At the end of this week, on 19 July, Justice R Banumathi will retire from the Supreme Court of India. A notably hardworking judge, Justice Banumathi has authored more judgments than any current sitting Supreme Court Justice, by a large margin.
Her judgments are marked with rigour and thoroughness. In this short post, we look back at some of the key judgments that Justice Banumathi authored in her six-years at the Supreme Court.
In this important freedom of occupation case, a five-judge Bench of the Supreme Court clarified the extent to which the State can regulate private unaided colleges. Ruling in favour of the State of Madhya Pradesh, the Bench held that the State can regulate admissions and fees of private colleges, without necessarily violating the right to freedom of occupation under Article 19(1)(g) of the Constitution. In doing so, the Bench cemented the precedent set by the nine-judge Bench in TMA Pai Foundation and its subsequent application in PA Inamdar.
At the heart of the case was the question of whether private colleges that do not receive Government funding can be subject to regulation, insofar as admissions and fees. While the Court recognised that private colleges enjoy the right to determine admissions and fees under Article 19(1)(g), it held that this right is subject to ‘reasonable restrictions’ under Article 19(6). The State can frame laws and rules that regulate private college, it observed.
Justice Banumathi authored a concurring opinion. Characteristic of her commitment to thoroughness, she wrote this separate opinion, even though she believed that the majority opinion ‘required no further elaboration’. In what was to become characteristic of many of her concurring opinions, she observed that the questions of law in the case were so important, that they demanded a judgment out of her.
The Supreme Court upheld the death sentences handed out by the Delhi High Court to the accused in the tragic Nirbhaya rape case. The six accused violently gang raped the victim in a bus, beat up her male companion and threw them out on the side of the road, half-naked, in the middle of the Delhi winter.
After careful consideration, the three-judge Bench found there were insufficient mitigating factors in the accused’s favour. Relying on the ‘rarest of the rare’ standard set by Bachan Singh, the Bench concluded that it could not reduce their death sentences to life imprisonment.
Justice Banumathi authored the concurring opinion. As she did in Modern Dental College, she conveyed that she had a duty to provide ‘additional reasoning’, even though she agreed entirely with the majority opinion's reasoning and conclusions. Not only did she carefully reason through whether the crime was exceptional enough to merit capital punishment, but she also reflected on the larger social context in which the Court was delivering its judgment. She stressed that the crime illustrated the need for larger social reform to achieve gender justice.
Justice Banumathi authored a notable dissent in Bir Singh. The five-judge Bench was grappling with whether a citizen who had Scheduled Caste / Tribe (SC/ST) status in one State, could claim reservation benefits in a different State or Union Territory. The Bench unanimously held that SC/ST status is State-specific under Articles 341 and 342 of the Constitution. Therefore, someone who is an SC/ST in one State, cannot avail of reservation benefits in another State.
However, the Bench was divided when it came to Union Territories (UTs). On the general issue of whether an SC/ST from a State could avail of reservation benefits in a Union Territory, the majority was silent. However, Justice Banumathi held that no migrant SC/ST could claim benefits in a UT that they didn’t stem from, as SC/ST lists are State/UT specific. Thereby, she disagreed with the precedent set by S. Pushpa.
Where the disagreement between the majority and Justice Banumathi became more explicit, was when it came to the National Capital Territory (NCT) of Delhi, a polity that is neither a state nor a Union Territory. The majority held that the appellant could claim benefits offered by the Delhi Jal Board, even though he was a migrant. It reasoned that since the Board was managed by the Union government, SC/STs from any State or Union Territory could enjoy its benefits. Justice Banumathi disagreed and, in a fashion characteristic of her rigorous approach, distinguished between posts for which recruitment was carried out by the Union and those for which it was carried out by the NCT. She concluded that migrants could only apply for posts, where recruitment was carried out by the Union Government.
Justice Banumathi presided over the Bench that heard former Union Finance Minister P. Chidambaram’s bail applications. In August 2019, the Central Bureau of Investigation (CBI) arrested Chidambaram for his alleged connection with the INX Media money laundering controversy. He was also facing charges framed by the Enforcement Directorate (ED).
The Delhi High Court rejected both his anticipatory bail and subsequent regular bail applications, in both the CBI and ED cases. His fortunes turned however, when he approached the Supreme Court. While it too rejected his anticipatory bail application, it eventually granted him regular bail in the CBI case on 22 October and in the ED case on 4 December 2019.
Authoring the judgment that first granted him bail on 22 October, Justice Banumathi held that Chidambaram posed no flight risk and was unlikely to tamper with evidence or influence witnesses. Therefore, she concluded that the Union had insufficient grounds to deny him bail.
In a significant, and perhaps under-reported judgment, Justice Banumathi held that third parties cannot file right to information (RTI) requests for pleadings in the Gujarat High Court. Instead, they must use the existing system defined by the High Court rules. In effect, journalists, researchers and any other interested citiznes must navigate the High Court rules to obtain pleadings - key documents which outline the claims/defence of litigants.
Authoring the unanimous opinion for the three-judge Bench, Justice Banumathi dismissed the appellant’s argument that the High Court rules make pleadings less accessible than the provisions of the Right to Information Act, 2005. She held that the rules could only be set aside, if they were in explicit conflict with the RTI Act (see R.S. Ragunath v. State of Karnataka). Further, she drew attention to the financial burden that would follow overhauling the existing system.
The judgment is likely to set the precedent for all High Courts and even the Supreme Court. Now, Information Commissioners of the higher judiciary are likely to reject RTI applications for pleadings and direct citizens to instead follow the existing rules. Unfortunately for citizens, the existing rules often place a higher burden on them. Notably, the Gujarat High Court rules require citizens to provide legitimate reasons for requesting pleadings, whereas the RTI Act guarantees the right to information, in and of itself.
For a quantitative overview of Justice Banumathi's time in the Supreme Court, read our previous post.