Justice Khanwilkar’s profession embodied the Supreme Court’s growing tendency to aspect with the state


An aphorism widespread amongst attorneys claimsthat India doesn’t have one Supreme Courts however many: it displays the truth that the result of a case may change drastically based mostly on a choose’s philosophy.

So when Justice Ajay Manikrao Khanwilkar, the second-most most Supreme Court choose on Wednesday was to writer a verdict on petitions difficult the unchecked investigative powers of the Enforcement Directorate, commentators did not find it surprising when the bench he led dominated totally in favour of the investigation company.

This judgment was Khanwilkar’s swansong, delivered simply two days earlier than his retirement. However, it caught to a particular sample he demonstrated over the previous six years he spent within the Supreme Court. From dismissing privateness issues about Aadhaar to creating bail troublesome, given a selection between state energy and residents’ freedoms, Khanwilkar has constantly sided with the state.

His rulings contributed to rising criticism that the Supreme Court is allegedly failing to do its job of appearing as a test on the Union authorities.

Increasing state energy

Khanwilkar was heading a three-judge bench on Wednesday when he delivered a judgment upholding the constitutionality of a number of contentious sections of the Prevention of the Money Laundering Act and the broad investigation powers of the Enforcement Directorate.

The legislation had been challenged by greater than 200 petitioners for failing to comply with a number of fundamental ideas of legal legislation: the accused individual is mechanically presumed responsible, bail is sort of not possible and the Enforcement Directorate can conduct search and seizures of property with no formal grievance. There have been additionally accusations that the legislation was getting used as a political software by the Modi authorities to focus on Opposition leaders.

Khanwilkar’s judgment upheld the legislation in its entirety, giving approval to a draconian legislation.

Earlier, in April 2019, main a two-judge bench, he authored a judgment that made it nearly impossible to get bail under the Unlawful Activities (Prevention) Act, a terror legislation regularly used in opposition to the political Opposition. He held that courts can not critically look at the prosecution’s proof when ruling on bail in Unlawful Activities (Prevention) Act instances. When deciding on bail, the courtroom as an alternative must make a broad evaluation whether or not the accusations in opposition to an accused individual are prima facie true – thus, in impact, saying that the courtroom should take the prosecution’s case at face worth.

Critics noted that this judgment “created a new doctrine” and virtually ensured that an accused should stay in custody for the complete trial, even when “the evidence against the person was inadmissible”.

Congress employees stage a protest exterior the social gathering workplace in opposition to the Enforcement Directorate for summoning Rahul Gandhi. On Wednesday, the Supreme Court upheld the expansive powers of the Enforcement Directorate. Credit: PTI

Targeting petitioners

Khanwilkar’s judgments haven’t solely expanded the powers of the state, they’ve even penalised residents for merely making an attempt to carry the state to account. On June 24, he authored a judgment the place he dismissed a petition questioning the clear chit given to Narendra Modi with regard to the 2002 Gujarat riots which occured when he was the state’s chief minister. The judgment additional solid aspersions on the motives of the petitioners in approaching the courtroom and wrote that they have to be put “in the dock”.

A day after the judgment, the Gujarat police registered a primary info report, citing closely from the judgment and arrested activist Teesta Setalavad and former Gujarat Director-General of Police, RB Sreekumar.

Then, on July 14, Khanwilkar and Justice JB Pardiwala delivered a judgment dismissing a petition seeking an investigation into the killings of 17 Adivasis in Dantewada, Chhattisgarh. The petitioners had alleged that safety forces have been behind the killings.

Here too, the courtroom punished the petitioners. It stated that there was no proof to solid doubts on the safety forces and levied a high-quality of Rs 5 lakh on activist Himanshu Kumar. It additionally stated that investigation businesses may launch an inquiry to establish and punish those that had “been conspiring…[to file the petition] on fabricated evidence”.

Not questioning the state

Eve as he has ordered investigations into residents preventing the state, Khanwilkar has concurrently denied investigation requests to look at actions of the state. In September 2018, he authored a majority judgment refusing an unbiased investigation into the arrest of a number of activists in relation to the 2018 violence at Bhima Koregaon in Maharashtra. Another choose on the bench, Justice DY Chandrachud, delivered a dissenting opinion, sustaining that the Pune police’s conduct within the case solid doubts on its impartiality.

Khanwilkar was additionally part of the bench that dismissed a clutch of petitions asking for an investigation into the demise of choose BH Loya, who was presiding over the Sohrabuddin Sheikh encounter case, during which Union minister Amit Shah was the prime accused.

Throttling civil society

In April 2022, Khanwilkar, heading a three-judge bench, authored a judgment the place he upheld the constitutional validity of a number of amendments that severely restricted the flexibility of nonprofit organisations to lift and utilise overseas funding.

These changes required organisations to mandatorily open an account with a particular department of the State Bank of India, forbade them from sub-granting funds and restricted how they might elevate and use cash. Several commentators criticised this judgment for disproportionately affecting the basic rights of residents.

Previously, in October, whereas deciding on a petition asking for permission to protest in opposition to three farm legal guidelines handed by the Centre, Khanwilkar, presiding over a two-judge bench, reprimanded the petitioners for protesting after they had already filed a case in opposition to the legal guidelines. Then, he ordered that the courtroom will resolve if residents can protest on topic issues during which instances have been already pending courts. The order was widely criticised for making an attempt to limit the democratic proper to protest.

Activists protesting the arrest of Teesta Setalvad. After the Supreme Court judgment recorded opposed statements in opposition to Teesta, a primary info report was registered and he or she was arrested.Credit: PTI

Government initiatives

Khanwilkar’s judgments additionally gave the courtroom’s assent to a number of controversial authorities initiatives. In 2018, he was part of the bench that upheld the constitutional validity of Aadhaar – a novel 12-digit biometric-linked identification quantity – sustaining that it doesn’t violate the fitting to privateness. It additionally allowed the mandating of Aadhaar for state subsidies and advantages. Here too, Justice Chandrachud had delivered a dissenting verdict, holding Aadhaar to be unconstitutional.

In January 2021, Khanwilkar authored a judgment dismissing a problem to the Central Vista mission – an initiative the Modi authorities began in 2020 to revamp the Parliament and its adjoining space. The mission was challenged on grounds that it lacked satisfactory public session and violated environmental and land use guidelines.

Apart from the ruling itself, authorized commentators had additionally criticised the way in which the case reached the Supreme Court within the first place. In February 2020, the Delhi High Court handed an order stating that building plans would require the courtroom’s approval. This was stayed by a two-judge bench of the identical courtroom.

When this was challenged earlier than a Khanwilkar-led bench, as an alternative of deciding on the keep, in a shock transfer, the courtroom transferred the complete petition to itself, an order that lawyers argue violated the constitutional powers of transfers.

Women’s rights

While Khanwilkar was a part of the bench that allowed menstruating ladies to enter the Sabarimala temple in 2018, he changed his views a yr later and stated that the Sabarimala difficulty needs to be reconsidered by a bigger bench. His swap was essential in permitting the referral, as two different judges from the 2018 bench held that their determination didn’t require reconsideration leading to a 3:2 break up. They held that there was no new materials or any obvious mistake within the judgment that was found that merited a evaluate.

The order to rethink the Sabarmila verdict was closely criticised on grounds that it fully defied the legislation on reviewing judgments.





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