As a Supreme Court judge, Justice Ajay Manikrao Khanwilkar’s judicial contributions were interpreted by critics as ones that enhanced the powers of the state. As the new Lokpal Chairperson, Justice Khanwilkar is expected to stand up to the state against corruption.
A Commerce graduate who became a successful first-generation lawyer, Justice Khanwilkar began his career as a judge on the Bench of the Bombay High Court in 2000. He was elevated as the Chief Justice of Himachal Pradesh in 2013. Within months, he was appointed as the Chief Justice of Madhya Pradesh. His appointment to the Supreme Court along with three other judges, including the current Chief Justice of India, D.Y. Chandrachud, in May 2016 came as a much-needed relief for the top court.
The appointments came through after a 15-month hiatus. They were the first ones following the Supreme Court’s striking down of the National Judicial Appointments Commission (NJAC) law and the revival of the Collegium system of judicial appointments. The Supreme Court had endured months of tense stand-off with the government over the NJAC, exacerbated by unexplained delays in judicial appointments, which led to the then Chief Justice T.S. Thakur’s emotional and public outpouring in the presence of Prime Minister Narendra Modi about the “impossible burden” shouldered by a depleting number of judges who work day in and day out to quell pendency.
The relief was so apparent and obvious that CJI Thakur and his successor, Chief Justice Dipak Misra, both, had Justices Khanwilkar and Chandrachud as their puisne judges on their Bench for months together.
As a puisne judge on the Chief Justice Bench, Justice Khanwilkar was mostly on the same page as the Chief Justice in significant judgments. During the last days of the tenure of Chief Justice Thakur, Justice Khanwilkar agreed with the decision to refer the demonetisation policy challenge to a five-judge Bench without granting the petitioners any interim relief. The case was kept pending for nearly seven years, only to have a Constitution Bench uphold the policy in January 2023.
Justice Khanwilkar, authoring the majority view shared with CJI Misra, disagreed with historian Romila Thapar that the arrests of poet Vara Vara Rao, lawyer Sudha Bhardwaj, activists Arun Ferreira, Vernon Gonsalves and Gautam Navlakha in the Bhima-Koregaon case were an attempt to silence dissent. Justice Chandrachud, in his dissent, said the arrests were indeed a muzzling of the voices of opposition.
Sabarimala verdict
Justice Khanwilkar joined CJI Misra to condemn the centuries’ old prohibition on women from the age of menarche to enter the famed Sabarimala temple in Kerala as “hegemonic patriarchy”. But when the judgment came up for review, he did not join in with Justices Rohinton Nariman and Chandrachud to dismiss the review of the September 2018 verdict. Instead, he chose to cast his decisive vote on the five-judge Bench in favour of CJI Ranjan Gogoi, who had replaced CJI Misra on the Bench, and Justice Indu Malhotra, who had upheld the Sabarimala prohibition in the original judgment, to form the majority view that the case concerned an “essentially religious issue”, which should be examined by a seven-judge Bench. He did not explain his change of mind.
Justice Khanwilkar also joined in the majority view headed by Chief Justice Misra that Aadhaar was a “document of empowerment” and an “unparalleled”identity proof though a nine-judge Bench had previously upheld privacy as a constitutionally protected right.
As a lead judge on the Bench, Justice Khanwilkar confirmed the restrictions under the Foreign Contribution Regulation Act. He upheld amendments to the Prevention of Money Laundering Act which virtually gave the Directorate of Enforcement sweeping powers and made bail nearly impossible. In the Zahoor Ahmed Shah Watali case, Justice Khanwilkar concluded that courts need not decide bail applications under the Unlawful Activities Prevention Act after an “elaborate examination” of evidence. Just a look at the “broad probabilities” of the accused’s involvement would suffice.
Justice Khanwilkar found allegations of a “larger conspiracy” levelled by Zakia Jafri, widow of Congress leader Ehsan Jafri who was killed in the 2002 Gujarat riots, “preposterous”. His judgment lashed out at those who wanted to “keep the pot boiling” in the State.
A Gujarat Anti-Terrorism Squad team detained activist Teesta Setalvad in Mumbai the very next day after the judgment.
