Justic Bhushan Ramkrishna Gavai was born on 24-11-1960 at Amravati to late R.S. Gavai, who was a noted social activist, Member of Parliament and former Governor of Bihar and Kerala1.
At the age of 25, he enrolled as an advocate and started practicing at the Nagpur bench of the Bombay High Court. Justice Gavai practiced independently at Bombay High Court from 1987 to 1990 and after 1990, practised mainly before the Nagpur Bench of Bombay High Court. His practise was mostly focussed on issues related to Constitutional Law and Administrative Law.
Justice Gavai served both as an Assistant Government Pleader and Additional Public Prosecutor in the Nagpur Bench of the Bombay High Court from August 1992 to July 1993. He was later appointed as Government Pleader and Public Prosecutor for Nagpur Bench on 17-01-2000.
Judgeship of the Bombay High Court
He was appointed as a judge of the Bombay High Court on 14-11-2003 and became a permanent Judge of the Bombay High Court on 12-11-2005. Justice Gavai presided over Benches having all types of assignments at the Principal Seat in Mumbai as well as Benches at Nagpur, Aurangabad and Panaji.3
Journey towards the Supreme Court
After 16 years of Judgeship at the Bombay High Court, Justice B.R. Gavai was elevated as a Judge of the Supreme Court of India on 24-05-2019. The Collegium in recommending Justice Gavai’s name for the Supreme Court, gave due weight to his seniority, integrity, merit and due representation in the Supreme Court4
*Did You Know? Justice Gavai is the first Supreme Court Judge belonging to a Scheduled Caste, to be appointed in 9 years after Justice K.G. Balakrishnan’s retirement in 20105.
Furthermore, if the seniority convention is followed, then Justice Gavai will become the second Chief Justice of India belonging to a Scheduled Caste category after Justice Balakrishnan6.
Justice B.R. Gavai has authored 150+ judgments7 over the course of his tenure. Some important decisions that Justice Gavai has been a part of, are as follows-
Six years after the country went through demonetisation, that was severely criticised for being poorly planned, unfair and unlawful, the Constitution Bench of S. Abdul Nazeer, B.R Gavai*, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna**, JJ., in Vivek Narayan Sharma v. Union of India, 2023 SCC OnLine SC 1, upheld the Centre’s 2016 demonetisation scheme in a 4:1 majority and held that demonetisation was proportionate to the Union’s stated objectives and was implemented in a reasonable manner.
While Gavai, J., wrote the majority opinion for himself and SA Nazeer, A.S. Bopanna, V. Ramasubramanian JJ.; Nagarathna, J was the lone dissenter who held that though demonetisation was well-intentioned and well thought of, the manner in which it was carried out was improper and unlawful.
A Constitution Bench of S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian* & BV Nagarathna**, JJ, in Kaushal Kishor v. State of Uttar Pradesh, 2023 SCC OnLine SC 6, has delivered verdict on the issue relating to freedom of speech of public functionaries and whether the right to life and personal liberty of citizens impedes the same and has ruled against imposing further restrictions on freedom of speech of Ministers.
V Ramasubramanian, J delivered the verdict for himself and SA Nazeer, AS Bopanna, BR Gavai, JJ, however, BV Nagarathna, J, while agreeing with the reasoning and conclusions arrived at by the majority on certain questions referred, went on to lend a ‘different perspective’ on some issues by way of separate opinion.
The 5-judge Bench of SA Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna*, JJ., in Neeraj Datta v. State, 2022 SCC OnLine SC 1724, answered an important question pertaining to the Prevention of Corruption Act, 1988 and has held that in the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inference of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. The trial does not abate nor does it result in an order of acquittal of the accused public servant if the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence.
In Anna Mathew v. Supreme Court of India, 2023 SCC OnLine SC 131, filed by three Madras High Court lawyers opposing the appointment of Advocate LC Victoria Gowri as a judge of the Madras High Court, wherein the issue was relating to the scope and ambit of judicial review in the matter of appointment of judges to the High Courts under Article 217 of the Constitution, the division bench of Sanjiv Khanna and B.R. Gavai, JJ. said that when eligibility is put in question, the question would fall within the scope of judicial review. However, the question of whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review.
The Court opined that, this legal issue is settled and is not res integra.
In Ravi Nair v. State of Gujarat, 2023 SCC OnLine SC 1419, filed by two journalists against the summons issued by the Ahmedabad Crime Branch seeking their appearance in person to question about their critical article titled “Documents Provide Fresh Insight Into Allegations of Stock Manipulation That Rocked India’s Powerful Adani Group” published on the Organized Crime and Corruption Reporting Project (‘OCCRP’) website, the Division Bench of B.R. Gavai* and Prashant Kumar Mishra, JJ. allowed the appeal and directed that no coercive steps shall be taken against the petitioners till the next hearing.
In Phulel Singh v. State of Haryana, 2023 SCC OnLine SC 1227, challenging judgment and order passed by the Division Bench of Punjab and Haryana High Court on 24-07-2009 wherein, the appellant’s father was acquitted of charge under Section 304-B of Penal Code, 1860 (‘IPC’), but the conviction and sentence against the appellant was upheld for the same offence and revision petition against his acquittal for charge under Section 302 IPC was dismissed, the Bench of B.R. Gavai*, Pamidighantam Sri Narasimha and Prashant Kumar Mishra, JJ. acquitted the appellant expressing ‘grave doubt’ on whether the dying declaration recorded by the Executive Magistrate was a voluntary one or tutored at the instance of another.
The Three Judge Bench comprising of B.R. Gavai, PS Narasimha and Sanjay Kumar, JJ., in Rahul Gandhi v. Purnesh Ishwarbhai Modi, 2023 SCC OnLine SC 929, while hearing an appeal against Gujarat High Court’s order wherein, Rahul Gandhi’s revision petition challenging the Session Court’s order thereby rejecting the prayer to stay his conviction was dismissed, said that considering that there are wide ramifications of the conviction order and Section 8(3) of the Representation of the People Act, 1950 and they not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who elected him, to represent their constituency. and that no reason was given by the Trial Court for imposing the maximum sentence, therefore, the conviction order needs to be stayed.
The 3-judge bench of BR Gavai, AS Bopanna and Dipankar Datta, JJ., in Teesta Atul Setalvad v. State of Gujarat, 2023 SCC OnLine SC 860, granted regular bail to Civil rights activist Teesta Atul Setalvad in respect of First Information Report (‘FIR’) for offences punishable under Sections 468, 469, 471, 194, 211, 218 and 120-B of the Penal Code, 1860 (‘IPC’) for fabricating evidence in the 2002 Godhra riots.
“It is well-settled law that awarding of life sentence is a rule and death is an exception. The application of the rarest of rare case principle is dependent upon and differs from case to case.”
In Digambar v. State of Maharashtra, 2023 SCC OnLine SC 531, challenging the common judgment and order passed by High Court of Bombay, a Full Bench of BR Gavai*, Vikram Nath, Sanjay Karol, JJ. partly allowed the appeal of Digambar (accused 1) by maintaining his conviction under Section 302 of Penal Code, 1860 (IPC) and commuting his death sentence to life imprisonment considering the view that the High Court as well as the Trial Court erred in holding the present case to fall under ‘rarest of rare’ cases to award capital punishment to the accused.
In Irfan v. State of U.P., 2023 SCC OnLine SC 1060, filed by the convict against the judgment and order passed by the Allahabad High Court, wherein the Court affirmed the conviction order and sentence of death passed by the Sessions judge for the offences punishable under Sections 302, 436 and 326-A of the Penal Code, 1860, the full bench of BR Gavai, JB Pardiwala* and Prashant Kumar Mishra, JJ. while setting aside the conviction order, has held that dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.
In GMR Warora Energy Limited v Central Electricity Regulatory Commission, 2023 SCC OnLine SC 464, filed against the orders of Appellate Tribunal for Electricity (‘APTEL’), the division bench of BR Gavai* and Vikram Nath, JJ. while dismissing the appeals, said that the findings of APTEL are not perverse and arbitrary. Further, the Bench held that additional charges payable on account of orders, directions, notifications, regulations issued by State instrumentalities, after the cut-off date, qualify as ‘Change in Law’.
The issues were whether various taxes/charges imposed by State Governments after the cut-off date specified in the PPAs, would fall under ‘Change in Law’ events? Further, whether the levy of Forest Tax and the MoEF Notification on coal quality be considered as ‘Change in Law’ events?
The Court construed the term “Law” and said that it means all laws including Electricity Laws in force in India and any statute, ordinance, regulation, Notification or code, rule, or any interpretation of any of them by an Indian Governmental Instrumentality and having force of law. Thus, it cannot be denied that Coal India Limited is an instrumentality of the Government of India and its orders, insofar as price of fuel are concerned, are binding on all its subsidiaries.
The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., in Azgar Barid v. Mazambi, (2022) 5 SCC 334, upheld the impugned judgment of the High Court wherein the High Court had granted property rights to the step- children of the deceased in her mehar property by declaring the mehar deed as unenforceable for being nominal.
The Bench of BR Gavai* and PS Narasimha, JJ., in Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 SCC OnLine SC 1224, held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction.
The bench of L. Nageswara Rao and BR Gavai*, JJ., in Indian Overseas Bank v. RCM Infrastructure Ltd., (2022) 8 SCC 516, held that the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) cannot continue once the CIRP has been initiated and the moratorium has been ordered as per the Section 14(1)(c) of the Insolvency and Bankruptcy Code, 2016 (IBC).
The bench of L. Nageswara Rao and BR Gavai*, JJ., in Shrikant G. Mantri v. Punjab National Bank, (2022) 5 SCC 42, interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business’ disputes cannot be construed as consumer disputes. The entire Act revolves around “business-to-consumer” disputes and not for “business-to-business” disputes.
In Pani Ram v. Union of India, 2021 SCC OnLine SC 1277, where a soldier, after serving in the Regular Army for 25 years, was re-enrolled in the Infantry Battalion (Territorial Army), Ecological Task Force (ETF) and was denied disability pension in view of the letter of the Government of India, Ministry of Defence, which provides that the members of ETF would not be entitled for disability pension, the bench of L. Nageswara Rao and BR Gavai*, JJ., held that it was wrong to deny the claim as the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army and the other officers or enrolled persons working in the Territorial Army are entitled to disability pension.
The bench of L. Nageswara Rao and BR Gavai*, JJ., in Sanjay Ramdas Patil v. Sanjay, (2021) 10 SCC 306, set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.
There is no illegality in the action of the appointing authority, the DoPT, if it calls for, refers, and considers the opinion of the Central Vigilance Commission before it takes its final decision on the request for sanction for prosecuting a public servant.
The period of three months, extended by one more month for legal consultation, is mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be Accountable for the delay and be subject to judicial review and administrative action by the CVC under Section 8(1)(f) of the Central Vigilance Commission Act, 2003 (CVC Act).
The bench of AM Khanwilkar and BR Gavai*, JJ., in Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, (2021) 2 SCC 525, held that not obtaining prior consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.
B.R. Gavai*, J., while addressing the contempt petition in Rama Narang v. Ramesh Narang, 2021 SCC OnLine SC 29, expressed that:
“…contempt proceeding is not like an execution proceeding under the Code of Civil Procedure.”
“…contempt proceedings are quasi-criminal in nature and the standard of proof required is in the same manner as in the other criminal cases.”
“A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders.”
The instant contempt petition arose out of an unfortunate family dispute between a father and his two sons from his first wife.
A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ., in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, asked the J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.
“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”
The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ., in Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160, sentenced advocate Prashant Bhushan with a fine or Re.1/ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.
“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re.1/- (Rupee one).”
Conviction on basis of circumstantial evidence- Onus on accused
In Sudru v. State of Chattisgarh, (2019) 8 SCC 333, wherein a son murdered his father, the bench of Deepak Gupta and B.R. Gavai*, JJ., confirmed the conviction of the accused on the basis of circumstantial evidence, last seen evidence and non-explanation of incriminating evidence by accused, conviction of accused confirmed.
The 3-judge bench of Arun Mishra, MR Shah and BR Gavai*, JJ., in Union of India v. Unicorn Industries, (2019) 10 SCC 575, held that by invoking the doctrine of promissory estoppel, the Union of India cannot be estopped from withdrawing the exemption from payment of Excise Duty in respect of certain products, which exemption is granted by an earlier notification; when the Union of India finds that such a withdrawal is necessary in the public interest.
In the corporate dispute in Shital Fibers Ltd. v. Indian Acrylics Ltd., 2021 SCC OnLine SC 281, the 3-Judge Bench comprising of R.F. Nariman, B.R. Gavai* and Hrishikesh Roy, JJ., held that, “The Company Court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed.”
COVID-19| SC suggests Centre to extend directions to protect children in Protection Homes from spread of coronavirus to Nari Niketans
The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ., Rishad Murtaza v. Union of India, (2020) 15 SCC 288, has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasible.
In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ., in Tata Housing Development Co. Ltd. v. Aalok Jagga, (2020) 15 SCC 784, held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco-sensitive zone. It said,
“The entire exercise of obtaining clearance relating to the project is quashed. We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.”
While elaborating the scope of judicial review, Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., in Punjab State Power Corpn. Ltd. v. Emta Coal Ltd., (2022) 2 SCC 1, held that,
“It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair.”
Question relating to interpretation of Section 11 of the Coal Mines (Special Provisions) Act, 2015 which was an outcome of the judgment of this Court’s decision in Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, and ancillary question pertaining to the scope of judicial review of administrative action of the State authority arose for consideration in the instant appeals.
The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., in Subhransu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720, dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.
A Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., in Common Cause v. Union of India, 2021 SCC OnLine SC 687, upheld the Central Government’s order extending the tenure of the incumbent Director of Enforcement Sanjay Kumar Mishra for a period of one year. The Supreme Court held that there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years. Interpreting Section 25 of the Central Vigilance Commission Act, 2003 which prescribes the minimum tenure of the Director of Enforcement, the Court observed:
“The words ‘not less than two years’ cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.”
A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ., in Brajesh Singh v. Sunil Arora, (2021) 10 SCC 241, found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733, in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.
Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman* and B.R. Gavai, JJ., Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 ruled in favour of Amazon in the infamous Future-Amazon dispute. It was held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court declared that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders.
Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid
A 3-Judge Bench of the Court in Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474, held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories. R.F. Nariman and B.R. Gavai, JJ., formed the majority, whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.
The Division Bench comprising of R. F. Nariman* and B.R. Gavai, JJ., in State of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602, addressed the instant case regarding statutory interpretation. The issue before the Bench was whether a residential accommodation for nuns and hostel for students would fall under “religious or educational purposes” for the purpose of tax exemption. The Bench expressed, “We must first ask ourselves what is the object sought to be achieved by the provision and construe the statute in accord with such object? And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted.”
The Division Bench of R.F. Nariman* and B.R. Gavai, JJ., in Amway India Enterprises (P) Ltd. v. Ravindranath Rao Sindhia, (2021) 8 SCC 465, addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled, “If at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.”
The 3-judge Bench of Arun Mishra*, MR Shah and BR Gavai, JJ., in Union of India v. State of Maharashtra, (2020) 4 SCC 761, partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454. It was held that some portions of the said verdict wer against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.
1. In Justice Gavai Supreme Court gets its first SC Judge in decade, The Times of India