“Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process including questioning and criticism.”
– Justice Sanjiv Khanna
Amish Devgan v. Union of India, (2021) 1 SCC 1
Justice Sanjiv Khanna was born on 14th May 1960. He completed his schooling from Delhi’s prestigious Modern School, Barakhamba Road. He graduated from University of Delhi in 1980 and later studied Law from the Campus Law Centre, University of Delhi.
♦Did You Know? Justice Sanjiv Khanna is the nephew of a former Judge of the Supreme Court of India, Justice Hans Raj Khanna, who propounded the Basic Structure Doctrine in 1973 and famously delivered the lone dissenting judgement in the ADM Jabalpur v. Shiv Kant Shukla case, popularly known as the Habeas Corpus case, in 1976. Justice H. R. Khanna was superseded to the office of the Chief Justice of India by M. H. Beg.
From an Advocate to a Supreme Court Judge
Justice Sanjiv Khanna enrolled as an Advocate with the Bar Council of Delhi in 1983. He began his practice in the District Courts at Tis Hazari in Delhi and soon shifted his practiced to Delhi High Court.
His area of practice was wide and varied from writ petitions in public law matters, direct tax appeals, income tax prosecutions, arbitration cases, commercial suits, environment and pollution laws matters, besides medical negligence cases before consumer forums and company law cases before the Company Law Board.
He had represented the Government of Delhi as an additional Public Prosecutor in various criminal cases. He was a senior standing counsel for the Income Tax Department for about seven years. He was appointed as a standing counsel (Civil) for the Government of Delhi in Delhi High Court in 2004.
♦Did You Know? Justice Sanjiv Khanna never headed any High Court as Chief Justice and was a judge of the Delhi High Court prior to his elevation to SC.
On 24th June, 2005 he was elevated as an additional Judge of the Delhi High Court and became a permanent Judge of the Delhi High Court on 20th February, 2006.
♦Did You Know? Justice Khanna was directly elevated from his parent High Court – the Delhi High Court, which is a rare occurrence. Only six judges have been elevated directly from their parent high court since 1997 – Justices S Abdul Nazeer, Ranjana Prakash Desai, Lokeshwar Singh Panta, G P Mathur, Ruma Pal and S S Quadri.
Justice Khanna was elevated as a Judge of the Supreme Court of India on 18th January, 2019.
♦Did You Know? Going by seniority, Justice Sanjiv Khanna, 61, is in line to become Chief Justice of India (CJI) in November 2024 for a term of seven months.
Notable Judgments at Supreme Court
♦Did You Know? It was a rare coincidence for Justice Sanjiv Khanna to begin his first day as a judge in Supreme Court sitting in the same courtroom from which his uncle, Late Justice H. R. Khanna, last retired.
Amish Devgan v. Union of India, (2021) 1 SCC 1
“Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 as if one claims to right to speech, the others have the right to listen or decline to listen.”
A Division bench comprising of AM Khanwilkar and Sanjiv Khanna,* JJ has 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.
The Court opined that thetrue test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.
“…the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”
The Court also made an attempt to define “hate speech” and explain what will invite penal action.
“Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action.”
Rajiv Suri v. Delhi Development Authority, 2021 SCC OnLine SC 7
A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.
“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”
Justice Sanjiv Khanna dissented with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.
According to Justice Khanna the core issue in the present case is whether or not the authorities have performed their duty to consult the public, followed the prescribed procedure and the authority competent acted to modify or amend in terms of the Development Act and the Development Rules.
Justice Khanna opined that “…mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure.”
Rapid MetroRail Gurgaon Ltd. v. Haryana Mass Rapid Transport Corporation Ltd., 2021 SCC OnLine SC 269
A 3-judge bench of Dr. DY Chandrachud*, MR Shah and Sanjiv Khanna, JJ has directed Haryana government to deposit Rs. 1,925 crore within three months into an escrow account while hearing a dispute between the state’s urban development authority, HSVP, and infrastructure company IL&FS on the Metro corridor in Gurugram.
♦Did You Know? Justice Sanjiv Khanna recused himself from hearing Sajjan Kumar’s appeal in 1984 anti-Sikh riots case and he is the one who had dismissed Sajjan Kumar’s bail in the Delhi High Court in 2015.
“The principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is the achievement of this goal.”
A 3-judge bench of N V Ramana, Sanjiv Khanna* and Krishna Murari, JJ held that the applicable statutory rules providing for voting on no-confidence motion by secret ballot have binding effect. Hence, re-voting or fresh voting, directed on the no-confidence vote in question, in the facts and circumstances of the case, as the same had not been done by secret ballot. Such re-voting, held, must be by way of secret ballot in accordance with the 1966 Rules.
The Court relied on the judgement in the case of Kuldip Nayar v. Union of India, (2006) 7 SCC 1 and S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, observed that “The primary principle and test to be applied by the courts is purity of election, that is, free and fair election. Secrecy of voting is an adjunct to the principle of purity of election.”
“Secrecy is not an absolute principle enshrined in law, but a requirement to subserve the larger public interest of purity of election. Secrecy cannot stand aloof, in isolation or in confrontation to the foundation of free and fair elections.”
A 3-judge bench of comprising of N V Ramana***, Sanjiv Khanna* and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.
“Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.”
Franklin Templeton Trustee Services Private Limited v. Amruta Garg, 2021 SCC OnLine SC 88
In the case relating to winding up of six schemes of the Franklin Templeton Mutual Fund, a division bench of SA Nazeer and Sanjiv Khanna*, JJ has, rejecting the objections to poll results, upheld the validity of e-voting process for winding up of mutual fund schemes of Franklin Templeton, and opined that the disbursal of funds to unit holders will continue.
The Court held that for the purpose of clause (c) to Regulation 18(15) of the Mutual Fund Regulations, consent of the unit holders would mean consent by majority of the unit holders who have participated in the poll, and not consent of majority of all the unit holders of the scheme.
Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84
“In their blooming and blossoming, we all bloom and blossom.”
In the present case, a citizen suffering from a writer’s cramp knocked on the doors of the Apex Court as he was denied a scribe in the civil services examination and the 3-judge bench comprising of D Y Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ held that writer’s cramp can be considered as a disability under Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016).
“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”
The Court opined that the heart of the present case lies in the principle of reasonable accommodation. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled.
“The principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.”
The Court directed the Centre to frame guidelines in three months to protect the rights of disabled students and enable them to write all competitive examinations with help of a scribe in tune with the Rights of Persons with Disabilities Act 2016.
While upholding conviction of the accused, the Division bench of SA Nazeer and Sanjiv Khanna*, JJ, set aside the sentence of life imprisonment and held that the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.
The Court held that “the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.”
Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459
“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”
The 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana***, Dr. DY Chandrachud***, Deepak Gupta and Sanjiv Khanna,* JJ upholding the 2010 landmark judgment of the Delhi high court bringing the Chief Justice of India’s office under Right to Information, held that the office of the Chief Justice of India comes under the definition of ‘public authority’ in the Right to Information Act.
Justice Chandrachud is his separate but concurring opinion opined that “To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”
A 5-judge Constitution Bench of Ranjan Gogoi*, CJ and NV Ramana, Dr. DY Chandrachud***, Deepak Gupta*** and Sanjiv Khanna, JJ., assessing the constitutional validity of Section 184 of the Finance Act, 2017 and held that Section 184 is valid and does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court.
The Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution i.e. being destructive of judicial independence.
The Court also dealt with the difference with money bill and finance bill and held that the Money bill can be introduced only in Lok Sabha and the role of the Rajya Sabha is merely consultative.
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A 3-judge bench comprising of NV Ramana, Sanjiv Khanna* and Krishna Murar, JJ upheld the constitutional validity of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997.
The Court held that the separate classification of properties of religious institutions for rent legislation will pass the test under Article 14 of the Constitution of India.
“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”
Considering the serious nature of the crime involving rape and murder of 2 children, a 3-judge bench comprising of RF Nariman,* Surya Kant and Sanjiv Khanna,** JJ., with 2:1 verdict upheld the death sentence confirmed by the High Court.
Justice Khanna, while dissenting only on the issue of upholding death sentence confirmed by the High Court, held that the present case does not fall under the category of ‘rarest of rare’ case but would fall within the special category of cases, where the appellant should be directed to suffer sentence for life.
Dismissing the review petition filed by Appellant to review it’s 2:1 verdict awarding death sentence, a 3-judge bench of RF Nariman, Surya Kant* and Sanjiv Khanna,* JJ., held that the dissent by one Judge is not a bar for upholding death penalty.
The Court held that in the present case the appellant misused societal trust and the crime was not a crime a passion but a well crafted crime. The Crime committed by the Appellant were grave and shock the conscience of this Court and society that we cannot commute the sentence and without any doubt it will fall under rarest of the rare category.
“It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.”
Agreeing with the Justice Surya Kant on the dismissal of review petition and upholding of the conviction of the accused, Justice Khanna held that there is no good ground and reasons to review his observations and findings in the minority judgment.
Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454
A 3-judge bench comprising Justices N.V. Ramana*, Sanjiv Khanna and Krishna Murari upheld the then Karnataka Assembly Speaker K R Ramesh Kumar’s decision disqualifying 17 MLAs, but struck down the period of disqualification.
The Court opined that the Speaker is not empowered to disqualify any member till the end of the term.
The Court also discussed about the growing trend of Speakers acting against constitutional mandate and observed that
“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty or lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”
Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 2019 SCC OnLine SC 1005
A 3-judge bench consisting of RF Nariman*, Sanjiv Khanna and Surya Kant, JJ has held the Amendment Act to Insolvency and Bankruptcy Code, 2016 made pursuant to a report prepared by the Insolvency Law Committee dated 26th March, 2018 does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India.
“The law on the point should emanate from the Legislature and not from the Court”
A 3-judge bench of Ranjan Gogoi,* CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.
♦Did You Know?A five-member collegium headed by Chief Justice of India Ranjan Gogoi recommended the elevation of Justice Maheshwari and Justice Khanna to the top court after reviewing its earlier deliberations held on December 12, 2018, in which Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog were said to have been considered for elevation.
Notable Judgments at High Court
♦Did You Know? 32 judges were being superseded by the elevation of Justice Khanna.
The Division bench of Sanjiv Khanna* and Chander Shekhar, JJ while deciding the validity of disqualification of 20 AAP MLAs for holding offices of profit as ‘parliamentary secretaries’ in the Delhi government by President Ram Nath Kovind, set aside the disqualification on the ground of failing to comply with the principles of natural justice by the Election Commission as the MLAs were not given an oral hearing or an opportunity of being heard.
The Division Bench of Sanjiv Khanna and Prathiba M. Singh*, JJ., while upholdimg the validity of Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, observed that
“…once a law is repealed and a new legislation has been put in its place, it is not open for anyone to contend that it should be continued to be governed by the old enactment, except where actions under the existing laws had concluded. The applicability of the repealed legislation is only to the extent as provided in the Savings clause and nothing more.”
Wing Commander Arvind Kumar v. Directorate General, BSF, 2017 SCC OnLine Del 10880
A Division Bench comprising of Sanjiv Khanna* and Navin Chawla, JJ, ruled in favour of an Air Force officer on deputation to the BSF Air Wing, enforcing the rule laid down in Group Captain Joe Emmanuel Stephen v. Directorate General of BSF, 2013 SCC OnLine Del 2472, that there cannot be two different pay scales, one applicable to deputationists and the other to the officer of the parent cadre/department when both are performing identical and same duties.
Sterling Agro Industries Ltd. v. Union of India, 2011 SCC OnLine Del 3162
A 5-judge bench of Dipak Misra*, CJ and Vikramajit Sen, A.K. Sikri, Sanjiv Khanna and Manmohan, JJ., while deciding a petition challenging the validity of an order dated 9th July, 2010 passed by the Ministry of Finance dismissing its revision application, dealt with a very important question i.e. whether the High Court of Delhi can issue a writ against a person or authority not located within its territories, simply because the quasi judicial tribunal which passed the impugned order is located within the territorial jurisdiction of the Delhi High Court.
While entertaining a writ petition, the Court held that an order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated but, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
“The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens.”
The division bench of Dipak Misra*, CJ and Sanjiv Khanna, J., while disposing of a petition that demanded implementation of the tariff order passed by the Delhi Electricity Regulatory Commission (DERC), directed the Commission to proceed afresh by following the due procedure and do the needful.
The court observed that, “The commission under the 2003 Act is required to deal with the aspect of tariff determination with intellectual integrity, transparent functionalism and normative objectivity and not act in a manner by which its functioning invite doubt with regard to its credibility.”
The Court reprimanded the Delhi government for “unjustifiably intruding and encroaching on the functions of the commission by interdicting”.
Rajinder Jaina v. Central Information Commission, 2009 SCC OnLine Del 3511
Sanjiv Khanna*, J., while deciding the writ petition challenging the disclosure on grounds of infringement of the right to privacy, held that the information was already existed in the public domain therefore no claims as to privacy could be made.
The court applied the ratio laid down in Raj Gopal v. State of Andhra Pradesh, (1994) 6 SCC 632, whereby the Court held that once a matter becomes an issue of public record, no privacy can be claimed for it.
Union of India v. Central Information Commission, 2009 SCC OnLine Del 3876
While dealing with yet another case related to refusal of the Central Information Commission to divulge information under the Right to Information Act, 2005 and involving an interpretation of S. 8(1)(i), Sanjiv Khanna*, J., held that the purpose of the proviso is only to clarify that while deciding the question of larger public interest i.e., the question of balance between ‘public interest in form of right to privacy’ and ‘public interest in access to information’ is to be balanced.
“The proviso is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right.”
†Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
** Judge who has penned the dissenting opinion
*** Judge who has penned a concurring opinion.