Institute of Legal and Management Studies

Justice Bhushan Ramkrishna Gavai, Judge of the Supreme Court of India, took oath today as the 52nd Chief Justice of India after the current Chief Justice of India, Sanjiv Khanna, retired on May 13. Justice Gavai has become the second CJI belonging to the Scheduled Caste community after Justice KG Balakrishnan retired as the CJI in 2010.

During his time as a judge, Justice Gavai has delivered some significant judgments ranging from environmental rights to arbitration. The most recent and prominent judgment is laying down guidelines against "bulldozer justice", which became a menace in society at the hands of State authorities. Laying down a very strong message, the Court held that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted of a crime.

Some of his other prominent judgments include granting bail to former Delhi Deputy Chief Minister and Aam Aadmi Party leader Manish Sisodia and Bharat Rashtra Samithi leader K Kavitha in connection with the Delhi liquor policy case on the grounds of undue delay in trial, violating the right to speedy justice. Justice Gavai also led the bench which held as illegal the arrest of NewsClick founder and Editor-in-Chief Prabir Purkayastha, as grounds of arrest were not supplied to him.

Justice Gavai was also a part of the constitution bench which held that sub-classification within the Scheduled Caste is permissible. In his separate concurring opinion, Justice Gavai advocated for the application of the creamy layer to the Scheduled Castes.

Soon after he is appointed the CJI, he will have to head a bench deciding the constitutional validity of the Waqf (Amendment) Act and the Waqf Act, 1995. This is set to be heard on May 15.

We look at some of the important judgments in which Justice Gavai has been a part as a judge:

Bulldozer justice affront to rule of law

In Re: Directions in the matter of Demolition of Structures v. and Ors. [November 13, 2024]: Sending a strong message against the trend of "bulldozer justice", the Supreme Court held that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted of a crime. Permitting such action by the executive is contrary to the rule of law and also a violation of the principle of separation of powers, as it is for the judiciary to pronounce on the guilt of a person.

The Court also observed that such actions amount to imposing "collective punishment" on the family of the accused/convict. Further, when properties are selectively demolished, there is a presumption that it was a malafide action.The Court issued a set of steps to be followed before demolition including prior show cause notice and personal hearing and judicial scrutiny before the order is finalised.

Bench: Justice BR Gavai [authored] and Justice KV Viswanathan

Sub-classification within Scheduled Caste permissible; Scheduled Castes should have creamy layer

State Of Punjab And Ors. v Davinder Singh And Ors [August 1, 2024]: The Supreme Court (by 6-1) held that sub-classification of Scheduled Castes is permissible to grant separate quotas for more backwards within the SC categories. The States can identify more backwards among the SC categories and can sub-classify them for separate quota within the quota. The Court clarified that while allowing sub-classification, the State cannot earmark 100% reservation for a sub-class. Also, the State has to justify the sub-classification on the basis of empirical data regarding the inadequacy of representation of the sub-class.

In a concurring opinion written by Justice Gavai advocated for making the principle of creamy layer applicable to Scheduled Castes, citing Ambedkar's observation in his book “What Gandhi and Congress have done to Untouchables”. He stressed the disparities between children of high-ranking officers belonging to SC communities and those of disadvantaged SC members, arguing that treating them equally under reservations would defeat the purpose of achieving real equality. He urged that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution.

Bench: CJI DY Chandrachud [concurring opinion for Misra and himself], Justices BR Gavai [concurring opinion], Vikram Nath [concurring opinion], Bela M Trivedi [dissented], Pankaj Mithal [concurring opinion], Manoj Misra and Satish Chandra Sharma [concurring opinion]

Justice Gavai was also a part of the bench in Jarnail Singh vs Lachhmi Narain Gupta [January 28, 2022] which declared that its 2006 judgment in M. Nagaraj & Ors. v. Union of India & Ors., will have only a prospective effect. In the 2006 judgment, which upheld the constitutional amendments which inserted Articles 16(4A) and 16(4B), the Court had held that it is not mandatory for the State to make reservations for SC/ST in matter of promotions. However, if the State did wish to exercise its discretion, it is supposed to gather quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with the requirement of maintaining administrative efficiency as per Article 335. However, the judgment did not state that it would be only prospective in operation.

Justice Gavai was also a part of the bench which observed that sub-classification amongst backward classes is permissible in the Vanniyar Quota Case. The Court however struck down the internal reservation for Vanniyars in Most Backward Classes on the ground that it was not supported by any data on Pattali Makkal Katchi vs A. Mayilerumperumal [March 31, 2022].

Bail on grounds of undue delay in trial

Manish Sisodia vs Directorate Of Enforcement [August 9, 2024]: In the high-profile alleged Delhi liquor scam matter, the Supreme Court granted bail to former Delhi Deputy Chief Minister and Aam Aadmi Party leader Manish Sisodia. The Court allowed Sisodia's bail applications in both the CBI and ED cases, considering the delay in the commencement of the trial in the liquor policy case.

The Court noted that there was "not even remotest possibility of trial being completed" in the near future considering that there are 495 witnesses and thousands of documents running into lakhs of pages. To keep Sisodia under custody for an unlimited period of time in the hope of a speedy completion of trial would result in a grave violation of the fundamental right to personal liberty under Article 21, it said.

Bench: Justice BR Gavai [authored] and Justice KV Viswanathan

This subsequently became a precedent to be followed in granting bail to Bharat Rashtra Samithi leader K Kavitha (August 27, 2024) in the money laundering and corruption cases related to the alleged Delhi liquor policy scam by the same bench.

Arrest and custody illegal when grounds of arrest not supplied

Prabir Purkayastha vs State (Nct Of Delhi) [May 15, 2024]: The Supreme Court declared illegal the arrest of NewsClick founder and Editor-in-Chief, Prabir Purkayastha, by the Delhi police and his remand in a case under the Unlawful Activities (Prevention) Act 1967. The Court noted that a copy of the remand application was not provided to Purkayastha or his counsel before passing the remand order. This meant that the grounds of the arrest were not supplied to him in writing as mandated under the Supreme Court's judgment in Pankaj Bansal. It was the case of the Delhi police that the requirement to furnish the grounds of arrest in writing was fulfilled by the serving of the remand application, but the Court was not convinced.

Bench: Justice BR Gavai and Justice Sandeep Mehta [authored]

Some constitution bench judgments in which J Gavai was a part of

1. Kantaru Rajeevaru vs Indian Young Lawyers Association [February 10, 2020]: The 9 judge dismissed the objections regarding the maintainability of reference in Sabarimala Review Petitions. The bench had stated that it would give reasons for the conclusion later, which was later released on May 11, 2020. In 2018, a five-judge bench, by a 4:1 majority, permitted entry of women of all age groups to the Sabarimala temple, holding that 'devotion cannot be subjected to gender discrimination'. Justice Gavai was not a part of the bench which pronounced the original judgment.

Bench: Justice Surya Kant, Justice B.R. Gavai, Justice R. Subhash Reddy, Justice S. Abdul Nazeer, Justice Mohan M. Shantanagoudar, Justice L. Nageswara Rao, Justice Ashok Bhushan, Justice R. Banumathi, CJ S.A. Bobde [authored]

2. Vivek Narayan Sharma vs Union Of India [January 3, 2023]: The Supreme Court (4:1) observed that the demonetisation cannot be held invalid merely because some citizens have suffered through hardships or that the decision was taken in a hasty manner. It upheld that the decision taken by the Union Government six years ago to demonetise the currency notes of Rs. 500 and Rs.1000 denominations. The majority held that Centre's notification dated November 8, 2016 is valid and satisfies the test of proportionality. Justice BV Nagarathna in her dissenting view held that though demonetization was well-intentioned and well thought of, it has to be declared unlawful on legal grounds (and not on the basis of objects).

Bench: Justice S Abdul Nazeer, Justice BR Gavai [authored], Justice AS Bopanna, Justice V Ramasubramanian and Justice BV Nagarathna [dissented]

3. Kaushal Kishore v State Of Uttar Pradesh [January 3, 2023]: A Constitution Bench of the Supreme Court said that a statement by a minister would be actionable as a constitutional tort if such a statement leads to an act or omission by officers of the state resulting in harm or loss to a person or citizen.

Bench: Justice Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanian [majority judgment], Justice B.V. Nagarathna [dissenting]

4. In Re Article 370 Of The Constitution [December 11, 2023]: The Supreme Court upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

Bench: Chief Justice of India DY Chandrachud [for CJI, J Gavai and J Kant], Justice Sanjay Kishan Kaul [concurring], Justice Sanjiv Khanna [concurring], Justice BR Gavai, and Justice Surya Kant

5. Association For Democratics Reforms vs Union Of India [February 15, 2024]: The Supreme Court held that anonymous electoral bonds are violative of the right to information under Article 19(1)(a) of the Constitution. Accordingly, the scheme has been struck down as unconstitutional. While holding this, the Constitution Bench also upheld the voter's Right to Information about funding to a political party. The Court reasoned that such information is essential for a voter's freedom to vote effectively.

Bench: Former CJI DY Chandrachud [authored], Justice Sanjiv Khanna [concurring], Justice BR Gavai, Justice JB Pardiwala, and Justice Manoj Misra

Some other important judgments of J Gavai

1. Union Of India vs The State Of Maharashtra [October 1, 2019]: The Supreme Court allowed the Centre's petition seeking review of its March 20, 2018 judgement which had virtually diluted provisions of arrest under the SC/ST Act. The May 2018 judgment had held that arrest of a public servant under SC/ST Act should be after approval of the appointing authority and of a non-public servant after approval of the SSP and that a preliminary enquiry must be held by the DSP to see whether the allegations make out a case under SC/ST Act.

The Court observed that powers under Article 142 of the Constitution could not have been exercised to pass directions against the statute.

Bench: Justice B. R. Gavai, Justice M. R. Shah, Justice Arun Mishra [authored]

2. Anuradha Bhasin vs Union Of India [January 10, 2020]: The Supreme Court held that freedom of speech and expression and also freedom of trade and commerce through the medium of internet are constitutionally protected rights under Articles 19(1)(a) and Articles 19(1)(g), respectively. The Court has not expressed any opinion on the right to access internet and has clarified that the judgment is confined to the point of the use of internet as a tool for exercise of freedom of speech and expression and trade and commerce.

The Court was considering the petitions filed by Anuradha Bhasin, Executive Editor of Kashmir Times daily and Rajya Sabha MP Ghulam Nabi Azad which challenged the curbs on internet, media and also other prohibitions imposed in Kashmir region following the abrogation of the special status of J&K on August 5, 2019.

Bench: Justice N V Ramana [authored], Justice Surya Kant and Justice B R Gavai

3. In Re Prashant Bhushan vs Court [August 14, 2020]: The Supreme Court held Advocate Prashant Bhushan guilty of contempt of court in the suo moto contempt case taken against him over two of his tweets about the Chief Justice of India and the Supreme Court. The Court sentenced him to pay a fine of Rs. 1 and in case of default to deposit, he will have to undergo imprisonment for three months and will be debarred from practice in SC for three years. Subsequently, Bhushan paid the fine.

Bench: Justice Krishna Murari, Justice B.R. Gavai, Justice Arun Mishra [authored]

4. Brajesh Singh vs Sunil Arora [August 10, 2021]: The Supreme Court has directed the political parties to publish information regarding criminal antecedents of candidates on the homepage of their websites.

It imposed a fine on eight political parties for committing contempt of court by flouting the directions in its February 2020 judgment for publication of the criminal antecedents of candidates during the Bihar assembly polls last year. Rupees Five Lakhs each have been imposed as fine on Communist Party of India( Marxist) and Nationalist Congress Party. Bharatiya Janata Party, Indian National Congress, Janta Dal, Rashtriya Janata Dal(United), Communist Party of India and Lok Janshakti Party were directed to pay fine of Rupees One Lakh each.

Bench: Justice B.R. Gavai, Justice Rohinton Fali Nariman [authored]

5. X vs Registrar General [February 10, 2022]: The Supreme Court directed the Madhya Pradesh High Court to reinstate a resigned woman Additional District Judge, who had raised sexual harassment allegations against a then-sitting judge of the Madhya Pradesh High Court. The Supreme Court held that her resignation, in the circumstances of the case where she alleged coercion, cannot be "construed as voluntary" and therefore quashed the decision of the High Court to accept her resignation.

Bench: Justice B.R. Gavai [authored], Justice L. Nageswara Rao

6. Dr. Jaya Thakur v Union of India [September 14, 2023]: The Supreme Court invalidated the one-year extension given to the then ED Director SK Mishra.

It also upheld the validity of the 2021 amendments to the Central Vigilance Act and the Delhi Special Police Establishment Act, rejected the argument that granting extensions of only one year at a time to the terms of the heads of the Directorate of Enforcement and the Central Bureau of Investigation would threaten the independence of the agencies. The Court delivered this verdict in a batch of petitions challenging the extension granted to Enforcement Directorate (ED) chief SK Mishra by the central government, as well as the 2021 amendments to the CVC Act, the DSPE Act, and the Fundamental Rules.

Bench: Justice B.R. Gavai [authored], Justice Vikram Nath, Justice Sanjay Karol

7. Suhas Chakma vs Union Of India [October 23, 2024]: The Supreme Court, in a petition filed by human rights activist Suhas Chakma seeking measures to ensure free and timely legal aid to prisoners, has asked the High Courts to consider issuing practice directions to all Courts to append a coversheet to all judgments on conviction and dismissal including bail applications informing the convicts of their right to free legal aid facility for pursuing higher remedy.

Bench: Justice BR Gavai and Justice KV Viswanathan [authored]

8. Anmol vs Union Of India [February 21, 2025]: The Supreme Court held that the eligibility condition prescribed by the National Medical Commission's guidelines that candidates with disabilities must have "both hands intact, with intact sensation and sufficient strength" for admission to MBBS course was arbitrary and antithetical to the Constitution. The Court noted that "flexibility in answering individual needs and requirements is an essential component of reasonable accommodation. There cannot be a “one size fits all” approach."

Bench: Justice BR Gavai and Justice KV Viswanathan [authored]