KEYNOTE ADDRESS BY CHIEF GUEST, HMJ UU LALIT, JUDGE, SUPREME COURT OF INDIA

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 Justice UU Lalit's address is as follows -

Justice Lalit commenced his address by offering a warm welcome to all the panelists, guests, and participants and expressed how privileged and humbled he felt to be part of this symposium in honour of Justice HR Khanna, highlighting his contributions, and his role in shaping model thought about judicial ethos. Hailing Justice HR Khanna to be a towering personality, Justice Lalit stated that his role was so immense and multi-faceted that it was nearly impossible to describe it in just 28 minutes.

Justice Lalit began by quoting a passage from an article authored by Justice HR Khanna’s where he stated that liberty, democracy, and the rule of law form the holy trinity that presides over all free societies. Justice Lalit remarked that this holy trinity was reflected in the entire body of judgments by Justice HR Khanna and expressed his disappointment in not knowing Justice HR Khanna personally, beyond his lectures, judgments and articles.

Justice Lalit stated that Justice HR Khanna in his article had beautifully encapsulated the feelings of a judge while authoring a judgment wherein he said that a judge is often troubled with a lot of uncertainty till he finally pens down his thoughts. Justice Lalit called Justice HR Khanna a “clarion voice in the ingenuity, independence, and impartiality of the judiciary”, as evidenced by his majority judgment in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (hereinafter “Kesavananda Bharati Case”) and his dissenting judgment in the ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 (hereinafter “ADM Jabalpur Case”).

Justice Lalit noted that Justice HR Khanna’s view in Ahmedabad Saint Xavier’s College v. State of Gujarat & Others, AIR 1974 SC 1389 (hereinafter “St. Xavier’s Case”), has become the leading light for existing and forthcoming judgments on rights of minority educational institutions. He was of the opinion that educational institutions must act as repositories of the nation’s ideals and sanctuaries of a country’s rich heritage. In light of the same, he had remarked, “The duty is upon the teachers to keep the torch which the genius of the nation lit up. It is for them to pass on the torch and the banner to the future generations through the students whom they teach.”

Justice Lalit elaborated on how the scope and ambit of the rights of religious and linguistic minorities were laid down by Justice HR Khanna in the St. Xavier’s Case . Justice HR Khanna was of the strong opinion that for the law to be Constitutional, it should not impair the minorities’ rights. The management of a minority educational institution should be free from governmental or other interference. Although it is permissible for the State to lay down regulations, such regulations must not impinge upon the rights conferred on minority institutions under Article 30 of the Constitution of India. A just balance must be struck between the two objectives, that of the standard of excellence of one institution and reserving the fundamental rights of the minority institutions. Justice Lalit remarked that Justice HR Khanna made a great contribution through this case when he held that minority institutions cannot be allowed to fall below the standards of excellence. While juxtaposing national interest and minorities’ interest, Justice HR Khanna in the St. Xavier’s Case further observed that “minorities of this nation are as much part of the nation as the majority and anything that impinges upon national interest must necessarily in its ultimate operation affecting the interests of all those who inhabit this vast land irrespective whether they belong to the majority or minority sections of the population. It is therefore as much in the interests of the minority as that of the majority to ensure that the protection awarded to minority institutions is not used as a cloak for doing something that is subversive of national interest.” The test adopted by Justice HR Khanna in the St. Xavier’s Case was two-fold, “the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive in making the institution an effective vehicle of education for the minority community or other persons who resort to it.”

Justice Lalit remarked that this test, which was relied on in later judgments, is now a leading basis for adjudication, so far as judgments in regard to rights of minority institutions are concerned.

Subsequently, Justice Lalit stated that any discussion on Constitutional law would be incomplete without focusing on Kesavananda Bharati Case . In this case, Justice HR Khanna laid down the foundation of the basic structure doctrine and his opinion tilted the balance in favour of the majority that had held that the parliament did not have the power to abrogate the basic structure. This judgment was a big blow to the authoritarian powers. Recalling Justice HR Khanna’s views on the Constitution as stated in his book titled, ‘Making of India’s Constitution’, Justice Lalit explained how Justice HR Khanna beautifully described what the Constitution meant and what it should mean, stating that the Constitution is a living document. To quote Justice HR Khanna, “The Constitution is the vehicle of a nation’s progress. It has to reflect the best in the past traditions of the nation. It is also to provide a considered response to the needs of the present and to possess enough resilience to cope with the demands of the future. The Constitution at the same time has to be a living thing, living not for one or two generations but for the succeeding generations of men and women.” Justice HR Khanna expounded upon this thought further by stating that a Constitution cannot contain accurate details of all the subdivisions of which its great power will benefit, nor can it provide exhaustively for different contingencies that may arise in the affairs of the State. It is “only on rare occasions that the need should arise for amendment of the Constitution much less for its repeal or abrogation.”

Justice Lalit further opined that Justice HR Khanna’s decisive vote in the Kesavananda Bharati Case should be necessarily read with his concurring opinion in the Indira Gandhi v. Raj Narain, AIR 1975 SC 865 where one can see an extension of the very same thoughts. Further, Justice Lalit appreciated Justice HR Khanna’s enunciation of the unique doctrine of the basic structure of the Constitution, calling it a sterling contribution to our Constitutional jurisprudence. This doctrine has had an immense impact on the development of our Constitution including the expansion of the judicial review pronounced upon the Constitutionality of not only ordinary legislations but also of Constitutional amendments. Justice Lalit remarked that Justice HR Khanna’s thoughts in this judgment continued to act as the guiding light for generations of judges. With respect to ambit and scope of power of the amendment, Justice HR Khanna made no distinction, between provisions relating to fundamental rights and those dealing with matters other than fundamental rights.

Explaining the far-sightedness of Justice HR Khanna in shaping model thought, Justice Lalit quoted Justice HR Khanna, “A Constitution cannot be regarded as a mere legal document to be read as a will or as an agreement, nor is the Constitution like a plaint or written statement filed in a suit. A Constitution must necessarily be the vehicle of the life of a nation. It is also to be borne in mind that a Constitution is not a gate but a road. Meaning the drafting of the Constitution is the awareness that things do not stand but keep moving on. The life of a progressive nation as an individual is not static or stagnant but dynamic and bashful. A Constitution must therefore contain ample provisions for experiment and trial in the task of administration. It had its roots in the past, its continuities reflected in the present and it is intended for the unknown future.”

While closely analyzing the contributions of Justice HR Khanna in the domain of judicial review, Justice Lalit stated that Justice HR Khanna elucidated upon the power of the court to review executive and legislative actions by saying that judicial review was not intended to create what was sometimes called judicial oligarchy. Justice Lalit remarked that Justice HR Khanna had succinctly explained the dispassionate view that judicial review obliges judges to take, by saying that the primary duty of a judge was to uphold the Constitution and the laws, without the fear of favour and in doing so, he could not allow any political ideology or economic theory which may have caught their fancy to colour their decision. Justice Lalit relied on the epilogue of the book titled ‘Judicial Review or Confrontation?’ wherein Justice HR Khanna referred to Joseph’s story in the context of the US Constitution and stated “The foundation of the Constitution is solid, its compartments beautiful as well as useful, its arrangements are full of wisdom and order and its defences are impregnable from within.” Justice Lalit admiringly mentioned that Justice HR Khanna was not just a jurist but also knew the pulse of the society, what the society actually contemplated and what ideals one must look forward to and cherish.

Justice HR Khanna had remarked in ADM Jabalpur Case, “At the same time it is felt that there must be some area where man must have freedom without interference by the State. We must preserve a minimum area of personal freedom if we are told to degrade or deny our nature. We cannot remain absolutely free and must give up some of our liberty to preserve the rest but total self-surrender is self-defeating. What then must the minimum be than which a man cannot give up without offending against the essence of his own nature? What is this essence? What are the standards which it entails? This has been and will perhaps always be a matter of infinite debate but whatever the principle in terms of which the area of non-interference is to be drawn, whether it is that of natural law or natural rights or of utility or pronouncements of a categorical imperative or the sanctity of social contract or any other concept with which men have sought to clarify and justify their convictions.” According to Justice Lalit, these words illustrate the genius of Justice HR Khanna’s mind, as was encompassed in the dissenting judgment in ADM Jabalpur Case. Justice Lalit was of the view that Justice HR Khanna’s views on divine perception of what life is, what a man cherishes, what a man lives for, and what should be the minimum that he must be guaranteed at every juncture must have guided him in his authorship of dissenting vote in ADM Jabalpur Case.

Discussing Justice HR Khanna’s views on the rule of law, Justice Lalit also relied on a quote by Justice HR Khanna, “To prevent degeneration of society into a state of tooth and claw, we need the rule of law.” Justice Lalit elaborately explained that it was through his dissent with the majority in ADM Jabalpur case that Justice HR Khanna immortalized himself in the jurisprudence of personal liberty of this country. Justice HR Khanna realized that more was at stake than the liberty of a few individuals or the correct construction of the wording of the order. As aptly put by Justice HR Khanna in his dissenting opinion, “The question was not whether there can be a curtailment of personal liberty when there is a threat to the security of the State. The question was whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.” For him, the placing of government would lapse into the tyranny of government, unless it is accompanied by a recognition that certain basic rights are possessed by all citizens, not just good citizens but bad citizens as well.

Expounding on the concept of liberty, Justice HR Khanna stated that some rights were inherent in all by virtue of being human. These rights were inalienable and inviolable, because they were vital not only for the development of human personality and for ensuring its dignity but also because without them, men would be reduced to the level of animals. He also believed that the exercise of the right of liberty can never be absolute and real liberty is always regulated liberty. It was only in 2017 that Justice HR Khanna’s dissent was formally accepted as astute and apt by the Supreme Court and the majority opinion stood overruled, in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors, AIR 2017 SC 4161 . Justice HR Khanna’s dissenting opinion was reflected in Justice DY Chandrachud’s judgment wherein he recognized that Justice HR Khanna was right in holding that “the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right apart from it, nor could there be an assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom of the State on whose horse seat these rights would depend.

Justice Lalit remarked that one singular vote of dissent by Justice HR Khanna has now galvanized every thought in that direction. This has now gained acceptance as a bedrock on which the right to life exists and the extent to which the power to amend the constitution can extend. Justice Lalit inspiringly stated that the realization that the dissenting opinion would cost him (Justice HR Khanna) the Chief Justiceship of India and the perceptible change of attitude in those around him did not deter him. Justice HR Khanna lost no time in relinquishing the high office of the judge of the Apex Court for which people keep aspiring for throughout their lives, choosing his strong belief and conviction in the unassailability of fundamental rights and independence of the judiciary.

Finally, Justice Lalit concluded his address by ardently emphasizing on Justice HR Khanna being an inspiration to all and further stated that his portrait in courtroom no.2 of the Supreme Court and the post-emergency amendment to Art. 359 serves as a testament to his influence, an influence that transcends the limits usually assigned to judicial figures. Justice Lalit elaborated on how interplay between facts and the law in key in all cases before the judiciary and their convolution is an art that is quintessential for judges to be acquainted with, and how Justice HR Khanna was an epitome of mastery of that art.

Justice HR Khanna was the epitome of the saying ‘when the going gets tough, the tough get going’ and how Justice HR Khanna’s views were accurately indicative of his mettle. Saluting the courage and conviction of Justice HR Khanna, Justice Lalit stated that Justice HR Khanna’s dissent was the guiding power and that he was the lighthouse of the ethos for generations of judges to come.