This Keynote Address was a part of the ‘1st Justice HR Khanna Memorial National Symposium’ organized by CAN Foundation in collaboration with National Law University, Jodhpur & Gujarat National Law University, Gandhinagar on 14th August, 2021. The transcript of the address delivered by Mr. Pamidighantam Sri Narasimha (hence P.S. Narasimha) is as follows –
Mr. P.S. Narasimha began by offering a warm welcome and greetings to all the esteemed panelists and attendees. He continued by elucidating that there was a lack of substantial and fundamental research in law and legal philosophy in India but that was changing. He acknowledged that the establishment of National Law Universities was creating a sharp difference, and the time had come for law students to pursue post-graduation from Indian universities rather than going abroad.
Mr. P.S. Narasimha substantiated his comment on India growing as an avenue for legal education by expressing his admiration towards the work undertaken by CAN Foundation, especially with respect to providing financial assistance to students achieving ‘Excellence Despite Hardships’.
Thereafter, Mr. P.S. Narasimha expressed his appreciation and admiration for the work of Justice H.R. Khanna, highlighting the interpretative choices adopted by the Justice and how such choices by virtue of his courage, conviction, and confidence have led to finding the greatest values, which were followed in future judgments. This interpretative choice was visibly adopted by Justice Khanna in his judgment of Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 (hereinafter “Kesavananda Bharati”), wherein he was faced with many compelling arguments advanced by the learned advocates. However, he chose the argument devoid of ‘fear’. Justice Khanna’s interpretation relied on a question that he posed to himself, “Is the Constitution a flexible document which permits the parliament to make and modify the changes, when the times come and when there is need to do so?"
Mr. Narasimha recounted Justice Khanna's view on the rigidity of the Constitution in the case of ADM Jabalpur v. Shivkant Shukla, 1976 AIR 1207 (hereinafter “ADM Jabalpur”). To quote, “it is not permissible under Art. 368 to so amend the Constitution as to take away or abridge the fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-Constitutional methods like revolution. Although, in my opinion, the language of Art. 368 is clear and contains no limitation on the power to make amendment so as to take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by Art. 368 and the other according to which the only way of bringing about such a result is an extra-Constitutional method like revolution, the court, in my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the Constitution and the extra-Constitutional method with all its dangerous potentialities the former method is to be preferred. The contrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives.”
(Emphasis applied to aforementioned remarks on constitutional rigidity)
“Another circumstance which must not be lost sight of is that no generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them.”
Mr. P.S. Narasimha thereafter proceeded to comment that following Justice Khanna’s idea surrounding the interpretation of the Constitution, i.e., the Constitution should provide ample provision to incorporate the ideas of future generations, Justice Venkatachalliah had subsequently laid down in the Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686 that the parliament has the power to experiment with the values of the Constitution. The question of what should be done in order to protect individual fundamental rights had led to the evolution of the test of "But far and no further," as had been laid down by Justice Khanna in the aforementioned judgement, thereby providing that one cannot amend the fundamental rights laid down in Part III of the Constitution to the extent of efficacy of taking away or breaching the basic structure of the Constitution and this principle applied to all provisions of the Constitution.
Mr. P.S. Narasimha then proceeded to accentuate the newly found principle of Constitutional Morality. He highlighted the argument put forth by several learned advocates in the proceedings of Kesavananda Bharati viz. ‘fear’ of parliamentary majoritarianism completely eradicating Part III of the Constitution. Mr. Narasimha stated that Justice Khanna had reposed faith in such an argument, dictating in his judgment that, “Even without amending any article, the emergency provisions of the Constitution contained in Arts. 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years since the last general election after the party in power has lost public support.” According to Mr. Narasimha, Justice Khanna put his faith in the majoritarian parliament, having noted that, “This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed.”
Mr. P.S. Narasimha, followed this by expanding on the presence of the principle of constitutional morality in Justice Khanna’s writings, which was further evidenced by subsequent judgments such as Manoj Narula v. Union of India, (2014) 9 SCC 1 , where the court held that constitutional personnel will always have to follow the principle of Constitutional morality. In Mr. Narasimha’s view, the court had attempted to define the principle of constitutional morality and had stated, “...to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building…commitment to the Constitution is a facet of Constitutional morality.”
Mr. P.S. Narasimha emphasized on the two basic principles propounded by Justice Khanna, that is - basic structure, and constitutional morality. Mr. Narasimha hence highlighted the principle laid down in the Ahmedabad Saint Xavier’s College v. State of Gujarat & Others, AIR 1974 SC 1389 , wherein Justice Khanna had held that minority rights should not be seen as an island that needs to be protected; the interpretation for minority rights should be based on the principle of equality as enshrined in Article 14 of the Constitution of India, and they should be given the protection which sees them achieve equal status in an egalitarian society. In Mr. Narasimha’s view, this judgment of Justice Khanna had emphasized yet another Constitutional norm, i.e., fraternity. In this case, Justice Khanna had stated that equality would be achieved by following the divine trinity of equality, liberty, and fraternity, a principle that was later adopted and applied by the Hon’ble Supreme Court in numerous judgements concerning Articles 19 and 21 of the Constitution of India, as per Mr. Narasimha.
Mr. P.S. Narasimha, while concluding, admired the courage and far-sightedness of Justice Khanna in decisions of ADM Jabalpur and Kesavananda Bharati. He emphasized that soon after Justice Khanna had resigned from his office, after his dissent in ADM Jabalpur and subsequent non-appointment as the Chief Justice of India, the Supreme Court Bar Association had put up a portrait of Justice Khanna in courtroom no. 2 to remember his Constitutional ethos, ideals, and courage.
