Justice Sanjiv Khanna — a legacy of fairness and integrity

Confronted with this, during Justice Khanna’s tenure, the assignment of benches to deal with important and sensitive cases appeared more fair and rational, leading to more just outcomes. Justice Khanna’s orders on the Places of Worship Act and the constitutional challenge to the Waqf amendments are particularly significant. While it is argued that these challenges could have been dealt with more firmly to put an end to governments trampling minority rights, his interim orders brought much respite. While the Court, at times, was seen as giving in to the executive during his predecessor’s tenure, Justice Khanna’s order effectively stayed a large number of suits seeking to change the character of hundred-year-old mosques. He also effectively stayed the implementation of several objectionable clauses of the Waqf (Amendment) Act and affirmed the Court’s secular character when he countered the government by asserting, “When we sit here, we lose our religion. We are absolutely secular.” Under his leadership, a bench of justices B R Gavai and K V Viswanathan pronounced an important judgment on the abuse of bulldozers, largely putting a stop to this illegal practice. These orders, for the time being at least, stopped in its tracks the government’s assault on the rights of minorities. Many cases involving the ED were heard by a liberal and proactive bench headed by Justice A S Oka, who cracked the whip on the agency’s rampant practice of arresting Opposition leaders for alleged money-laundering.

Justice Khanna, while being a silent worker, displayed a pragmatic approach to law and justice that came in sharp contrast to his predecessor’s speeches and public appearances. He authored several landmark judgments as well. He illegalised the practice of governments (Andhra Pradesh in that case) allotting prime land on a preferential basis to VIPs such as ministers, MPs, MLAs, etc, holding it to be largesse and discriminatory. Invoking Article 142 (the SC’s power to do complete justice), he authored a Constitution Bench judgment making it possible for the SC to directly grant divorce in marriages that had run into irreconcilable problems. He also wrote a separate and stronger judgment in the electoral bonds case highlighting the need for transparency in political funding and the role large political donations could play in destabilising democracy.

Not all his judgments are considered progressive or laudable. He was a co-author of the judgment approving the abrogation of Article 370 and the conversion of Jammu and Kashmir from state to Union Territory. He also led a judgment effectively refusing to count all VVPAT slips in elections conducted using EVMs.

It was in his administrative role as Chief Justice where we saw major strides in the Court’s transparency and accountability. He reinstated the virtually defunct principle of judges declaring assets and making them public. The disclosures of proposals for judicial appointments approved by the SC collegium but pending with the government are critical, as they lay bare the reality of the government sitting on recommendations of candidates it does not see as pliant. In the case regarding the cash found at a judge’s residence, Justice Khanna acted with extraordinary swiftness by putting in the public domain the information making out the allegations against the judge. He then ordered an inquiry by a panel of three judges, whose report remains to be publicly disclosed. These measures have been exemplary and in keeping with his earlier judgment that the CJI’s office was a public authority and thus open to scrutiny under the RTI Act, and that transparency is important for judicial independence.

While demitting office, Justice Khanna has asserted that he will not accept a post-retirement job, which is welcome in the light of many former judges having compromised their independence by taking such positions. On his retirement day, he made an important statement that judicial respect must be earned and cannot be commanded. This is a truism that judges often forget while wielding the whip of contempt jurisprudence to enforce respect. Ralph Waldo Emerson once said, “Do not go where the path may lead, go instead where there is no path and leave a trail.” Justice Khanna leaves a trail of fairness and judicial integrity that I hope will guide future justices for years to come.

The writer is an advocate practising in the Supreme Court of India