"In the centre of the counterrevolution stood the judiciary." - Franz Neumann in 'Behemoth: The Structure and Practice of National Socialism 1933–1944.
While Khanwilkar, together with Ranjan Gogoi, Arun Mishra and S Y Bobde, would definitely be counted among the worst Supreme Court judges ever, the fact that he got to decide so many vital cases concerning (and redefining) the nature and limits of individual rights and freedoms speaks eloquently about the current state of the top court of the land. Gautam Bhatia does a very systematic and revealing dissection here. And the state (and transformation) of the Supreme Court only further underlines the radical restructuring that "India" is undergoing right now. The scenario, make no mistake, is extremely grim. <<This blog has a long-standing tradition of assessing the judicial legacies of Chief Justices of India, upon their retirement (see here, here, and here). This tradition has hitherto been limited to Chief Justices, because of the sway that they exercise upon the Supreme Court as “master(s) of the roster”, and because during their tenures, they tend to hear significant constitutional cases themselves. Last year, an exception was made upon the retirement of Justice R.F. Nariman, for reasons explained in this blog post. Today, the retirement of Justice A.M. Khanwilkar requires, I believe, a second exception. One reason for this is that during the course of his career (as we shall see in this post), Justice Khanwilkar has written some of the most consequential judgments concerning State power and the rights of the individual. But secondly – and more importantly – when you study these judgments together, you glimpse a certain judicial philosophy – such as it is – at work. This judicial philosophy – subject to a few important exceptions – is, I believe, largely representative of the Supreme Court today (which also perhaps explains why, across Chief Justices, these kinds of cases have been regularly assigned to Justice Khanwilkar, one of its most forceful proponents). What is this philosophy? In my earlier analysis of Justice Khanwilkar’s judgment in the FCRA Case (also discussed below) I had compared it to the Peruvian President Óscar R. Benavides famous line, “for my friends, anything; for my enemies, the law.” In a similar vein, the common thread running through Justice Khanwilkar’s constitutional law judgments is: “for the State, anything; for the individual, the law“: it is the philosophy not just of the executive court, but of the executive(‘s) court. ...I believe that these judgments reveal something important, both about Justice Khanwilkar’s judicial career, and about the contemporary Supreme Court, which is important to articulate and to discuss. This post should be read in that spirit. ... "The Court begins by framing the issue in a way that is most favourable for the State, and least favourable for the citizen. Having framed the question thus, it then goes on to accept the State’s factual claims at face value, but does not extend the same courtesy to the citizen. Having done that, it then applies those parts of existing legal doctrine that favour the State, and ignores – or misrepresents – those parts that protect the rights of citizens. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review." Indeed, this is a thread that runs throughout Khanwilkar J.’s judgments, and for a more elaborate articulation in this case, interested readers may consult the above blog post as a whole. However, the most glaring aspect of Khanwilkar J.’s judgment (other than its impact on the freedom of association) – is that he explicitly and unashamedly framed its arguments in ideological terms, and this ideology was evidently the ideology of the political executive. Lines from the judgment include: “The question to be asked is: “in normal times”, why developing or developed countries would need foreign contribution to cater to their own needs and aspirations?“; “Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens“; “There is no dearth of donors within our country.” ... These two judgments [Zakia Jafri and Himanshu Kumar] – driven by Justice Khanwilkar – mark a profoundly dangerous shift in the history of the Supreme Court. It is one thing for the Court to dismiss Article 32 petitions against State impunity. However, it is quite another – and truly unprecedented – for the Supreme Court to turn upon the petitioners themselves, and pass prejudicial remarks against them that then become the basis of FIRs and jail time. In every way, this is an inversion of the rule of law, of the Constitution, and of the Supreme Court itself: from the protector and guarantor of fundamental rights, to persecutor-in-chief. Idi Amin famously said: “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.” Likewise, through these judgments, Justice Khanwilkar has said: “I can guarantee freedom to come to Court; but I cannot guarantee freedom once you’ve come to Court.” ... And the point is this: the cases that we have discussed involve some of the most basic and crucial civil rights in our Constitution. Watali and PMLA involved the right to personal liberty; FCRA involved the right to freedom of speech and freedom of association; Zakia Jafri and Himanshu Kumar involved the right to enforce fundamental rights, and the right to seek judicial remedies against State impunity. Enforcement of these rights is at the heart of the rule of law, at the heart of what it means to be a constitutional democracy governed by the rule of law rather than by State arbitrariness. Each of these rights is a crucial bulwark between the individual and the State, and it is the task of the Court to preserve and maintain that bulwark. ... Khanwilker,(sic) J is now gone. His individual legacy can be measured in the months, the years, and the decades that people have spent and will spend in jail, without trial (indeed, the State’s lawyers have already begun arguing that under the PMLA, a Court can only ever grant bail on health grounds, and never otherwise). It can be measured in ruined lives and broken futures. But it is the coming time that will reveal whether the normalising of the Supreme Court as the executive(‘s) court would, at the end of the day, be his most significant contribution to Indian constitutional jurisprudence.>> (Excerpted from: < https://indconlawphil.wordpress.com/author/gautambhatia1988/>.) -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To view this discussion on the web, visit https://groups.google.com/d/msgid/greenyouth/CACEsOZg2tCSjbzOMOj57YSijs%2BLxi_1RCMipoKAz290VtA6orA%40mail.gmail.com.
