Justice Khanwilkar leaves behind an imprint on key laws

Leaving behind a legacy of penning a series of important judgments that validated the state’s sweeping powers against citizens in special legislation, Justice A M Khanwilkar on Friday stepped down as a Supreme Court judge.

In his six-year tenure in the top court, Justice Khanwilkar has upheld the constitutionality of amendments to three important laws brought in during the Modi government – the Prevention of Money Laundering Act (PMLA), the Unlawful Activities Prevention Act (UAPA), and the Foreign Contribution (Regulation) Amendment Act (FCRA).

On July 27, a three-judge bench headed by Justice Khanwilkar upheld the constitutionality of the PMLA, a law that gives wide powers to the Enforcement Directorate to arrest an individual and has stringent provisions for granting bail. The Court approved several provisions that upend the first principles in criminal law that protect the rights of an accused — the presumption of innocence until proven guilty. The Court extended the exceptionalism — stringent provisions on bail that are reserved for anti-terror laws to the offence of money laundering.

In a 2019 judgment in ‘NIA vs Zahoor Ahmad Shah Watali’, a two-judge bench led by Justice Khanwilkar raised the bar for granting bail to those accused under the UAPA. The ruling said that a trial court could deny bail if it “believes that there are reasonable grounds for believing that the accusation against such person is prima facie true”. The ruling also added that the police version in the case diary must be considered as the “prima facie” view. The ruling had been cited to deny bail in several cases — such as against those accused in the Delhi riots and the Bhima Koregaon cases.

In April, another three-judge bench headed by Justice Khanwilkar in the ‘Noel Harper vs Union of India case upheld amendments to the FCRA that brought in stricter requirements and regulations for NGOs to receive foreign donations. The verdict, authored by Justice Khanwilkar stated that “the possibility of the national polity being influenced by foreign contribution is globally recognized” and that accepting foreign donations itself “is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems”.

In January last year, Justice Khanwilkar, giving his approval to the Modi government’s ambitious Central Vista redevelopment project, gave a 2:1 majority verdict, saying there were no flaws in the approval granted.

In March 2020, about seven months before the verdict, Justice Khanwilkar and Justice Dinesh Maheshwari (who formed a majority in the final verdict; Justice Sanjiv Khanna expressed a dissent) moved the challenge before the Delhi High Court to the Central Vista project. The Court itself is fast-tracking the final judicial approval for the project.

In September 2018, Justice Khanwilkar was part of the five-judge constitution benches in the landmark Aadhaar and the Sabarimala orders. In the Sabarimala case, the SC in a 4:1 majority — comprising then CJI Dipak Misra, Justices AM Khanwilkar, Rohinton Nariman and DY Chandrachud (Justice Indu Malhotra penned a dissent) — expanded the right to equality, allowing girls and women of all ages to visit the Sabarimala temple.

A year later, despite being part of the majority decision, Justice Khanwilkar agreed to review his decision, questioning the judicial propriety. A bench was constituted in November 2019 to review the judgment, where Justice Mishra, who had retired, was replaced by Justice Ranjan Gogoi.

While Justice Gogoi, who heard the issue for the first time and Justice Malhotra, who had previously dissented, questioned the correctness of the judgment, Justice Chandrachud and Justice Nariman ruled in favour of dismissing the review. Only, Justice Khanwilkar doubted the correctness of his earlier judgment.

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