J.B. Pardiwala

Justice Jamshed Burjor Pardiwala was appointed as a Judge at the Supreme Court on May 9th, 2022. The fourth Parsi Judge to serve at the Court—and the first minority High Court Judge to be appointed in the last five years after Justice Abdul Nazeer—Pardiwala J’s tenure at the Court will also see him serve a two-year term as Chief Justice of India starting May 2028.

Early Life

Pardiwala was born in Mumbai on August 12th, 1965 into a family of lawyers rooted in South Gujarat’s Valsad. His great grandfather Navrojji Bhikaji Pardiwala began his legal practice in the town in 1894—his son, Cawasji Navrojji Pardiwala would go on to join the Valsad Bar in 1929. Pardiwala J’s father Burjor Cawasji Pardiwala followed in his footsteps, joining the Valsad Bar in 1955, later becoming a Congress MLA. Between December 1989 to March 1990, he also served as Speaker of the 7th Gujarat Legislative Assembly.

Education and Career as an Advocate

Pardiwala J began his legal practice in 1989 after completing his LL.B. from Valsad’s K.M. College—by 1990, he had begun practising at the Gujarat High Court in Ahmedabad. In 1994, he was elected as a Member of the Bar Council of Gujarat, a membership he retained until 2000. 2002 saw his appointment as Standing Counsel at the High Court of Gujarat and subordinate courts. Colleagues report that he cleared approximately 1,200 pending matters during his tenure.

Career as a Judge

His career as a Judge began in 2011 with his appointment as Additional Judge of the Gujarat High Court on February 17th—a position that was made permanent on January 28th, 2013. During his time at the Gujarat High Court, Pardiwala J also served as President of the Gujarat State Judicial Academy.

In 2015, while serving at the Gujarat High Court, Pardiwala J narrowly escaped an impeachment motion filed by 58 members of the Rajya Sabha. While delivering a Judgment on the sedition charges filed against Hardik Patel, Pardiwala J stated along with corruption, reservations have stalled the progress of the country. Patel led the movement seeking ‘Other Backward Class’ status for the Patidar caste. Citing Pardiwala J’s criticism of the continued application of reservations for 65 years (as opposed to the initial envisioned 10), the motion criticised his ‘unconstitutional’ remarks and lack of awareness of affirmative action policies for historically oppressed communities. It was signed by a wide spectrum of politicians, including Digvijay Singh (Indian National Congress), D. Raja (Communist Party of India-Marxist), and Sharad Yadav (Rashtriya Janata Dal). 

On application of the State government, Pardiwala J expunged these remarks from his Judgment a few days after the motion was filed, after which no attempts were made to further impeachment. Four years later, on May 9th 2022, he was elevated to the Supreme Court. His term will end in 2030.

Tenure at the Gujarat High Court in Numbers

While at the Gujarat High Court, Pardiwala J wrote 1,807 Judgments and sat on 2,195 Benches. 

Pardiwala J primarily adjudicated on matters related to Criminal and Civil Law, Services, and Indirect Taxation.

Notable Judgments

Suo Moto v State of Gujarat & Ors (2020)

During the first wave of COVID-19 in 2020, the Gujarat High Court took suo moto cognisance of the protection of migrant workers and the management of COVID-19 in the State’s hospitals. A two-Judge Bench comprising Pardiwala J and Justice Ilesh J. Vora came down heavily on the State for the government’s poor crisis management, famously captured in their description of the high mortality rate at Ahmedabad’s Civil Hospital: it ‘may be even worst [sic] then [sic] a dungeon. Unfortunately, the poor and helpless patients have no option.’ The Bench, taking note of media reports on the crisis, critiqued the exorbitant fees charged by some private hospitals in the State, stating that ‘profiting off a poor man's health can be considered morally criminal.’

The Bench was shuffled a few days after Pardiwala J delivered a similarly severe Order on May 25th, 2020—a move publicly opposed by lawyers at the Court. 

Nimeshbhai Bharatbhai Desai v State Of Gujarat (2018)

In 2017, the petitioner (Nikita) filed an FIR alleging that her husband (Nimeshbhai Bharatbhai Desai) had repeatedly engaged in non-consensual acts of ‘unnatural sex’, including marital rape. The case, presided over by Pardiwala J, required examining the legal existence of marital rape in India, as well as whether a husband can be punished under the Indian Penal Code, 1860 (IPC) for rape (section 376), unnatural sex (s 377), and cruelty (s 498A). 

Pardiwala J quashed the FIR with respect to the charges filed under s 376 and 377, ordering the investigation of the remaining charges. He opined that rape, as defined in s 376, was inapplicable to marriages as it was not covered under s 375 which defines rape. Provided the wife is above the age of 18, rape within a union is not possible as s 375 assumed ‘a woman gives irrevocable consent for her husband to have sex with her any time he demands it.’ Additionally, other sexual ‘perversions’ aside from sodomy, buggery, and bestiality cannot be punished under s 377. However, a wife could initiate proceedings for marital rape under s 498A. 

His Judgment, which pushed for reforming laws on the matter, further noted, ‘marital rape ought to be a crime and not a concept (..) It has long been time to jettison the notion of “implied consent” in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.’

Yunusbhai Usmanbhai Shaikh v State of Gujarat & Ors (2015)

The petitioner eloped with and married Namira, a 16-year-old Muslim girl. Her father filed an FIR alleging that the petitioner had kidnapped the bride—a crime under s 363 of the IPC punishable under s 366. The Additional Public Prosecutor further argued that the marriage violated the Prohibition of Child Marriage Act, 2006 (PCM Act)—even though it was a legitimate union under Muslim Personal Law, where any woman over the of 15 can marry without the consent of their guardians. The Public Prosecutor argued that Personal Law cannot prevail over the PCM Act. 

Pardiwala J quashed the charges under s 363 and s 366, and held that there was no reason to believe Namira had been enticed into the union. Given her long-term relations with her husband, she had married out of her own free will. However, he advanced the arguments of the Additional Public Prosecutor, citing Article 44 of the Constitution of India, 1950, on the Uniform Civil Code and former Supreme Court Justice Markandey Katju’s thoughts on Muslim personal law being ‘totally outdated and inhuman.’ Pardiwala J added that retaining Muslim personal law has ‘done a great disservice to Muslim [sic] (..) and contributed to keeping them backward.’

Avani Exports & Ors v Commissioner of Income Tax Rajkot & Ors (2012)

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 of specific Income Tax deductions—and had even been incentivised 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 Right to Practice Any Profession under the Constitution. 

A 2-Judge Bench consisting of then Acting Chief Justice Bhaskar Bhattacharya and Pardiwala J quashed the Amendments, ruling that retrospective provisions must be extended only if they benefit assesses. The provisions of the Amendment should apply prospectively—that is from the date the Amendment was passed.