From Bhima Koregaon to PMLA, Justice Khanwilkar's Legacy Will Not Favour Liberty

From his decisions on Bhima Koregaon in 2018 to PMLA in 2022, Justice Khanwilkar consistently enabled state power.

Justice AM Khanwilkar retired on 29 July 2022.

(Photo: Chetan Bakhuni/The Quint)

The legacy of Justice AM Khanwilkar, who retired as a Supreme Court judge on Friday, 29 July, can best be summed up by the first case where he came to prominence.

In August 2018, the Maharashtra Police made the second set of arrests in what would come to be known as the Bhima Koregaon case.

The first set of arrests of activists and human rights defenders in June that year had already raised serious concerns given the invocation of the draconian Unlawful Activities (Prevention) Act, and had been followed by a witch-hunt against others such as Sudha Bhardwaj in state-friendly media.

On 29 August 2018, the police from Pune moved to arrest Bhardwaj – an indefatigable trade unionist and human rights lawyer who had given up her US citizenship to help oppressed workers and tribal persons in India – as well as other academics and activists who had long fought for marginalised communities, namely Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao.

Predicated as these arrests were on a rather dubious claim of a plot to assassinate the Prime Minister (which forensic investigations have now indicated were based on evidence planted using malware), they were viewed with a great deal of suspicion.

A group of prominent members of civil society led by historian Romila Thapar filed a case in the Supreme Court asking for a Special Investigation Team (SIT) to conduct the probe into this questionable case and its claims of Maoists conspiracies, eventually joined in the matter by some of those who had been arrested.

When the matter was first heard by Supreme Court, it led to high drama. A group of some of the most prominent senior advocates in the country including Indira Jaising, Dr Abhishek Manu Singhvi and Dushyant Dave argued that arrests were random and could lead to a situation where “anybody could be arrested tomorrow”, and would have a chilling effect on free speech of all citizens.

Then-Chief Justice of India Dipak Misra, and Justice DY Chandrachud expressed concerns over the arrests, asking how the accused had been roped into a case which had nothing to do with its original FIR, and noting that the Delhi High Court had found no material to justify the arrest of at least one of them.

The three-judge bench eventually passed an interim order saying the accused were to be kept under house arrest rather than taken into custody, and asked for more details on the issue from the Maharashtra government.

At this point of time, one could perhaps have been forgiven for thinking the Supreme Court would come good, stand up for civil liberties, and nip what was increasingly looking like a baseless attack on those who stood for Dalit and tribal rights, in the bud.

On the evening of 27 September 2018, it certainly looked like this, with only Justice Chandrachud listed on the Supreme Court's cause list as an author for a judgment in the matter. But the next day, it turned out that there was another judgment being provided in the case – authored by the third judge on the bench, Justice AM Khanwilkar.

Contrary to the position taken by him during the hearings, CJI Misra signed on with Justice Khanwilkar's judgment, which denied the plea for an SIT to investigate the case, release the activists, and have an independent forensic examination of their devices.

In what had now become a dissenting opinion, Justice DY Chandrachud raised several questions about the investigation and the arrests, and supported the plea for an SIT, since there was a “ cloud on the impartiality of the investigative process.” Some of the issues highlighted by Justice Chandrachud in his dissent include:

• The way in which the Pune Police held briefings to insist they had enough evidence against the activists, and “selectively disclosed” details, which Justice Chandrachud found "subverts the fairness of the investigation.”

• No material including the purported letter, was submitted to the apex court which indicated any basis to link the arrested individuals to a plot against the Prime Minister.

• A purported letter from Bharadwaj to ‘Comrade Prakash’ contains 17 references to “words scribed in Devanagari, using forms peculiar to Marathi” – even though Sudha Bharadwaj does not speak Marathi.

• The Pune Police sent witnesses from Pune who were employees of the Pune Municipal Corporation to observe arrests made outside Pune. Section 41B of the Code of Criminal Procedure requires independent witnesses to be present at the time of an arrest.

These were issues that could be observed from perusing the materials provided by the police to the court, including the case diary – not requiring the judges to look at outside material provided by the accused which could be contested at trial.

Justice Khanwilkar's judgment refusing to set up an SIT was passed despite these clear indications that the investigation was under a cloud. According to him, the accused in a case cannot choose the investigation agency, unless it can be shown that there has been some mala fide exercise of power by the investigating officers.

While Justice Chandrachud found and listed several reasons why this appeared to be the case, Justice Khanwilkar insisted that-

"In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer."

Think about this for a moment. The judge acknowledged that not only were there problems with the manner in which the accused were arrested (which had led to action from the Delhi High Court and the Punjab and Haryana High Court already), but also that there was no evidence to link the accused to the crime under the investigation.

Despite this, Justice Khanwilkar still felt there was no indication of a mala fide exercise of power by the police. It is not clear what else an accused is supposed to do – were they also supposed to get the NetWire malware and plant badly worded letters on the IO's computer saying he was planning to falsely incriminate them?

Justice Khanwilkar's judgment in the Bhima Koregaon case was basically one where the highest court in the land, which is supposed to protect the fundamental freedoms and rights of Indian citizens, closed its eyes, stuck its fingers in its ears, and refused to accept what was blindingly obvious.

This was not a case dealing with minor criminal offences or niggling technicalities, but incredibly serious terrorism charges under a legislation that already made it difficult to get bail, meaning an accused could spend years in jail before being acquitted (as had already happened with Sudhir Dhawale and Arun Ferreira in previous cases).

Instead of rigorously scrutinising the case made out by the police in these circumstances, Justice Khanwilkar was willing to give the authorities the benefit of the doubt in spite of a flimsy case and dubious 'evidence', emboldening police forces across the country to do the same.

Strengthening Pre-Trial Detention Under UAPA

To make matters worse, his influence on the Bhima Koregaon case – and other UAPA cases – didn't end there.

It is already extremely difficult to get bail in a UAPA case where a person is accused of terrorism offences under the Act. Section 43D(5) of the UAPA says that a person accused of terrorism offences shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

The police and the NIA have viewed this provision over the years as an embargo on anyone getting bail in a case where there are terror charges thrown in under the UAPA, regardless of the actual evidence against them. Trial courts have also, over the years since this provision was added to the UAPA in 2008, viewed the provision as such, because of its usage of the term ‘prima facie’.

In 2018, however, the Delhi High Court was hearing the case of Zahoor Ahmad Shah Watali, a Kashmiri businessman accused in an NIA case, who had sought to get bail because of the sketchy evidence against him.

The witness statements collected by the NIA were inadmissible under the Evidence Act, documents which the NIA claimed had been written by him were neither on his letterhead nor were they signed by him, and his bank records indicated no financial connection to terrorism.

The trial court had refused bail to him based on Section 43D(5) of the UAPA, but the Delhi High Court found that, given the nature of the evidence, there were “no reasonable grounds” to find that the allegations against Watali were prima facie true.

The high court judgment was a welcome one, which acknowledged the high burden that was placed on the accused in such cases and how the UAPA made it nearly impossible to get bail.

It infused a sense of fairness into the process by requiring the courts to assess the reasonableness of the case against an accused, rather than just throw someone in jail because the police produced some random papers claiming they were guilty.

And then in April 2019, the Supreme Court promptly undid all of that.

In a judgment authored by Justice Khanwilkar (of course), the apex court held that the Delhi High Court’s approach was “inappropriate,” as at the stage of bail, the court wasn’t required to weigh the evidence against an accused, it was only supposed to look at the material provided by the investigation in its entirety and see if there was a prima facie case.

The judgment basically therefore said that it doesn’t matter what the police has against you, you can’t get bail if a UAPA terror charge is invoked.

It doesn’t matter if the evidence appears fabricated (as Justice DY Chandrachud had found regarding some of the material in the Bhima Koregaon case). It doesn’t matter if the evidence cannot actually be used against you. It doesn’t matter if the evidence is absolutely irrelevant.

If the police say it shows you’re tied to the crime, you’re stuck in jail, even if the court can clearly see what’s going on.

When it comes to the stage of bail, an accused already has one hand tied behind their back because they cannot really bring in any evidence of their own to argue they are innocent, as that has to be brought up and proved during the trial.

The Watali judgment ties the other hand behind their back, as well as their legs, as well as the appendages of their family and friends and their neighbour's dog, as the police's mere allegations are taken as gospel truth, no matter how poor the investigation has been.

Parting Shots: Putting Teesta Setalvad in Jail & Preserving ED Power

Justice Khanwilkar's tenure lasted from 13 May 2016 to 29 July 2022, during which time he found himself on the bench in several major constitutional matters.

Some of these were even cases where the Supreme Court ended up passing progressive rulings on fundamental rights, such as the Navtej Johar case (where Section 377 of the IPC was read down to decriminalise consensual homosexual acts), the Joseph Shine case (where adultery under the IPC was struck down), the 2018 Common Cause case (where a limited right of freedom to die was held to be part of Article 21), and even the original Sabarimala judgment (allowing women of all ages to worship at the temple).

It is perhaps worth noting that he failed to write an opinion of his own in any of these, even though he went with the majority view.

In the Sabarimala case, he would of course change his view and support referring the matter to a larger bench when the case came back for review (again, without writing an opinion explaining why).

The Watali judgment was therefore the clear lead when it came to his legacy at the court, as the progressive judgments in those other cases had all been authored by other judges.

In his final few months, a few other judgments put themselves in contention to supplant, or more accurately, to supplement this legacy.

First, there was the case where he upheld the Modi government's amendments to the Foreign Contribution (Regulation) Act – ie the FCRA – which had made it even more difficult for NGOs to obtain and use foreign funding for their work.

As constitutional scholar Gautam Bhatia noted in his blog at the time, this judgment was of a piece with the other decisions made by him, where

"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."

This is exactly the approach followed in the Bhima Koregaon and Watali cases, as the foregoing analysis shows. But Justice Khanwilkar wasn't done yet.

Next, there was his judgment in the Zakia Jafri case on 24 June, where the bench headed by him upheld the magistrate's decision to accept the final report submitted by the Special Investigation Team (SIT) in the 2002 Gujarat riots case.

This would have been uncontroversial in itself, but for the fact that at the end of the judgment, the judgment goes on to say, "At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge."

The judgment says that the case was kept going "to keep the pot boiling, obviously, for ulterior design", and that all those involved in the case "need to be in the dock".

These comments were a veiled reference to activist Teesta Setalvad (who had supported Jafri in the past and filed a petition heard along with Jafri's), and former Gujarat senior police officers RB Sreekumar and Sanjiv Bhatt.

There was no proven evidence that they had conspired in any way, and at no point in the proceedings did the bench allow them to respond to the claims by the SIT that they had pushed the case for their own design, which meant that these observations violated one of the basic principles of natural justice.

It also went against a longstanding ruling of the Supreme Court in the Mohammad Naim case that judges should exercise restraint when making remarks in judgments, and should not mention things for which there is no evidence on record, and which are not necessary for the case at hand.

Bhatt was already in jail in a different case, but Setalvad and Sreekumar were promptly arrested by the Gujarat police the very next day, under an FIR that quoted the Supreme Court's judgment.

Once again, the claims made by state authorities had been put on a pedestal in this judgment, and observations made regarding individual citizens without any care for how this could impact their liberty.

A similar exercise was subsequently followed in a case asking for an independent investigation into the deaths of tribal persons in Chhattisgarh, with a bench of Justices Khanwilkar and JB Pardiwala finding that the petitioner Himanshu Verma had falsely accused security forces of being involved, fining him Rs 5 lakhs, and endorsing the idea that a case against him and other conspirators may be required. (At least here the judgment was authored by Justice Pardiwala)

Finally, there is of course Justice Khanwilkar's magnum opus, his judgment on the Prevention of Money Laundering Act and the powers of the Enforcement Directorate.

A three-judge bench headed by Justice Khanwilkar, in a judgment authored by him, upheld several controversial provisions of the PMLA, including a twin test for bail that had previously been struck down by the apex court as unconstitutional, as well as the reversal of the burden of proof, so that an accused had to prove they were not guilty.

The judgment, unsurprisingly given Justice Khanwilkar's previous rulings, confirmed several problematic powers for the ED, such as not having to give an accused a copy of the ECIR (their FIR equivalent) against them, as well as being able to use statements recorded during questioning as valid evidence against them.

The police generally can't use statements given to them and not a magistrate as evidence in trials against an accused, as there is an understanding that such statements could be given under duress. However, the court held that ED officers – despite having powers to conduct searches, seizures and arrests – are not police officers and so this protection doesn't apply to statements given to them.

The coup de grace was of course the part where the court held that the word "and" in Section 3 of the PMLA had to be read as "or", in complete contravention of grammar, logic, and the long-established rule that criminal law provisions have to be interpreted narrowly.

This interpretation allows the PMLA to be used retrospectively against people, saying they have committed an offence of money laundering even in connection with money earned before the PMLA ever came into force. This is also another inversion of one of the most basic principles of law, that criminal law cannot be retrospective.

For the sake of the state's interests, however, Justice Khanwilkar was willing to forego this cornerstone of modern legal systems, which takes us right back to the Bhima Koregaon judgment he authored.

Even though he has now retired, the consequences of these judgments will live on, having more impact than the decisions made by the last two Chief Justices of India. Through his judgments, the state has been given more tools to use against citizens to curtail their liberty, and the citizens' tools to fight for their liberty have been curtailed.

We can only hope that the other judges of the Supreme Court (and those to come) think long and hard about whether this is the kind of legacy they want to leave behind when they are done.

(The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)