The Executive(’s) Court: On the Legacy of Justice A.M. Khanwilkar 31 July 2022 https://thewire.in/law/justice-khanwilkar-teesta-setalvad-watali-fcra-uapa .. excerpted from: https://indconlawphil.wordpress.com/author/gautambhatia1988/ 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 .. the cases that we have discussed involve some of the most basic and crucial civil rights in our Constitution. Watali and PMLA involved the right to personal liberty; FCRA involved the right to freedom of speech and freedom of association; Zakia Jafri and Himanshu Kumar involved the right to enforce fundamental rights, and the right to seek judicial remedies against State impunity. Enforcement of these rights is at the heart of the rule of law, at the heart of what it means to be a constitutional democracy governed by the rule of law rather than by State arbitrariness. Each of these rights is a crucial bulwark between the individual and the State, and it is the task of the Court to preserve and maintain that bulwark.
"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. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review."
months, the years, and the decades that people have spent and will spend in jail, without trial can be measured in ruined lives and broken futures... . Indeed, the State’s lawyers have already begun arguing that under the PMLA, a Court can only ever grant bail on health grounds, and never otherwise.. But it is the coming time that will reveal whether the normalising of the Supreme Court as the executive(‘s) court would, at the end of the day, be his most significant contribution to Indian constitutional jurisprudence.
Comment by S Sen:.. While Khanwilkar, together with Ranjan Gogoi, Arun Mishra and S Y Bobde, would definitely be counted among the worst Supreme Court judges ever, the fact that he got to decide so many vital cases concerning (and redefining) the nature and limits of individual rights and freedoms speaks eloquently about the current state of the top court of the land.