Know Thy Judge- Justice Bhushan Ramkrishna Gavai

   

As Justice Bhushan Ramkrishna Gavai is all set to celebrate his 62nd Birthday, it is only fitting that we take look back to the trajectory of his life and career and to his tenure at the Supreme Court through his various decisions.

Early Life

Justice Bhushan Ramkrishna Gavai was born on 24th November, 1960 at Amravati to late R.S. Gavai, who was a noted social activist, Member of Parliament and former Governor of Bihar and Kerala¹.

Advocacy²

At the age of 25, he enrolled as an advocate and started practicing at the Nagpur bench of the Bombay High Court. Justice Gavai practiced independently at Bombay High Court from 1987 to 1990 and after 1990, practised mainly before the Nagpur Bench of Bombay High Court. His practise was mostly focussed on issues related to Constitutional Law and Administrative Law.

Justice Gavai served both as an Assistant Government Pleader and Additional Public Prosecutor in the Nagpur Bench of the Bombay High Court from August 1992 to July 1993. He was later appointed as Government Pleader and Public Prosecutor for Nagpur Bench on 17th January, 2000.

Judgeship of the Bombay High Court

He was appointed as a judge of the Bombay High Court on 14th November, 2003 and became a permanent Judge of the Bombay High Court on 12th November, 2005. Justice Gavai presided over Benches having all types of assignments at the Principal Seat in Mumbai as well as Benches at Nagpur, Aurangabad and Panaji.³

Journey towards the Supreme Court

After 16 years of Judgeship at the Bombay High Court, Justice B.R. Gavai was elevated as a Judge of the Supreme Court of India on 24th May, 2019. The Collegium in recommending Justice Gavai's name for the Supreme Court, gave due weight to his seniority, integrity, merit and due representation in the Supreme Court⁴

*Did You Know? Justice Gavai is the first Supreme Court Judge belonging to a Scheduled Caste, to be appointed in 9 years after Justice K.G. Balakrishnan's retirement in 2010⁵.

Furthermore, if the seniority convention is followed, then Justice Gavai will become the second Chief Justice of India belonging to a Scheduled Caste category after Justice Balakrishnan⁶.

Notable Judgements

Justice B.R. Gavai has authored almost 100 judgments⁷ over the course of his tenure. Some important decisions that Justice Gavai has been a part of, are as follows-

Can step- children claim property right in mother's mehar after her death? Does a registered mehar deed become unenforceable for being nominal?

The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., in Azgar Barid v. Mazambi, (2022) 5 SCC 334, upheld the impugned judgment of the High Court wherein the High Court had granted property rights to the step- children of the deceased in her mehar property by declaring the mehar deed as unenforceable for being nominal.

Right to establish an educational institution is a fundamental right

The Bench of BR Gavai* and PS Narasimha, JJ., in Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 SCC OnLine SC 1224, held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction.

IBC| Once CIRP is initiated and moratorium is ordered, proceedings under SARFAESI Act cannot continue

The bench of L. Nageswara Rao and BR Gavai*, JJ., in Indian Overseas Bank v. RCM Infrastructure Ltd., (2022) 8 SCC 516, held that the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) cannot continue once the CIRP has been initiated and the moratorium has been ordered as per the Section 14(1)(c) of the Insolvency and Bankruptcy Code, 2016 (IBC).

Consumer Protection| ‘Business to business' dispute not a consumer dispute

The bench of L. Nageswara Rao and BR Gavai*, JJ., in Shrikant G. Mantri v. Punjab National Bank, (2022) 5 SCC 42, interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business' disputes cannot be construed as consumer disputes. The entire Act revolves around “business-to-consumer” disputes and not for “business-to-business” disputes.

“Mighty” Union of India vs “Ordinary Soldier” |Members of Ecological Task Force also entitled to Disability Pension

In Pani Ram v. Union of India, 2021 SCC OnLine SC 1277, where a soldier, after serving in the Regular Army for 25 years, was re-enrolled in the Infantry Battalion (Territorial Army), Ecological Task Force (ETF) and was denied disability pension in view of the letter of the Government of India, Ministry of Defence, which provides that the members of ETF would not be entitled for disability pension, the bench of L. Nageswara Rao and BR Gavai*, JJ., held that it was wrong to deny the claim as the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army and the other officers or enrolled persons working in the Territorial Army are entitled to disability pension.

Nothing wrong with OBC Reservation for consecutive term for the office of Mayor

The bench of L. Nageswara Rao and BR Gavai*, JJ., in Sanjay Ramdas Patil v. Sanjay, (2021) 10 SCC 306, set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

‘Delays in prosecuting the corrupt breeds a culture of impunity'; Sanction requests under PC Act must be decided within 4 months but proceedings cannot be quashed for delay

The bench of BR Gavai and PS Narasimha*, JJ., in Vijay Rajmohan v. State, 2022 SCC OnLine SC 1377, decided two important questions relating to the Prevention of Corruption Act, 1988 and held that:

1. There is no illegality in the action of the appointing authority, the DoPT, if it calls for, refers, and considers the opinion of the Central Vigilance Commission before it takes its final decision on the request for sanction for prosecuting a public servant.

2. The period of three months, extended by one more month for legal consultation, is mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be Accountable for the delay and be subject to judicial review and administrative action by the CVC under Section 8(1)(f) of the Central Vigilance Commission Act, 2003 (CVC Act).

Mere lack of State Government's prior consent does not vitiate CBI investigation in absence of prejudice caused to accused

The bench of AM Khanwilkar and BR Gavai*, JJ., in Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, (2021) 2 SCC 525, held that not obtaining prior consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.

Wilful disobedience or Wilful breach: Are these necessary requisites for bringing in action for ‘Civil Contempt'?

B.R. Gavai*, J., while addressing the contempt petition in Rama Narang v. Ramesh Narang, 2021 SCC OnLine SC 29, expressed that:

“…contempt proceeding is not like an execution proceeding under the Code of Civil Procedure.”

“…contempt proceedings are quasi-criminal in nature and the standard of proof required is in the same manner as in the other criminal cases.”

“A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders.”

The instant contempt petition arose out of an unfortunate family dispute between a father and his two sons from his first wife.

Article 370| Review all orders imposing curbs in a week and put them in public domain

A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ., in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, asked the J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain. 

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Conviction on basis of circumstantial evidence- Onus on accused

In Sudru v. State of Chattisgarh, (2019) 8 SCC 333, wherein a son murdered his father, the bench of Deepak Gupta and B.R. Gavai*, JJ., confirmed the conviction of the accused on the basis of circumstantial evidence, last seen evidence and non-explanation of incriminating evidence by accused, conviction of accused confirmed. 

State can't be estopped from withdrawing the exemption from payment of Excise Duty if such withdrawal is in larger public interest

The 3-judge bench of Arun Mishra, MR Shah and BR Gavai*, JJ., in Union of India v. Unicorn Industries, (2019) 10 SCC 575, held that by invoking the doctrine of promissory estoppel, the Union of India cannot be estopped from withdrawing the exemption from payment of Excise Duty in respect of certain products, which exemption is granted by an earlier notification; when the Union of India finds that such a withdrawal is necessary in the public interest.

Company Court cannot decide in winding up proceeding which party defaulted with the compromise

In the corporate dispute in Shital Fibers Ltd. v. Indian Acrylics Ltd., 2021 SCC OnLine SC 281, the 3-Judge Bench comprising of R.F. Nariman, B.R. Gavai* and Hrishikesh Roy, JJ., held that, “The Company Court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed.”

COVID-19| SC suggests Centre to extend directions to protect children in Protection Homes from spread of coronavirus to Nari Niketans

The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ., Rishad Murtaza v. Union of India, (2020) 15 SCC 288, has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

Tata's Housing project in Chandigarh stalled for being ‘too close' to Sukhna Lake & Widlife Sanctuary

In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ., in Tata Housing Development Co. Ltd. v. Aalok Jagga, (2020) 15 SCC 784, held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary ecosensitive zone­. It said,

“The entire exercise of obtaining clearance relating to the project is quashed. We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.”

Scope of the Court to enquire in decision of an Executive: Whether Court is concerned with decision-making process or ultimate decision?

While elaborating the scope of judicial review, Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., in Punjab State Power Corpn. Ltd. v. Emta Coal Ltd., (2022) 2 SCC 1, held that,

“It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair.”

Question relating to interpretation of Section 11 of the Coal Mines (Special Provisions) Act, 2015 which was an outcome of the judgment of this Court's decision in Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, and ancillary question pertaining to the scope of judicial review of administrative action of the State authority arose for consideration in the instant appeals.

Can 'emotionally dead' marriage be dissolved in exercise of Art. 142 of Constitution?

The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., in Subhransu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720, dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.

Extension of tenure of the incumbent Director of Enforcement beyond two years

A Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., in Common Cause v. Union of India, 2021 SCC OnLine SC 687 , upheld the Central Government's order extending the tenure of the incumbent Director of Enforcement Sanjay Kumar Mishra for a period of one year. The Supreme Court held that there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years. Interpreting Section 25 of the Central Vigilance Commission Act, 2003 which prescribes the minimum tenure of the Director of Enforcement, the Court observed:

“The words ‘not less than two years' cannot be read to mean ‘not more than two years' and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.”

Directions issued to make voter's right to information more effective

A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ., in Brajesh Singh v. Sunil Arora, (2021) 10 SCC 241, found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733, in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.

Emergency arbitrator's award is referable to S. 17(1) of Indian Arbitration Act; enforceable under S. 17(2)

Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman* and B.R. Gavai, JJ., Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 ruled in favour of Amazon in the infamous Future-Amazon dispute. It was held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court declared that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders. 

Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid

A 3-Judge Bench of the Court in Union of India v. Rajendra N. Shah,  2021 SCC OnLine SC 474, held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories.  R.F. Nariman and B.R. Gavai, JJ., formed the majority, whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability. 

Whether a residential accommodation for nuns/students would fall under “religious or educational purposes” and be qualified for tax exemption?

The Division Bench comprising of R. F. Nariman* and B.R. Gavai, JJ., in State of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602, addressed the instant case regarding statutory interpretation.  The issue before the Bench was whether a residential accommodation for nuns and hostel for students would fall under “religious or educational purposes” for the purpose of tax exemption. The Bench expressed, “We must first ask ourselves what is the object sought to be achieved by the provision and construe the statute in accord with such object? And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted.”

Where one party habitually resides in a foreign country, arbitration becomes an international commercial arbitration even when the business is being carried through an office in India

The Division Bench of R.F. Nariman* and B.R. Gavai, JJ., in Amway India Enterprises (P) Ltd. v. Ravindranath Rao Sindhia, (2021) 8 SCC 465 , addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled, “If at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.”

“Can't treat all of them as a liar”: SC while partially setting aside the 2018 SC/ST Act verdict

The 3-judge Bench of Arun Mishra*, MR Shah and BR Gavai, JJ., in Union of India v. State of Maharashtra, (2020) 4 SCC 761, partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454. It was held that some portions of the said verdict were against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. 

Prashant Bhushan sentenced to a fine of Rupee 1 for his contemptuous tweets

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ., in Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160, sentenced advocate Prashant Bhushan with a fine or Re.1/ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. 

“If we do not take cognizance of such conduct, it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re.1/ (Rupee one).”

†Sucheta Sarkar, Editorial Assistant, EBC Publishing Pvt Ltd.

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