New Delhi: Former Supreme Court judge, Justice A.M. Khanwilkar, has been appointed as the Lokpal chairperson, one and half years after he retired from the apex court.
Justice Khanwilkar retired from the Supreme Court in July 2022. His appointment came a day ago, on February 27, 2024.
The Rashtrapati Bhavan has also announced the appointment of former high court judges Lingappa Narayana Swamy, Sanjay Yadav and Ritu Raj Awasthi as judicial members of the Lokpal.
Non-judicial members Sushil Chandra, Pankaj Kumar and Ajay Tirkey were also appointed.
Justice Khanwilkar’s appointment continues the controversial tradition of top post-retirement positions going to judges of the highest court of the country after retirement.
The Narendra Modi government nominated former Chief Justice Ranjan Gogoi to the Rajya Sabha barely four months after he retired as CJI from the Supreme Court. Justice Ashok Bhushan, who retired in July 2021 was made head of the National Company Law Appellate Tribunal later that year – he attended the Ram temple consecration ceremony earlier this year. In 2021, the Modi government proposed the name of controversial former Supreme Court judge, Arun Kumar Mishra, as the chairperson of the National Human Rights Commission. In 2023, President Droupadi Murmu appointed former Supreme Court judge Justice S. Abdul Nazeer as the governor of Andhra Pradesh four months after he retired.
Justice Khanwilkar has authored key judgments with wide-ranging impact on the Narendra Modi government’s decisions.
377, Aadhaar, Sabarimala
In 2018, Justice Khanwilkar had been part of the five-judge constitution bench headed by Chief Justice Dipak Misra and also comprising Justices Rohinton Fali Nariman, D.Y. Chandrachud and Indu Malhotra, that decriminalised homosexuality.
In the same year, 2018, a bench with Justice Khanwilkar in it upheld the constitutional validity of the Aadhaar Act. The majority opinion, authored by Justice Sikri was on behalf of then CJI Misra and Justice Khanwilkar. The petitioners had said that the exercise infringed upon the right to privacy of citizens, something that the court did not agree with. Since then, Aadhaar frauds have frequently made news and the government has issued guidelines which appear to have little effect.
Justice Khanwilkar was also part of the Supreme Court bench which in 2018 allowed entry of women into the Sabarimala temple in Kerala, saying that banning women’s entry into the shrine is gender discrimination and the practice violates rights of Hindu women.
Gujarat riots
Justice Khanwilkar was part of the bench in 2022 that dismissed a plea of Zakia Jafri, the wife of slain MP Ehsan Jafri, challenging the Special Investigation Team’s (SIT) clean chit to 64 people, including then chief minister Narendra Modi, in the 2002 Gujarat riots case. On the basis of the Supreme Court’s verdict, the Gujarat Police had on the following day, arrested activist Teesta Setalvad and former IPS officer R. B. Sreekumar on charges of fabricating evidence linked to the riots.
“By arresting and detaining Teesta and constituting an SIT apparently to investigate a conspiracy to malign the state of Gujarat and some other issues, I wonder who is keeping the pot boiling,” former Supreme Court judge, Justice Madan Lokur had written on the controversial order.
FCRA, PMLA, UAPA
In 2022, Justice Khanwilkar, heading a three-judge bench, upheld the Foreign Contribution (Regulation) Amendment Act, 2020. The Act was introduced to regulate NGOs’ access to foreign donors. The Modi government has frequently stripped organisations critical of it off its FCRA licences.
In the same year, two days before his retirement, Justice Khanwilkar delivered a judgment that give enormous powers to the Enforcement Directorate under the Prevention of Money Laundering Act – often believed to be the Narendra Modi government’s central agency of choice in the alleged intimidation of opposition leaders and activists. The court said Section 19 that deals with the power to arrest does not suffer from the “vice of arbitrariness” and that Section 5 of the Act relating to the attachment of property of those involved in money laundering is constitutionally valid. The apex court also said the supply of Enforcement Case Information Report (ECIR) in every case to the person concerned is not mandatory. The ECIR is the ED’s equivalent of a police FIR.
Finally, legal scholar Gautam Bhatia had noted that no discussion of Justice Khanwilkar’s legacy can not include the 2019 judgment in National Investigation Agency vs Zahoor Ahmad Shah Watali.
The case involved the interpretation of Section 43(D)(5) of the Unlawful Activities Prevention Act, which bars the grant of bail if it appears that the police version (through the case diary or the chargesheet) against the accused is, on the face of it, true.
In Bhatia’s words:
In Watali, Justice Khanwilkar barred all courts from “examining” or “dissecting” the evidence, he effectively made the grant of bail in UAPA cases borderline impossible. As Sekhri wrote at the time, he “actively chose a legal position that makes lengthy undertrial detention more likely.”
