Justice S.R. Bhat’s Notable Judgements
During his four-year tenure at the Supreme Court, Justice Bhat has authored judgements in crucial constitution bench cases
Justice Bhat authored judgements in significant constitution bench cases such as the plea for marriage equality for queer persons in India, the Maratha reservations, and the challenge to the EWS reservation scheme. He has also been on the roster for criminal cases, special leave petitions in arbitration cases and tax law matters.
In the ceremonial farewell session, Justice S.K. Kaul said he would remember his brother, Justice Bhat for his “succinct” and “precise” judgements in constitutional cases. In an ode to the retiring Judge, Solicitor General Tushar Mehta expressed how though he had lost (and won) many cases in Justice Bhat’s Court, he never left the Courtroom feeling like justice was not served.
The plea for marriage equality
Justice Bhat was a part of the five-judge Constitution Bench that was deciding if members of the LGBTQIA+ community had the right to marry. Justice Bhat led the majority opinion on two issues in the case—adoption and right to civil union..
Five months after reserving the judgement in the case, on 17 October 2023, all five judges upheld the constitutional validity of the Special Marriage Act, 1954 (SMA) and held that queer marriages could not be read into the SMA. The bench also held that the right to marry is not a fundamental right. CJI D.Y. Chandrachud and Justice S.K. Kaul held that the queer couples had the right to civil unions. Additionally, the Chief held that they had the right to adoption.
Authoring an opinion on behalf of himself and Justice Hima Kohli, Justice Bhat stated that recognising civil unions would require a separate regime of law to recognise a “bouquet of other rights” that are ancillary to marriage. Though he viewed that there was a “right to relationship”, the state is not obliged to recognise a “bouquet of entitlements” that flow from marriage and create a new regime to make it applicable to civil unions.
Further, he held that unmarried queer couples did not have the right to adopt—that adoption required a married couple, so that incase on parent abandons the relationship, the child and the other parent could avail a host of remedies under maintenance, custody, guardianship, inheritance, succession and other related laws. Justice P.S. Narasimha concurred with Justice Bhat. The decision comes as disappointment to members of the LGBTQIA+ community.
EWS Reservation Scheme
On 7 November 2022, in a 3:2 majority a five-judge Constitution Bench led by former Chief Justice U.U. Lalit upheld the 103rd constitutional amendment, which provided reservation to the economically weaker sections (EWS).
Authoring the dissent on behalf of CJI Lalit and himself, Justice Bhat wrote he was not opposed to the concept of reservations based on economic factors. However, the amendment was unconstitutional as it excluded SC/ST and OBC persons from the scheme. This, Justice Bhat wrote, was contrary to the basic structure of the Constitution.
It is “delusional”, he said, to presume that these socially and educationally depressed classes have an advantage over the economically backward persons from a forward caste only because they have caste-based reservation benefits. He also noted that the scheme breached the 50% limit on reservations which would open a gateway for further compartmentalisation. The decision has come in for much criticism from legal experts and prominent voices in the anti-caste movement for diluting the constitutional protections of the scheduled castes and scheduled tribes.
Amendment to the Prevention of Atrocities Act
In March 2018, the Supreme Court in Kashinath Mahajan v State of Maharashtra introduced safeguards to prevent the misuse of the SC/ST (Prevention of Atrocities) Act, 1989. These safeguards introduced added barriers for the exercising of the PoA, stating that they were intended to curb the alleged rise in false charges being filed under the Act.
The judgement met with immediate protest from SC/ST groups. Later, in August 2018, Parliament passed the SC/ST (PoA) Amendment Act, 2018 which undid the safeguards introduced in Kashinath Mahajan. Amongst other things, the amendment allowed for automatic arrest (arrest without an FIR) and also placed a bar on anticipatory bail. Immediately, petitions challenging the amendment were filed at the Supreme Court.
Justice Bhat authored a separate concurring opinion in the case. While he agreed with Justice Mishra that anticipatory bail can be granted if there exists no prima facie offence, he observed that this must be applied very sparingly. He warned that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament”.
Gender Sensitivity in Court Language
In March Aparna Bhat v State of Madhya Pradesh (2021), Justice Bhat laid down do’s and don’ts for progressive judgement writing in gendered sexual violence cases. He noted the “entrenched paternalistic and misogynistic attitudes” found in judgements and orders illustrate archaic gender beliefs, stereotypes and insensitivity. These included guidelines for judges to ensure that they do not use language that gives the impression of impartiality or unfairness of the Court, and remain sensitive to the trauma of the complainant.
Asserting that a survivor relies on the courts for “impartiality and neutrality, at every stage in a criminal proceeding,” he stated that orders should not reflect patriarchal ideas such as setting standards for women’s morals, believing women to be physically weak, incapable of make decisions, inferior position in the family, submissiveness or motherhood. Further, comments should not be made about a woman’s sexual activity, clothes, consumption of alcohol/cigarettes. He also mandated gender-sensitive training to be a part of modules for the National Judicial Academy, the Judicial Services Examination and the All India Bar Examination. The Supreme Court launched a handbook on gender sensitivity on 16 August 2023 to combat many of the issues raised by Justice Bhat in Aparna Bhat.
Guidelines for Conviction and Imprisonment
In May 2022, Justice Bhat authored the decision for a three-judge bench in Manoj v. State of MP which reduced a death sentence of three convicts to 25 years of life imprisonment. In this case, a trial court in Indore imposed a death penalty on three persons accused of murder. The Madhya Pradesh High Court affirmed the punishment.
In his judgement, Justice Bhat issued guidelines to trial Courts to collect speedy information on mitigating circumstances impacting the accused. These include mandates to produce material disclosing psychiatric and psychological evaluation of the accused and factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any).
He has also been on the bench in the suo motu case monitoring the deficiencies in criminal trials and pendency of cases.
In Mohd. Muslim v. State (NCT of Delhi), in March 2023, Justice Bhat highlighted the negative effects of prolonged incarceration on individuals and expressed concern that lengthy imprisonment could contribute to the development of hardened criminals.
Justice Bhat has also been on other crucial cases such as the contours of when the Union’s land acquisition lapses as well as the challenge to Muslim quota reservations in Andhra Pradesh – both pending 5-judge constitution benches, and the grant of bail to journalist Siddiq Kappan,