“Scrutiny of Judicial Process by Half Truth Knowledgeable is real danger to Rule of Law”
— Justice JB Pardiwala at ‘2nd Justice HR Khanna Memorial National Symposium’[1]
Justice Jamshed Burjor Pardiwala assumed office as a sitting judge of the Supreme Court of India on May 9th, 2022 and is in line to become the Chief Justice of India in 2028.
Did You Know? Justice Pardiwala is expected to serve a two-year and three months term as Chief Justice of India from May 3rd 2028 to August 11th 2030. [2]
Early Life and Education [3]
Justice JB Pardiwala was born in Mumbai on August 12th, 1965 into a family of lawyers having roots in Valsad located in the south of Gujarat. He is the great grandson of Navrojji Bhikaji Pardiwala who started his legal practice as early as in 1894, grandson of Cawasji Navrojji Pardiwala who began his legal career in 1929 till 1958 and son of Burjor Cawasji Pardiwala who joined the Valsad Bar in 1955 following the same footsteps.
Justice J B Pardiwala, after attending St. Joseph Convent School, graduated from J P Arts College in 1985, and went on to obtain Bachelor of Law degree from K M Mujli College in 1988, all located in Valsad Gujarat.
♦Did You Know? His father Barjorji Cowasji Pardiwala was elected as an MLA from Valsad Assembly Constituency on an Indian National Congress ticket and even served as the Speaker of Gujarat Legislative Assembly from January 19, 1990 to March 16, 1990.
As an Advocate[4]
Justice Pardiwala began his legal career as an advocate from Gujarat High Court in January 1989 and eventually was elected to the State Bar Council in 1994 wherein he remained as a member till 2000. The year 2002 saw his appointment as Standing Counsel in the same High Court where he started his legal practice, Gujarat High Court, along with other subordinate courts.
♦Did You Know? If reports given by his colleagues are to be believed, Justice Pardiwala cleared approximately 1,200 pending matters during his tenure.
As a Judge
In High Court
Justice Pardiwala earned the coveted title of “Justice” when he began his judgeship on February 17th, 2011, having been appointed as Additional Judge of Gujarat High Court which was made permanent on January 28th, 2013. His tenure also saw him serving as the President of Gujarat State Judicial Academy. Justice Pardiwala mainly adjudicated matters related to Criminal and Civil Law, Services, and Indirect Taxation.
♦Did You Know? During his stint as a Judge at the Gujarat High Court, Pardiwala J authored 1,807 Judgments and was part of 2,195 Benches.
In Supreme Court
Justice Pardiwala was elevated to the Supreme Court on May 9th, 2022. He has experience of rendering judgments under his hat on multifarious issues like 400+ judgments on criminal matters, 250+ on service matters, around 200 on civil and direct taxation, 150+ on GST matters to name a few.[5]
♦Did You Know? Justice JB Pardiwala superseded many senior judges and chief justices of High Courts to make an entry in the Supreme Court in just 11 years of being elevated as a judge.[6]
His Top 18 Notable Judgments thus far are as follows: [List is inclusive of his term as a High Court Judge and Supreme Court judge]
‘Respect each other. Your children are watching you very closely’; Supreme Court advises parents in custody battle
The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’ Read more
[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885]
Trial Court not a ‘mere post office’; must apply its mind while framing charges: SC unimpressed with discharge of murder accused based on postmortem report only
Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.
“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e., whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached such a conclusion merely relying upon the port mortem report on record.” Read more
[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913]
Prophet Remark Row| Why Supreme Court stayed Nupur Sharma’s arrest?
After politician and lawyer Nupur Sharma approached the Court claiming that there is an imminent necessity for the Court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution, the bench of Surya Kant and JB Pardiwala, JJ has directed that no coercive action shall be taken against her pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26-05-2022 on Times Now. Read more
[N.V. Sharma v. Union of India, 2022 SCC OnLine SC 895]
Illegal Coal Mining| Supreme Court stays Meghalaya HC’s order directing dismantling of existing coke plants
In a case concerning illegal coal mining in the State of Meghalaya, the Vacation Bench comprising Surya Kant and J.B. Pardiwala, JJ., stayed directions of the Meghalaya High Court directing the dismantling of existing coke plant(s). Read more
[JMK Coke Industry Pvt. Ltd. v. State of Meghalaya, 2022 SCC OnLine SC 783]
Maharashtra Political Crisis| Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM
The Vacation Bench of Surya Kant and JB Pardiwala, JJ gave a go ahead to the Special Session of the Maharashtra Vidhan Sabha convened on 30-06-2022 for trust vote. Read more
[Sunil Prabhu v. Governor of Maharashtra, 2022 SCC OnLine SC 776]
Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Gujarat High Court answers
The Division Bench of J.B. Pardiwala* and Niral R. Mehta, JJ., while dealing with a matter regarding restitution of conjugal rights, stated that,
“Section 281 of the Muhammadan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined.”
Further, the Bench expressed that,
“A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.”
The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the appellant-wife to go back to her matrimonial home and perform her marital obligations. Read more
[Jinnat Fatma Vajirbhai Ami v. Nishat Alimdbhai Polra, 2021 SCC OnLine Guj 2075]
Gujarat High Court| Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling the significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’
In an instant appeal under Section 19 of the Family Courts Act, 1984 filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939, the Division Bench of J.B. Pardiwala* and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance. Read more
[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711]
♦Did you know? Justice J B Pardiwala is a huge fan of Manna Dey, an internationally acclaimed, celebrated Indian playback singer, music director, and a musician and loves watching and playing cricket.[7]
Gujarat High Court | Two finger test violates the right of victim to privacy, physical and mental integrity and dignity; held unconstitutional
A Division Bench of J.B. Pardiwala* and Bhargav D. Karia, JJ., while deciding the two clubbed appeals, held that,
“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.” Read more
[State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114]
[Marital rape] Gujarat High Court: A husband cannot be permitted to treat his wife like a chattel and violate her dignity
While deciding the present case wherein the focal point was marital rape and unnatural carnal activity, J.B. Pardiwala, J., observed that a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent. Furthermore, the Court urged that the time is ripe that the legislature intervenes and goes into the soul of the issue of marital rape as it is a serious matter which unfortunately is not attracting serious discussions at the end of the Government. Read more
[Nimeshbhai Bharatbhai Desai v. State of Gujarat,2018 SCC OnLine Guj 732]
Gujarat High Court |For the purposes of S. 498-A IPC, a former wife will not come under the category of “the relative of the husband”
In the instant application wherein, the applicant invoked the inherent power of the Court under Section 482 of CrPC thereby seeking quashment of proceedings under Section 498-A read with Section 114 IPC, J.B. Pardiwala, J., held that for the purposes of Section 498-A IPC, a former wife will not come under the category of the “relative of the husband”. Thus, even if the former wife is the cause of matrimonial disputes, she cannot be prosecuted under Section 498-A IPC. Read more
[Honeyben Ashokbhai Patel v. State of Gujarat, 2017 SCC OnLine Guj 1558]
Gujarat High Court | Pregnancy of above 20 weeks can be terminated if it serves the ‘best interest’ of pregnant girl
J.B. Pardiwala, J. allowed a writ application filed by a victim of rape for termination of her pregnancy, subject to her examination by two doctors to ensure that the termination can be carried out safely. Read more
[Pujaben Subedar Yadav v. State of Gujarat, 2017 SCC OnLine Guj 453]
Gujarat High Court |Those who have not allowed to change the Muslim personal law have done great disservice to the community; Gujarat High Court quashes FIR
In a case where an FIR was registered by the father of a Muslim girl aged 16 years, against a man alleging offence under Sections 363, 366 Penal Code, 1860 and Section 18 POCSO Act, and the instant application was filed seeking quashing the same FIR, J B Pardiwala J. perusing the Muslim Law in light of said facts showed disappointment for the lack of a codified Muslim law. In the instant case, the Judge remarked
“Sixteen years is not an age for a girl to get married. At this age, probably, a girl would not even clear her S.S.C. Exam. At times, I fail to understand how she would be able to go ahead in life. Most of the time, unfortunately, this type of marriage fails, and one day, the girl would come back to her parents. By that time, it is too late in her life to realize her mistake as it would be very difficult for the parents to get her again settled in life.”
“… as the social condition in the Nation and throughout the world continues to change, the reality of life is, that even without a code on personal law of Muslim insofar as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years”
The Court however quashed the charges under Sections 363 and 366 as there was no reason to believe Namira had been enticed into the union as Namira deposed before Court that she eloped and married the accused on her own free will and volition as she was in love with the applicant and vice versa.
[Yunusbhai Usmanbhai Shaikh v State of Gujarat, 2015 SCC OnLine Guj 6211]
Amendments to Section 80 HHC Income Tax Act, 1961 was challenged; Gujarat High Court rules amendments to apply prospectively; Retrospective provisions to be extended only if they benefit assesses
The petitioners filed a batch of civil appeals at the Gujarat High Court challenging newly inserted Amendments to Section 80 HHC of the Income Tax Act, 1961. Under Section 80HHC, businesses could avail themselves of specific Income Tax deductions—and had even been incentivized to do so by earlier governments. This benefit had been extended to them from Assessment Year 1988-89 to Assessment Year 2004-05. The petitioners contended that the Amendments sought to retrospectively remove these deduction benefits after 31st March, 2004—while also retrospectively granting them to another group of assesses for the same assessment period. This created two arbitrary subgroups within the same class of businesses, violating the Right to Equality and the Right to practice any profession.
The question was raised before the Court that whether the severable parts of the 3rd and 4th proviso to Section 80 HHC (3) Income Tax Act, 1961 are ultra vires Articles 14 and 19(1)(g) Constitution of India, a Division Bench of Bhaskar Bhattacharya and J B Pardiwala JJ. noted that if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move to a higher judicial forum for correct interpretation. The Court thus held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assesses whose assessments were still pending although such benefit will be available to the assesses whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assesses but not in a case where it affects even a fewer section of the assesses.
[Avani Exports v Commissioner of Income Tax Rajkot, 2012 SCC OnLine Guj 3837]
♦Did You Know? JB Pardiwala is the 4th Parsi Judge to serve at the Supreme Court and first minority High Court judge to be appointed in 5 years after Justice Abdul Nazeer[8]
Notable Judgments during COVID
[Midnight Hearing] Gujarat High Court | Situation of Ahmedabad on account of COVID-19 cannot be compared with situation in Puri or in the State of Orissa (sic Odisha); No Rath Yatra at Ahmedabad
A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., rejected all the civil applications in a midnight hearing, filed with regard to granting permission for Rath Yatra on the ground that Supreme Court allowed the Yatra in restricted manner by modifying its earlier order. Read more
[Mahant Akhileshwardasji Ramlakhandasji v. State of Gujarat, 2020 SCC OnLine Guj 917]
Gujarat High Court | “If State would not have been doing anything, we all would have been dead”: Court berates politicizing of COVID-19 situation while at the same time reminding the State of its Constitutional obligations
A Division Bench of Vikram Nath, CJ and J.B. Pardiwala, J.* while addressing certain issues with regard to COVID-19, stated that,
“Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness, disorders, and other health impacting conditions. For healthcare to be accessible it must be affordable and convenient.” Read more
[Suo Motu v. State of Gujarat, 2020 SCC OnLine Guj 836]
Gujarat High Court | Gujarat Govt given directions to take stern and decisive actions in matters connected to private hospitals, migrants, protection of doctors and overall management of Covid-19 crisis
Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare. Read more
[Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]
[COVID-19] Gujarat High Court | No Rath Yatra shall be carried out at Ahmedabad; No activities secular or religious associated with Rath Yatra to be conducted
A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., held that in view of present times of outbreak of COVID-19, there shall be no Rath Yatra at Ahmedabad and any of the districts in the State of Gujarat. Read more
[Hitesh Kumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust, 2020 SCC OnLine Guj 910]
Gujarat High Court | “What is most essential as of now is a more humane approach or touch”; State Authorities should ensure that its citizens do not die of starvation
A Division Bench of J.B. Pardiwala* and Ilesh J. Vora, JJ., took suo motu cognizance of certain issues like the food, shelter for migrant workers, travel to hometowns, etc.
The court took notice of a few news items and took suo motu cognizance of the same, wherein the following was noted:
“Caught in the Covid19 crossfire in pain? Grin and bear because cops won’t let you meet your doc with the police getting stricter in ensuring that people do not step out of their houses during the lockdown, patients with genuine ailments are suffering as they are at the receiving end”
[Suo motu v. State of Gujarat, 2020 SCC OnLine Guj 718]
________________________________
†Arunima Bose, Editorial Assistant has put this report together
*Judge, who has authored the judgment
[1] https://www.scconline.com/blog/post/2022/07/12/scrutiny-of-judicial-process-by-half-truth-knowledgeables-is-real-danger-to-rule-of-law-says-justice-pardiwala/
[2] https://www.scobserver.in/journal/who-are-the-nine-next-chief-justices-of-india/
[3] https://gujarathighcourt.nic.in/cjjfull?jid=435
[4] https://main.sci.gov.in/chief-justice-judges
[5] https://www.scobserver.in/judges/jamshed-burjor-pardiwala/
[6] https://timesofindia.indiatimes.com/india/justice-dhulia-superseded-29-judges-justice-pardiwala-48/articleshow/91452648.cms
[7] https://theprint.in/judiciary/in-justice-jb-pardiwala-sc-gets-a-future-cji-a-manna-dey-fan-and-a-cricket-lover/947824/
[8] https://www.outlookindia.com/national/supreme-court-to-get-full-strength-jury-as-two-judges-to-take-oath-of-office-on-monday-news-195556