Justice Khanwilkar has written some of the most consequential judgments concerning State power and the rights of the individual.
Not really. He has merely upheld laws as passed by parliament which were in conformity with the constitution.
But secondly – and more importantly – when you study these judgments together, you glimpse a certain judicial philosophy – such as it is – at work.
That philosophy amounts to nothing more than respecting the constitution. Parliament decides policy. Judges decide questions of law.
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).
The Supreme Court is not meant to decide policy. It must confine itself to questions of law.
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.
The dude was a 'Field Marshall'. India has had no military coups. The Bench does not permit the State to do what if likes. It does permit it to discharge its proper functions. The Court can give no individual anything other than the law. The President, on the other hand, can offer clemency. The executive may decide to prosecute or not prosecute a particular case on grounds of public interest. Judges have a narrower function which however is not to oppose the executive save where the basic structure of the constitution is imperiled. Bhatia assumes that the judiciary should be against the executive. It should prevent the policies agreed on by the Legislature to be put into action. Such a view is fundamentally incompatible with the functioning of a democratic society.
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.
It was a frivolous case which no court could have entertained. Building work does not endanger 'right to life'. Another petition which was dismissed described the scheme as “Central Fortress of Death” and even compared it “Auschwitz.
My analysis below, however, is not founded simply upon the fact of disagreement with the outcome, or of dislike of these judgments.
It is founded on the absurd premise that Judges should prevent the Executive from doing anything in the public interest.
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 post should be read in that spirit.
It is the spirit of an adolescent who thinks Judges should listen to them whine about 'Auschwitz'.
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 the subject of an expose by India Today. He was prima facie guilty.
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.
The High Court was wrong. It needed to look at the totality of evidence, admissible or not, before deciding whether there was a prima facie case to answer. The seriousness of the crime- viz. financing terror- warranted a broader approach.
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, Khanwilkar J’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 S. 43(D)(5) of the UAPA was, effectively, to act like a post office.
Bhatia is lying. The judgment says that the 'Designated Court' MUST NOT act like a post office. It has the obligation to check there is a prima facie case and in fact had done so. The High Court should not have stuck its oar in. Admissibility was not relevant in deciding prima facie guilt.
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.
This was the job of the Designated Court. The High court had erred by not applying its mind to
'ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.
'36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has restated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.'
This is perfectly reasonable. A specialist court was satisfied that the defendant was prima facie guilty. The High Court did not apply its mind and made an error in law. The Supreme Court set the matter right.
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.
Either Watali was innocent or he was guilty. Does Bhatia really believe the man was just an innocent businessman with no connection to Hurriyat or the Pakistanis? The plain fact is that Watali is saying things which are damaging to Modi. Did he play an intermediary role? Or is he spreading disinformation? What is certain is that he isn't an innocent who has been picked up in error.
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.
But it can provide evidence of prima facie evidence to the Designated Court. In this case, it had no such evidence. Watali was singing like a bird. The question was whether he could be useful as an intermediary- which is the claim he was making for himself- or whether he was simply a bag-man.
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.
There is a specialist 'Designated Court' to do precisely this. Bhatia says it is a 'post office'. The Bench says it must not be a post office. It must use all evidence available to make a determination of prima facie innocence or guilt.
And when, in Watali, Khanwilkar J barred all Courts from “examining” or “dissecting” the evidence, he effectively made the grant of bail in UAPA cases borderline impossible.
Nonsense! If you can show the Designated Court that you are innocent then you get bail or charges are dropped.
As Sekhri wrote at the time, he “actively chose a legal position that makes lengthy undertrial detention more likely.”
Because it is Parliament's intention that terrorists and their funders be locked up rather than allowed to roam free. The alternative is extra judicial 'encounter' killings.
The asymmetry in power is glaring. UAPA trials in India take years – decades – to complete.
Decades when terrorists can't run around creating mayhem.
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.
Only if the Designated Court is shit at its job. Bhatia however is too high and mighty to go after anything less than the Supreme Court.
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, Khanwilkar J 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.
But the honorable Judge did not gouge out the eyes of the Defense and rape its empty eye-sockets. More culpably, the Judge did not even bother to decapitate anybody and shit down their neck.
It may be that Khalid will be granted bail by the High Court. Is Bhatia suggesting that this can no longer be done because of the Supreme Court decision? If so, he is harming Khalid's case. The plain fact is that 53 people died during the riots. One way or another those responsible will be held to account.
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.
Which people? The answer is it is those people the vast majority of the population want to see in jail. On the other hand, voters got angry when Hindu nuns or lady Cabinet Ministers who were also Doctors were framed and thrown into jail.
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,
Bhatia and his ilk aren't inconvenient at all. They actually help Modi by reminding us of how fucking horrible our andolanjivis are.
the Prevention of Money Laundering Act [“the PMLA”] is its political weapon.
No. It is an economic weapon. This was passed as a money bill. In economic matters- e.g. Income Tax investigation the burden of proof is on the defendant. Al Capone was sent to jail for tax evasion.
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 ringing for everyone (other than, it seems, the Supreme Court).
Bhatia wants more convictions under the act. Soniaji beware! The plain fact is that India witnessed a huge anti-corruption movement a decade ago. There is a popular mandate to prosecute politicians on the take. Modi and Yogi are perceived as not corrupt. Congress and the NCP are perceived as corrupt. The TMC rank and file is perceived to be corrupt when it isn't utterly criminal. Sooner or later, this type of corruption will have to be curbed and a number of politicians will have to do jail time.
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 Khanwilkar J delivered judgment, upholding all the provisions under challenge (see here, here and here).
Money bills are money bills. Economic matters are the purview of the Legislature. The Bench observed that since “Parliament in its wisdom” had grouped even minor offences with the “offence of money-laundering”, it was a “matter of legislative policy” and it was “not open to the Court to have a second guess at such a policy”. Still, a constitutional bench will re-examine the matter.
A similarly exhaustive analysis of the judgment is not the subject of this post. However, its underlying philosophy is simple enough:
Parliament, not the Courts, decides Fiscal policy. If it chooses to create a large class of economic offenses- that is its business. Since Jilubhai Nanbhai Khachar v. State of Gujrat, there is no fundamental right to property. The nature of the constitutional right is not enmeshed in the basic structure.
What is the proper method forward given the scope for abuse of ED for political purposes? Surely, there needs to be legislation of some sort and an independent enforcement machinery. But that is a matter for the legislature. Judges can't wave a magic wand and bring the thing into existence. However, a seven judge bench will sit on the question of whether this really was a money bill.
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.
This judgment may help India in 'ease of doing business' and FATF compliance. It is likely that there will be more stringent 'know your customer' and other such rules going forward at the global level.
For instance, the Court exempted the ED 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 same point may be made of the Income Tax department of any country. The plain fact is that the ED is looking at economic wrongdoing. It is fundamentally unlike a police force. The ED has a poor record at litigating and getting convictions. But the same is true of Kejriwal's old colleagues. Nobody likes the tax-man. But taxes are the price we pay for civilization. The Stasi would torture you till you informed on your own spouse. It is foolish to mention them in this connection.
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.
Income Tax is very bad and evil. Abolish all taxes! Also, the Post Office is a cover for a pedophile ring.
To this heady cocktail,
Bhatia is drinking plenty of cocktails. Then he starts raving about militias.
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 (Khanwilkar J 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.
This sort of reverse burden- e.g. that which obtains under the UK Customs and Excise Management Act 1979- does not conflict with fundamental rights relating to liberty and security.
And finally, to expand the scope of the PMLA, Khanwilkar J 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. Khanwilkar J 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.
This is in line with international law- notably the Vienna and Palermo conventions. Acquisition, possession, use, concealment or disguising origin of the tainted money constitute the offence of money-laundering.
When you now combine this with the reverse burden clause (that under the PMLA, the individual is guilty until proven innocent), and Khanwilkar J.’s finding that any criminal offence could be brought under the PMLA (thus effectively making the CrPC wholly redundant),
Very true. If Gautam Bhatia starts wanking in court, it is clearly the EDs job to arrest him because his jizz is tainted property- right?
the effects of this judicial rewriting exercise are terrifying.
To Bhatia who is drinking plenty of heady cocktails and jizzing all over the place.
They also exacerbate and worsen the already wide definition of tainted property under the PMLA,
which includes Bhatia's tainted jizz
which effectively covers just about everything
Bhatia's jizz effectively covers just about everything in his vicinity
(and makes just about everything subject to attachment orders (see here),
his jizz is very sticky. It attaches to everything.
financially crippling someone under PMLA scrutiny; note that Khanwilkar J also held that property can be attached right from the beginning of PMLA proceedings).
Why not wait till it disappears?
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).
Bhatia can read aloud. Can he also read silently? Perhaps- when he is not jizzing over everything. The plain fact is the two words 'projecting' and 'claiming' overlap in their semantic meaning.
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.
Not in cases of economic wrongdoing which are more like civil offenses. Criminal prosecution for tax evasion, money laundering etc. hinge much more on the economic motivation for the underlying transaction. It may be possible to establish this irrespective of the bare facts of the case. On the other hand, protection against 'compelled' self-incrimination' (e.g. Garner v US) may vary between jurisdictions.
In Khanwilkar J’s judicial philosophy of “for the State, everything; for individuals, the law”, however, every canon of interpretation is upside down,
because it slipped on Bhatia's jizz
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:
But this is what Bhatia does. He takes issue with a straightforward judgment which says 'till a 7 member bench decides otherwise, this is a money bill. Parliament decides policy. We have to let their intention stand bearing in mind treaty law.'
“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.”
Bhatia is not the 'master of his domain' due to he is constantly jizzing on everything. He fears the ED will come and arrest him because of all the property he has tainted. Meanwhile Central Vista is rising up. Soon Post Men will drag him to the new Auschwitz Modi has set up. Meanwhile, Bhatia has another heady cocktail and wanks some more.
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”.
If you love Abhinav Sekhri so much, why don't you marry him? The fact is 'arms and ammunition' means either arms or ammunition. Otherwise the law is circumvented by one man carrying the guy and the other carrying the ammo. The thing follows ex proprio vigore. The judgment clearly makes reference to the relevant parliamentary debates. This is an evolving branch of law. The attempt to overturn it was ham fisted. The fundamental problem was that India and other countries have long had 'reverse burden' for a host of economic offenses. The international climate changed towards money laundering and India has been playing catch up. It is is silly to pretend that India is in the grip of a Gestapo when it is trying to comply with International Law.
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!):
How would Bhatia know? He is not a Judge. The plain fact is that the Judge found no great incompetence in the drafting of the Law. It is a separate matter as to whether it is genuinely a money bill. But, as it stands, the thing is clear enough. Kapil Sibal could advance no argument to prove otherwise.
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.
But it is literally the case that 'arms and ammunition' means either a gun or its ammo. It does not mean both. The same point holds with respect to 'projecting' and ' claiming'. The judgment reads- 'If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete.'
So you could have lots of cash stuffed into your mattress but would be innocent of any crime.
This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word “and” preceding the expression “projecting or claiming” therein. This Court in Pratap Singh vs. State of Jharkhand & Anr.459, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having 459 (2005) 3 SCC 551 (also at Footnote No.197) regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created.
So, this is a sensible Judge who understands the duties India has within the comity of nations. Bhatia however believes India is overrun by 'militias' who are creating 'Auschwitzs' in the Central Vista. India must never arrest anybody because Indian criminals are actually freedom fighters. Only Judges and Cabinet Ministers are evil.
It is that principle that is Khanwilkar J entirely forsook in rewriting Section 3.
There was no 'rewriting'. Kapil Sibal and others had made an absurd allegation- viz that no crime occurs till someone says 'the drugs up my arse are mine'- and the Judge clarified the law.
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.
So, there is nothing new here. Some silly lawyers tried to challenge a law and failed. The Bench clarified matters. Bhatia, having drunk some heady cocktails and jizzed all over the place, is shitting himself with fear because he believes he will be sent to Auschwitz in the Central Vista.
In the PMLA context, however, the statute’s provisions magnify that substantially: the statute “weaves together all the restrictive, rights-effacing clauses from this illustrious past in one fine blanket, and it then goes further.”
It shits on Sekhri- right? That's what the lad is getting at. Bench may kindly desist from shitting on my head. However, it is welcome to give me a nice blanket.
And the PMLA judgment, in turn, is perhaps unique in that it brings all of those rights-effacing 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, Khanwilkar J 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.
The problem here is that this 'lawless law' is precisely the one demanded by the comity of nations. Meanwhile Sekhri and Bhatia are welcome to jizz on each other while complaining that Bench keeps shitting on their head and not even giving them a nice blanket.
Noel Harper: Taking a Hatchet to the Freedom of Association
In April 2022, Khanwilkar J 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.
But it is Britain and the US and Europe etc. which are using this type of legislation to keep out Putin's agents of chaos. Bhatia may hate India but he can produce no legal argument against the type of defensive action against 'lawfare' and subversion funded by foreigners.
First, at the time of hearing Noel Harper, there were challenges to the FCRA pending in High Courts.
They were bound to fail.
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.
Or where the Judges themselves feel they are being targeted by nutters like Bhatia
Here, the Khanwilkar J-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.
They would have been overruled if they'd gone a different way.
Secondly, the judgment in Noel Harper applied differential standards to the State and to the petitioners,
Because the State alone has the authority to prevent anybody getting foreign money for any purpose it pleases.
where the State’s factual claims (contrary to the prevailing legal standard of proportionality) were taken as true without any scrutiny,
There were no 'factual claims'. There was legislation which clarified what problems the law was meant to deal with.
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.
Because the Legislature decides policy. The Bench does not. The question was 'is the law constitutional?' The answer is yes. A nuisance has been created whereby every two bit lawyer thinks that the basic structure of the Constitution is whatever they want it to be.
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.
Bhatia has framed the question in a way that suits him. The problem is that money for lawyers arguing in so idiosyncratic fashion will dry up. Bhatia's type of Lawfare will get defunded. He and his ilk will be disintermediated.
Indeed, this is a thread that runs throughout Khanwilkar J.’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 Khanwilkar J.’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.
It wasn't Bhatia's own ideology. But then a political executive with such an ideology would quickly collapse.
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?“;
Does Bhatia have an answer to this? If not, the observation is sound. It is not ideological.
“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“; “There is no dearth of donors within our country.”
Does Bhatia disagree? Does he have facts to controvert this view? If not, it is not ideological. It is factual.
These are familiar lines. These are lines that we hear from the mouths of authoritarian leaders across the world,
No we don't. The 2010 act was put in by Manmohan. He was scarcely authoritarian.
when they justify clamping down on civil society, and in particular, on NGOs
Manmohan was very naughty for clamping down on NGOs. Sadly, his party cut him off at the legs before he could take stronger action. The fact is, as Edwin Lim of the World Bank had become aware, foreign governments were using NGOs to prevent development in India so as to increase Indian reliance on foreign raw materials.
. None of these words have anything to do with the law, legal reasoning, the Constitution, and the practice of constitutional adjudication.
Unless they are the words of a Supreme Court Judge. Bhatia's opinions count for nothing- unless such a Judge is convinced by them.
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.
How is freedom of association choked off by not getting foreign money? Why stop there? Why not demand Joe Biden's jizz as a condition for Bhatia associating with himself?
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.
In the opinion of a cretin. The problem with being a lawyer whose opinions the Bench derides is that you won't get paid. You may dwindle to being a mere socioproctologist railing against jizzing Bhatias.
Teesta Setalvad and Himanshu Kumar: Taking a Dagger to Article 32
Article 32 was being used as a tool of political assassination. Setalvad and Kumar are being punished for mala fide actions. Essentially, the Bench has turned against those who fooled it in the past.
The language of the executive’s court is present most starkly in Justice Khanwilkar’s notorious opinion in the Zakia Jafri case.
His exemplary opinion. Bhatia may lurve Setalvad and Sreekumar. Few other Indians do.
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.
It was also their prerogative to demand that perjurers and liars be prosecuted.
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.
Which were brought under control through 'indefatigable work'.
Most seriously, however, he then went on to note that this case was the result of a “coalesced effort by disgruntled officials”,
that's true enough. The question is whether they also received lots of money for their tainted testimony.
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.”
This is perfectly proper. The Bench had been fooled once. To try to relitigate the matter without any fresh evidence was brazen effrontery.
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,
Nonsense! Judicial immunity protects them.
with heavy damages to follow. None of that, however, applies here: following the example set by Khanwilkar J., 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.
This is true in all constitutional democracies. How ignorant is Bhatia?
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.
For Bhatia, telling stupid lies is 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 Khanwilkar J – 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.
Because the action was mala fide and involved perjury and tainted testimony.
At the time of writing, Teesta Setalvad remains in jail.
Perhaps you may say that this is a one-off, an aberration.
Why say that? It is obvious that if you go to court and lie your head off, you could be done for perjury.
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 Chhatisgarh. 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.”
All judges have absolute privilege and judicial immunity. Why does Bhatia believe otherwise?
The judgment was on the basis that 'the entire case put up by the writ petitioners portraying the incidents of 17th September 2009 and 1st October 2009 respectively as a brutal massacre by the members of the different Police and Paramilitary Forces is palpably false. All the averments made in the memorandum of the writ petition are ex facie false and fabricated. An attempt has been made to mislead this Court. False allegations have been levelled on the police and the paramilitary forces with a mala fide intention to change the narrative of the incidents, i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces.'
Kumar could be said to be engaging in anti-National 'Lawfare'. The problem is that the Bench can no longer be fooled by tales of innocent Naxals playing nice games in the forest with their adivasi pals.
It is also important to note that during the pronouncement, the Court only referred to the State of Chhatisgarh. 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?
The people of India want Naxalites to be killed or arrested. Bhatia may disagree but ultimately the Indian Bench, being constituted by Indian people, is likely to take a different view.
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.
Why? It is routine for a Judge to refer perjured testimony to the prosecutor. A remark can't be said to be prejudicial when it is based on careful forensic reasoning. Kumar, prima facie, has committed a crime Let charges be framed against him. Perhaps he has a defense in law.
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.
If you try to get the Courts to throw innocent people in jail, you may yourself end up in jail. Bhatia forgets that the Bench also sends people to the hangman.
Idi Amin famously said: “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.”
Bhatia famously said that Judges can get sued for defamation.
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.”
If you lie your head you could go to jail for perjury.
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.
The Judge gave persuasive reasons in the afore mentioned cases. The Sabarimala case has been referred to a seven judge Bench because of the complexity of the issues involved
Ranjan Gogoi, CJI, opined-It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being 7 Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. The said issues could be: (i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14. (ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution. (iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective. (iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group etc.
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; Khanwilkar J 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.
This is Bhatia's opinion. It is worthless. The Bench can decide what is 'sufficient reason' for it to refer a matter to a 7 member bench.
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 Malhotra J (a dissenter in the original judgment). Two of the judges who dissented were Chandrachud and Nariman JJ (both in the majority in the original judgment). The tie-breaking vote was that of Khanwilkar J, 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.
This is false. 'Sufficient reason' can be anything the Bench likes. Prima facie wrongness is not a precondition. If it were, the Bench could have overruled itself.
Can a judge change their mind about the correctness of a judgment they have signed onto?
The issue is not 'correctness'. CJI has clearly stated that fundamental concepts- e.g. constitutional morality- have to be clarified.
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?
There is no evidence that any of the Judges thought the original verdict was blatantly or egregiously wrong. This is an unwarranted and foolish assumption on Bhatia's part.
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?
No. Gogoi explained everything quite clearly.
To provide reasons for a 180-degree turn?
There was no such 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.
Because Gogoi had provided it. It was obvious that the right of women to worship in mosques would be even more contentious than throwing open Sabarimala.
We do not know the reasons why he agreed with his brother, the Chief Justice, in 2018;
We don't need to. The thing is fucking obvious.
and we do not know the reasons why he came to believe that his brother, the Chief Justice, was egregiously wrong in 2019.
Yes we do. We can look up the Wikipedia article and discover that the judgment was highly controversial. Just imagine what would happen if women were allowed to pray in mosques!
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.
This is false. A Supreme Court Justice has a perfect right to contradict or overrule his own judgments issued in a lower court.
Conclusion: The Executive(‘s) Court
These examples could be multiplied. One could talk about Khanwilkar J.’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),
Bhatia's blind eye has to do with the lying cheating Setalvads and Sreekumar's of the world.
and at the time of writing, the accused are still in jail without trial (can you see a trend here?);
and nobody gives a fuck. That's what we can see.
one could talk about the Central Vista Judgment, where Khanwilkar J’s majority opinion laid down a standard of public participation, and then refused to apply it to the facts at hand;
because nutters were babbling about 'Auschwitz' and 'right to life'
one could talk about all these, but there is little benefit in belabouring the point.
My point is simple. Bhatia thinks a Judge can be sued for defamation. He is utterly ignorant.