New Lokpal chairperson's Supreme Court tenure - Hindustan Times
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New Lokpal chairperson's Supreme Court tenure

Mar 01, 2024 09:28 PM IST

Justice AM Khanwilkar’s contribution to rights-expanding judgments includes reading down Section 377 and women's right to enter Sabarimala temple

Former Supreme Court judge Justice Ajay Manikrao Khanwilkar was recently appointed as the chairperson of the Lokpal of India, two years after the previous chairperson retired. During his career as a Supreme Court justice --- he retired in 2022 --- he was part of several landmark, rights-expanding judgments as part of the constitution bench constituted by the Chief Justice of India. Despite this, he was known for a conservative approach pertaining to personal liberties.

Justice Ajay Manikrao Khanwilkar. (On right)(File) PREMIUM
Justice Ajay Manikrao Khanwilkar. (On right)(File)

Justice Khanwilkar, the new chairperson of the Lokpal, has had a long legal career. After becoming a judge in the Bombay High Court in the year 2000, he also served on the bench in the Himachal Pradesh and Madhya Pradesh high courts. He retired as a Supreme Court judge after serving a six-year tenure which began on May 13, 2016. Several key judgments were delivered during Justice Khanwilkar’s tenure in the Supreme Court. Let us take a look at some of the prominent cases where he was a part of the bench, and some noted judgements he penned during his tenure.

As part of the SC constitution bench

Justice Khanwilkar was a part of the majority judgement in the five-judge constitution bench verdict of 2018 which upheld the validity of the Unique Identification Authority of India’s Aadhaar biometric scheme. He was also a member of the five-judge constitution bench in the landmark Navtej Singh Johar v. Union of India, 2018 judgement which partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. Justice Khanwilkar was also a member of the majority in the five-judge bench judgement in the Sabarimala Temple entry case, which declared that the temple’s practice of excluding the entry of women of child-bearing age was unconstitutional. However, the review petitions in this case have been referred to a larger bench.

Prominent judgments authored

In Vijay Madanlal Choudhary v. Union of India, 2022, the Supreme Court in its judgment upheld the provisions of the Prevention of Money Laundering Act (PMLA), 2002 which relate to the power of arrest, attachment and search and seizure conferred on the Enforcement Directorate (ED), and affirmed the constitutionality of the reversal of the burden of proof and the stringent bail conditions under PMLA. This judgment adopted a technical and textual approach to hold that ED officials are not “police officers” and that the statements recorded by them are not violative of Article 21, ignoring the ambit of coercive powers possessed by the agency in reality. Justice Khanwilkar was a member of the three-judge bench along with justices Dinesh Maheshwari and C.T. Ravikumar.

J. Khanwilkar noted in the two-judge Supreme Court bench judgment setting aside the Delhi High Court’s order granting bail to Zahoor Ahmad Shah Watali in a terror funding case, that courts while considering bail applications under the Unlawful Activities Prevention Act (UAPA), cannot engage in a detailed analysis of the prosecution’s case. The court instead needs to make a broad assessment of whether the accusations against the accused are prima facie true. These directions have made bail provisions in UAPA cases highly stringent.

In Noel Harper v. Union of India, 2022, a three-judge bench of the Supreme Court upheld the 2020 amendments made to the Foreign Contribution Regulation Act (FCRA), 2010, which introduced restrictions in the handling of foreign contributions by organisations (NGOs) in India. Through the amendments to the FCRA, the Union government has increasingly scrutinised NGOs receiving foreign contributions. Per the amendments, NGOs are barred from transferring foreign contributions to other persons or organisations. They must set up a bank account at the State Bank of India’s Sansad Marg branch in Delhi to receive foreign contributions.

Apart from these cases, J. Khanwilkar also presided over cases on significant issues where pleas were dismissed, including one challenging the Central government’s Central Vista Project in Delhi, another for a Special Investigation Team (SIT) probe into the Bhima Koregaon case, and one filed by Zakia Ehsan Jafri, the wife of Ehsan Jafri, the Congress lawmaker killed in the Gujarat riots of 2002, challenging an SIT closure report discarding the allegations of a larger conspiracy by high state functionaries, including the then Gujarat chief minister Narendra Modi and 63 others, in the riots.

It will be interesting to see his tenure as a Chairperson of the Lokpal where he is tasked with eradicating corruption in public functionaries of the Central government.

Prashant Bhaware, a lawyer and researcher, writes about the finer legal points of a case that's making news. The views expressed are personal

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