Legal Stalwarts Who Shaped Indian Constitutional Jurisprudence : Justice Dipankar Datta Discusses

Suraj Kumar

9 July 2023 4:30 AM GMT

  • Legal Stalwarts Who Shaped Indian Constitutional Jurisprudence : Justice Dipankar Datta Discusses

    Speaking at the 3rd Justice HR Khanna symposium, Supreme Court judge Justice Dipankar Datta paid tribute to legal stalwarts who have made significant contributions to the judiciary and enriched India's jurisprudence, ultimately ensuring the guarantee of liberty for the common man.Justice Dutta began by highlighting the eminent figure of Justice HR Khanna, emphasizing his unwavering commitment...

    Speaking at the 3rd Justice HR Khanna symposium, Supreme Court judge Justice Dipankar Datta paid tribute to legal stalwarts who have made significant contributions to the judiciary and enriched India's jurisprudence, ultimately ensuring the guarantee of liberty for the common man.

    Justice Dutta began by highlighting the eminent figure of Justice HR Khanna, emphasizing his unwavering commitment to upholding the rule of law, even in the darkest and most uncertain times. Justice Khanna's visionary decisions continue to profoundly impact and guide constitutional functionaries.

    Justice HR Khanna: Higher calling at the altar of conscience more important than constitutional office

    Justice Khanna's powerful dissent in the ADM Jabalpur case during the Emergency in 1975 exemplified his foresight and courage. He was fully aware that his dissent would cost him the esteemed office of the Chief Justice of India. From his autobiography titled "Neither Roses nor Thorns," Justice Khanna reflected on his decision, stating that he had prepared a judgment that would ultimately cost him the position of CJI

    The Supreme Court judge, in his speech, recalled a past instance of 3 senior judges being superseded for rendering judgment in Kesavananda Bharati much to the dislike of the ruling dispensation.

    The Kesavananda Bharati case, while establishing the basic structure doctrine, also resulted in the supersession of judges. Justice Khanna promptly resigned from his position after he was superseded following his dissent in ADM Jabalpur case.

    Justice Datta emphasized the pledge taken for higher calling was far more important than the constitutional office of CJI and quoted J. Khanna where he said “So ended my career on bench, had its ups and down. Moments of frustration and exaltation. Most of us when elevated to the bench, we go their certain mental commitments. It's like a pledge to one’s inner self, conscience and god. It is at the altar of conscience, that one would be answerable as to how far one has abided by the pledge. Verdict of one’s own inner self on one’s performance.

    Justice Datta highlighted that India's constitutional courts would continue to rely on the sacred illumination provided by the basic structure doctrine. Just like sunlight is the best of disinfectants, basic structure enhanced transparency and accountability. He cautioned that if a virus is responsible for any attempt to tinker with the basic structure, the glazing sunlight radiated from the basic structure would be adequate to remove incompatibility.

    Justice Datta said that to us, J. Khanna is seen as a savior from the ruthless executive during the 70s.

    Justice Bijan Mukherjee: Threatened to resign if judicial seniority tampered by govt

    Justice Datta then turned his attention to Justice Bijan Mukherjee, the fourth Chief Justice of India, whom he described as a great advocate, an exceptional judge, and a saint in the true sense.

    He recounted an instance where such supersession was averted within 2 years of the establishment of the Supreme Court. He quoted from Sudish Pai’s book: Legends in Law: Our great forebearers that “on the death of CJI Kania in 1951, government intended to supersede Justice Patanjali Shastri and MC Mahajan and appoint Mukherji since he would have a longer tenure. But he was not agreeable and threatened to resign from SC if he was superseding both of them.”

    Justice Dutta highlighted Justice Mukherjee's notable contribution regarding the doctrine of colourable legislation, where he held that the said doctrine does not concern the bona fide or mala fide intentions of the legislature but rather relates to the question of legislative competence

    Justice Datta discussed the pivotal judgment of Rai Saheb, Ram Jawaya Kapur, where the separation of powers and the definition of executive functions were examined. He also referenced the Shirur Math case, which addressed Hindu law relating to religious endowments, and the Ratilal Gandhi case, which provided a comprehensive definition of constitutional protections for religious liberty. Additionally, Justice Dutta highlighted the decisions in Charanjitlal Choudhary and Anwar Ali Sarkar, where the doctrine of classification was enunciated, and emphasized that the principles laid down in these cases have stood the test of time

    Justice YV Chandrachud: Constitution is a precious heritage whose identity cannot be destroyed

    Moving on to the 16th and longest-serving Chief Justice of India, Justice YV Chandrachud, Justice Dutta applauded his intellectual prowess, judicial vision, elegant expression, and unwavering commitment to justice. He highlighted how Justice Chandrachud's tenure coincided with a critical period in the Indian judiciary, during which he expansively interpreted Article 21 to safeguard the liberties of disadvantaged sections of society. Notable cases mentioned include Gurubaksh Singh Sibbia, where Section 438 of the Code of Criminal Procedure was liberally interpreted to align with the principles of Article 21, and Minerva Mills, where Justice Chandrachud famously stated that the Constitution is a precious heritage that must not have its identity destroyed, regardless of amendments.

    Justice Dutta drew attention to the observation of J. Chandrachud when the validity of a statute was in question- “this court is not a third chamber of the legislature. It has no such extra-territorial ambitions. It is simply the highest court of law and justice governed by a written constitution. The care which we must take while interpreting, we ought not to be swayed by popular sentiments and extraneous considerations.”

    The Supreme Court judge recalled that on the eve of his retirement, Justice Chandrachud gave the decision in Olga Tellis where he noted no individual can barter away freedoms conferred on him by the constitution.

    In his speech, Justice Datta highlighted that such was the persona of J. Chandrachud that J. Mukherjee was elevated during his regime itself even when he had made apparent remarks against him.

    He quoted PN Bhagwati, who described Chief Justice Chandrachud's court as having a commitment to the legality of laws and due process, which contributed significantly to Indian jurisprudence.

    Justice PN Bhagwati: An institution in himself who expanded concept of justice to common people

    Moving on to Justice PN Bhagwati himself, Justice Dutta acknowledged his legacy as the driving force behind the introduction of Public Interest Litigation (PIL) and the emphasis on legal aid in the country. He referenced the case of Sukh Das where he was not represented by any lawyer. The bench led by Bhagwati found it to be a clear infringement of Article 21 and declared the trial to be vitiated due to a fatal constitutional infirmity. Justice Dutta also highlighted Bhagwati's practice of treating letter petitions as PIL, which had a profound impact.

    Justice Datta further mentioned the Ajay Hasia case, in which the court established definitive criteria for determining whether an individual, corporation, or society qualifies as a government instrumentality or agency within the purview of Article 12 of the Constitution.

    PN Bhagwati who succeeded CJ Chandrachud. His great legacy remains the concerted efforts.

    While speaking at the occasion, he further referred to Notable decisions by Justice Bhagwati included affirming the right to life and liberty in cases such as Bandhua Mukti Morcha, where the issue of bonded labor was addressed, demanding immediate measures for release and rehabilitation. Justice Dutta also referred to the Bachhan Singh case, where the constitutionality of the death penalty was challenged and upheld, with Justice Bhagwati delivering a powerful dissent based on the violation of Articles 14 and 21.

    He said even President Ram Nath Kovind acknowledged Justice Bhagwati as an institution that strived to expand the concept of justice and made it more accessible to the common people.

    Nani Palkhivala: The one who gave us the Basic structure

    He then highlighted the distinguished jurist Nani Palkhivala, praising his legal brilliance and expertise in economics.

    Justice Datta shared an intriguing incident from 1948 when Palkhivala, despite being a junior in the chamber, was unexpectedly entrusted with arguing the case of PV Rao. Remarkably, he presented arguments not even mentioned in the rejoinder, persuading the court to issue a writ of certiorari against the state government. This was the first of its kind in India, showcasing Palkhivala's exceptional legal acumen.

    The Supreme Court Judge went on to deliberate that during the 1960s, Palkhivala was offered the position of Attorney General. Although he initially accepted, he later realized that aligning with the government's policies would compromise his freedom to decide for himself. In 1975 when Allahabad HC overturned Indira Gandhi’s election, he agreed to defend her even when he was opposed to her economic policies. He firmly believed that the judiciary should not have the power to dismiss an elected member of parliament on insufficient legal grounds.

    Justice Dutta recounted that after the imposition of emergency, Palkhivala was outraged. He withdrew as her lawyer and spoke to the law minister famously telling him “This is non-negotiable. I am only informing you.”

    Justice said that Palkhivala's involvement in the Kesavananda Bharati case was also noteworthy.  

    What Blackstone was to Europe, D.D. Basu is to India

    The final legal stalwart recognized by Justice Dutta was Durgadas Basu, renowned for his constitutional masterpieces. Quoting Dr. B.R. Ambedkar, Justice Dutta described Basu's work as a true commentary that elucidates foreign court rulings, making them accessible to Indians unfamiliar with them. Basu was the only jurist to have held the esteemed position of a high court judge while also being a legal scholar.

    Justice Datta recounted an incident involving Basu where, as a junior member of a division bench, he dictated a judgment covering all aspects after the senior judge read out his own judgment. When questioned about his ability to do so, Basu responded by stating that the senior judge had read the law for that particular case, whereas Basu had spent a lifetime studying and understanding the law beyond just that specific instance.

    Through their remarkable careers and dedication to the legal profession, these stalwarts have left an indelible mark on Indian jurisprudence.

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