Spotlight On Recent Appointments To The Supreme Court - Justice Aravind Kumar

A general criticism of the Indian Courts has been that very little is known to the public about the judges being recommended by respective Collegium before their appointment, on merit and suitability. A designated Secretariat ideally should do the job, unfortunately we don’t have such a mechanism. Livelaw has taken an initiative to share relevant information about the appointees and we are starting with the appointments to the Apex Court. The focus is to shed light on some of their significant high court judgments.

We traced the judicial career of Justice Pankaj Mithal in Part 1 and of Justice Dipankar Datta in Part II. In Part III, we offered a glimpse into the judicial philosophy of Justice Sanjay Karol. In Part IV, we offered some of the highlights of Justice P.V. Sanjay Kumar’s judicial pronouncements during his tenures as a High Court Judge and as the Chief Justice of the Manipur High Court. In Part V, we surveyed some of the key judgments delivered by Justice Ahsanuddin Amanullah, during his career as a Judge of the Patna and Andhra Pradesh High Courts. In Part VI, we offered a peek into the judicial philosophy of Justice Manoj Misra. In Part VII, we brought to light the jurisprudence of Justice Rajesh Bindal, who served four High Courts, before his elevation to the Supreme Court.

In this concluding part, we trace the judicial career of Justice Aravind Kumar, which seems to have persuaded the majority in Supreme Court Collegium to recommend him overlooking his lack of seniority over other eligible and suitable candidates in the consideration zone.

Background

Justice Aravind Kumar was enrolled in 1987 as Advocate and was appearing in Civil Courts, Magistrate Courts, Appellate Tribunals for about four years and shifted practice to High Court. He was appointed as Additional Central Government Standing Counsel at High Court of Karnataka in 1999.

He was appointed as Member of Regional Direct Taxes Advisory Committee in 2002. He had also been practising on taxation side. He was appointed as Standing Counsel for Income Tax Department. He served as Assistant Solicitor General of India in 2005.

He was legal advisor to various statutory corporations and companies and had been appointed as Special Public Prosecutor for CBI.

He was elevated as Additional Judge, Karnataka High Court on June 26, 2009 and as permanent Judge on December 7, 2012.

He was appointed as Chief Justice of Gujarat High Court on October 13, 2021.

Dissent in Supreme Court’s three-member Collegium

He was elevated as Judge of the Supreme Court on February 13 this year. The Supreme Court Collegium’s Resolution says that he stood at S. No.26 in the combined All-India-seniority of High Court Judges at the time of recommendation. The Collegium noted that in the seniority of Judges hailing from the Karnataka High Court, he stood at S. No.2 and that at present, the Bench of the Supreme Court is represented by two Judges from the Karnataka High Court, namely, Justices A.S.Bopanna and B.V.Nagarathna.

The Resolution specifically discloses that in regard to Justice Aravind Kumar’s appointment, Justice K.M.Joseph, a member of the Collegium, had expressed his reservations on the ground that his name could be considered at a later stage. Justice Joseph’s dissent, however, could not prevail over the majority view held by the other two members of the collegium, namely, the Chief Justice of India, D.Y.Chandrachud and Justice Sanjay Kishan Kaul.

The Resolution claims that while recommending Justice Rajesh Bindal’s and Justice Aravind Kumar’s names, the Collegium considered the following aspects:

1. The seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as overall seniority of the High Court Judges;
2. The merit, performance and integrity of the judges under consideration; and
3. The need to ensure diversity and inclusion in the Supreme Court by:

(i) representation of High Courts which are not represented or are inadequately represented, in the Supreme Court;

(ii) appointing persons from marginalized and backward segments of society;

(iii) gender diversity; and

(iv) representation of minorities

It is not clear how the Collegium’s majority justified the recommendation to elevate Justice Aravind Kumar under any of these aspects. By expressing that Justice Aravind Kumar’s elevation could be considered at a later stage, Justice Joseph has clearly implied that his lack of seniority in the All-India-seniority of High Court Judges went against him. Justice Joseph might have also felt that with the senior Judge from Karnataka, Justice Bopanna retiring on May 19 next year, there is no urgency to fill the probable vacancy arising from his retirement in the middle of next year.

Justice Aravind Kumar is slated to retire on July 13, 2027, after a tenure of four years and five months.

Livelaw puts together some of the judgments authored by Justice Aravind Kumar as a judge of the Karnataka High Court and later as Chief Justice of the Gujarat High Court to throw light on his judicial career.

Preventive Detention: High Court’s stay vacated

In Nimmy Shetty v State of Karnataka, on June 4, 2021, there was an order of detention against the petitioner under Goonda Act. The Commissioner of Police noted the cases pending against the petitioner and arrived at subjective satisfaction that in order to prevent the detenue from indulging in gambling activities and acting in any manner prejudicial to the maintenance of public order, it was necessary to pass an order against the detenue. It was contended by the state that the detenu has a remedy of appearing before the Advisory Board and submit a representation and in the event of any order adverse to his interest is passed, challenging the same, he could file a writ petition before the court. The order of detention was challenged by the wife of the detenue after the order of detention was passed and served on him.

Justice Aravind Kumar held that the power to be exercised by an authority for passing an order of preventive detention would have to be with greatest care and caution and it is solemn duty of the constitutional courts to ensure that such power is neither abused or misused. He added that when a challenge can be laid to the order of detention even at the pre-arrest stage, it cannot be gainsaid by the State and its instrumentalities that post-arrest, order of detention cannot be challenged. However, he held that exercise of such jurisdiction by the court would be in the rarest of rare circumstances for reasons more than one.

Justice Aravind Kumar also added that under Article 22(5), the detenu’s representation is required to be considered expeditiously, as otherwise sub-article (5) of Article 22 would be rendered nugatory. Secondly, the detenue has a right to submit representation before the Advisory Board, which is required to be considered by said Board irrespective of fact whether representation of a detenue had been considered by the State Government or not. In this case, in view of the stay order by the High Court, the state government did not constitute the Advisory Board. The state government, as a result, did not consider or forward the representation received by the detenue to the Board.

Justice Aravind Kumar reasoned that the court cannot usurp the powers of the state as otherwise Section 15 of the Goonda Act would become otiose. Therefore, he vacated the interim order of stay of the High Court on the detention of the petitioner. He also rejected the petitioner’s plea to construe the stay as an unconditional bail order.

On June 28, 2021, a three-Judge bench of the Supreme Court, however, set aside the High Court’s June 4, 2021 order, without issuing formal notice to the state. Meanwhile, the competent authority had rejected the petitioner’s representation on June 7, 2021. The High Court had refused to interfere because this representation was pending consideration by the authority. The Supreme Court restored the petitioner’s writ petition before the High Court, and directed it to consider it afresh. The Supreme Court, however, agreed with the High Court that the stay order given in favour of the petitioner on May 5, 2021 was uncalled for.

Contempt of Court

In Suo Motu v Anand H.Goswami, the bench of the Chief Justice Aravind Kumar and Justice A.J.Shastri held that the hostile criticism of judges and unwarranted attack on a Judge or a Court by means of submitting representations/complaints would amount to scandalising the Courts within the meaning of Section 2(c) of Contempt of Courts Act, 1971. The bench held that the defamatory language used by the respondent, who was an undertrial prisoner in 2013, against a Judge of the High Court was with an intention and object to scandalise the Court and such acts would be falling within the meaning of definition of Section 2(c) of the Contempt of Courts Act, 1971. The bench alleged that the respondent tried to interfere with and obstruct the administration of justice and and his acts were punishable under Sections 11 and 12 of the Contempt of Courts Act. By taking cognizance of the acts of the respondent, allegedly committed in 2013, the bench directed that he be tried on the said charge. The case is still pending before the High Court, as the respondent appears to be aggrieved with the lack of effective legal assistance.

Public Interest Litigation cases

In Jhalabhai Revabhai Satiya (Bharwad) v State of Gujarat, the petitioner claimed that on account of expansion of Vadodara city, the Maldhari community - which earns its livelihood through milk vending business by having their cattle - has lost the land where the cattle were being kept, and on account of lack of funds to own more lands to accommodate the cattle, they are being kept in nearby lands for grazing and feeding purposes. The petitioner, therefore, sought directions to the state to provide the gauchar land to the community in the limit of Vadodara municipal corporation for grassing of cattle.

The bench of the Chief Justice Aravind Kumar and Justice A.J.Shastri dismissed the petition saying there is a responsibility cast on the owners of the cattle to tither their cattle in the cattle shed and not to allow them to graze elsewhere like leaving them in the city on roads. The bench also held that it could not be gainsaid by the owners of the cattle that registration of cattle was onerous or payment of fine by those whose cattle were seized was not called for. Reserving the liberty to the petitioner to submit their representation to the municipal authorities, if so advised for redressing their grievances, the bench disposed of the petition.

In Nikunj Jayantilal Mevada v The State of Gujarat, decided on January 31 this year, the petitioner sought directions to private health care providers to provide medical aid and primary treatment to any pregnant woman in extreme labour pain or in medical emergency to any human being. Several recent incidents of medical negligence, as reported in the media, were cited to buttress the plea of the petitioner.

In order to ensure that such incidents do not reoccur and as to how incidents reported in the print and electronic media as narrated by the petitioner had occurred, the bench constituted a committee headed by a former Judge of the High Court, Justice Harsha Devani, and assisted by two lady officers so as to unearth actual truth to enable the Court to pass further orders and for suggesting remedial measures being taken by the State and its instrumentalities.

The bench directed the committee to submit its report in a sealed cover within eight weeks from the date of receipt of this order. The bench requested senior counsel, Asim Pandya, to assist the Court as Amicus Curiae in this case.

In Tushar Arun Gandhi v State of Gujarat, the petitioner contended that the proposed project for the redevelopment of Gandhi Ashram Memorial was opposed to the wishes and bequest of Mahatma Gandhi, and it would reduce the shrine and memorial of the freedom movement into a commercial tourist attraction. He sought a writ of mandamus that redevelopment should be spearheaded by the Trusts who presently run the Ashram.

The High Court initially disposed of the petition on November 25, 2021 without calling for an affidavit-in-reply from the Gujarat Government. In Civil Appeal No.2660 of 2022, the Supreme Court restored the petition for being disposed of by observing that a fresh view be taken after allowing the pleadings to be completed and hearing of the parties.

The bench held that the petitioner’s apprehension stood allayed by the state government’s claim that the existing Gandhi Ashram located in an area of five acres would not be disturbed or altered and/or changed. The bench held that the proposed project would not only promote the ideas and philosophy of Mahatma Gandhi, but serve the benefit of society and mankind at large.

In Bandhkaam Mazdoor Sangathan v State of Gujarat, the bench of the Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri, dismissed the petition filed by a trade union working for human rights, seeking the rehabilitation and resettlement of slum dwellers and restraint on authorities from evicting the dwellers from the slum colony in pursuit of the construction of Ahmedabad-Mumbai bullet train. There were 350 slum dwellers residing in the concerned colony for 30 years.

The bench held that the Railway Act granted the railway administration the absolute right to remove the encroachment or illegal activity on railway land. The bench observed that the land on which the dwellers were residing was not the ‘affected area’, and therefore, they could not get relief under the Resettlement and Rehabilitation policy, which defines an “affected family”.

In this case, the slum dwellers had moved in again after their dwellings were demolished in 2018. Relying on a previous judgment of the High Court, the bench held:

“Mere long possession, over public land by way of encroachment by itself, is not sufficient to say that the encroachers are not liable to be evicted as they have a right to shelter. The right to shelter and encroachment are two different facets”.

The bench added that it was for the court to decide in exercise of its constitutional powers whether the deprivation of life or personal liberty is by procedure, which is just, fair and reasonable or otherwise.

In Nileshbhai Narayanbhai Mistry v State of Gujarat, the petitioner sought strict action against all persons responsible for encroachment on public plots. The bench held in this case that belated exercise of extraordinary jurisdiction by the High Court would unsettle the settled things. Even if there were circumstances where there is delay, it would be incumbent upon the writ applicant to prima facie establish that there was no delay and if there is delay, there was sufficient cause for such delay and there are no third party rights which has intervened during the interregnum, the bench held.

In B.Mallesh and Others v The State of Karnataka, decided on July 23, 2021, the bench of Justices Aravind Kumar and Neranahalli Srinivasan Sanjay Gowda quashed a state government’s notification declaring the Gram Panchayat area of Vemagal and Kurugal, Kolar District including the Purahalli Village of Shettihalli Gram Panchayat and Kalva, Manjali, Chikkavallabhi and Bettahosapura villages of Chowdenahalli Grama Panchayat of Kolar Taluk, Kolar District, as transitional area. The petitioners had argued that 90 percent of Kurugal Panchayat were agriculturists and having lands, dairy, silk and dependent on this for their livelihood. If Kurugal Panchayat is declared as a transitional area along with Vemagal, people residing in Kurugal Panchayat would lose benefits they were getting earlier, it was contended.

The bench cited section 9 of the Karnataka Municipalities Act, 1964, which indicates that before publication of any notification declaring any local area to be smaller urban area or altering limits of any such smaller urban area, the Governor should cause publication of a proclamation in the Official Gazette in English and Kannada requiring all persons who entertain any objection to the said proposal to submit the same to the Director of Municipal Administration within 30 days from the date of such proclamation. No such notification would be issued by the Governor unless the objections, if any, so submitted are in his opinion, insufficient or invalid. The objections so received by the Director of Municipal Administration for the proclamation have to be forwarded to the Governor.

The bench noted that in the submission note placed before the Governor, no reason was assigned as to why said objections were to be overruled, or why they were insufficient or invalid. The consideration of objections by the Governor is not discernible from the file or submission note and there is no material available to hold that on the basis of submission note, the Governor has recorded his subjective satisfaction, the bench held.

Commuting death sentence

The bench of Justice Aravind Kumar and Justice Pradeep Singh Yerur had observed in B.A. Umesh v Union of India, on September 29, 2021 that the court can’t set an outer time limit for exercise of Executive power of pardon, and thus refused to commute the death sentence on the ground that the President had rejected the convict’s mercy petition after alleged delay of over two years.

“There is no standard benchmark on the appropriate length of delay which entitles a convict to seek reduction of penalty from death sentence to life imprisonment. It is not possible for the Courts to set an outer time limit for quick exercise of executive power of pardon when the Constitution itself does not place any such limits”, the bench held.

However, the bench ignored the fact that the convict petitioner was kept in solitary confinement for about 11 years, and that the letter written by the Medical Officer was quite clear that because of the psychological condition, the petitioner was unable to make any mercy petition.

The Supreme Court’s three-judge bench, however, held in this case that medical condition is a relevant supervening circumstance of the confirmation of death sentence. The bench, on November 4 last year, commuted the death sentence imposed on the convict, to minimum 30 years’ imprisonment. The bench, like the High Court, did not agree that the delay of two years and three months in considering his mercy petition by the Executive was “inordinate”.