Judges should be bold enough to stand on the side of the law, writes Robert D. Obiorah

Who is Nigeria’s bravest judge? I mean that judge that can speak fearlessly against a government that has mastered the act of harassment, intimidation of judges. The time we live in beckons for judges who will speak truth to power; Judges who are incorruptible; who will not succumb to external pressure and who will not pervert justice. Who is that Nigeria judge who will rule against a ruling government when the constitution is violated?

Chief Justice of Nigeria Mohammadu Tanko stole my heart when he announced his plans to fight corruption in the judiciary but dashed the hope of the masses when he led the panel of judges that heard the Osun case between Adeleke and Oyetola. Surprisingly, not a single member of the panel raised a voice of dissent against the determination of that suit on the basis of technicality. If we can help it, Supreme Court decisions should always be determined on merit of the case.

Once upon a time we had in this country upright and fearless judges that bestrode our judiciary space like colossus and I mean great judges and the best Africa could produce. I recall the times of judges like Justices Chukwdifu Oputa, Nnaemeka Agu, Damley Alexander, Olawale Elias, Mohammad Uwaise, Atanda Williams, Ademola Adetokunbo, Ayo Irikefe, Idris Kutigi, Salihu Modibo, Sodeinde, Belgore, and many others.

I will use the story Justice H. R. Khanna of India to further illustrate how every dark hour creates its own shinning stars. In the darkest time of India’s democracy, at a time when the constitution itself was under attack, Justice H. R. Khanna held his nerve to ensure that he stood for what’s right, and did not give in to pressure.

The time is the emergency period under the Prime Ministership of Indira Gandhi. In order to prevent herself from being disqualified as a Member of Parliament, and to ensure absolute control in her hands, the emergency was proclaimed. The proclamation of emergency was followed by an unprecedented crackdown on any kind of opposition to the government.

On various flimsy pretexts, almost all major opposition political leaders were arrested and held without bail or production before magistrates for indefinite periods.

There was only one weapon still available to the opposition, which was resorted to by them. The writ of Habeas Corpus, which protects an individual from arbitrary arrest and illegal detention, was resorted to by several opposition leaders by filing writ petitions in different high courts, seeking the court’s protection against the government. Obviously, the Indira Gandhi government was not keen on the court’s interference in their agenda, so in every case, the government strongly contested the writ petitions, claiming that the protection of the writ of Habeas Corpus was unavailable during emergency.

This matter was bound to reach the Supreme Court, and sure enough, soon an appeal from High Court’s orders reached the Supreme Court. The advocates of the Supreme Court had been active opponents of the emergency, and feared that the then Chief Justice A. N. Ray, who was promoted as CJI superseding three senior judges owing to his favouring the government in the Keshavananda Bharati case [(1973) 4 SCC 225], would constitute a bench of judges favourable to the government. The legendary advocate C. K. Daphtary convinced the CJI to constitute a bench of the five senior most judges of the court to hear the matter, citing precedent set by Chief Justice A. N. Ray’s mentor, Chief Justice S. R. Das. As a result, a bench comprising the CJI, Justice M. H. Beg, Justice H. R. Khanna, Justice Y. V. Chandrachud and Justice P. N. Bhagwati, the five senior most judges of the Supreme Court, was constituted to hear the Habeas Corpus case [A. D. M. Jabalpur vs Shivkant Shukla AIR 1976 SC 1207] , as it later came to be known.

The Supreme Court bar was pleased with the composition of the bench hearing the matter, as it appeared to them that the likes of Justice Khanna, Justice Chandrachud and Justice Bhagwati, who were all known as progressive judges, would not favour the government in such an important case. Their hopes were raised during the hearing of the case; when at one point the then Attorney General, Niren De, made a shocking submission before the court. Justice Khanna asked the AG: suppose a man lost his life owing to preventive detention, would the writ remedy still be unavailable? Attorney General Niren De submitted that yes, even where there was loss of life, writ remedy would still be unavailable during emergency period. His answer shocked the advocates appearing in the case, and they felt surely now the bench would rule against the government.

However, the bar failed to take the judges’ personal ambitions into account. The judges clearly remembered the Keshavananda Bharati case, which was not too long ago. The then Chief Justice S. M. Sikri retired after delivering the judgment in that case, and afterwards, the three senior most judges of the Supreme Court, who would normally succeed Chief Justice Sikri as CJI in order of seniority – Justice Shelat, Justice Grover and Justice Hegde – were superseded in the order of succession and Justice A. N. Ray was appointed as CJI ahead of them, causing the other three to resign. This was done because Justice Shelat, Justice Grover and Justice Hegde had all ruled against the government in Keshavananda Bharati and Justice Ray had ruled in favour of the government. There was no reason to believe the same would not be done after the Habeas Corpus case.

Despite this fact, and despite knowing that all the other judges on the bench had already decided in favour of the government, Justice H. R. Khanna felt he must write a dissenting opinion. His conscience would not allow him to rule in favour of the government, ignoring all constitutional tenets and values. Despite the fact that his dissenting opinion would not have any effect, he felt that he ought to stand up against the oppressive government, and stand in favour of justice and good conscience.

And it came to pass that Justice H. R. Khanna was the sole dissenter. Justice Khanna insisted that writ remedies cannot be abolished owing to proclamation of emergency, and citizens must have judicial remedy against arbitrary government action at all times. The four other judges on the bench decided otherwise, and thus, shortly afterwards, when Chief Justice A. N. Ray retired, Justice M. H. Beg was appointed as CJI, superseding Justice H. R. Khanna, who promptly resigned from his post as Supreme Court judge.

The New York Times said it best about this case:

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom dissenting from the court’s decision upholding the right of Prime Minister Indira Gandhi’s government to imprison political opponents at will and without court hearings.”

As the nation awaits the rulings from the various tribunals, we need to see judges who will speak fearlessly from the bench, employing the law rather than technicalities. We want to see brave judges who will allow the tenets of the law to speak for itself. We want to see judges whose ambition and influences will not be pressured to pervert justice. We want judges who will be bold to stand on the side of the law, the principles and the constitution.

Obiorah wrote from Abuja