Recent Judicial Trend Of Eschewing All That Is Old For The Sake Of Progress & Constitutional Dynamism Is Disturbing: Justice Dipankar Datta’s Dissenting Opinion
|Justice Dipankar Datta in his dissenting opinion observed that the recent judicial trend of eschewing all that is old for the sake of progress and constitutional dynamism is disturbing.
A seven-judge Constitution Bench of the Supreme Court overruled (by a majority of 4:3) its 1967 decision in S Azeez Basha v. Union of India which held that the Aligarh Muslim University (AMU) is not a minority institution. Justice Datta noted the absence of a “meeting of minds” among the seven judges on the Bench. He stated that there was no “physical or virtual meeting” after reserving judgment, which, in his view, resulted in no “purposeful and effective dialogue.” Justice Datta remarks that such dialogue was essential to address “rival contentions” and was key to promoting a “democratic spirit” in judicial decision-making on constitutional interpretation.
Justice Dipankar Datta in his dissenting judgment observed, “Judges of the Supreme Court of India are no doubt the final arbiters in resolving disputes and differences between the parties; however, the recent judicial trend of eschewing all that is old, for the sake of progress and constitutional dynamism, is disturbing. We, the Judges, at times tend to forget the confines of our own jurisdiction and that we too, like every other human, are fallible. We are meant to be guided in our approach by Constitutional morality and the words of the architects of the Constitution.”
The Bench of Chief Justice D.Y. Chandrachud, Justice Sanjiv Khanna, Justice J.B. Pardiwala, and Justice Manoj Misra held the majority opinion, while Justice Surya Kant, Justice Dipankar Datta, and Justice Satish Chandra Sharma dissented.
Senior Advocates Kapil Sibal, Rajeev Dhavan, Nikhil Nayyar and Shadan Farasat represented the appellant, while Attorney General R. Venkataramani and Solicitor General Tushar Mehta appeared for the respondents.
Justice Dipankar Datta opened his dissenting opinion with the statement, “The past refuses to lie buried,” describing this case as illustrative of that idea. Referring to Union of India v. Tulsiram Patel (1985), Justice Datta pointed out the importance of “collegial consultation among judges.” He referred to the challenges of drafting his dissent under a “race against time,” noting that he faced similar time constraints as Justice M.P. Thakkar did in Tulsiram Patel (supra).
In Azeez Basha (supra), the Supreme Court held that for an institution to qualify as a minority institution under Article 30(1) of the Constitution, it must be both “established and administered by the minority community.” The Court interpreted Article 30(1) conjunctively, meaning that these rights to “establish and administer” must be exercised together. Thus, if an educational institution was not established by a religious minority, then the community cannot claim the right to administer it under Article 30(1). This decision concluded that AMU did not qualify as a minority institution because it was neither established nor administered by a minority community
Justice Datta’s dissent stemmed from the point that “no one can claim with certainty that the entirety of the dialogue/correspondence/incidents/events, which did precede the establishment of AMU, have been placed before us and that too with cent percent accuracy. Such being the state of affairs, we ought not to substitute historical facts by our appreciation of half-baked evidence.”
Justice Datta’s remarked, “Tinkering with understanding of a Constitutional provision, which has been consistent and has stood the test of time since its inception, in the name of interpretation and overruling of longstanding precedents is too frequent an occurrence which judicial activism has brought about, sometimes unnecessarily, in the past couple of decades. It is time that we refrain from such an approach, unless absolutely required, and allow the people’s will to prevail and the Constitution to reign supreme.”
Justice Datta explained that until the independence of India, irrespective of whether a ‘native’ so called was a Hindu or a Sikh or a Muslim or a Christian or a Jain or a Buddhist or a Zoroastrian, each individual irrespective of their faith was the subject of colonial rule with little freedom. “The concept of minority being totally absent in those days, extending the protective umbrella of Article 30 to AMU by proposing to hold that establishment by a minority is the only indicia for a minority educational institution without any indicia as to administration of such institution would be inherently contradictory to the terms of such article and susceptible to invalidity. Formulating indicia now without there being a holistic consideration of all relevant factors ought not to be embarked upon by the Court as a task particularly when earlier benches, including benches larger than this one, have jettisoned the issue,” the Stated.
“Facilitating history to be re-written, more than a century later by a judicial opinion, is not what we, as Judges, are supposed to do. Additionally, in matters such as the one under consideration, there is no warrant for the thought process to gain ground that Judges of this Court who had authored opinions in the relevant past were wrong and that the present generation of Judges are correct. Judicial deference, in my view, ought to have leaned towards the interpretation of Article 30(1) that has stood the test of time for almost 75 (seventy-five) years since the Constitution has been in existence.” the Judge remarked.
Consequently, the Judge observed, “In terms of clause (5) of Article 145 of the Constitution, it is my firm opinion that not only do the references not require an answer, it is also declared that AMU is not a minority educational institution and that the appeals seeking minority status for it should fail.”
Cause Title: Aligarh Muslim University v. Naresh Agarwal & Ors. (Neutral Citation: 2024 INSC 856)
Appearance:
Appellant: Senior Advocates Kapil Sibal, Rajeev Dhavan, Nikhil Nayyar and Shadan Farasat; Advocates Aftab Ali Khan, Bahar U. Barqui, Nizam Pasha, Aparjita Jamwal, Ali Safeer Farooqi, Rupali Samuels, Sumedha Ray Sarkar, Rishabh Parikh, Z. K. Faizan, Mohd. Taiyub Khan, Shahid Hussain Rizvi, Mansoor Alir, N Sai Vinod, Siddharth Vasudev, Gayatri Gulati, Naveen Hegde, Debadutta Kanungo, Omanakuttan K K, Akhilesh Kumar Mishra, Rambha Singh, Gautam Bhatia, Harshit Anand, Aman Naqvi, Shadab Azhar; AORs T. V. S. Raghavendra Sreyas, Prashant Bhushan, Sushma Suri, Govind Jee, Gurmeet Singh Makker, Ramesh Kumar Mishra and Sanchita Ain
Respondents: Attorney General R. Venkataramani; Solicitor General Tushar Mehta; ASG Vikramjit Banerjee and K.M. Nataraj; Senior Advocates Rakesh Dwivedi, Neeraj Kishan Kaul, Guru Krishnakumar, Nachiketa Joshi, Vinay Navare, Sridhar Potaraju, Archana Pathak Dave, Salman Khurshid and Yatindra Singh; Advocates Kartikay Aggarwal, Abhishek Kumar Pandey, Raman Yadav, Chitvan Singhal, Gaurang Bhushan, Madhav Sinhal, Padmesh Mishra, Kanu Agrawal, Ankur Talwar, Rohit Khare, Apporv Kurup, Diwakar Sharma, Siddhartha Sinha, Aastha Singh, Aman Mehta, Tanmay Mehta, Santosh Kumar, VVV Pattabhiram, et al; AORs Amrish Kumar, R. C. Kohli, Shuchi Singh, Gurmeet Singh Makker, Sushma Suri, Rameshwar Prasad Goyal, Ejaz Maqbool, et al