The Bulkachuawnization of the Nigerian Judiciary and the Rare Courage of H.R. Khanna of the Indian Supreme Court: Any Relevance to Nigeria Judiciary at this Critical Time? By O.O.Nwani, Esq., Ogun State based Legal Practitioner @ pegasuslawyers@gmail.com

Introduction:

Hon. Justice H.R.Khanna was born on 3^rd July, 1912 -25^th February, 2008 was a rare breed Indian judge, jurist and an advocate who gave the dissenting opinion judgement in the popular Habaes Corpus case which ensued while India’s democracy was on its grimmest moment, in that the populace were not satisfied with what the Government in place is doing about the welfare of the people leading to protest across the country.

As always, the opposition leaders in India working with the Civil liberty organizations started protesting many Government policies that are not favourable to the masses, cumulating to the President invoking on June 25^th, 1975 his powers under clause 1 of Article 352 of the Indian Constitution and ‘’declared an emergency proclaiming that there is an imminent threat against National security, suspending Article 14, 21 and 22 of the Indian Constitution robing any Indian Court of the Jurisdiction to hear any matter flowing from the fundament right of the citizens as enshrined in those Articles mentioned above.

Most prominent opposition figures were arrested and detained without trial, giving birth to series of petitions challenging wide powers of the Government to detain citizens at their pleasure without any remedy in law. The Emergency proclamation as promulgated gave the state power to kill without following due process of law. Arguments and counter arguments were canvassed for and against the Draconian Emergency proclamation order, leading to an appeal launched by the Attorney of India at the Supreme Court.

Thus, Hon., Justice H.R. Khanna is to become the most senior justice of the Indian Supreme Court because the most senior has couple of months to retire when this Appeal ensued. Five of them were the panel that heard the Appeal but from his observation of his colleagues body langues who were tongue tied during the deliberation it dawn on him that his judgement might be the lone voice in the chorus of aligned opinion that will ensue in the matter.

Having known for fact that his dissenting opinion in favour of fundamental right would eventually cost him the post of the Chief Justice of India because he is fully aware of precedent where three justices were disgraced for giving verdicts not favourable to the Government in power.it took him 12 days to wrote the famous dissenting opinion on the Habeas Corpus Case; informing the wife and sister that he has written the judgement that would cost him the enviable sit of the Chief Justice of India.

This article is the authors attempt to show that the judiciary from any where in the world especially in evolving democracies has faced enormous challenges from the Executive Arm of the Government who will continuously strive to reduce the judicial Arm to its subservient tool, despite the fact that they are both the creation of the constitution which donates the doctrine of checks and balances to ensure maximum efficiency of the Government machinery. It is a call for judges to rise above personal interests and prebendal cleavages to ensure that confidence of the ordinary man is restored in the judiciary by ensuring substantial justice at this critical period

Be that as it may, Justice H.R. Khanna resignation as the most Senior Justice from the Indian Supreme Court in 1976 when his far junior was nominated as the Chief Justice of India against all known principles of equity and fairness in the appointment and promotion of Judges. His response through his resignation and his poise in the face of that trial which he knew would eventually come, earned him a prominent place in India nay the world that courage and strong conviction is a virtue that every judge who strives for a place with posterity must wear like a cloak.

When he went to work on the fateful day, he was contemplating it that this would have been his last day as the Indian Supreme Court but his principles did not allow him to lobby anyone for the appointment. Having closed work and went home, it was on the news that he had that the Indian Prime Minister, Indira Ghandi has superseded him by appointing M.H.Beg his junior as the Chief Justice of India going against the long established convention of appointing the most senior Justice as the Chief Justice of most countries; compelling him to tender his resignation letter immediately.

The entire Indian Bar protested his warped treatment by the state, by boycotting all Courts in India including the Supreme Court. Unlike Hon. Justice Onnoghen travails in the hand of power brokers in Nigeria, there was no faction in the Indian Bar that is not in love with the Courage of an eminent jurist who has stood firm against State capture by politicians; although Hon. Justice Onnoghen (as he then was) might not have the credentials of Khanna but the Bar must speak with one voice if we are going to succeed in our promotion of Rule of Law. Nigeria is in search of such judges now who could delve into the subject matter objectively without any emotion or bias no matter whose ox is gourde. Indeed, we are at that critical point that we want to not only see that justice is done but must be felt by the ordinary man that justice has been done in Nigeria.

In celebration of the eminent jurist, the Supreme Court of India Bar organized a farewell dinner in the honour of H.R. Khanna who has voluntarily resigned his position from the Supreme Court Bench after a very illuminating career on the Bench. See his dinner speech below, an excerpt from his book ‘’Neither Roses nor Thorns’’ by H.R. Khanna, Eastern Book Company, Lucknow, published 1987 and reprinted up to 2011.

Hear from him in the following words while responding to the encomiums from the Bar and the Bench in attendance: –

     ‘’ I feel so overwhelmed by the kindness and affection shown to me that I find myself unable to speak beyond some words. There are few things in the world which move one so much and touch the deepest chords of the heart as the love and affection of those amongst whom one has lived and worked.

      I am a humble person, conscious of his shortcomings and limitations, but I have always had the feeling of being the recipient of your goodwill and warmth, the Bar, it has been rightly said, is the judge of judges, for it has the best opportunity of watching them function from close quarters. The judges, in fact, shine with reflected glory, for their judgements verily reflected the erudition and the industry of the counsel appearing before them. No judge can afford to be boastful, of being always in the right, for there is yet to be born a judge who has not committed mistakes. Jackson was not wrong when he said that the Supreme Court is not final because it is infallible, the Court is infallible because it is final. The important thing however is that the Court must enjoy the respect of all those who enter the precinct and inspire confidence among them that justice here is administered with an even hand, in any legal combat between the reach and the poor, between the mighty and the weak, between the state and the citizen, without fear or favour. Law, it has been said, knows of no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.

    Like all other human institutions, the Court must earn reverence through the test of truth. Years ago, Harold Laski in his tribute to Justice Holmes described the hallmarks of a great judge. A great judge, he said, must be a great man. He must have a full sense of the seamless web of life, a grasp of the endless tradition from which we cannot escape. He must be capable of stern logic, and yet refused to sacrifice to logic the hopes and fears and wants of men. He must be able to catch a glimpse of the ultimate in the immediate of the universal in the particular. He must be stateman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow, and he must have a constant sense of the greatness of his task. He must know the hearts of men, and yet asked to be judged from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not its master, the conscience of the community and not of its dominant interests. He has to put aside the ambitions which drive politicians to search for power and the thinker to the construction of abstract system. No one must be more aware of the limitation of his material, none more hesitant about his personal conviction. The great judge is perhaps the rarest of human types, for in being supremely himself, he must yet be supremely selfless. He has to strive towards results he cannot control through material he has not chosen. He has to be in the great world and yet aloof from it, to observe and examine without seeking to influence. A political system which produces great judges can feel some real assurance about its future. A great judge, it is said, seeks to make the infinitely small illuminate the infinitely great. These are stern and exacting tests, but they set out an ideal and a goal distant and remote from the reach of most of us though they may be, still for the attainment of which, even though partially and not in full measure, there have to be ceaseless striving and sustained effort.

    The Bar as a whole reflects the inner urges of the nation; it is the true index of the responses of the enlightened conscience of the community to the momentous issues of the day. The contribution of the Bar towards upholding the Rule of Law can never be underrated. If there are three prime requisites for the Rule of Law, they are a strong Bar, an independent judiciary and an enlightened public opinion. There can indeed be no greater indication of the decay in the Rule of Law than a docile Bar, a subservient judiciary and a society with a choked or censored conscience. Fearlessness, as I said some months ago, has been the tradition of the Bar since the days of the struggle for independence. Fear dwarfs’ human personality turns even heroes into men of clay and prevents efflorescent of higher values of life. Fear likewise stifles the conscience and dries up springs of idealism. Where fear is, justice cannot be. The victims of an atmosphere of fear are Joan of Arc, a Galileo or a Dreyfus. All great philosophers have, therefore, assigned the primacy of position to the freedom from fear.

 It is said that there is no office which is so infinitely powerful and, at the same time, so frightfully defenseless as that of a judge. There is indeed an element of vulnerability attaching to the office of the judge. The best time, therefore, to access the performance of a judge is when he lays down the reins of office. There can be indeed no greater satisfaction and no higher honour for a judge than to carry the love and esteem of the members of the Bar when he quits the office. Keeping that in view, I consider myself to be singularly fortunate. This perhaps is the proudest moment of my life, the memory of which I shall always cherish. You have been so kind, so generous, so indulgent to me. During the last few days, I have heard so many kind words and received so much love and affection that I do not know as to how I can express my gratitude for that. All that I can do is to bow my head in reverence before you’’.  

The above speech as delivered by the eminent jurist should be contemplated by the Bar and Bench in Nigeria to know whatever lesson we could glean for the redemption of our country. One fact is certain, not all judges and lawyers are corrupt but the bad eggs in the judiciary must be weeded out of the judiciary while those left must stand up against the antics of politicians to muzzle the Rule of law. This opinion is a call for the Bar and the Bench to reaffirm their judicial oath, ensuring that every matter is decided according to the tenet of justice. It is a call for soul searching that the actors must ask themselves what they would love to be remembered for? Whether the Bulkachuwa’s revelation is probed or not, the husband submission on the floor of the senate is a grave indictment on her career and the judiciary.