Justice Khanwilkar leaves behind an imprint on key laws

In his six-year tenure in the top court, Justice Khanwilkar has upheld the constitutionality of amendments to three crucial legislation brought in during the Modi government — the Prevention of Money Laundering Act (PMLA), the Unlawful Activities Prevention Act (UAPA), and the Foreign Contribution (Regulation) Amendment Act (FCRA).

On July 27, a three-judge bench headed by Justice Khanwilkar upheld the constitutionality of the PMLA, a law that gives wide powers to the Enforcement Directorate to arrest an individual and has stringent provisions for granting bail. The Court approved several provisions that upend the first principles in criminal law that protect the rights of an accused — the presumption of innocence until proven guilty. The Court extended the exceptionalism — stringent provisions on bail that are reserved for anti-terror laws to the offence of money laundering.

In a 2019 judgment in ‘NIA vs Zahoor Ahmad Shah Watali’, a two-judge bench led by Justice Khanwilkar raised the bar for granting bail to those accused under the UAPA. The ruling said that a trial court could deny bail if it “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”. The ruling also added that the police version in the case diary must be considered as the “prima facie” view. The ruling had been cited to deny bail in several cases — such as against those accused in the Delhi riots and the Bhima Koregaon cases.

In April, another three-judge bench headed by Justice Khanwilkar in ‘Noel Harper vs Union of India’ case upheld amendments to the FCRA that brought in stricter requirements and regulations for NGOs to receive foreign donations. The verdict, authored by Justice Khanwilkar stated that “the possibility of national polity being influenced by foreign contribution is globally recognised” and that accepting foreign donations itself “is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems”.

In January last year, Justice Khanwilkar also delivered the majority 2:1 verdict, giving its nod to the Modi government’s ambitious Central Vista redevelopment project and held that there were no infirmities in the approvals granted.

In March 2020, nearly seven months before the verdict, Justice Khanwilkar and Justice Dinesh Maheshwari (who formed the majority in the final verdict; Justice Sanjiv Khanna penned a dissent) had suo-motu transferred the challenge to the Central Vista project before the Delhi High Court to itself, fast-tracking the final judicial approval for the project.

In September 2018, Justice Khanwilkar was part of the five-judge constitution benches in the landmark Aadhaar and the Sabarimala orders. In the Sabarimala case, the SC in a 4:1 majority — comprising then CJI Dipak Misra, Justices AM Khanwilkar, Rohinton Nariman and DY Chandrachud (Justice Indu Malhotra penned a dissent) — expanded the right to equality, allowing girls and women of all ages to visit the Sabarimala temple.

A year later, despite being part of the majority verdict, Justice Khanwilkar, raising questions on judicial propriety, agreed to review his own ruling. A bench was constituted in November 2019 for review of the verdict where Justice Misra, who had since retired, was replaced by Justice Ranjan Gogoi.

While Justice Gogoi, who heard the issue for the first time and Justice Malhotra, who had dissented earlier, questioned the correctness of the verdict, Justices Chandrachud and Nariman had ruled in favour of dismissing the review. Only, Justice Khanwilkar doubted the correctness of his earlier verdict.