Passing on the Gavel

The higher judiciary must locate its own charter in the Constitution. There should not be any ambiguity

IT may be a mere coincidence that Chief Justice Sanjiv Khanna succeeded Justice D.Y. Chandrachud—the son of Y.V. Chandrachud, who was also the Chief Justice—whereas the incumbent Chief Justice is the nephew of another celebrated Judge of the Supreme Court—Justice H.R. Khanna. But between them, the four offer fascinating variations of the most critical judicial asset—a sense of a tipping point, beyond which the republic’s very character would stand altered.

Besides being necessarily well-versed in constitutional jurisprudence, having the requisite sharp and keen mind and possessing impeccable moral character, a judge of the higher judiciary also needs to have the intellectual bandwidth to recognise the hinge moment—the moment when a call has to be made on whether to hasten or to prevent the unleashing of a new great danger in the social and political order. A Judge who does not have a sense of history makes a poor servant of justice.

First, the good call made by Justice H.R. Khanna in the most (in)famous case—the ADM Jabalpur (Habeas Corpus) case—during Indira Gandhi’s emergency. The question was whether during a national emergency, declared per Article 356, a citizen loses the protection of Article 21, which guarantees "personal liberty and life." Justice Khanna was the sole dissenting voice against the other four judges in a five-judge bench. He was aware that his dissent would cost him. “I would have to lose the office of the Chief Justice of India.” And, lose he did.

Here was one judge who recognised the tipping point that was at stake—if the State is allowed to have the power to take away the life and liberty of a citizen and the citizen will have no recourse to a Habeas Corpus, the very constitutional commitment of a free society would stand abandoned. Justice Khanna refused to concede to the ruler(s) of the day this absolutist power, whereas the four others were content to prioritise technicalities over grand principles.