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HomeJudiciaryED, Gujarat, UAPA, Central Vista: Justice Khanwilkar’s 6-year 'establishmentarian' legacy at SC

ED, Gujarat, UAPA, Central Vista: Justice Khanwilkar’s 6-year ‘establishmentarian’ legacy at SC

Justice A.M. Khanwilkar, a former chief justice of the Himachal Pradesh and Madhya Pradesh high courts, retired on 29 July after serving six years in the Supreme Court.

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New Delhi: The Supreme Court judgment upholding several controversial amendments to provisions of the Prevention of Money Laundering Act (PMLA), backing the powers of the Enforcement Directorate (ED), came under fire from various quarters almost as soon as it was delivered last month.

Among other things, the verdict upheld stringent bail provisions under the law, and the wide powers given to the ED to arrest an individual. It also upheld provisions in the PMLA that reserve the burden of proof on defendants, effectively placing the onus on an accused to disprove guilt, as against the usual rule that the prosecution needs to prove its case beyond reasonable doubt. 

In the days that followed, the verdict was criticised as an affront to personal liberty, with academician Pratap Bhanu Mehta writing that “rather than being the guardian of rights, the Supreme Court is now a significant threat to it”. 

In Parliament, Congress MPs sloganeered against the alleged misuse of the ED by the central government. 

This verdict was one among many controversial judgments delivered by Justice A.M. Khanwilkar, 65, over the course of his six-year tenure at the Supreme Court.  

The judge retired on 29 July, leaving behind a string of judgments that, according to critics, were largely in line with the stance of the Modi government. 

Senior advocate Dushyant Dave told ThePrint that Justice Khanwilkar’s legacy is “very disappointing”, while senior advocate Meenakshi Arora said his PMLA judgment made “all of us feel he’s brought ADM Jabalpur back”.

The ADM Jabalpur verdict was delivered in April 1976, during the Emergency. In a controversial order, the Supreme Court ruled that during an Emergency, nobody could seek any relief from a court as the fundamental right to personal liberty had been suspended — not even if the order of detention was without authority of law or was mala fide or unauthorised. 

Born in Pune in 1957, Khanwilkar began his practice as a lawyer in February 1982 and was elevated as a judge of the Bombay High Court in March 2000. He served in the court for over a decade before taking charge as chief justice of the Himachal Pradesh High Court on 4 April 2013. 

He was then appointed as chief justice of the Madhya Pradesh High Court in November 2013.  

Justice Khanwilkar was elevated to the Supreme Court in May 2016 and was part of several crucial benches, including the constitutional benches that decided the landmark Aadhaar (2018) and Sabarimala (2018) cases.  

During his years at the Supreme Court, his judgments upheld the constitutional validity of the Modi government’s amendments to the PMLA and the Foreign Contribution (Regulation) Act (FCRA).  

Orders issued by benches of which he was a part also made getting bail much more difficult for anyone booked under the stringent Unlawful Activities (Prevention) Act (UAPA), and enabled state action against petitioners. 

In his final two years in the apex court, Justice Khanwilkar — the third most senior judge in the Supreme Court before his retirement — was part of benches that decided at least three crucial cases.


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Green light for Central Vista

In January 2021, Justice Khanwilkar authored a judgment paving the way for the Central Vista redevelopment project. He was joined in his majority opinion by Justice Dinesh Maheshwari, while Justice Sanjiv Khanna dissented.  

Nine months before passing this judgment, Justices Khanwilkar and Maheshwari had, in March 2020, suo motu transferred all petitions filed before the Delhi High Court challenging the Central Vista project to the apex court. 

Foreign funding for NGOs 

In April this year, another three-judge bench headed by Justice Khanwilkar upheld amendments to the FCRA, reinforcing a tougher screening mechanism for receipt and utilisation of foreign funds by non-governmental organisations (NGOs).  

The judgment asserted that “there is no dearth of donors within our country”, and that “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”. It had also said that receiving foreign donations cannot be an “absolute right”. 

Scope of ED’s powers 

Two days before he retired, Justice Khanwilkar authored the judgment rejecting 241 petitions challenging the constitutional validity of certain provisions of the PMLA, 2002.  

The judgment — viewed as a shot in the arm for the ED — upheld stringent bail conditions for anyone booked under the law on charges of money laundering, as well as the imposition of the burden on the accused to prove innocence. 

It further upheld the scope of powers granted to the ED on a range of issues, including search and seizure, admissibility of confession statements made before the agency, and waiving the requirement for the agency to supply a copy of the Enforcement Case Information Report (FIR equivalent for ED) to the accused.  

Bail under UAPA 

The Unlawful Activities (Prevention) Act, 1967, is an outlier, given that in regular criminal cases, bail is the norm and pre-trial jail the exception.  

However, Section 43D(5) of the UAPA says that a person accused of an offence under Chapters IV (terrorism) and VI (belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.  

In April 2019, the interpretation of this provision by a bench led by Justice Khanwilkar — in the Zahoor Watali case — made getting bail even tougher under the UAPA. 

The Delhi High Court, while hearing the case made out against Kashmiri businessman Zahoor Ahmad Shah Watali by the National Investigation Agency (NIA), had granted him bail in 2018 under this UAPA provision.  

In doing so, the HC noted that while the investigating agency did have material against Watali, a lot of it was not admissible as evidence at the stage of trial. 

The following year, however, the Supreme Court called the HC’s approach “inappropriate”.  

The bench observed that, at the stage of bail, the high court was not required to weigh the evidence against an accused, and that it was only supposed to look at the material provided by the agency in its entirety and assess if there was a prima facie case. 

This meant that, at the stage of bail, lower courts could not look into whether the evidence being produced against an accused — like unsigned, untraceable documents — would be admissible during trial. 

The apex court has since faced criticism for its interpretation of this provision, with criminal lawyer Abhinav Sekhri pointing out that “the Supreme Court actively chose a legal position that makes lengthy undertrial detention more likely”.  

Since April 2019, the judgment has been cited in almost all UAPA judgments to reject bail to the accused, including in the Delhi riots and the Bhima Koregaon cases.  

Justice Khanwilkar has another connection to the Bhima Koregaon case — a judgment he delivered in September 2018, months after the first few arrests in this case. 

In August 2018, historian Romila Thapar and four other scholars approached the Supreme Court, demanding an independent probe into the case and complaining against the alleged “high-handedness” shown by Pune Police, which initially investigated the case.  

However, these petitions were rejected by a 2:1 majority, with Justice Khanwilkar authoring the majority verdict and Justice D.Y. Chandrachud dissenting. 


Also Read: Can judiciary stand up to all-powerful executive? How judges did it during Emergency


Penalising petitioners 

In his last two months on the bench, Justice Khanwilkar delivered two judgments that were interpreted as grounds for the state machinery to proceed against petitioners who approached the court. 

On 24 June, a three-judge bench headed by Justice Khanwilkar rejected claims of a “larger conspiracy” in the 2002 Gujarat riots and dismissed petitioner Zakia Jafri’s plea challenging a special investigation team’s clean chit to then Gujarat chief minister Narendra Modi. The verdict also said those who “kept the pot boiling…for ulterior design” should be put “in the dock”. 

Against usual convention, the judgment did not mention the name of the judge who authored it.  

A day after this judgment, an FIR was lodged by the Detection of Crime Branch in Ahmedabad against Jafri’s co-petitioner Teesta Setalvad, retired IPS officer R.B. Sreekumar and former IPS officer Sanjiv Bhatt. 

While Setalvad and Sreekumar were arrested right away, Bhatt — who was already lodged in prison in connection with a 27-year-old case — was arrested last month.  

On 14 July, another bench led by Justice Khanwilkar and Justice J.B. Pardiwala slapped a fine of Rs 5 lakh on an activist who had filed a petition seeking a CBI probe into alleged extrajudicial killings by Chhattisgarh Police and central security forces during anti-Maoist operations in Dantewada in 2009.  

The court also allowed the central government’s application to initiate a probe to “identify and prosecute those who gave false statements blaming the security forces and may have conspired in this”. 

Petitioner Himanshu Kumar subsequently claimed publicly that he would not pay the fine, saying, “I know I will go to jail. Paying the fine would mean accepting that I did something wrong.” 

Sabarimala U-turn 

Justice Khanwilkar was also a part of two major five-judge Constitution benches in September 2018.  

One of these benches upheld the constitutional validity of the Aadhaar Act, while striking down a few individual provisions of the law. 

Another bench — with a 4:1 majority — lifted the ban that prevented women and girls between the age of 10 and 50 years from entering the hilltop shrine dedicated to Lord Ayyappa in Kerala’s Sabarimala, ruling that the centuries-old religious practice was illegal and unconstitutional.  

Then Chief Justice of India (CJI) Dipak Misra and Justices Khanwilkar, Chandrachud, and Rohinton Nariman formed the majority, while Justice Indu Malhotra dissented. All judges wrote separate opinions, except for Justice Khanwilkar, who joined the opinion of the then CJI. 

Review petitions were later filed, challenging this judgment. Reviews are usually heard by the same bench that delivered the original judgment. However, since Justice Misra had retired by then, he was replaced on the bench by the new Chief Justice Ranjan Gogoi.  

In November 2019, this new bench — by a 3:2 verdict — decided to refer certain questions about the correctness of the Sabarimala judgment for interpretation to a larger bench. The three judges who formed the majority opinion were Justice Gogoi (who was hearing the issue for the first time), Justice Malhotra (who had dissented earlier), and Justice Khanwilkar.  

While the other judges stuck to their earlier judgment, only Justice Khanwilkar doubted his own earlier judgment. 

However, in both these cases, he did not pen a separate opinion, but chose to endorse the opinions authored by the Chief Justice at the time. 

In a farewell function hosted for the judge by the Confederation of Alumni for National Law Universities Foundation (CAN Foundation) earlier this month, Justice Khanwilkar emphasised legal education as a tool for social change and spoke about how lawyers must work towards serving the cause of humanity. 

“In professional life, we must endure to become upright, honorable, and hard-working citizens serving the cause of humanity,” he was quoted as saying. 

‘Legacy is very disappointing’ 

Commenting on Justice Khanwilkar’s judgments, senior advocate Dushyant Dave said that the latter’s “legacy is very disappointing”. 

“The judicial approach that he has taken in his career, particularly after becoming the chief justice of Madhya Pradesh High Court and then coming to the Supreme Court, has been very disappointing,” Dave told ThePrint. 

A former president of the Supreme Court Bar Association, Dave referred to Justice Khanwilkar as “very, very pro-establishment”. 

“As a judge, you have to be fiercely independent and not defend anything and everything… Judges have to be mindful of everything, they just can’t allow the executive to do whatever they want to do.” 

Talking about Justice Khanwilkar’s approach in the Zakia Jafri and Himanshu Kumar cases, Dave said, “It was not just unconstitutional, not just illegal, not just improper, but I would say it was highly immoral. He sent a chilling message to the country… It was disgraceful for the Supreme Court to have passed that judgment.” 

“The riots did take place in Gujarat… Judges can’t be oblivious to the reality of the state, they have to be conscious of what is happening around, they can’t live in ivory towers,” he added. 

Senior advocate Meenakshi Arora, meanwhile, termed Justice Khanwilkar’s judicial approach “fairly retrograde”.  

“First of all, the directions with respect to the people who had pursued the matter on behalf of the Gujarat riots victims, I think that order was unprecedented. It’s a chilling effect. Tomorrow, nobody will stand up for anyone. You won’t have good Samaritans,” she told ThePrint. 

As for his judgment on PMLA, Arora said: “With his second judgment, on PMLA, all of us feel he’s brought ADM Jabalpur back… It’s extremely anti-rights.”

(Edited by Amrtansh Arora)


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