Justice Surya Kant.
Credit: sci.gov.in
New Delhi: Supreme Court judge Justice Surya Kant on Friday said the reference made by a two-judge bench doubting the correctness of the five-judge bench in the Azeez Basha case and referring it to a seven-judge bench suffered from multiple illegalities, including judicial impropriety.
"The reference was not maintainable, it was bad in law and ought to be set aside," he said.
Justice Surya Kant held that in order to seek protection under Article 30 of our Constitution, the minority institution must satisfy the conjunctive test, namely that it was established by a minority community and has been and is being administered by such a community.
In his separate and dissenting judgment, he pointed out in view of the dictum of the Constitution Bench in Dawoodi Bohra case, a two-judge bench has no authority whatsoever to doubt or disagree with a judgement of the larger bench, and directly refer the matter to a bench having a numerically greater strength than the matter so doubted.
"The reference by the two judge bench in Anjuman (instant case) is nothing but a challenge to the authority of the Chief Justice of India being the master of the roster and in derogation of the special power enjoyed upon under Article 145 of the Constitution read with Order VII Rule 2 of the Supreme Court Rules, 1966 (as was applicable)," he said.
Consequently, he declared the said reference as "not maintainable".
However, Justice Surya Kant held the subsequent reference of February 12, 2019, in which the then Chief Justice of India was the presiding judge, is maintainable.
"The reference in Anjuman to a seven-judge bench for the reconsideration of the five-judge decision in Azeez Basha is bad in law and ought to be set aside," he said.
Justice Surya Kant, however, held the Constitution Bench in Azeez Basha, when it holds that since Section 6 of the AMU Act, 1920 stipulates that degrees conferred by AMU would be recognised by the Government, it could not have been ‘brought into existence by a private individual or body’, is seemingly incorrect.
"The minority institutions established in the pre-Constitution era are also entitled to the protection conferred by Article 30. Educational institutions, with reference to Article 30 include universities as well," he wrote.
Justice Surya Kant said the question pertaining to whether AMU satisfies the test of ‘establish’ and ‘administer’ so as to seek protection of Article 30 of the Constitution, and which will concomitantly entail a mixed question of facts and law, will be determined by a regular bench.