's most celebrated ruling, he is also known for his decision convicting India's leading industrialist Ram Kishan Dalmia for corruption[3]. Dalmia was to serve several years in Tihar Jail.

He became known for his judgment in case of Kesavananda Bharati, 1973, a landmark case in which he agreed with the court to limit the extent to which Parliament could amend the Constitution, particularly the right to property.

He also conducted corruption inquiry against the noted politician Biju Patnaik.

Post-judicial career

After Indira Gandhi lost the elections of 1977, Justice Khanna was for a short while, Chairman of the Law Commission. In 1979, he was inducted in the cabinet as Law Minister by Charan Singh, but the ministry fell within six months[12]. He was also for many years the chairman of the Press Trust of India[11].

Among the books he has authored, Constitution and civil liberties (1978, based on the B. R. Ambedkar memorial lectures), and Making of India's Constitution (1981, Sulakshani Devi Mahajan lectures), deal with Indian law and the constitution. He also wrote an autobiography, Neither Roses nor Thorns, (Lucknow, 1985).

In 1982 Khanna was nominated for President of India, as a combined opposition candidate supported by Charan Singh[2]. However, he lost to Giani Zail Singh.

Justice Khanna is widely respected among the legal community in India, and his views remain influential. The magazine Organiser wrote: "Justice Khanna, in the words of an eminent columnist, is so clean a man that he makes angels look dishevelled and dirty."[13] At one point, during the 1970s when the judiciary expressed the opinion that certain parts of the constitution were "basic" and could not be amended, he held the view that the right to private property is not part of this mandate, and that right to amendment was fundamental: "if no provision were made for amendment of the Constitution, the people would have recourse to extra-constitutional methods like revolution".

In the conclusion of his Making of India's constitution, Justice Khanna writes:

If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power."[14]

A widely respected figure in legal circles, he was awarded Padma Vibhushan in 1999. Justice Khanna died in his sleep in February 2008.


  1. ^ a b Granville Austin, Working a Democratic Constitution: The Indian Experience, Oxford University Press 1999, p. 334-41
  2. ^ a b c Scrupulous Indian judge who defended the constitutional rule of law, Times UK
  3. ^ a b Supreme Court of India biography Hans Raj Khanna
  4. ^ "Biju Patnaik: A profile". Orissareview magazine. 2005 Feb-Mar.  
  5. ^ a b V R Krishna Iyer (2000-06-27). "Emergency -- Darkest hour in India's judicial history". The Indian Express. Retrieved 2007-09-16.  
  6. ^ a b c Jos. Peter D 'Souza (June 2001). "A.D.M. Jabalpur vs Shukla: When the Supreme Court struck down the Habeas Corpus". PUCL Bulletin (People's Union for Civil Liberties). Retrieved 2007-09-16.  
  7. ^ Akshayakumar Ramanlal Desai (1986). Violation of democratic rights in India, v. 2. Popular Prakashan, New Delhi.   p.84
  8. ^ Hans Raj Khanna (1978). Constitution and civil liberties (Dr. B. R. Ambedkar memorial lectures). Radha Krishna on behalf of the Institute of Constitutional and Parliamentary Studies,. pp. 94 pages.  
  9. ^ a b Anil B. Divan (March 15, 2004). "Cry Freedom". The Indian Express. Retrieved 2007-09-16.  
  10. ^
  11. ^ a b Justice Khanna passes away at 95
  12. ^ Janak Raj Jai (1996). Commissions and Omissions by Indian Prime Ministers: 1947-1980.  
  13. ^ Neither Roses nor Thorns, Organiser magazine
  14. ^ H. R. Khanna. Making of India's Constitution. Eastern Book Co, Lucknow, 1981.  


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