Justice AM Khanwilkar's Legacy : Regression of Fundamental Rights

Manu Sebastian

30 July 2022 4:59 AM GMT

  • Justice AM Khanwilkars Legacy : Regression of Fundamental Rights

    When it came to the exercise of judicial review and protection of fundamental rights, Justice Khanwilkar displayed a narrow and technical approach.

    Justice AM Khanwilkar, who during his initial days of judgeship in the Supreme Court was mostly a silent concurring presence, transformed into a prominent voice towards the end of his 6-year term favouring the executive's stand in several high profile matters. Although he was a silent supporter in many pathbreaking judgments expanding fundamental rights jurisprudence (Navtej Johar, Joseph...

    Justice AM Khanwilkar, who during his initial days of judgeship in the Supreme Court was mostly a silent concurring presence, transformed into a prominent voice towards the end of his 6-year term favouring the executive's stand in several high profile matters. Although he was a silent supporter in many pathbreaking judgments expanding fundamental rights jurisprudence (Navtej Johar, Joseph Shine etc), certain judgments authored by him leave a far reaching impact on civil liberties and take the fundamental rights jurisprudence several steps back.

    Few days before his retirement, a bench led by him delivered the judgment in the case Vijay Madanlal Choudhary vs Union of India upholding the almost draconian powers of the Enforcement Directorate for arrest, raids and attachment, and affirmed the constitutionality of the reversal of burden of proof and the stringent bail conditions under the Prevention of Money Laundering Act. Strikingly, the judgment came in the backdrop of the concerns voiced by the Supreme Court itself about the abuse of power of arrest as a punitive tool and the process becoming the punishment in the criminal justice system(refer here, here and here). The judgment adopts a technical and textual approach to hold that the ED officials are not "police officers" and that the statements recorded by them are not hit by Article 20(3) or Article 21, ignoring the ambit of coercive powers possessed by the agency in reality. It is debatable if the judgment embraces the spirit of Article 21, which has received an expansive interpretation, especially after the Puttaswamy judgment.

    Here is a look at some judgments/orders authored by Justice Khanwilkar in cases relating to civil liberties.

    Rejecting plea for SIT probe in Bhima Koregaon case

    In September 2018, the Supreme Court by 2:1 majority dismissed a plea for court-monitored SIT probe into the Bhima Koregaon case(Romila Thapar and others versus Union of India). While Justice Chandrachud dissented to hold that there should be an SIT probe as the impartiality of the Maharashtra police was questionable, the majority comprising the then Chief Justice of India Dipak Misra and Justice Khanwilkar held otherwise. According to Justice Chandrachud's dissent, it was a case of arrest targeting political dissent. The striking feature of the judgment written by Justice Khanwilkar was that it did not make any mention to the various aspects taken note of by Justice Chandrachud - such as the press conference made by the investigating officer, selective leaks to media, procedural lapses in the arrest- and dismissed the plea on technicalities (more elaborately critiqued in this article).

    Making bail impossible in UAPA case - NIA vs Zahoor Ahmed Shah Watali(2019)

    In a judgment which has received criticism from several jurists and human rights activists, a bench led by Justice Khanwilkar gave an interpretation to Section 43D(5) of the Unlawful Activities Prevention Act which toughened the already stringent provisions of bail. It was held that while considering bail, the Court cannot adopt a detailed analysis of the materials to find out if a prima facie case is made out and should only look at the "totality" of the evidence and "broad probabilities" and cannot consider questions of inadmissibility or other contradictions. This precedent has been followed by trial courts in several UAPA cases to deny bail to accused. Commenting about this judgment, former Supreme Court judge Justices V Gopala Gowda said "The Watali judgment further ties the hands of the defence. The grant of bail is rendered impossible till the end of the trial, which could take generations. The judgment needs to be reconsidered". Former judge Justice Deepak Gupta also commented that Watali judgment comes in the way of an accused getting bail in a UAPA case.

    Switch in Sabarimala case

    Justice Khanwilkar's silent switch in the Sabarimala review led to the reference to the larger bench. In the original judgment, Justice Khanwilkar had sided with the then CJI Dipak Misra who led the majority which held the restrictions on entry of women to be unconstitutional. In the review, Justice Khanwilkar sided with the then CJI Ranjan Gogoi who batted for larger bench reference. Justice Khanwilkar did not write a judgment explaining the reasons for his change of mind.

    Dismissing pleas challenging Central Vista project

    In January 2021, a three-judge bench led by Justice Khanwilkar, by 2:1 majority, dismissed petitions challenging the Central Vista Project. Justice Sanjiv Khanna dissented on the ground that mandatory public hearings have not been conducted before approval and the Environmental Clearance was granted through a "non-speaking order'. Justice Khanwilkar, in the majority judgment, held that there was sufficient compliance of the public notice requirement by putting the information in the official gazette. On the other hand, Justice Khanna took the view that mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance. "Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the proposal", the dissenting judgment stated. The majority judgment  observed that mere absence of information does not vitiate an administrative process and that the petitioners must show prejudice caused to them on account of alleged denial of information. Interestingly, Justice Khanwilkar also observed in the judgment that the Court had to spend "considerable time and energy" on this matter, which was best spent on "more deserving claims". However, it was the bench led by him which had transferred the petitions to the Supreme Court, originally filed in the Delhi High Court, citing "larger public interest".

    Farmers Protest - Can public protests be carried out when issue is sub-judice?

    In October 2021, while hearing a plea seeking right to carry out demonstration against farm laws, Justice Khanwilkar orally observed that a party who has approached the Court challenging a law cannot conduct public protests when the issue is sub-judice. The bench led by him passed an order deciding to examine this issue. This move of the bench, which happened when the farmers protests had been going on at Delhi-NCR borders for several months, drew criticism from several quarters, with many wondering how could the exercise of right under Article 32 result in the forfeiture of the rights under Article 19. Also, an earlier order passed by the Chief Justice of India in the farm laws matter had expressly recognized the right to peaceful protests even while the issue was pending before Courts. Later, another bench orally expressed a contrary view saying that right to protest can be exercised even when the legal challenge is pending.

    FCRA amendments upheld

    In April 2022, a 3-bench led by Justice Khanwilkar upheld the Foreign Contributions Regulation(Amendment) Act 2020 almost in entirety. The major challenge was against the amendment made to Section 7 to impose an absolute prohibition on an organization from transferring the foreign contributions received by it to another organization. Such re-transfer was earlier permitted with the prior approval of the Central Government. The petitioners argued it is the bigger organizations which often receive foreign contributions and they transfer it to the grass-root organizations which will ensure that the benefits reach the needy people. The absolute prohibition on re-transfer can force smaller NGOs to shut down, the petitioners argued. The Centre argued that the absolute prohibition is necessary to prevent the unauthorized diversion of funds.

    A striking feature of the judgment was that there was absolutely no anaylsis of the restrictions on the basis of the doctrine of proportionality. As per the Constitution Bench decisions in Modern Dental College case and Puttaswamy case, the reasonableness of restrictions imposed on Article 19 rights must pass the muster of the 4-point test of proportionality. One aspect of the test is the examination of the availability of a less restrictive measure. Instead of an engagement with the proportionality test, what one finds in the judgment are repeated rhetorical statements invoking national pride and sovereignty. "There is no dearth of donors within our country", the judgment states at one point asking charitable trusts to look for domestic donors. Seemingly responding to the petitioners' argument that foreign contributions played a large role in COVID relief, the judgment stated "The question to be asked is: "in normal times", why developing or developed countries would need foreign contribution to cater to their own needs and aspirations?"Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens". The rhetoric in the judgment outweighed its analysis.

    Zakia Jafri case

    Although the authorship of the judgment in the Zakia Jafri case - which dismissed the plea for probe into larger conspiracy by high state functionaries behind the Gujarat riots of 2002 - is not revealed, it is filled with high intensity rhetorical pitches, which by now has become a characteristic trait of Justice Khanwilkar. The judgment sheds any semblance of sobriety or restraint in its tone and tenor - which one would have ideally expected while dealing with a victim of a horrific national tragedy. On the contrary, harsh expressions are repeatedly employed against the petitioners(Zakia Jafri and Teesta Setalvad), blaming them for pursuing the legal process "for ulterior designs". The judgment follows the pattern of elaborately reproducing the SIT findings, without much critical engagement with them, to reject the arguments of the petitioners. The circumstances alleged by the petitioners are discarded by saying they are not corroborated. Corroboration is generally a question during trial and not at the stage when a person is seeking investigation. The judgment also held that mere inaction or failure of administration during riots is not evidence for conspiracy. The judgment draws a parallel to governments failing under COVID crisis and asks if that can be termed as conspiracy. "The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State", the judgment thundered in a disdainful tone.

    The Court did not stop at dismissing the petition, but also scathingly criticized the petitioners, blaming them for keeping the "pot boiling" and for showing the "audacity" to question the integrity of all authorities. Not stopping there too, the Court observed that "all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law".

    Acting as if on a cue, the very next day, the Gujarat ATS arrested Teesta Setalvad - on whose intervention the Supreme Court in the past reopened several riots cases- and RB Sreekumar, an ADGP during the riots time who had deposed against the then Chief Minister Narendra Modi. Teesta and RB Sreekumar were arrested on June 26 and they continue to be under custody.

    The judgment received widespread condemnation for sounding vindictive. Former Supreme Court judge Justice Madan B Lokur said that the remarks are unfortunate, harsh and disturbing. Several senior lawyers and former judges have written to the CJI expressing their "deep distress" and "agony" at the remarks, which were issued without putting the parties to notice, and sought for a suo moto clarification.

    From 'Modern Day Neros' To 'Mere State Inaction Not Conspiracy' : Supreme Court's Comments On Gujarat Govt In Riots Cases

    A similar pattern was followed in the petition seeking independent probe into alleged extra-judicial killings of tribals in Chattisgarh in 2009 by security forces(Himanshu Kumar vs Union of India). While dismissing the petition, a bench led by Justice Khanwilkar imposed a cost of Rs 5 lakhs on the petitioner Himanshu Kumar(the judgment was authored by Justice Pardiwala). The Court also left it open to the State of Chattisgarh or the CBI to proceed against the petitioners for instituting false proceedings.

    The Zakia Jafri and Himanshu Kumar cases create chilling precedents exposing activists, who invoke judicial proceedings to question State actions, to criminal prosecution because they failed to establish their case.

    Justice Khanwilkar was quite prolific in delivering verdicts and there are several judgments of his in regular litigation matters. However, when it came to the exercise of judicial review and protection of fundamental rights, Justice Khanwilkar displayed a narrow and technical approach. An unbridled deference to the executive and disdain for civil society activism can be seen in some of his judgments (Central Vista, FCRA, Zakia Jafri cases). His unwillingness to apply the new developments in fundamental rights jurisprudence, such as doctrine of proportionality and the expansive meaning given to Article 21, to test the validity of the coercive powers of the State is astounding. Interestingly, in the Maharashtra assembly case, while quashing the suspension of 12 BJP MLAs beyond the session as disproportionate, Justice Khanwilkar's judgment held that the sweep of Article 21 is expansive enough to apply to the suspension of an MLA. However such an expansive approach with regard to Article 21 was not adopted when questions related to a citizen's personal liberty directly arose, such as the cases challenging PMLA provisions in which Justice Khanwilkar's judgment followed the AK-Gopalan era conception of Article 21. An outdated and statist approach which disempowers the citizen and dilutes the checks on executive powers will be the contribution of Justice Khanwilkar to fundamental rights jurisprudence.

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