Justice MR Shah : A PM Modi Admirer, Known For Pro-Executive Stance In Civil Liberty Issues

When Justice MR Shah was appointed as a Supreme Court judge in November 2018, there was a general speculation that he is likely to be a pro-executive judge, especially in view of the public comment made by him about Prime Minister Narendra Modi a few months before his elevation. In August 2018, as the Chief Justice of the Patna High Court, Justice Shah hailed Prime Minister Narendra Modi as a “model and hero”. This widely reported comment raised a lot of eyebrows. The practice of judges showering praises on executive functionaries, whose decisions are likely to come before them for judicial review, was still considered an aberration then, though the notions of propriety underwent a change over the following years. Judges expressing their admiration for the Prime Minister through speeches and even judgments have become a norm (Justice Shah, after becoming a Supreme Court judge, again praised PM Modi calling him "our most popular, loved, vibrant and visionary leader").

As Justice Shah demits office after dealing with several important constitutional and politically sensitive matters, the initial speculation about his term stands somewhat fortified. He consistently took a pro-State approach on issues related to fundamental rights and civil liberties. So much so, one could make easy predictions about the outcome of certain matters when they are listed before his bench. So, in Arup Bhuyan case, when Justice Shah’s judgment overruled the precedents which held that mere passive membership in a banned organization will not constitute an offence under the UAPA, not many were surprised. The 2011 precedents which held that some sort of overt violent act should be proved to invoke UAPA than merely showing passive membership was a shield available for individuals against the draconian law, which has been weaponised against dissenters and activists. Justice Shah’s judgment, which had repeated invocations of national security and the objectives of UAPA, did not have any application of the doctrine of proportionality, which has been formulated by larger bench decisions to ascertain if restrictions on freedoms are constitutional.

In politically sensitive issues, it appears that Justice Shah took an overzealous interest, disrupting appearances of neutrality. For example, in the PIL filed by BJP member Ashwini Upadhyaya alleging that widespread and rampant illegal conversions were taking place across the country, Justice Shah expressed reluctance to go into the bona fides of the petition and to test the veracity of the claims made in it. The intervenors in the case pointed out that the petitioner had filed a similar petition earlier in the Supreme Court, which was withdrawn after Justice RF Nariman refused to entertain it. They also highlighted that the petitioner was making exaggerated claims to target the minorities and that certain statements were extremely communal and derogatory to minority religions. Even before considering these objections, Justice Shah made statements endorsing and encouraging the petition at the threshold stage. He also categorically said that the objections regarding maintainability won't be considered.  Justice Shah’s comments were music to a particular section which has been whipping up the ‘conversion’ bogey for electoral gains. While Justice Shah did not pay heed to the objections raised by intervenors that the petitioner has made scurrilous statements against minority religions, another judge of the bench- Justice S Ravindra Bhat- made a crucial intervention to ask the petitioner to remove such portions. Later, the petition got transferred to the bench led by CJI DY Chandrachud, who chastised the petitioner for making derogatory statements against other religions. CJI also told the petitioner that one can't keep on filing the same petitions after withdrawing them.

Likewise, in the petition filed by Wazim Rizvi @ Jitendra Tyagi seeking to ban political parties with religious names and symbols, Justice Shah showed willingness to entertain the matter. When the Election Commission of India took a clear stance that there is no statutory provision to de-register such parties, there was nothing much the Court could have achieved by keeping the matter alive. Justice Shah was not initially moved by the the objections raised by respondents that the petitioner was only targeting few parties with Muslim sounding names, leaving out parties with names and symbols of other religions.  After vehement objections raised by Senior Advocate Dushyant Dave, Justice Shah relented and asked the petitioner to add all such parties in the petition, so as to avoid an allegation that one particular community was targeted. His colleague in the bench Justice Nagarathna openly disapproved of the petitioner's selective approach and reminded that he should also be secular. Few weeks before Justice Shah’s retirement, the petitioner himself chose to withdraw the petition. 

In the Chattisgarh NAN scam matter, a politically sensitive matter with allegations against the government of Chhattisgarh, the parties objected to the listing of the matter before a bench led by Justice MR Shah and requested the CJI to reassign the matter.

Due to some coincidence, cases of persons who have voiced dissent against the establishment, such as Sanjiv Bhatt, Sanjiv Chaturvedi, Professor GN Saibaba, were listed before his bench. The special sitting allowed for State of Maharashtra’s appeal against the acquittal of Professor GN Saibaba and others had raised eyebrows (more on this can be read here). In the Saturday sitting, a bench comprising Justices MR Shah and Bela Trivedi stayed the acquittal in Saibaba case.

The Union’s appeal in whistleblower Indian Forest Service Officer Sanjiv Chaturvedi’s case was hotly contested before Justice Shah’s bench and the matter was ultimately referred to a larger bench on a point of law.

Sanjiv Bhatt’s petitions seeking suspension of sentence in the criminal case and also seeking to produce additional evidence in appeal were also considered by Justice Shah’s bench. While the former was withdrawn, as regards the latter, Bhatt sought Justice Shah’s recusal on the ground the judge had passed adverse orders and strictures against him in the High Court while dealing with an earlier application in the same matter. In his last working week, Justice Shah rejected Bhatt’s plea for recusal by terming it as an attempt in bench-hunting. The bench also refused to allow Bhatt to produce additional evidence in the criminal appeal. Interestingly, a few days ago, Justice Shah’s colleague in the bench, Justice CT Ravikumar, had recused from hearing the SNC-Lavlin case on the ground that he had dealt with an incidental proceeding in the case as a judge of the Kerala High Court.

Hardworking judge with several disposals

Even the harshest critics of Justice MR Shah will agree that he was a hardworking judge who had a knack to decide cases in an expeditious fashion. The high rate of disposals in his court and the number of judgments authored by him bear testimony to his industrious nature. By some accounts, he has written 712 judgments. His reported judgments can be found on a wide range of subjects ranging from civil litigation, criminal appeals, taxation, service law, family law, arbitration, land acquisition etc.

A common theme of Justice Shah's judgments can be said to be this - if there are two views possible on an issue, he tends to adopt the view which will favour the State than the individual. This approach could be seen in his judgments in criminal law, taxation and land acquisition. 

Justice Shah’s judgment for a Constitution Bench in Mukesh vs State overruled the judgments which held that a trial under the NDPS Act will be vitiated on the ground of bias and unfairness if the complainant himself is the investigating officer. In State vs Gangi Reddy, Justice Shah laid down a novel proposition that default bail can be cancelled after the filing of the chargesheet, if the allegations are serious and grave. In Saurav Das vs Union of India, a PIL seeking to publicly upload copies of chargesheet was dismissed at the threshold stage itself, refusing to extend the principle in Youth Bar Association regarding public uploading of FIRs to final reports. On the question whether the State can revoke the promise of tax benefit which attracted an entity to set up an industrial unit, Justice Shah held that the doctrine of legitimate expectation was not available for the entity, while his colleague Justice Krishna Murari disagreed(M/s K.B. Tea Product Pvt Ltd & Anr vs Commercial Tax Officer, Siliguri & Ors).

Judgments ignoring statutory provisions and precedents

Some judgments of Justice Shah are to be flagged for blatantly disregarding statutory provisions and precedents. In Govt. of NCT of Delhi Through the Secretary, Land and Building Department And Anr. v. M/s. K.L. Rathi Steels Limited, a bench comprising Justices MR Shah and BV Nagarathna was dealing with the question whether a judgment should be reviewed because it followed a precedent which was later overruled. The issue related to the validity of a judgment, which followed the Pune Municipal Corporation judgment in the land acquisition issue. Pune Municipal Corporation was later overruled by a larger bench in Indore Development Authority case. Interestingly, there was a split between Justices Shah and Nagarathna on the issue. While Justice Shah held that the judgment which followed the subsequently overruled precedent should be reviewed, Justice Nagarathna held otherwise. Justice Nagarathna’s reasoning was straightforward, based on Order XLVII Rule 1 CPC which clearly states that the subsequent overruling of a precedent relied on in a judgment is not a ground for review.

Justice Shah took the view that the judgment should be reviewed as the precedent which it followed was later overruled. The striking aspect of Justice Shah’s judgment is that there is no proper discussion on why the bar under Order XLVII Rule 1 CPC is not applicable in the case. Here, Justice Shah invokes the argument of “larger public interest” to get over the bar under Order XLVII Rule 1 CPC (Indore Development Authority case takes a position which is favourable to the State on the issue of lapsing of land acquisition proceedings after the enactment of 2013 Act). Can a judge ignore the clear language of statute on the basis of a subjective assessment of what is the larger public interest?

In CBI vs Vikas Mishra, Justice MR Shah doubted a precedent which held that police custody remand cannot be granted after 15 days of the arrest. However, his judgment failed to take note of the clear language of Section 167(2)(a) CrPC, which says that the remand beyond 15 days should be authorised "otherwise than in the custody of the police". Here, the judge again ignored a clear statutory prescription and casted doubts on a precedent which was based on the statutory provision.

In Kailash Vijayvargiya v. Rajlakshmi Chaudhuri and others, in which a Magistrate’s order directing FIR against the BJP leader in a sexual assault case was set aside, Justice Shah’s judgment has elaborate discussions on the powers of the Magistrate under Section 156(3) and 202 CrPC at pre and post cognizance stages. While several precedents are discussed, the judgment omitted to cite an important judgment delivered by a larger bench led by Justice Nariman in Vinubhai Haribhai Malaviya vs. State of Gujarat, which had laid down a new position regarding the powers of Magistrate by overruling some earlier judgments. Another notable aspect about the Kailash Vijayvargiya judgment is that it was delivered almost 17 months after the judgments are reserved. Interestingly, Justice Shah himself has chastised High Courts for delaying the pronouncement of judgment by a few months. This issue is discussed in a separate article which can be read here.

Justice Shah’s judgment Income Tax Officer Vs. Vikram Sujitkumar Bhatia, which expanded the powers of income tax officers by giving retrospective effect to the 2015 amendment to Section 153C of the Income Tax Act, has come under criticism for ignoring well-settled principles. Critiquing the judgment as setting down a disturbing trend, former HC judge Justice Akil Kureshi wrote : “The argument that the amendment substitutes the existing provision and, therefore, shall apply from inception is a most bizarre argument advanced by the revenue and which was unfortunately accepted. By that logic, every amendment in every statute made by way of substitution would have retrospective effect irrespective of the fact whether the amendment extinguishes existing rights or creates new liabilities, irrespective of the fact whether the statute is a charging provision, is a taxing provision or a penal provision. This principle can have far reaching effect. Taken to its logical conclusion, criminal legislation which is by substitution would have retrospective applicability”. In Ashish Agarwal, the special powers under Article 142 were invoked to save over 90,000 reassessment notices which were erroneously issued by the income tax department ignoring the 2021 amendment, with the bench led by Justice Shah declaring them to be deemed notices under the amended provision.

In Qamar Ghani Usmani v. The State of Gujarat, Justice Shah ruled that an accused can be denied default bail, even though the first extension of time was granted in his absence, if the second extension was granted in his presence and he did not challenge the first extension. There are larger bench precedents which hold that failure to produce the accused at the time of extension of period of investigation renders such extension bad in law and entitles the accused to statutory bail. However, Justice Shah chose not to follow those precedents by saying that the accused did not challenge the first extension. This is a proposition which needs more scrutiny as it is contrary to well settled canons of personal liberty jurisprudence. In this context, it is relevant to quote what lawyer Abhinav Sekhri wrote about this legacy - "philosophy of deferring to, and unconditionally trusting, state power and judicial discretion in the criminal process shines through his approach in matters of criminal law".

Another noticeable trend is Justice Shah’s tendency to remand matters to High Court for reconsideration through short orders, by broadly stating that the High Court placed reliance on irrelevant considerations or ignored certain considerations. One example is the ISRO espionage case, in which Justice Shah’s bench set aside the anticipatory bail granted by the Kerala High Court to former Gujarat ADGP RB Sreekumar and other accused and remanded the matter. Interestingly, after remand, another bench of the High Court again granted anticipatory bail to the accused, observing that the CBI failed to place any concrete materials on record which prima facie makes the accusations well found.

In the Kailash Vijayvargiya matter too, the case was remanded to the Magistrate for fresh consideration, though the judgment was not forthcoming in specifying what exactly was the error committed by the Magistrate in the first round. While remanding the GN Saibaba case to the Bombay High Court, Justice Shah’s bench passed an unusual order that another bench of the High Court should hear the appeals. But, going by Justice Shah’s logic in the Sanjiv Bhatt case, the fact that a judge has dealt with a case in an earlier round is no reason to presume bias.

To sum up, Justice Shah has on certain occasions shown the propensity to stretch law and logic to reach what appears to be prejudged conclusions, which, incidentally or accidentally, turned out to be in favour of the executive.

Of late, a disquieting trend of judges showing unabashed admiration for executive functionaries and being seen as blatantly partisan in matters involving political interests of the establishment is emerging. Justice Shah can be counted in the league of former judges like Justices Arun Mishra and AM Khanwilkar who took stands favouring the government in sensitive issues and matters related to fundamental rights. A judge of the Supreme Court is not a mere appellate judge but a constitutional judge who is duty bound to hold the executive to account to protect the citizens’ fundamental rights. Therefore, an alignment with the executive’s interests will diminish the constitutional role of the judges, though they may be sincere and excellent in performing their appellate powers in other cases.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He can be reached at manu@livelaw.in)