In remembering the Emergency, don’t forget what Justice H.R. Khanna wrote about minorities

Khanna’s interpretation of what secularism means may have actually made many call him ‘sickular’, like so many others today (representational image) | PTI

Justice H.R. Khanna had shown real spine when all pillars of the state had decided to play dead in front of Indira Gandhi.

Last week, India observed yet another anniversary of Emergency, with Prime Minister Narendra Modi, once again, attacking the Congress and the Gandhi family for all that he thinks is wrong with the country, and for that dark chapter in independent India’s history.

Several commentators and politicians also remembered fondly that one man in our superior judiciary who showed real spine when all pillars of the state had decided to play dead, to prevent falling afoul of Prime Minister Indira Gandhi and her henchmen.

One is referring to Justice Hans Raj Khanna, the sole dissenter in the habeas corpus case, a brave act for which he lost out on chief justiceship.

Here’s what the New York Times wrote about Khanna, whose birth anniversary falls on 3 July:

“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.”

On minority rights

While it is good to remember his excellent dissent in the A.D.M. Jabalpur versus S.K. Shukla case, there is another judgment – this one a concurring one in a majority decision in a case involving rights of minorities to run their own educational institutions – that should be mandatory reading for every right-thinking Indian, especially those in power.

His concurring judgment – penned over 44 years ago and over 40 years before current Prime Minister Narendra Modi started talking of “sabka saath, sabka vikas” – in the Ahmedabad Saint Xavier’s College versus State of Gujarat & others case, Khanna – who was part of the nine-judge bench headed by Chief Justice A.N. Ray – underlined that “the idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence”.

So, when previous Prime Minister Manmohan Singh said that minorities must have first right over country’s resources, he was possibly merely paraphrasing what Khanna had written decades ago.

Khanna also asserted that “the majority in a system of adult franchise hardly needs any protection”. “It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection,” he said.

“The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities, by giving them special rights, is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.”

In the same judgment, he holds out a lesson for future generations which, one almost feels he must have seen coming, would seek votes by making the majority feel insecure by citing so-called largesse granted to the minorities.

“The object of Articles 25 to 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy,” he wrote.

“The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, a feeling of security, a consciousness of equality and the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution.”

On secularism

Khanna’s interpretation of what secularism means – the word wasn’t part of the Preamble till then; it was later brought through an amendment to the Constitution by the Indira Gandhi government – may have actually made many call him ‘sickular’, like so many others today.

“Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted establishment of such a state. The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character. Secularism is neither anti-God, nor pro-God, it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall, be discriminated against on the ground of religion,” he had said.

However, in the same judgment, Khanna also underlined that “the right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions”.

He even went to the extent of saying that such “regulations have, necessarily to be made in the interest of the institution as a minority educational institution”.

Regulations, he ruled, could provide that no “anti-national activity would be permitted in the educational institutions”.