Know Thy Judge| Justice Sanjay Kishan Kaul

“Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”

-Justice Sanjay Kishan Kaul 

Maqbool Fida Husain v. Rajkumar Pandey2008 SCC OnLine Del 562

Justice Sanjay Kishan Kaul was born on December 26, 1958. He graduated in Economics (Hons) from St Stephens College, Delhi University in 1979 and later obtained LLB from Campus Law Centre, Delhi University in 1982. He enrolled as an Advocate with Bar Council of Delhi on July 15, 1982 and practiced law at the High Court of Delhi and the Supreme Court of India. He was Advocate-on-Record of the Supreme Court of India from 1987 to 1999 and was designated as a Senior Advocate in December, 1999. He was appointed as Senior Counsel for the Delhi High Court and the Delhi University, was on the Senior panel of Union of India and served as the Additional Senior Standing Counsel for the DDA.

Justice S.K. Kaul was elevated as Additional Judge of the High Court of Delhi on May 03, 2001 and was appointed as a permanent Judge on May 02, 2003. He was appointed as the Chief Justice of Punjab and Haryana High Court on June 01, 2013 before being sworn-in as Chief Justice of the Madras High Court on July 26, 2014. He was appointed as a Judge of the Supreme Court of India on February 02, 2017.

Notable Judgments at Supreme Court

K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1

Justice S.K. Kaul was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that right to privacy is an intrinsic part of right to life and liberty under Article 21 and freedoms guaranteed under Part III of Constitution of India. 

Justice Kaul concurring with the majority view that privacy is a primal and natural right inherent to every individual, recognised the technological development and breach of privacy committed by private individuals, private entities and non-State actors.

“We are in an information age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy.”

Justice Kaul observation at that time had far reaching implications and paved the way for rights of LGBT Community as at that time S. 377 of IPC was constitutional. 

“The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity……. Ones sexual orientation is undoubtedly an attribute of privacy.” 

Justice Kaul called upon the legislature to legislate on this issue and ensure privacy of individuals and formulated ‘Principle of Proportionality and Legitimacy’. 

“The concerns expressed on behalf of the Petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: 

1.The action must be sanctioned by law; 

2.The proposed action must be necessary in a democratic society for a legitimate aim; 

3.The extent of such interference must be proportionate to the need for such interference; 

4.There must be procedural guarantees against abuse of such interference.”

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Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

The 5 judges bench comprising of Dipak Misra, CJ. and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., while deciding the issue whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations and unanimously held that the judgment delivered in M. Nagaraj v. Union of India; (2010) 12 SCC 526, relating to reservations in promotions for SC/ST persons does not need reconsideration by a larger seven-judge Bench. 

“The whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”

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Shah Faesal v. Union of India, (2020) 4 SCC 1

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that 

“judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

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Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808

“In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable” 

– Walter Lippmann

A 3 judge bench of Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, JJ., while appreciating the existence of the right to peaceful protest against a legislation observed that 

“such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.”

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Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893

“Delay in delivery of judgments violates Article 21 of the Constitution of India.”

While reminding the High Courts for observing maximum time period for pronouncement of reserved judgment as per Anil Rai v. State of Bihar(2001) 7 SCC 318, the Court observed that 

“Judicial discipline requires promptness in delivery of judgments – an aspect repeatedly emphasized by this Court. The problem is compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny.”

State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849

“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”

A Division bench headed by Justice Sanjay Kishan Kaul, dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held

“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”

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Notable Judgments at High Court

Khushwant Singh v. Maneka Gandhi, 2001 SCC OnLine Del 1030

“He that publishes a book runs a very great hazard, since nothing can be more impossible than to compose one that may secure the approbation of every reader”

– Miguel De Cervantes.

A Division bench presided by Justice Sanjay Kishan Kaul, dismissing the injunction application filled by respondent, held that the truth regarding the part of the appellant’s autobiography “Truth, Love and a Little Malice” being derogatory, defamatory and incorrect will be determined at the stage of trial in the claim for damages and allowed the appellant to publish his autobiography.

“There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.”

Maqbool Fida Husain v. Rajkumar Pandey, 2008 SCC OnLine Del 562

“Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”

– Pablo Picasso

The Court observed that

“Ancient Indian art has been never devoid of eroticism where sex worship and graphical representation of the union between man and woman has been a recurring feature….. The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.”

The Court ruled that nudity alone cannot said to be obscene. The Court relaying on the facts of the case and authorities cited held that offence alleged under Section 294 IPC cannot be made out. Similarly, the ingredients of Section 298 IPC are not present in this case as there was no deliberate intention on the part of the petitioner to huff the nationalist feelings of an individual or riot any religious feelings. 

The Court emphasized on liberal tolerance and observed that 

“A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint… Our culture breeds tolerance both in thought and in actions.

According to Justice Kaul,

“There are very few people with a gift to think out of the box and seize opportunities, and therefore such people’s thoughts should not be curtailed by the age-old moral sanctions of a particular section of society having oblique or collateral motives who express their dissent at every drop of a hat.”

Tamilselvan v. Government of T. N., 2016 SCC OnLine Mad 5960

“If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary — what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”

A Division bench of S.K. Kaul, C.J., and Pushpa Sathyanarayana, J., opined that “a book cannot be dismissed merely as sensational, reactionary or mean-spirited” and held that the settlement arrived at the peace meet would not be binding on the author. 

The Court observed that the an attitude of tolerance towards writings have existed for ages and author and artistes like Prof. Perumal Murugan cannot be under a constant apprehension that if he writes something which deviates from well trodden path, he will face adverse consequences. 

‘Let the author be resurrected to what he is best at. Write.’

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Mahesh Bhatt v. Union of India, 2009 SCC OnLine Del 104

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”

– John Stuart Mill

In a writ petition filled under Article 226 of the Constitution of India, Sanjay Kishan Kaul, J. deciding the issue as to what extent government can regulate commercial speech to safeguard public health, observed that 

“Directors of films should not have multifarious authorities breathing down their necks when indulging in creative art. The concept of censorship itself is a deviation and due care has been taken to incorporate the discouragement of any propagation or advertisement of smoking by incorporating the relevant provisions in the guidelines of the Censor Board.”

The Court struck down Rule. 4(6), 4(6A), 4(6B) and 4(8) of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 as they ultra vires the parent Act and are violative of Article 19(1)(a) of the Constitution of India. 

Gandhi v. Secretary to the Government, 2016 SCC OnLine Mad 8898

“Every language is a temple, in which the soul of those who speak it is enshrined”

– Oliver Wendell Holmes

A Division bench of S.K. Kaul, C.J. and R. Mahadevan, J, deciding upon the challenge to the grant of ‘Classical’ status to languages like Telugu, Kannada, Odiya, Malayalam etc., opined that the it is for the experts to determine whether a language satisfy the norms to be consideration as ‘Classical’ and the Court cannot go into the opinions and findings of expert body.

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Babita Puniya v. Secretary, 2010 SCC OnLine Del 1116

“Nature gave women too much power; the law gives them too little.”

– Will Henry

A Division bench headed by Justice Sanjay Kishan Kaul, recognising the rights of women to get equal status with their male counterparts in Army and Air force, held that the Short Service Commissioned women officers of the Air Force who had opted for PC and were not granted PC but was granted extension of SSCs and Short Service Commissioned women officers of the Army are entitled to PC at par with male Short Service Commissioned officers with all consequential benefits.

“If these officers have performed equally well in their task which are non-combat in nature and on that basis respondents have extended their period of SSC more than once, it would be gross violation to Articles 14, 16 and 21 of the Constitution of India to accept a situation where such women officers are deprived of a PC while male officers are granted this PC. If this is not discrimination what would be discrimination based on gender and denial of equal opportunity of employment to these women?”

*Editorial Assistant – Trainee, EBC Publishing Pvt. Ltd. 

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