Markandey
Justice at its purest
Markandey Katju 6 May 2023
In my articles below I have explained what true justice should be, totally detached from considerations of personal interest or personal notions.

I may now give some other examples of this from judicial history :

1. When I was a lawyer in the Allahabad High Court one evening I was sitting in my home library reading a judgment of a British High Court judge sitting in London. In this judgment the judge was explaining in detail, and in clear, precise language, the difference between value and price, an important distinction in economics ( for instance the air we breathe has great value as we cannot live without it, but it has no price ).
Then I saw the date of the judgment. It was 15th September, 1940, when the German Air Force, the Luftwaffe, launched its fiercest air attack on London in the Second World War, resulting in a firestorm, known as the Second Great Fire of London, which caused many deaths and huge damage to property.
With total detachment, unperturbed, and unconcerned about his personal safety, with bombs exploding all around him, the judge was coolly explaining the difference between value and price. This detachment ( which Justice Frankfurter of the US Supreme Court often called 'disinterestedness' ) is the hallmark of a true judge.

2. In Whitney vs California, 1927, the appellant had been charged for organising a Communist Party in America. Communism believes in violent overthrow of the government, but there was nothing to show that Ms.Whitney advocated any immediate violence. In that case, in words which ring in judicial history, Justice Brandeis of the US Supreme Court observed :
'' Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to believe that the danger apprehended is imminent. 
Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Teaching syndicalism increases it. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown that immediate serious violence was to be expected or was advocated. 
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil, the remedy to be applied is more speech, not enforced silence ''.

3. During the early Cold War years, fear of communist subversion in America was whipped up by Senator Joseph Mccarthy, who became Chairman of a Senate Subcommittee on investigations, and a general scare became widespread in USA.
In this highly charged atmosphere the US Supreme Court delivered a verdict, Dennis vs US, 1951, against the appellants who had been charged for organising the Communist Party in USA and for agreeing to spread their ideas by speech and the newspapers. The majority in the US Supreme Court upheld their convictions.
Dissenting, Justice Hugo Black said the majority opinion repudiated the well established 'clear and present danger test' laid down by Justice Holmes in Schenck vs US in 1919, and that there was nothing to show that the appellants were organising, attempting or advocating an immediate armed uprising against the government.
He concluded his judgment in words which are enshrined in judicial history :
'' Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some later Court, will restore the First Amendment liberties to the high preferred place where they belong in a free society ''.

4.  Indian Prime Minister Indira Gandhi's election to Parliament was declared illegal in 1975  by the Allahabad High Court as she used election malpractices, and she was disqualified from contesting elections for 6 years. Thereupon, to hold on to power, she declared an Emergency, and suspended the constitutional rights of citizens, including the right to life and liberty, freedom of speech etc. Consequently thousands of politicians of Opposition parties and others were arrested and jailed without trial for long periods on trumped up charges.
Several High Courts held their detention illegal, but when the matter came up in appeal to the Supreme Court, by a 4-1 verdict ( Justice HR Khanna dissenting ) the Court held that since Article 21 of the Indian Constitution, which guarantees the right to life and liberty, had been suspended, a person could be deprived of his life or liberty at the sweet will of the executive, which could not be challenged in court

In his dissenting judgment Justice Khanna held that the right to life and liberty were not created by the Constitution, but were inherent in human beings, and thus they preceded the Constitution.

Because of his brave dissent, Justice Khanna lost his chance of becoming the Chief Justice of India, since he was next in line of succession being the seniormost judge in the Supreme Court after Chief Justice AN Ray, but he was superseded by Indira Gandhi. The day before he gave his judgment he told his wife that he will lose the Chief Justiceship, but he has to do his duty.

By Justice Markandey Katju, former Judge, Indian Supreme Court


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