Supreme Court judge Justice A.M. Khanwilkar retired today, July 29.
My blog has a long-standing tradition of assessing the judicial legacies of Chief Justices of India, upon their retirement (see here, here, and here). This tradition has hitherto been limited to Chief Justices, because of the sway that they exercise upon the Supreme Court as “master(s) of the roster”, and because during their tenures, they tend to hear significant constitutional cases themselves.
Last year, an exception was made upon the retirement of Justice R.F. Nariman, for reasons explained in this blog post.
Today, the retirement of Justice A.M. Khanwilkar requires, I believe, a second exception. One reason for this is that during the course of his career (as we shall see in this post), Justice Khanwilkar has written some of the most consequential judgments concerning State power and the rights of the individual. But secondly – and more importantly – when you study these judgments together, you glimpse a certain judicial philosophy – such as it is – at work. This judicial philosophy – subject to a few important exceptions – is, I believe, largely representative of the Supreme Court today (which also perhaps explains why, across Chief Justices, these kinds of cases have been regularly assigned to Justice Khanwilkar, one of its most forceful proponents).
What is this philosophy? In my earlier analysis of Justice Khanwilkar’s judgment in the FCRA case (also discussed below) I had compared it to the Peruvian President Óscar R. Benavides famous line, “for my friends, anything; for my enemies, the law.” In a similar vein, the common thread running through Justice Khanwilkar’s constitutional law judgments is: “for the State, anything; for the individual, the law“: it is the philosophy not just of the executive court, but of the executive(‘s) court.
Before we begin, a final point, by way of caveat: it is almost trite to say that I do not agree with the outcomes of the cases that I discuss below. I have criticised some of these judgments when they were delivered, and in the Central Vista case (that I flag, but do not discuss), I was one of (many) arguing counsel on the losing side. My analysis below, however, is not founded simply upon the fact of disagreement with the outcome, or of dislike of these judgments. Regardless of my predilections, I believe that these judgments reveal something important, both about Justice Khanwilkar’s judicial career, and about the contemporary Supreme Court, which is important to articulate and to discuss. This piece should be read in that spirit.
Watali: Taking a Sledgehammer to Personal Liberty
Any discussion of Justice Khanwilkar’s legacy must begin with 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 [“UAPA”], India’s umbrella anti-terrorism statute. Section 43(D)(5) prohibits a Court from granting bail to an accused if “on a perusal of the case diary or the report made under Section 173 of the [Criminal Procedure] Code, [the Court] is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In layperson’s language, Section 43(D)(5) 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.
Watali was an appeal by the National Investigation Agency (NIA) against an order of the Delhi high court. In that order, the Delhi HC had granted bail to Watali (the accused), under Section 43(D)(5) of the UAPA. The high court took into account the (uncontroversial) legal proposition that “as far as the statutes concerning serious offences inviting grave consequences are invoked, the trial Court will scrutinize the material with extra care.” The court’s job was not to proceed simply on the basis of the statements made by the investigative agency, and nor to act as a “post-office” for the state. On this basis, the high court subjected the police version – according to which Watali was involved in terror funding – to rigorous scrutiny. It found that many of the witness statements were inadmissible under the law of evidence, that the documents purporting to originate from the accused were neither signed by him and nor on his letterhead, and that other documents were entirely innocuous, and consistent with his position as a prominent Kashmiri businessman. On this basis, the court found that at that point, the police version was speculative, and there was no ground for denying bail to the accused.
Illustration: UAPA Media Collective
When the case came up in appeal, the Supreme Court – in a judgment authored by Justice Khanwilkar – overturned the high court’s order, and put Watali back in jail (he stayed in jail – awaiting trial – for three more years, until in February 2022, he was moved to house arrest because of a terminal disease). Crucially, Justice Khanwilkar’s problem with the high court was not that it had incorrectly appreciated the facts of the case. Rather, it was that the high court had applied the wrong legal standard altogether, and that the true role of the court under Section 43(D)(5) of the UAPA was, effectively, to act like a post office.
He noted that while examining the question of bail, “elaborate examination or dissection of the evidence is not required to be done”, and that furthermore, to reject inadmissible statements at the stage of bail was akin to entering into the “merits and demerits of the case.” Instead, the Court was to form a view based on the “broad probabilities” flowing from all the materials supplied by the police.
The judgment in Watali was criticised at the time as being incorrect (see, e.g., Abhinav Sekhri’s blog post), and I do not intend to traverse covered ground once again. It is worthwhile, however, to recall once again just what it did. As is well known, at the time of bail, the defence cannot present its own arguments, put forward its own witnesses, or cross-examine the prosecution’s witnesses. It has no real way to effectively contest the state’s case. All that is for the stage of trial. At the time of bail, all the court can look at – and all that the defence can point to – is the state’s version of events. Thus, when Section 43(D)(5) prohibits the court from granting bail if “there are reasonable grounds for believing … that the accusation is prima facie true”, everything turns upon how closely and deeply the court is authorised to examine the state’s version, on its own terms – for internal consistency, for plausibility, for whether the state is relying on materials that would even be admissible at trial (such as hearsay statements) – to come to its prima facie conclusion.
And when, 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.”
The asymmetry in power is glaring. UAPA trials in India take years – decades – to complete. If the grant of bail is made borderline impossible, then all the police are required to do is to slap the UAPA onto a chargesheet, and an individual will be condemned to years – or decades – in jail without trial. The chargesheet and the materials need not be persuasive, need not be internally coherent, and in addition to all this, may even rely on plainly inadmissible material (as in Umar Khalid’s case): all that ceased to matter once, in Watali, Justice Khanwilkar turned all courts into stenographers for the Prosecution, while attaching dumbbells to the feet of the Defence and throwing it into the river to swim or sink.
Also read: Stenographer for the Prosecution: Unpacking the Order Denying Bail to Umar Khalid
In this sense, Sekhri’s 2019 warning has turned out to be prescient: “it is hard to conceive of outcomes which are anything but fearsome. The decision could make the UAPA an even more attractive tool to law enforcement agencies now that getting bail is harder…” We now know that this is exactly what has happened: the UAPA is the foremost tool of political repression in India, and Watali has become the chant that almost all Courts (barring a few) invoke to justify keeping people in jail for years without trial.
PMLA: Taking another Sledgehammer to Personal Liberty
If the UAPA is the executive’s weapon of choice to keep inconvenient individuals in jail for years without trial, the Prevention of Money Laundering Act (PMLA) is its political weapon. By now, every Indian knows about the “Enforcement Directorate” – or, as it is commonly known by its abbreviation – the “ED”. The eyeball impression that the ED is used to overwhelmingly to jail political opponents without trial, has been confirmed in this detailed analysis; that the purpose is jail without trial is borne out by the fact that while the number of PMLA cases filed by the ED has risen by eight times over the last eight years, the conviction rate under the law is under 1% – a statistic that should send alarm bell ringings for everyone (other than, it seems, the Supreme Court).
Amendments to the PMLA – passed in 2019 – which made the legal regime more draconian, were challenged before the Supreme Court. On 27 July – two days before his retirement – a three-judge bench led by Justice Khanwilkar delivered judgment, upholding all the provisions under challenge (see here and here).
A similarly exhaustive analysis of the judgment is not the subject of this post. However, its underlying philosophy is simple enough: while in every sense the officials of the ED act like the police – as coercive appendages of the state, and in the power that they hold over citizens – the court liberated them from following the minimal procedural constraints under the Code of Criminal Procedure that do apply to the police.
For instance, the court exempted the police from sharing the equivalent of the police’s First Information Report – the ECIR – with the accused, noting that communicating the “grounds” was enough; the court held that as an ED summons was not an “arrest” (even though functionally indistinguishable from it), the constitutional right against self-incrimination doesn’t apply to statements made under ED questioning; that because ED officials weren’t “police officers” (even though functionally indistinguishable from them), confessions made to them were admissible in evidence (even though the whole purpose of making confessions to the police inadmissible was the fear of coercion); and that because the ED wasn’t a police force (even though functionally indistinguishable from one), the procedures that it followed (the “ED manual”) wasn’t required to be made public, but could remain an “internal document.”
If all of this sounds somewhat reminiscent of the Stasi, it is because it is rather reminiscent of the Stasi (or, in Pratap Bhanu Mehta’s words, “Kafka’s Law“).
The effect of the judgment is clear: it is the sanctioning of a state-controlled, coercive militia, exempt from the basic principles of due process and the rule of law. To this heady cocktail, the court added further, dangerous mixes: it upheld a bail requirement even harsher than section 43(D)(5) of the UAPA, and which the Supreme Court had itself struck down four years before (Justice Khanwilkar overruled precedent, simply to ensure that bail would become almost impossible under the PMLA), and upheld the “reverse burden” clause – i.e., that under the PMLA, the burden was on the individual to prove their innocence, and not on the state to prove guilt.
Photo: Wikimedia Commons
And finally, to expand the scope of the PMLA, Justice Khanwilkar went further: Section 3 of the Act stipulates that “whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.” In other words, for the PMLA to be attracted, two conditions had to be satisfied: involvement (whether intentional or unintentional) in connection with proceeds of crime, and the (definitely) intentional “projecting” or “claiming” it as untainted property. Justice Khanwilkar held, however, that actually, the word “and” meant “or” (just like “day” means “night”), and that therefore, simply being in possession of “tainted” property was enough for guilt under the PMLA.
When you now combine this with the reverse burden clause (that under the PMLA, the individual is guilty until proven innocent), and Justice Khanwilkar’s finding that any criminal offence could be brought under the PMLA (thus effectively making the CrPC wholly redundant), the effects of this judicial rewriting exercise are terrifying.
They also exacerbate and worsen the already wide definition of tainted property under the PMLA, which effectively covers just about everything (and makes just about everything subject to attachment orders (see here), financially crippling someone under PMLA scrutiny; note that Justice Khanwilkar also held that property can be attached right from the beginning of PMLA proceedings).
But there are three things really of importance here. The first is that the re-worded section makes no grammatical sense (try reading it aloud and see for yourself). The second is that this interpretation turns basic criminal law principles on its head: because criminal legal statutes are coercive, and impose jail time on people, there is a time-honoured, well-worn principle in criminal law that they are to be read strictly and narrowly. In Justice Khanwilkar’s judicial philosophy of “for the State, everything; for individuals, the law”, however, every canon of interpretation is upside down, and nobody is safe from arbitrary state action; and finally, of course, to accomplish this task, he had to rewrite the section, taking the word that existed and replacing it with its opposite.
I have previously referred to this as “Humpty Dumpty jurisprudence“, where the court – like Humpty Dumpty in Alice Through The Looking Glass – decides that words mean what it decides them to mean, just because it can:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
In his analysis of the judgment, Abhinav Sekhri points out that there was material on record to show that while drafting Section 3, the legislature had made a genuine error, and used the word “and” while it meant to use the word “or”. However, when it comes to criminal law, it is most certainly not the court’s job to save the legislature from the consequences of its own incompetence (especially when the same leniency is hardly accorded to the individual!): the whole point of the doctrine of reading criminal statutes literally, narrowly, and strictly is that, given the differences in power between the State and the individual, the reach of the criminal law is not to be expanded any further than what the words can bear. It is that principle that is Justice Khanwilkar entirely forsook in rewriting Section 3.
Let us take a step back, and sum up. When we look at the judgment in a broader context, it is important to keep in mind Sekhri’s observation that not all of this is entirely new. In many respects, the PMLA judgment is a continuation of the Indian Supreme Court’s long-standing tradition of expanding the state’s coercive powers and erasing the procedural safeguards that the law extends to individuals.
In the PMLA context, however, the statute’s provisions magnify that substantially. But the PMLA judgment is perhaps unique in that it brings all of those judicial predilections together, in one case – what Sekhri calls a “greatest hits” video, and to which we can add: the band is the Supreme Court and the “hits” are direct hits to our constitutional rights: in sum, Justice Khanwilkar rewrote a criminal statute to substantially widen its ambit; authorised the state to bring any offence within that ambit; upheld the reverse burden of proof within that widened ambit; deprived individuals of their procedural and constitutional rights within that widened ambit; made the grant of bail almost impossible within that widened ambit; and exempted the state authorities from any effective constraints, once they began to operate within that widened ambit. When you put all of these together, what emerges is the classic definition of a lawless law, blessed by the executive’s court.
Noel Harper: Taking a Hatchet to the Freedom of Association
In April 2022, Justice Khanwilkar wrote a judgment upholding various amendments to the Foreign Contributions (Regulation) Act of 2022. Elsewhere, I have analysed this judgment at some length, and pointed out how the court accorded its imprimatur to a set of provisions that had turned India’s NGO regulation law into a Russian-style legislation that effectively made the work of most NGOs either impossible, or prohibitively difficult. A few salient points stand out from this judgment.
First, at the time of hearing Noel Harper, there were challenges to the FCRA pending in high courts. Noel Harper itself was a limited challenge to one set of restrictions. Now, ordinarily, the Supreme Court is quick to talk about how the high courts should not be bypassed; however, it seems that all that rhetoric ceases to matter when legislation that the political executive really cares about is at stake. Here, the Justice Khanwilkar-led bench could not wait to bypass those same high courts, and hear and decide all questions about the constitutional validity of the FCRA, thus effectively depriving the high courts from hearing the cases before them.
Secondly, the judgment in Noel Harper applied differential standards to the state and to the petitioners, where the state’s factual claims (contrary to the prevailing legal standard of proportionality) were taken as true without any scrutiny, whereas the petitioners’ claims – and bona fides – were taken with the highest level of mistrust. In my post analysing the judgment, I wrote that:
The Court begins by framing the issue in a way that is most favourable for the State, and least favourable for the citizen. Having framed the question thus, it then goes on to accept the State’s factual claims at face value, but does not extend the same courtesy to the citizen. Having done that, it then applies those parts of existing legal doctrine that favour the State, and ignores – or misrepresents – those parts that protect the rights of citizens. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review.
Indeed, this is a thread that runs throughout Justice Khanwilkar’s judgments, and for a more elaborate articulation in this case, interested readers may consult the above blog post as a whole.
However, the most glaring aspect of Justice Khanwilkar’s judgment (other than its impact on the freedom of association) – is that he explicitly and unashamedly framed its arguments in ideological terms, and this ideology was evidently the ideology of the political executive. Lines from the judgment include:
“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”; and
“There is no dearth of donors within our country.”
These are familiar lines. These are lines that we hear from the mouths of authoritarian leaders across the world, when they justify clamping down on civil society, and in particular, on NGOs. None of these words have anything to do with the law, legal reasoning, the constitution, and the practice of constitutional adjudication. Yet here they are, serving as the articulated major premise of a constitutional court judgment that is supposedly about whether restrictions upon the freedom of association – achieved via choking off funds to NGOs – are reasonable or not. But as we have seen, that is not really what this judgment is about: what this judgment is really about is giving formal judicial imprimatur to some of the more extreme and prejudicial rhetoric of the political executive, giving a dressing down to citizens who have the temerity to want to raise funds for NGO work, and telling them to be “resolute and firm” if they want to have rights.
This is the language not just of the executive court, but of the executive(‘s) court.
Teesta Setalvad and Himanshu Kumar: Taking a Dagger to Article 32
The language of the executive’s court is present most starkly in Justice Khanwilkar’s notorious opinion in the Zakia Jafri case.
Once again, it is not my task here to examine the correctness of the judgment in refusing to set aside the SIT report that had found that there was no controversy at high governmental levels during the horrendous 2002 Gujarat Riots (interested readers may refer to Nizam Pasha’s analysis of the judgment, here; see also the discussion in Episode 2 of the ConCast, with Abhinav Sekhri, on the criminal legal standards applied – or not applied – by the Court). For the purpose of argument, let us say that the Court found – as was its prerogative to find – that the petitioners had failed to provide adequate evidence to dislodge the SIT’s findings of no political conspiracy, and that therefore, the writ petition had to be dismissed.
Also read: Condemned by Innuendo: Some Questions on the SC Order That Led to Teesta Setalvad’s Arrest
But that is not the only thing that Justice Khanwilkar did. First, he spent some time in the judgment lavishing fulsome praise on the executive authorities (“indefatigable work”) – something particularly embarrassing, coming from a constitutional court, in a case involving large-scale riots. Most seriously, however, he then went on to note that this case was the result of a “coalesced effort by disgruntled officials”, that those who had brought the present proceedings “had the audacity to question the integrity of every functionary … to keep the pot boiling”, and “all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”
There are a few things we need to note about these lines. The first is that in a functioning legal system, lines such as these would invite an immediate action for defamation, with heavy damages to follow. None of that, however, applies here: following the example set by Justice Khanwilkar, it seems that Supreme Court Justices, in the course of their official duties, are free to engage in character assassination, insinuations, and personal attacks, without being called upon to provide a shred of evidence for the same. Forget evidence, the Supreme Court did not even accord the petitioners the courtesy of a hearing on this point before damning them through its judgment. Needless to say, at the next available opportunity – judicial or extra-judicial – the same Supreme Court is likely to issue moral lectures on the principles of natural justice.
But what followed is even more alarming. The day after these “observations”, Teesta Setalvad – petitioner no. 2 in this case – was arrested by the Gujarat Police. The paragraph of the Supreme Court judgment that I have extracted above was the literal basis of this arrest: it was cited in the FIR. In other words, the Supreme Court – through Justice Khanwilkar – by making statements such as “all those involved in such abuse of process need to be in the dock” laid the groundwork for an arrest that State authorities followed up on within hours. And this arrest – it is important to note – was on the basis of a judgment in a case filed under Article 32 of the constitution, which guarantees the right to move the Supreme Court for the enforcement of rights; in other words, the petitioner in a case filed against alleged State impunity, before the Supreme Court, was arrested by the State, based on the judgment of the Supreme Court.
At the time of writing, Teesta Setalvad remains in jail.
Ahmedabad: Crime branch officials produce social activist Teesta Setalvad at Metropolitan Magistrate Court, in Ahmedabad, Sunday, June 26, 2022. Photo: PTI
Perhaps you may say that this is a one-off, an aberration. Except that, a few days later, the same thing happened all over again, and once again it was Justice Khanwilkar who was the senior judge on the bench (although the actual judgment was written by a future Chief Justice of India, Justice J.B. Pardiwala). Himanshu Kumar vs State of Chhatisgarh involved a 2009 petition regarding extra-judicial encounter killings in the state of Chhattisgarh. As in Zakia Jafri’s case, this was an Article 32 petition against state impunity, seeking police accountability for a massacre of adivasis.
As in Zakia Jafri’s case, the Supreme Court dismissed the petition, and then took it upon itself to do more. First, it imposed a fine of Rs 5 lakhs on the petitioner, Himanshu Kumar. And then, as in Zakia Jafri’s case, it laid the groundwork for legal action against the petitioner. It noted that:
We leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface.
Notice, once again, the loose language used by a constitutional court in a case that involved the undisputed massacre of adivasis: that a “case of criminal conspiracy or any other offence” under the IPC “may also surface.” Without evidence. Without a hearing. Once again, this is exactly the kind of stuff that gets you cleaned out for defamation in functioning legal systems; maybe it even would in India, unless you’re the Supreme Court.
If you’re the Supreme Court – and especially if Justice Khanwilkar is on the bench – it’s open season, especially on citizens who take Ambedkar seriously when he said that Article 32 was the “heart and soul of the Constitution.”
Also read: Interview: When a Quest for Justice Was Treated Like a Crime
It is also important to note that during the pronouncement, the court only referred to the state of Chhattisgarh. The reference to the Central Bureau of Investigation (CBI) was added subsequently to the judgment, on the oral request of the Solicitor-General, after the pronouncement. Once again, you can see the attitude of the constitutional court in cases like this: just add a reference to a central investigative agency in the judgment, on the request of the Union government’s lawyer, as if it was the correction of a typographical error. What else can we call this, other than the executive(‘s) court?
These two judgments – driven by Justice Khanwilkar – mark a profoundly dangerous shift in the history of the Supreme Court. It is one thing for the court to dismiss Article 32 petitions against state impunity. However, it is quite another – and truly unprecedented – for the Supreme Court to turn upon the petitioners themselves, and pass prejudicial remarks against them that then become the basis of FIRs and jail time. In every way, this is an inversion of the rule of law, of the Constitution, and of the Supreme Court itself: from the protector and guarantor of fundamental rights, to persecutor-in-chief.
Idi Amin famously said: “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.” Likewise, through these judgments, Justice Khanwilkar has said: “I can guarantee freedom to come to court; but I cannot guarantee freedom once you’ve come to court.”
Sabarimala: The Unreasoned Volte-Face
The final case that I want to (briefly) analyse is not strictly in the same line of cases as the others, but does bear a family resemblance, in terms of significant judicial action not backed up by any reasons whatsoever.
In November 2018, a five-judge bench of the Supreme Court held that the Sabarimala Temple’s ban upon the entry of women between the ages of ten to fifty was unconstitutional. The verdict was 4 – 1. Chief Justice Dipak Misra and Justices Khanwilkar, Chandrachud, and Nariman held against the exclusion. Justice Indu Malhotra dissented. All judges except for Justice Khanwilkar wrote separate opinion; Justice Khanwilkar joined the opinion of the Chief Justice.
I do not, in this post, intend to re-litigate the correctness of the Sabarimala judgment. The point, however, is this: an application for review was filed. Recall that for the Supreme Court to review its own judgment, it is not enough to just show that the judgment under review was mistaken on law, but to show that there was an inescapable error, on the very face of the record (that phrase, prima facie, again!) – and that this has to be demonstrated before the same bench that passed the original judgment.
The Sabarimala review was heard in open court. At the time, Chief Justice Dipak Misra had retired, and had been replaced by Chief Justice Gogoi. The rest of the bench was the same.
By a 3-2 verdict, the Supreme Court decided to “refer” certain “questions” about the correctness of the Sabarimala judgment for interpretation to a larger bench (this, effectively, stayed the implementation of the judgment). Two of the judges who voted to refer were CJI Gogoi (new to the case) and Justice Malhotra (a dissenter in the original judgment). Two of the judges who dissented were Justice Chandrachud and Justice Nariman (both in the majority in the original judgment).
The tie-breaking vote was that of Justice Khanwilkar, who had been in the majority one year before, but now seemingly believed not only that the judgment that he had signed on to was arguably wrong, but so wrong – so prima facie wrong – that the threshold for review was activated.
File image of police on duty at Sabarimala temple. Photo: PTI
Can a judge change their mind about the correctness of a judgment they have signed onto? Yes, of course. We are all changeable creatures. Can a judge change their mind about the correctness of a judgment they have signed on to so much that they not only believe they were wrong, but blatantly, egregiously wrong – within a year? Perhaps.
Perhaps Justice Khanwilkar had a Damascene moment about the rights of women to enter temples. But if that is the case, is there not a minimum – a bare minimum – requirement for a judge to explain themselves? To provide reasons for a 180-degree turn? What is notable is that in neither of the two cases – Sabarimala or Sabarimala “Review” – did Justice Khanwilkar do us the courtesy of a reasoned opinion.
We do not know the reasons why he agreed with his brother, the Chief Justice, in 2018; and we do not know the reasons why he came to believe that his brother, the Chief Justice, was egregiously wrong in 2019.
Walt Whitman could well ask the rhetorical question, “Do I contradict myself?”, and expect his readers to nod knowingly when he answered, “Very well then, I contradict myself”, but that is not open to a Supreme Court Justice who, with a stroke of the pen, can extend or withdraw rights from millions of people.
Conclusion: The Executive(‘s) Court
These examples could be multiplied. One could talk about Justice Khanwilkar’s majority opinion in Romila Thapar vs Union of India – another UAPA case – where the Supreme Court turned a blind eye to obvious police misconduct in the prosecution of a case (see Abhinav Sekhri’s analysis here), and at the time of writing, the accused are still in jail without trial (can you see a trend here?); one could talk about the Central Vista judgment, where Justice Khanwilkar’s majority opinion laid down a standard of public participation, and then refused to apply it to the facts at hand; one could talk about all these, but there is little benefit in belabouring the point.
And the point is this: the cases that we have discussed involve some of the most basic and crucial civil rights in our constitution. Watali and PMLA involved the right to personal liberty; FCRA involved the right to freedom of speech and freedom of association; Zakia Jafri and Himanshu Kumar involved the right to enforce fundamental rights, and the right to seek judicial remedies against State impunity. Enforcement of these rights is at the heart of the rule of law, at the heart of what it means to be a constitutional democracy governed by the rule of law rather than by State arbitrariness. Each of these rights is a crucial bulwark between the individual and the State, and it is the task of the Court to preserve and maintain that bulwark.
However, when we look at the judgments in these cases (four out of five were authored by Justice Khanwilkar, and he was a party to the fifth), a disturbing picture emerges.
It is not simply that the state always wins, and the individual always loses; regrettably, that is a familiar story in the history of our constitutional jurisprudence, with only a few exceptions scattered on the sands of time. Rather, it is the manner in which the state wins. When it comes to the state’s claims, the state’s interests, the state’s (presented) facts, the state’s vision of the world, the court treats all this with a feather-light touch, takes everything as true, and occasionally takes the time out to praise the state and its authorities for the great job that they are doing.
On the other hand, when it comes to the individual, the court turns into the proverbial “lion under the throne”, baring its fangs and unsheathing its claws. Under this judicial philosophy, rights are nuisances, individuals are dispensable, and to approach the Court for justice is like playing a game of Russian Roulette: it’s you who might end up in jail after the dust has cleared.
And, as Justice Khanwilkar’s conduct in Sabarimala shows, none of this needs justification: it is not the exercise of reason that drives this judicial philosophy, but the exercise of raw power. The court does, because it can. And that’s about it.
This phenomenon of judicial rule by decree, of orders without reason – the language of the executive, in other words – is why I have earlier referred to the court led by the previous Chief Justice as an “executive court”: “an institution that speaks the language of the executive, and has become indistinguishable from the executive.”
Judgments in cases like Watali, for example, are classic examples of the workings of an executive court. But at the same time, the observations in the FCRA case, and in Zakia Jafri and Himanshu Kumar’s cases, are more than just that: it is not simply that the court is speaking the language of the executive, but has become an institution where executive ideology can be laundered, and shown to the world as sparkling, judicially-declared truth. This is what happens when, in FCRA, Justice Khanwilkar speaks about citizens needing to “be firm and resolute” so that they wouldn’t need foreign remittances; and this is what happens in Zakia Jafri, where Justice Khanwilkar’s character assassination of Teesta Setalvad and the suggestion that she be “put in the dock” is immediately followed up by an FIR (which quotes his very words), arrest, and jail.
Justice Khanwilker is now no longer in court. His individual legacy can be measured in the months, the years, and the decades that people have spent and will spend in jail, without trial (indeed, the state’s lawyers have already begun arguing that under the PMLA, a court can only ever grant bail on health grounds, and never otherwise). It can be measured in ruined lives and broken futures. But it is the coming time that will reveal whether the normalising of the Supreme Court as the executive(‘s) court would, at the end of the day, be his most significant contribution to Indian constitutional jurisprudence.
This article first appeared on the author’s blog. It has been edited slightly for style. Read the original here.
