Friday, December 06, 2024

Act Without - Pressure, Fear, Expectation

This is the second post of the series 'Advice to Young Judges'. It invites them to decide like Lord Atkin or HR Khanna J. as they did in their famous minority judgements in Liversidge v. Anderson and ADM Jabalpur v. Shiva Kant Shukla.

The biography of Lord Atkin, written by Geoffrey Lewis, is worth your time and money.  

Advice to Young Judges

Judges Have Difficult Job।। Act Without - Pressure, Fear, Expectation - Lord Atkin, HR Khanna J.।। ।।

The classic example of administering justice without fear or pressure is the minority judgement of Lord Atkin in Liversidge v. Anderson 1941 (3) AllER 338, where the following four paragraphs of his dissent have become part of history. He said, 
"I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive- minded than the executive ....   
In England, amidst country the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptability to the court of King's Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put upon words, with the effect of giving an uncontrolled power of imprisonment to the minister.  To recapitulate the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.…
I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is’ said Alice, 'whether you can make words mean different things’.  ‘The question is’, said Humpty Dumpty, ‘which is to be master that's all'… the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they cannot, and the case should be decided accordingly."
Similar example in our country is the minority judgment of HR Khanna J. in ADM Jabalpur v. Shiv Kant Shukla AIR 1976 SC 1207: (1976) 2 SCC 521 during internal emergency, where the question was, whether the writ of Habeas Corpus was maintainable despite suspension of enforcement of Article 14, 19, 21 & 22. 
HR Khanna J.

The majority held that writ of Habeas Corpus was not maintainable. The CJI of that time was more obliged to the government for making him CJI after superseding three senior judges; the three others were more bothered about their future Chief Justiceship. However, HR Khanna J. did not think about his future and chose to deliver his minority judgement against the then Government and in favour of liberty. No wonder the history has forgotten the four majority judges: they are remembered more in infamy than anything else. 

Chandrachud J. and Bhagwati J. were brilliant judges but their career, their brilliance is eclipsed by their judgement in the Habeas Corpus case: they failed the nation, the people of India at the crucial time: they are not to be emulated but are rather to be shunned.  

But Khanna J. is not only fondly remembered but became world famous overnight.  The New York Times reportedly remarked, 

“Surely a statue would be erected to him in an Indian city.”

Act and decide without any pressure, fear, or expectation but only according to what your conscience dictates - what you think the decision should be on the evidence and law.

#AdviceToYoungJudges #GoodJudge #JusticeHRKhanna #LordAtkin 

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