Gautam Bhatia on The Executive(’s) Court: Notes on the Legacy of Justice A.M. Khanwilkar

NB: To this excellent commentary on justice I will add a few lines from J.P. Stern’s book, Hitler: The Fuhrer and the People (1992). They are taken from pages 113-114; a chapter called The Spirit of National Socialist Law:

“National Socialist law is not, as in Dickens, ‘an ass’: that is, extravagant, purblind, and pompously remote from the true interests of the litigants and the community at large. It is the exercise of objective-seeming power in support of purely arbitrary and subjective decisions, its true character on no way hidden but emphasized by the mock-formality of its wordings. It is the law as it informs Franz Kafka’s unfinished novel, The Trial (1914-15). ‘Someone must have falsely denounced Josef K., for without having done anything wrong he was arrested one morning’, runs its famous first sentence; and from this opening to Josef K.’s execution at the end, neither he nor anyone else in the novel ever asks the obvious question as to what this very ordinary bachelor of thirty is supposed to be guilty of… ‘But I am innocent, it is a mistake..’ The only answer he receives is .. ‘that’s the way the guilty are wont to talk’.. The implication is that Josef K. is guilty because of what he is rather than because of anything he has done…there is neither a stable code of law nor acquittal. To be involved in this trial is the same as losing it… The reversal of the ordinary functions of judiciary and police characteristic of every totalitarian regime is reflected in the view put to Josef K., that ‘the verdict doesn’t come all at once, the proceedings gradually merge into the verdict’…” – DS

Gautam Bhatia – The Executive(’s) Court

This blog has a long-standing tradition of assessing the judicial legacies of Chief Justices of India, upon their retirement (see herehere, 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.

Before we begin, a final point, by way of caveat: it is almost trite to say that I do not agree with the outcomes of the cases that I discuss below. I have criticised some of these judgments when they were delivered, and in the Central Vista Case (that I flag, but do not discuss), I was one of (many) arguing counsel on the losing side. My analysis below, however, is not founded simply upon the fact of disagreement with the outcome, or of dislike of these judgments. Regardless of my predilections, 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….


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