Know thy Judge

“A possibility of abuse cannot be used to deny legitimate rights to citizens”

Justice A.M. Khanwilkar

Jigya Yadav v. CBSE, (2021) 7 SCC 535


A trip down the memory lane is what Retirements and Farewells essentially are in regards to a Supreme Court Judge. It is a chance to reminisce and cherish their tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. The year 2022 is ‘The Year of Farewells’ for the Supreme Court, because never before has it seen such a flurry of retirements as it has in this year.

This month, Supreme Court’s Justice Ajay Manikrao Khanwilkar is all set to retire after a comprehensive term of 6 years. It also means that it is time for us to take our readers on a time travel, to run through the past and present of Justice Khanwilkar’s life in law, with anticipation for an equally stellar future.


Early Life and Career as an Advocate [1982- 2000][1]


Justice A. M. Khanwilkar was born on 30-07-1957 in Pune, Maharashtra. He did his graduation (B. Com) from Mulund College of Commerce, Mumbai and LL.B. from K.C. Law College, Mumbai.

After graduating in law, Justice Khanwilkar enrolled as Advocate on 10-02-1982. During his time as a counsel, Justice Khanwilkar handled Civil, Criminal and Constitutional matters before the Subordinate Courts, Tribunals and High Court of Judicature at Bombay on the Appellate Side as well as the Original Side. During his practicing years, Justice Khanwilkar got a wide range of exposure in Criminal, Civil, Constitutional, Election and Co-operative matters.

From the year 1984, Justice Khanwilkar started his practice in the Supreme Court of India. He also worked as Additional Government Advocate for the State of Maharashtra till December 1989. Justice Khanwilkar was appointed as Panel Counsel for Union of India in January 1990 whereby which, he had the opportunity to represent the Union of India in several matters of national importance.

In August 1994 he was appointed as Amicus Curiae by the Supreme Court to assist on environmental issues in the case of M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2 SCC 411. He was also the Standing Counsel for the Election Commission of India for Supreme Court matters from March 1995 till his elevation as a Judge. In October 1995, Justice Khanwilkar was appointed as Standing Counsel for the State of Maharashtra for Supreme Court matters.

♦Did you Know? Even in private practice, Justice Khanwilkar had on occasion handled matters of great significance before the Supreme Court to represent persons in high public offices as also various statutory Authorities, Corporations and institutions.

As Member of Committees/Task Force/ Associations

Justice Khanwilkar was appointed as Member of the Task force (headed by the former Chief Justice of India Justice E. S. Venkataramaiah ) constituted by the Ministry of Health and Family Welfare, Government of India in November 1995 for examining and reporting on the amendments needed in the Prevention of Food Adulteration Act.

He was also the Executive Member of the Supreme Court Bar Association and Joint Secretary and Executive Member of the Supreme Court Advocates on Record Association.

Notable Appearances as a Counsel


Judgeship of the High Court [2000- 2016][2]


A.M. Khanwilkar’s tryst with judgeship began from the year 2000 when he was appointed as the Additional Judge of the Bombay High Court on 29-03-2000. He was later confirmed as permanent Judge of the Bombay High Court on 08-04-2002.

On 04-04-2013, Justice Khanwilkar was elevated the Chief Justice of the High Court of Himachal Pradesh. Thereafter, he was appointed as Chief Justice of Madhya Pradesh High Court on 24-11-2013.

Notable High Court Decisions

Bombay High Court

State of Maharashtra v. Murarao Malojirao Ghorpade, 2009 SCC OnLine Bom 1645

Swatanter Kumar, CJ., and S.B. Mhase, A.M. Khanwilkar, A.S. Oka and R.M. Savant, JJ., held that Words “all the land held by a person or as the case may be by a family unit whether in this State or any part of India” in Section 3(2) of Maharashtra Agricultural Lands (Ceilings on Holdings) Act (27 of 1961), cannot be given effect as it has extra-territorial operation beyond State of Maharashtra.

Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, 2009 SCC OnLine Bom 1996

The 3 Judge Bench of Swatanter Kumar, CJ., and A.M. Khanwilkar and Mridula Bhatkar, JJ., held that expression “or” occurring in Order 18, Rule 4(2), CPC, means “either”. Expression “shall” occurring in Order 18, Rule 4(2) is mandatory only to extent that cross-examination of witness, whose evidence has been taken on Affidavit in lieu of chief-examination, has to be taken. It was held that the Court has discretion to direct cross-examination to be done before the Commissioner appointed by it with such directions as it may think fit and it is not mandatory for Court to record evidence only before Court. Judicial discretion contemplated in Order 18, Rule 4(2) is to be exercised on settled principles of law; evidence can also be recorded by electronic media which may result in expeditious disposal.

Himachal Pradesh High Court

State of H.P. v. Mehboon Khan, 2013 SCC OnLine HP 4080

The 3 Judge Bench of AM Khanwilkar, CJ., and VK Sharma and Dharam Chandra Chaudhry,JJ., held that Section 293 of CrPC postulates that Expert Report cannot be thrown out merely because Expert was not summoned or because details of tests not been given, unless and until Court is satisfied that summoning of Expert for furnishing tests carried out is necessary.

Vikram Chauhan v. Managing Director, 2013 SCC OnLine HP 1715

While deciding the issue that whether Co-operative Banks established in the State of Himachal Pradesh are “State” within the meaning of Art. 12, the Bench of AM Khanwilkar, CJ., R.B. Misra and DD Sud, JJ., referred the issue for consideration of Full Bench.

Madhya Pradesh High Court

Asif Mohd. Khan v. State of M.P., 2015 SCC OnLine MP 6742

The powers of the competent authority regarding suspension of employee are, that they can pass order revoking suspension of employee and can also transfer him at another place. There is no prohibition in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, R. 9(5)(a) and (b) barring Competent Authority from passing such composite order.

Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd., 2015 SCC OnLine MP 6744

Sch. I, Art. 1-A [As substituted by M.P. Amendment Act (6 of 2008) w.e.f. 2-4-2008] of Court Fees Act, providing for upper limit of Court Fees instead of ad valorem Court Fees is beneficial legislation. The benefit of upper limit of Court Fees prescribed by Amendment Act, must be applied uniformly to all litigants instituting their claim after 2-4-2008, be it in the form of plaint before subordinate Court or memorandum of appeal before the High Court.


Judgeship of Supreme Court of India [2016- 2022]


Justice Khanwilkar was elevated as Judge of Supreme Court of India and assumed charge on 13-05-2016.

In March 2018, Justice Khanwilkar was appointed as the Chairman of the Water Disputes Tribunal called ‘The Mahanadi Water Disputes Tribunal’, for the adjudication of the water dispute regarding the inter-State River Mahanadi, and the river valley thereof. The appointment was done in exercise of the powers conferred by Section 4 of the Inter-State River Water Disputes Act, 1956, and by an order of the President. The Tribunal was constituted by the Central Government with the members nominated by the Chief Justice of India.

Notable Supreme Court Judgments

When it comes to Justice Khanwilkar’s many decisions as a Supreme Court Judge, his tenure has been multi-faceted, as his decisions have not centered around one specific field of law.[3]

♦Did You Know? Justice Khanwilkar has authored approximately 200+ Supreme Court Judgments[4]

Some of the notable decisions on various issues, that have been rendered by Justice A.M. Khanwilkar and the decisions that he had been a part of, are as follows-

Prevention of Money Laundering Act

Justice Khanwilkar’s final week before his retirement saw the coming of a significant decision concerning the constitutional validity of Prevention of Money Laundering Act, 2002. In Vijay Madanlal Choudhary v. Union of India, SLP (Criminal) No. 4634 OF 2014, the 3-Judge Bench of A.M. Khanwilkar*, Dinesh Maheshwari and C.T. Ravikumar, JJ., upheld the validity of the challenged provisions of the 2002 legislation. The Bench also held that in view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under CrPC. “Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if Enforcement Directorate at the time of arrest, discloses the grounds of such arrest”.

Fundamental Rights

In Jigya Yadav v. CBSE, (2021) 7 SCC 535, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ., held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

A 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1  held that the right to die with dignity is a fundamental right. An individual’s right to execute advanced medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Elections

In Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35, while deciding that whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ., held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee –the Collector, under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

In the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, the 5-judge bench comprising Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ., made the disclosure of criminal antecedents by the contesting candidates mandatory and held that the disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

In Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, the Bench of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Local Government- OBC Reservation in Elections

The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, i.e., Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked-

 “State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

Schools, Students and Education

The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., in Indian School v. State of Rajasthan, (2021) 10 SCC 517, issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilized facilities/activities and not on the basis of actual data school-wise. The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in Mamta Sharma v. CBSE, (2022) 1 SCC 368, refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that, “… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Legislative Processes/ Legislations

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “undisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705, held that for application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

Judiciary, Courts and its Administration, Practice and Procedure etc.

Holding advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ., in NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The high voltage matter in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196; highlighting the case registered by the Central Bureau of Investigation against retired Orissa High Court Judge, Justice I.M. Quddusi, containing serious allegations implicating the said Judge under Ss. 8 and 120-B of the Prevention of Corruption Act, 1988, the 5-judge bench of Dipak Misra, CJ., along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ held that- “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers”.

A 5-judge bench in State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602, held that Supreme Court cannot entertain objections as the Original Court solely because it has appointed the arbitrator.

The bench of Justice A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., in Rachna v. Union of India, (2021) 5 SCC 638, held that the Courts cannot issue mandamus to frame policy. The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Explaining the importance of the role of Trial Courts, especially, with respect to framing of charges, the bench of A.M. Khanwilkar, Abhay S. Oka and J.B. Pardiwala, JJ., in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, Crl.A. No.-001041-001041/2022, held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Central Vista Project

The 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna, JJ., in Rajiv Suri v. Delhi Development Authority2021 SCC OnLine SC 7, by a 2:1 verdict, gave a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Aadhar Card/ Right to Privacy

In K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797, the Supreme Court quashed the order of Central Board of Secondary Education (C.B.S.E) asking the students to get themselves registered for National Eligibility-cum-Entrance Test (NEET) examinations by producing AADHAR numbers. The Court stated that

“The students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

Justice Khanwilkar was part of the Constitution Bench which decided one of the most significant decisions related to ‘Right to Privacy’ in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 which declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down with a ratio of 4:1. However, despite going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court.

The 5- Judge Constitution Bench of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., in Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1.

Same –Sex Relationships – Constitutionality of S. 377 IPC

In the landmark judgment of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the 5-Judge Bench of Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., partially struck down Section 377 of the Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court had upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Centre- State Relationship/ Federalism

In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 also known as Delhi v. Centre case, the 5-Judge Bench comprising of Dipak Misra, CJ., and A.K. Sikri, A.M Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan JJ., held that the words “any matter” employed in the proviso to clause (4) of Art. 239AA of the Constitution cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

Freedom of Speech and Expression and Hate Speeches

The bench of A.M. Khanwilkar and Sanjiv Khanna, JJ., in Amish Devgan v. Union of India, (2021) 1 SCC 1, refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation. While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Commutation of Death Sentence

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ., in Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

Evidentiary value of Parliamentary Committee Reports

The 5-Judge Bench comprising of Dipak Misra, CJ., and A.M. Khanwilkar, Dr D.Y. Chandrachud, Dr A.K. Sikri and Ashok Bhushan, JJ., in Kalpana Mehta v. Union of India, (2018) 7 SCC 1, held that Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor can its validity be called into question.

Child Custody

The bench of A.M. Khanwilkar and J.B. Pardiwala, JJ., in a matter relating to custody of two minor children, advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives’. In Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, the Court observed that, “The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children”.

Sexual Offences

In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of A.M. Khanwilkar and S. Ravindra Bhat, JJ., in Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances.

Reminding the Courts of their duty, the Bench stated that-

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the Court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the Court.”

Adultery

The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Dipak Misra, CJ., (for himself and A.M. Khanwilkar, J.,) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person.

Tribunals

The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010 in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, it was observed that “NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door”.

Taxation

Justice A.M. Khanwilkar was part of the majority opinion in the 7:2 majority Entry Tax verdict in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1  which upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”.

Sidhu Road Rage

Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of A.M. Khanwilkar and Sanjay Kishan Kaul, JJ., in Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15-05-2018.

Decisions That Initiated a Broader Discourse

In Justice Khanwilkar’s varied trajectory as a SC Judge, there were some decisions which generated quite a buzz, not only in the legal circles but also in the political crowd and the civil society at large. Besides the very recent decision in Madanlal Choudhry v. Union of India (PMLA case), there have been other cases which encouraged a dialogue within the various sections of the society and media. Some of those cases have been listed below-

Foreign funding for NGOs

In a major win for the Union of India, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Noel Harper v. Union of India, 2022 SCC OnLine SC 434, upheld the validity of the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010 vide the Foreign Contribution (Regulation) Amendment Act, 2020. The Court was of the opinion that receiving foreign donations cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems.

Gauri Lankesh Murder Case

In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak. N, regarding offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Godhra Riots Case

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and CT Ravikumar, in Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, dismissed Zakia Jafri’s plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Entry of Women in Sabrimala Temple

A 5-Judge Constitution Bench, in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by Dipak Misra, CJ., for himself and A.M. Khanwilkar, J.; while, R.F. Nariman and Dr D.Y. Chandrachud, JJ., each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Dipak Misra, CJ., and A.M. Khanwilkar, J., held that the exclusionary practise  followed at the Sabarimala temple violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. The practice of exclusion of women of the age group of 10 to 50 years cannot be regarded as an essential part as claimed by the respondent Board.


 Legacy


♦Did you Know? During his tenure as a Judge, A.M. Khanwilkar, J., has been part of almost 809 Benches![5]   

Every field in Law is a vast universe in itself and it is through the contributions of lawyers and judges alike that people are able to access this ‘multiverse’. It would not be wrong to say that ever since Justice Khanwilkar entered the legal profession, at every step of his career, he has traversed into this infinite realm. At every phase of his career- whether it be Judging or Getting Judged- Justice Khanwilkar has not only proved his mettle, but his contributions have enriched the legal space for the posterity to savour.

Law is like the universe- infinite; thus, there are always chances of expansion. Since 1982, Justice Khanwilkar truly has been exploring the “multiverse of law”. We very much look forward to the next chapter in Justice Khanwilkar’s career with hopes that he keeps on exploring and expanding the legal boundaries.


†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

[1] Hon’ble Former Justices, High Court of Bombay

[2] Chief Justice and Judges, Supreme Court of India

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

[5] Justice A.M. Khanwilkar, SC Observer

Know thy Judge

Born on 17-06-1958, Justice Kuttiyil Mathew Joseph studied Law at the Government Law College, Ernakulam, Kerala and got enrolled as a lawyer in 1982. He started his legal practice from the Delhi High Court in Civil and Writ matters. Later on, he shifted his practice to Kerala High Court in 1983 and became a permanent member of Kerala High Court Advocates Association. After practicing for about two decades Justice K.M. Joseph became Permanent Judge of the High Court of Kerala on 14-10-2004.[[1]]

♦Did you know? Justice K.M. Joseph is the son of K. K. Mathew, former Supreme Court judge and Chairman of the 10th Law Commission.[[2]]

He was sworn in as the Chief Justice of Uttranchal High Court on 31-07-2014. Carrying the legacy of his father Justice K.M. Joseph got elevated as the Judge of Supreme Court on 07-08-2018.

♦Did you know? Justice K.M. Joseph is one of the longest serving High Court Chief Justices to be elevated to the Supreme Court.[[3]]

Justice K.M. Joseph is due to retire on 16-06-2023.


Career as an Advocate


Justice K.M. Joseph had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

 Shanti Lal Mehta v. Union of India, 1982 SCC OnLine Del 303 

 Anirudhan v. Government of Kerala, 1999 SCC OnLine Ker 293

 State of Kerala v. T.V Anil, 2001 SCC OnLine Ker 328 

 Thomas v. Mathew N.M, 1995 SCC OnLine Ker 151

 Mathew v. Union of India,  2003 SCC OnLine Ker 12′

♦Did you know? Justice K.M. Joseph had been appointed as Amicus Curiae in Mathew Varghese v. Rosamma Varghese, when the Kerala High Court was addressing the question: Whether a Christian father is under an obligation to maintain his minor child?[[4]] 


Remarkable Judgments as the Judge of Supreme Court


Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474

A 3-Judge Bench has 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.

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 P.B. Nayak v. Bhilai Steel Plant,  2021 SCC OnLine SC 970

The Division Bench of K.M Joseph* and Pamidighantam Sri Barasimha, JJ., held that mere fact that food, refreshment and even liquor is being provided in Non-Residential Clubs by catering services, it will not make the club premises ‘wholly or principally’ related to supply of meals and refreshments to make it fall within the purview of M.P. Shops and Establishments Act, 1958.

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Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513

While rejecting an appeal to quash proceedings under Section 138 of the N.I. Act, 1881 at pre-trial stage, the Division Bench comprising of K.M. Joseph and Hrishikesh Roy*, JJ., held that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties.

The Bench upheld the impugned judgment of Delhi High Court wherein the High Court had – while acting as a quashing court under Section 482 of CrPC – refused to quash proceedings at pre-trial stage. The Bench observed,

“The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested.”

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Regional Transport Authority v. Shaju, 2022 SCC OnLine SC 209

The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances. The Bench expressed,

“…the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature.”

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Amar Nath v. Gian Chand, 2022 SCC OnLine SC 102

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

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CBI v. Uttamchand Bohra2021 SCC OnLine SC 1208

While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

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Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847

The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

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 Commissioner of Police v. Raj Kumar2021 SCC OnLine SC 637

The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

“Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.”

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 Manohar Lal Sharma v. Narendra Damodardas Modi2018 SCC OnLine SC 2807

A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce.

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Manish Kumar v. Union of India, 2021 SCC OnLine SC 30

The 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that:

“There is nothing like a perfect law and as with all human institutions, there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.”

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Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382

In a major verdict, the bench of UU Lalit and KM Joseph, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

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Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374

The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

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Iffco Tokio General Insurance Co. Ltd. v. Pearl Beverages2021 SCC OnLine SC 309

In an interesting case, the 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has held that while in case where there is a blood test or breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion, however, the absence of test may not disable the insurer from establishing a case for exclusion from liability on ground of drunk driving.

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P. Mohanraj v. Shah Brother Ispat Pvt. Ltd.,2021 SCC OnLine SC 152

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

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Anglo American Metallurgical Coal Pty Ltd v. MMTC Ltd, 2020 SCC OnLine SC 1030

While settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd, the bench of RF Nariman and KM Joseph, JJ had the occasion to explain the concept of “patent” and “latent” ambiguity and held,

“… a “patent ambiguity” provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense.”

In the said case, the bench has set aside the decision of the division bench of Delhi High Court and has restored the Majority Award dated 12.05.2014 and the Single Judge’s judgment dated 10.07.2015 dismissing the application made under section 34 of the Arbitration Act by MMTC.

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Paramvir Singh Saini v. Baljit Singh2020 SCC OnLine SC 983

The 3-judge bench of RF Nariman, KM Joseph and Anirudhha Bose, JJ has directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks.

The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

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Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028

In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

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Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

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Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has stayed the further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 by Sudarshan news either under the same or any other title or caption. The case deals with telecast of a programme titled ‘Bindaas Bol’ on Sudarshan News which allegedly vilifies the Muslim community by portraying it to be involved in an act of terror or, as it is labeled, “jehad” in infiltrating the civil services of the nation.

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Notable Judgments at the High Court of Kerala (2004-2014)


Kapico Kerala Resorts (P) Ltd., v. Ratheesh K.R., 2013 SCC OnLine Ker 24580

The Division Bench of K.M. Joseph and K. Harilal, JJ. had ordered to demolish the Kapico Resorts at Panavally in Nediyathuruthu, which was constructed violating Coastal Regulation Zone Rules. The Bench stated, “we cannot ignore the fact that we have also held that the island would fall otherwise in CRZ III and therein the construction would be impermissible. We also notice that in the recommendation of the committee the CRZ on the bank of filtration ponds/pokali fields of Kerala needs to be in CRZ-III. No doubt here the petitioners have a case that constructions could be regularised as it were and also it is important that at any rate property of the island was properly classified for all times”. Admittedly, the company had not sought or got permission for the construction as required under the guidelines.

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Ratheesh. K.R v. State of Kerala, 2013 SCC OnLine Ker 14359

The Division Bench of K.M. Joseph and K. Harilal, JJ., addressed the controversy involving ediyathuruthu and Vettilathuruthu, once two sleepy islands which lay nestled in the Vembanad Lake which is the longest lake in India and a backwater in the State of Kerala. Is there violation of the Coastal Regulation Zone Notifications issued in the year 1991 and 2011, and is there encroachment on puramboke land and kayal, were the questions which substantially arise for consideration. The Bench held that the Notifications issued were intended to protect the coasts, the environment in general and to achieve the sustainable development, particularly of the fisher folk and other local population. The Notifications were meant to be enforced with full vigour. Circulars had been issued to the local bodies, however, only lip service had been paid if at all to the terms of the Notifications. The Bench remarked that by such callous indifference and consequent blatant violation of the Notifications, a law which was meant to address serious environmental issues which adversely affect the present and future generations, was being completely undermined.

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K.V Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust, 2005 SCC OnLine Ker 504

The 3-judge Bench of J.B Koshy, K.M Joseph and K.R Udayabhanu, JJ., settled the questions of law referred to be decided by the Full Bench:

(i) Whether an appeal will lie against the order of a single Judge passed under Section 24 of the Code of Civil Procedure;

(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and

(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.

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Rehim v. M.V Jayarajan, 2010 SCC OnLine Ker 3344

The 3-judge Bench of Chelameswar, CJ., A.K Basheer and K.M Joseph, JJ. addressed the questions regarding contempt jurisdiction of the Court and relevant procedures to be followed for the same:

(i) Whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.2.2007 in an unnumbered Cont. Case (Crl.) of 2007 = 2007 (1) KLT 897 (One Earth One Life v. Sindhu Joy);

(ii) Whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing…

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Self Financing Para Medical Managements Assn. v. State of Kerala, 2014 SCC OnLine Ker 28526

The Division Bench of K.M Joseph and A.K Jayasankaran Nambiar, JJ., declared that the State Government has no power to fix the fee structure in respect of the para-medical courses conducted by self financing institutions save to the limited extent of ensuring that they were not exploitative in nature and that no capitation fee was charged. It was further declared that any restriction, by the State Government, on the autonomy of the self-financing institutions in the matter of conduct of paramedical courses in the State, would be effected only through enacted law of the State legislature and not through executive orders.

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♦Did you know?  When the Collegium proposed Justice K.M. Joseph’s name  for elevation to the Supreme Court the first time it was rejected by the Union government[5]. It was only after the Collegium reiterated his name a second time that he got elevated to the Supreme Court.[[6]]


As the Chief Justice of High Court of Uttaranchal (2014-2018)


One of the most significant judgment delivered by Justice K.M. Joseph as the CJ of Uttranchal High Court was in Harish Chandra Singh Rawat v. Union of India, 2016 SCC OnLine Utt 502, wherein he had quashed the imposition of President’s Rule in 2016 by the BJP led Union government in the state of Uttarakhand. His decision in this case was of far reaching political implication as it invalidated the President’s rule imposed by the Governor and restored the Harish Rawat led Congress Government in Uttarakhand. It was one of the rare instances where the Court had restored the previous government after striking down the Governor’s rule.[[7]]


†Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://web.archive.org/web/20130628090239/http://www.highcourtofkerala.nic.in/kmjoseph.html

[2]https://www.scobserver.in/judges?id=justice-k-m-joseph

[3] Ibid.

[4] 2003 SCC OnLine Ker 218

[5] https://www.scconline.com/blog/post/2018/04/27/heres-why-centre-asked-the-collegium-to-reconsider-justice-km-josephs-elevation/

[6] https://indianexpress.com/article/who-is/who-is-justice-kuttiyil-mathew-joseph-5152643/

[7] https://www.scobserver.in/judges?id=justice-k-m-joseph