'SC Judge Unhappy With Absence Of Purposeful, Effective Dialogue Among Judges' In AMU Verdict

Justice Dipankar Datta criticised the lack of insightful, constructive discussion and consensus-building in the verdict by the seven-judge bench on Aligarh Muslim University's minority status.

New Delhi: Supreme Court judge Justice Dipankar Datta on Friday expressed his discontent over the absence of insightful and constructive discussion, and also the ‘give’ and ‘take’ of ideas, in true democratic spirit to build up a consensus, took a backseat in the verdict delivered a seven-judge bench, led by Chief Justice of India DY Chandrachud, on the minority status of Aligarh Muslim University (AMU).

Justice Datta said there were no physical or virtual meetings between members of the bench post-reservation of judgment, not to speak of the meeting of minds, either immediately after the hearing was concluded or even nine months' thereafter (either collectively or even in small groups of four to five) to explore which acceptable direction should the outcome sail.

Justice Datta, who was among the seven judges, opened his dissenting opinion by saying there is a saying, “the past refuses to lie buried”, and possibly, no other case would demonstrate the validity of this statement more poignantly.

A seven-judge bench, in a majority judgment of 4:3 ratio, overruled a 1967 constitution bench decision, which held that a minority community cannot claim to have established an educational institution if it was created by a statute. The CJI, who authored the majority opinion, said that the minority status of an educational institute will not cease merely because Parliament enacts a regulatory law.

The prologue of Justice Datta's dissenting opinion outlined the ordeal he faced due to the late circulation of the draft majority judgment and also deplored the absence of a consultative decision-making process.

The hearing in the matter was spread over eight days and the judgment was reserved on February 1, 2024. Justice Datta said the task of authoring the judgment had not been assigned to him, which left him with no other option, but to wait for the draft opinion to reach his residential office.

He said on October 17, 2024, the draft opinion authored by CJI, who will demit office on November 10, numbering 117 pages was placed on his desk. “No sooner had I completed reading the draft opinion, came a revised draft opinion of the CJI spread over almost an equal number of pages (117 pages). It reached my residential office on the evening of October 25, 2024, i.e., on the eve of the short Diwali break. Inter alia, there was one very significant change in the revised draft," said Justice Datta.

He said while in the first draft “the test laid down” by a Constitution Bench of five judges of this court in S Azeez Basha and Anr vs Union of India (1967) “to determine if an educational institution is entitled to the guarantee under Article 30(1)” of the Constitution was proposed to be overruled, in the revised draft the view taken in Azeez Basha “that an educational institution is not established by a minority if it derives its legal character through a statute” has been proposed to be overruled.

He said the effect of the revised draft opinion of the CJI is the defenestration of the view taken by Azeez Basha (1967) that Aligarh Muslim University is not a minority institution.

Regarding Basha's judgment, Justice Datta said such a view has stood its ground for the last more than 50 years. He said it is the only decision of this court where Article 30(1) was considered and the law laid down keeping the establishment and administration of a pre-independence era university in perspective as distinguished from schools and colleges, which have been the subject matter of other constitution bench decisions.

“On November 2, 2024, came another few pages from the office of the CJI containing corrections effected in quite a few of the paragraphs of the revised draft opinion in track changing mode with paragraph 72 being altogether deleted," he said.

Justice Datta said, “Here, a Constitution Bench of 7 (seven) Judges had embarked on a voyage to interpret Article 30(1) of the Constitution navigating through considerable weight of materials without any physical or virtual meeting of the members of the Bench post-reservation of judgment, not to speak of meeting of minds, either immediately after hearing was concluded or even 9 (nine) months thereafter (either collectively or even in small groups of four-five) to explore which acceptable direction should the outcome sail”.

“A common venue for a purposeful and effective dialogue where members of the bench could freely express their points of view, an attempt to share thoughts and to exchange opinions, a ‘give’ and ‘take’ of ideas, in true democratic spirit to build up a consensus - all these seem to have taken a backseat, having regard to the immense pressure of work, which we, the CJI and the other judges on the bench, have undertaken during the time ever since the judgment was reserved”, said Justice Datta, in his 88-page opinion.

He added that judicial and administrative works of varied nature, which I need not dilate here, also weighed me down to such an extent that sending a request to the CJI for a meeting of all the colleagues at this stage would have been too late to make a difference (if at all it were to happen).

“Alas, without any insightful and constructive discussion of the rival contentions in the presence of all the members comprising this Bench of 7 judges, it is only individual opinions of four judges' that could be crafted and circulated for perusal and approval”, he said.

“That being said, after the circulation of my draft opinion, all the Judges forming the quorum had to meet together for a little while on November 7, 2024, when it emerged that the opinion of the CJI, as circulated, had the concurrence of 3 (three) Judges and I was part of the minority trio (3 out of 7) with a distinct perspective. As the narrative would reveal, my view diverges from the other 2 (two) Judges in the minority”, he said.

Justice Datta said since it was revealed in the aforesaid meeting that my view did not align with the majority, my draft opinion warranted certain changes and such changes have been incorporated into this final opinion without changing the core foundation thereof.