Executive And Judiciary, The Blurred Lines Of Retired Justice MR Shah

“I am not a person to retire, and I am going to start a new innings of my life.”

Justice (Retired) M.R. Shah’s words at the time of retirement, on May 15, ring an unreal positivity for a Supreme Court judge at the end of his decades-long public service career.

During the farewell function organised by the Supreme Court Bar Association, the sitting Chief Justice DY Chandrachud lavished praise upon Justice Shah for his hardworking nature and described him as ‘Tiger Shah’. Indeed, Justice Shah has been one of the most prolific judges of the Supreme Court over the years, having authored over 700 diverse judgments. A detailed analysis of his major judgments, however, reveals a deep-seated judicial philosophy of an unyielding belief in state supremacy and executive dominance.

Justice Mukeshkumar Rasikbhai Shah’s tryst with judicial power began way back in 2004 when he was elevated to the Gujarat High Court as an Additional Judge after more than 20 years of service as an advocate. Throughout his storied career as a Judge of the Gujarat High Court, the Patna High Court, and subsequently, the Supreme Court, his judgments, specifically relating to criminal procedural jurisprudence have disclosed a particularly conservative mindset, buoyed by outdated ideas of retributive justice and executive superiority. 

Not known exactly to have been a champion of individual rights, Justice Shah has made already existing draconian laws even stricter, reading them down to further shrink the ever-confining frontiers of personal rights of freedom and liberty for individuals before criminal courts. Fairly conventional in his approach, Justice Shah advocated for a retributive form of criminal justice, effectively expressing that the primary purpose of criminal law was to punish criminals.

Particularly poignant are the observations Justice Shah made as part of a Division Bench while setting aside a Punjab and Haryana High Court decision to reduce the tenure of punishment of a motor accident accused where he states, “The High Court has not at all considered the fact that the IPC is punitive and deterrent in nature. The principal aim and object are to punish offenders for offences committed under IPC.” In the same judgement, he writes, “Justice demands that courts should impose punishment befitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” This effectively classified the rights of victims to be more sanctimonious than the individual right of a criminal, which in his mind was effectively non-est.

Critics also argue that to effectively eradicate judicial vigilantism, societal reaction to a crime must not be a determinant in the quantum of punishment meted out to the accused. Public abhorrence should not be the yardstick to determine punishments meted out by criminal courts, solely because public abhorrence is neither uniform nor fair. The society and public at large are likely to be swayed by perception and opinion, none of which should have a role in the determination of the quantum of punishment afforded by criminal courts to convicts.

Justice Shah’s lead opinion in the three judges’ review set aside the earlier judgment of the Supreme Court in the Arup Bhuyan case and re-introduced the concept of being “guilty by association”. Earlier, the Supreme Court had read down the provisions of the Unlawful Activities Prevention Act (UAPA) mandating that the state must show the “active association” of an individual with a banned organisation to attract provisions of criminal law. However, a review of the judgment, authored by Justice Shah in 2023, struck it down, holding that mere association with a banned organisation was enough burden for the prosecution to discharge to convict an individual, effectively opening the door for the misuse of the already stringent law by governments displaying autocratic tendencies to stifle dissent. For Justice Shah, individual agency, freedom, and liberty were dwarfed by the goliath of national interest and unity.

What also does not help his case is perhaps the avoidable eulogies in favour of the ruling disposition, particularly the Prime Minister, Narendra Modi, hailing him as a ‘model’ and a ‘hero’ during his tenure as the sitting Chief Justice of the Patna High Court. Interestingly people tend to forget that strong executive leaders have always drawn unwanted praise from sitting judges and that this wasn’t the first time a sitting judge openly praised the executive and will surely not be the last. That does not, however, negate the fact that such statements can be seen as direct erosion of the bright line of independence between the judiciary and the executive, more so when the executive happens to be the biggest litigant before the courts. Considering the somewhat nefarious attempts by the government in recent times to undermine the effectiveness of the judiciary, now is not the time to go flirting with the executive.

Further, a bench headed by Justice Shah by way of a special sitting on a Saturday had also refused to uphold the order of the Nagpur bench of the High Court of Bombay acquitting embattled former Delhi University professor G N Saibaba under the strict anti-terror law UAPA. Justice Shah had remanded the matter back to the Bombay High Court for reconsideration by a separate bench in an effort to avoid any further apprehensions, disregarding the failing health of the accused. 

This was curiously in stark contrast to his refusal to recuse himself from deciding the plea by ex-IPS officer Sanjiv Bhatt to submit additional evidence before the Gujarat High Court in a 1990 custodial death case. He had previously made certain scathing observations against him while being a judge of the High Court of Gujarat. The mode of determination in both cases shows a singular non-adherence to the rule of parity for the recusal of a judge.

There can be no question that Justice MR Shah retires as a stalwart of the Supreme Court. However, his judicial pronouncements have left the door open for the misuse of various stringent laws to be interpreted and weaponised by governments to smother lawful dissent in years to come. The chilling effect of his judgments specifically relating to bail in cases of serious offences and the UAPA laws shall hopefully not be beyond the scope of judicial review in future cases. However, that seems to not be the case for now.

Justice Shah’s unwavering belief in the theory of deterrence and advocating stricter laws for serious offenders has somehow shaped the perception of him being a pro-executive judge amongst members of the bar. However, his professionalism and dedication to his craft remain steadfast and emulative. For Justice Shah, the rights of individual liberty and personal freedom remain collateral before the might of national interest and unity. 

It will be interesting to see how the judgments of Justice Shah shape public interest in ultra-stringent laws relating to criminal jurisprudence. It will also be interesting to see how Justice Shah embarks upon his next ‘innings’ as a retired member of the highest court of the land in the years to follow.

(Tanumoy Majumder is a practising civil lawyer at Delhi High Court. Views expressed are personal.)