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Justice JB Pardiwala : Bold Interventions During COVID, Over 1000 Reportable Judgments, Controversial Remarks On Reservation
Sparsh Upadhyay
9 May 2022 11:02 AM IST
Justice Pardiwala has made strong remarks agianst marital rape and corruption.
Justice Jamshed Burjor Pardiwala, the newly appointed judge of the Supreme Court, has delivered several noteworthy judgments as a judge of the Gujarat High Court.Justice Pardiwala stepped into the legal profession in 1989 as a fourth-generation lawyer. His great grandfather Navrojji Bhikhaji Pardiwala, grandfather and his father were lawyers, who predominately practiced in Valsad. His...
Justice Jamshed Burjor Pardiwala, the newly appointed judge of the Supreme Court, has delivered several noteworthy judgments as a judge of the Gujarat High Court.
Justice Pardiwala stepped into the legal profession in 1989 as a fourth-generation lawyer. His great grandfather Navrojji Bhikhaji Pardiwala, grandfather and his father were lawyers, who predominately practiced in Valsad. His father Burjor Cawasji Pardiwala joined Bar at Valsad in 1955 and also remained as the Speaker of the 7th Gujarat Legislative Assembly for a period commencing from December 1989 to March, 1990.
Justice Pardiwala himself started practice at Valsad in January, 1989, however, just one year later, he shifted to the Gujarat High Court in 1990 and started taking up matters in all branches of Law. He moved to the Bench in 2011 and further, in 2013, he was confirmed as a permanent Judge in the High Court.
His great grandfather started his practice in the year 1894 at Valsad and after about 128 years, his great-grandson will take the oath as a Judge of the Supreme Court and is expected to go on to become the Chief Justice of India in 2028.
Notable orders passed during COVID-19
During the COVID-19 lockdown period, Justice Pardiwala led a division bench of the High Court which made several strong and bold interventions to ensure that the rights of the people, especially the most vulnerable sections like migrant workers, are not neglected by the authorities.
Taking suo motu notice of a news paper report about migrant workers suffering hunger due to lockdown, the bench passed a slew of directions to the Government, after observing "It appears that people at large are hungry. People are without any food or shelter. It seems that it is the outcome of complete lockdown...The situation seems to be going out of control. Although the State Government is doing its best to combat the situation, yet we find that something is wrong somewhere. It appears that there is no proper coordination amongst various departments of the State Government. What is most essential as of now is a more humane approach or touch".
Justice Pardiwala's bench did not mince words in highlighting the worrying situation in health services and passed a slew of directions to ensure that the Ahmedabad Civil Hospital was working efficiently during the pandemic period.
Expressing alarm over the high morbidity rate of COVID-19 patients in Ahmedabad Civil Hospital, the bench said that its conditions were "pathetic" and were "as good a dungeon". The bench asked if the Gujarat Government was aware that the lack of adequate number of ventilators was the cause of high mortality of patients there.
"Is the State Government aware of the hard fact that the patients at the Civil Hospital are dying because of lack of adequate number of ventilators? How does the State Government propose to tackle this problem of ventilators?", Justice Pardiwala asked in the order.
The Civil Hospital contributed to highest death in most of the week during the last eight weeks, the Court noted.
"It is very distressing to note that most of the patients in the Civil Hospital are dying after four days or more of the treatment. This indicates complete lack of critical care", the bench said.
Later, the State Govt filed application to recall the scathing observations made by the HC against Ahmedabad Civil Hospital, stating that they will shake the confidence of common man in the hospital, and will demoralize the medical staff. Claiming that the steps have been taken to improve the conditions in the hospital, the Government urged the Court to "make few suitable observation so as to inspire confidence in the mind of a common man".
Considering this application on a later date, the bench said that it was too early to give certificate as regards civil hospital. The bench also directed that an independent committee should inquire into the contents of an anonymous letter sent by a resident doctor of the Civil Hospital regarding the state of affairs there.
The bench also said that it might do surprise visits at the hospital. The matters were later taken up by a bench comprising the then Chief Justice Vikram Nath and Justice JB Pardiwala.
In June 2020, the bench comprising Chief Justice Vikram Nath and Justice JB Pardiwala had emphasized that private medical institutions are also expected to "rise to the occasion" in these times of crisis and it had directed the State Government to keep a close watch on all the designated private hospitals to ensure that these institutions do not exploit the Covid patients.
"In times of crisis when people are dying, the Association should not think of even making profit of one rupee. The private hospitals have the adequate infrastructure and materials and financial resources required to fight this pandemic. All the hospitals whether private or public are considered moral agent and hence have a moral responsibility. The responsibility to act in certain ways falls upon those who may make up these hospitals," the bench had observed.
In a hearing conducted at midnight, a division bench comprising Chief Justice Vikram Nath and Justice JB Pardiwala had, on June 23, dismissed a batch of petitions seeking permission to conduct the Jagannath Rath Yatra at Ahmedabad in view of the COVID-19 pandemic.
The order was passed by during an urgent hearing held at 2 am.
Again, in July 2020, the bench comprising the Chief Justice Vikram Nath and Justice JB Pardiwala had disposed of a PIL seeking to put restrictions on the proposed Lord Jagannath Rath Yatra.
Highlighting the need to prioritize the protection of public health over religious expression, the bench had observed that it is the duty of any welfare State to provide legal safeguards to protect individuals' life and to maintain the good health of the community.
While quashing an FIR lodged against Patidar Anamat Andolan Samiti (PAAS) convener Hardik Patel in a case registered for treason for holding Patidwar agitation, Justice Pardiwala called 'Corruption' as the biggest threat to the nation and 'Reservation, terming it as an amoeboid monster.
"The biggest threats, today, for the country is corruption. The countrymen should rise and fight against corruption at all levels, rather than shedding blood and indulging in violence for the reservation. The reservation has only played the role of an amoeboid monster sowing seeds of discord amongst the people. The importance of merit, in any society, cannot be understated," he had remarked.
However, he went to expunge these remarks following Rajya Sabha members' petitioning to the then Vice-President of India and Rajya Sabha Chairman Mohammad Hamid Ansari to initiate an impeachment proceeding against him for his remarks against reservations.
Strong remarks against corruption
The menace of corruption became his target once again in the year 2018, when he lamented the effect of corruption on our society and lives, asserting that it is responsible for governance being considered a "matter of joke".
Justice JB Pardiwala had observed thus:
"If governance is a matter of joke today, making it a laughing stock and leaving it in a pitiable situation, and if cynicism towards the system is the order of the day, the full blame therefore should perhaps go to corruption. Development is perhaps the biggest victim of corruption, having suffered adversely due to its ill effects…
"…The problem of corruption is more acute in a developing country like India where this villain has fully abducted the development from the lives of people."
Marital rape a disgraceful offence
Justice Pardiwala has passed a notable order to examine the issues related to the criminalization of marital rape. In the order, he observed that Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.
This was not the only occasion when Justice Pardiwala made observations about marital relationships in his rulings.
In fact, in the year 2018, he had noted that Adultery undermines a relationship's foundation and is one of the main reasons of a relationship crisis around the world.
"The extramarital affairs are increasing in number. This is one of the highest reasons for divorce. The extramarital affair has devastating results," Justice Pardiwala had said.
In the same year, he had also remarked that modern marriages fixed on Facebook are bound to fail.
Supports death penalty
In a judgment delivered in February 2019, Justice Pardiwala had observed that although there is a good deal of opposition to the death penalty, it should remain on the statute book.
"There is a good deal of opposition to death penalty and it is now usually restricted to cases where the crime is of a heinous nature and has been committed with a good deal of premeditation in cold-blood in a manner shocking the conscience of people in general. But still some are of the view that death penalty should be wholly abolished. In our opinion, it should remain on the statute book. Its presence there can itself act as a deterrent to those who may be disposed to commit pre-planned brutal murders of a shocking nature either with some base motive or on hire or for reward. In the matter of punishment as has been said above, the interests of the offender have to be weighed along with the interests of the society," he remarked.
However, in the same year, a bench that consisted of Justice Pardiwala was considerate enough to set aside the death sentence imposed by the Trial court on a lady accused in a double murder case and directed it to ascertain her mental condition before conducting a re-trial.
Two-finger test held unconstitutional
In January 2020, speaking in favor of maintaining the dignity of rape victims, a bench consisting of Justices JB Pardiwala and Bhargav D. Karia had held that the "archaic and outdated" practice of the two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.
The court held that the two-finger test is violative of the right of the victim to privacy, physical and mental integrity, and dignity.
Underscoring that customary divorce is a social evil, the Bench of Justice JB Pardiwala and VD Nanavati last year refused to grant a declaration regarding the dissolution of marriage on the basis of a customary divorce of a couple.
The bench observed that Customary divorces are decided by few persons, who may not have much idea about the social developments and the constitutional perspective.
"Such customary divorces are affecting personal liberty and fundamental rights of the women to adjudicate their issues before the competent forum...Even after the development of the constitutional principles and in the presence of ever so many welfare legislations in favour of women, the Courts are recognizing the customary divorces, which can never be accepted nor be approved. Customary divorce undoubtedly is a social evil. Customary divorces undoubtedly are happening on account of the attitude of ill-minded male chauvinists," the Court added.
Justice Pardiawala has written over a thousand reportable judgments on varied subjects relating to civil, taxation and commercial laws. In the field of taxation, he is regarded as an authority, as his judgments on several issues of GST are cited across the country.
