2024 was year of several defining verdicts by Supreme Court of India; furthermore, in 2024 major Constitutional/ Larger Bench verdicts shaped the legal landscape of India. However, it goes without saying that a Judge’s Dissenting opinions are equally important for the purposes of elucidating legal concepts for posterity. Therefore, we have curated the major dissenting opinions of 2024.
Mineral Rights
Justice BV Nagarathna’s sole dissent in SC’s verdict on ‘royalty’ as tax and States power to levy cess on mineral rights
In Mineral Area Development Authority v. SAIL, (2024) 10 SCC 1, concerning the distribution of legislative powers between the Union and the States on the taxation of mineral rights, the Nine Judge Constitution Bench of Dr. DY Chandrachud, CJI, Hrishikesh Roy, Abhay S Oka, BV Nagarathna, JB Pardiwala, Manoj Misra, Ujjal Bhuyan, Satish Chandra Sharma and Augustine George Masih JJ. held that royalty paid by mining operators to the Central government is not a tax and that States have the power to levy cesses on mining and mineral-use activities.
Whereas, Justice BV Nagarathna, gave a dissenting opinion, stating that:
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The concept of royalty is being considered from the perspective of Section 9 of the MMDR Act, 1957 and not from any other context. Thus, viewed from the statutory framework of the MMDR Act, 1957 passed by the Parliament on the strength of Entry 54 — List I of the Seventh Schedule of the Constitution of India and having regard to Section 2 of the said Act, royalty is in the nature of a ‘tax’ or an ‘exaction’.
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Section 9 of the MMDR Act, 1957 is a limitation within the meaning of Entry 50 — List II of the Seventh Schedule of the Constitution and the States have no legislative competence to levy any other tax, impost or fee on the exercise of mineral rights. Entry 49 — List II is also not applicable to mineral bearing lands.
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India Cement Ltd. v. State of T.N., (1990) 1 SCC 12 has been correctly decided by a seven-judge Bench of this Court and that the majority judgment in State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201, is incorrect and therefore, ought to be overruled.
States’ power to sub-classify Scheduled Castes for providing reservation
‘Only Parliament can include in or exclude from SCs list under A. 341’: A detailed breakdown of Justice Bela Trivedi’s dissent in Sub-classification of SC/STs Verdict
In State of Punjab v. Davinder Singh, 2024 SCC OnLine SC 1860, the seven Judge Constitution Bench comprising of Dr. DY Chandrachud, CJI, B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra, and Satish Chandra Sharma, JJ., by a majority of 6:1 held that sub-classification of Scheduled Castes among reserved categories is permissible for granting separate quotas for more backwards within the SC categories and overruled the E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.
However, Justice Bela M. Trivedi being the lone dissenter held that such sub-classifications within the SC/STs is impermissible, holding E.V Chinnaiah (supra) to be a good law. It was held that when the law was settled by the Constitution Bench in E.V. Chinnaiah (supra) after considering all the previous judgments including Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and after investing substantial judicial time and resources, the same should not have been doubted and referred to the larger bench by the Three-Judge Bench in State of Punjab v. Davinder Singh (2020) 8 SCC 65 and that too without assigning any reason much less cogent reason for their disagreement disregarding the well settled doctrines of Precedents and Stare decisis.
Further, it was held by Justice Trivedi that the power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. Even with the width of its amplitude, Article 142 cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with the subject, and thereby to achieve something indirectly which cannot be achieved directly. The action of the State, though well intentioned and affirmative in nature, if violates the specific provision of the Constitution, cannot be validated by the Supreme Court in exercise of its jurisdiction under Article 142. The affirmative action and legal frameworks, though both do aim at a more equitable society, they must navigate complex legal principles to ensure fairness and constitutionality.
Constitutionality of Section 6-A of Citizenship Act
‘Section 6A of Citizenship Act manifestly arbitrary, temporally unreasonable and, demonstrably unconstitutional’: Justice JB Pardiwala’s Dissent
In Section 6A of the Citizenship Act 1955, In re, 2024 SCC OnLine SC 2880, Justice JB Pardiwala, J. while examining the matter from a different dimension, more particularly by applying the doctrine of temporal reasonableness, held that Section 6-A of the Citizenship Act is invalid with prospective effect. Justice Pardiwala concluded that:
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Immigrants who migrated before 01-01-1966 and were conferred deemed citizenship on the date of commencement of Section 6A(2), subject to fulfilment of all the conditions mentioned therein, shall remain unaffected.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and have been granted citizenship after following the due procedure prescribed under Section 6A(3) shall remain unaffected.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and who have been detected as foreigners and have registered themselves with the registering authority as per the prescribed rules, shall be deemed to be citizens of India for all purposes from the date of expiry of a period of ten years from the date on which they were detected as foreigners.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009 will no longer be eligible for the benefit of citizenship.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and whose applications are pending for adjudication before the Foreigners Tribunal, or who have preferred any appeal against any order of such tribunal which is pending before any court will continue to be In Re: Section 6-A of the Citizenship Act, 1955 governed by Section 6A(3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.
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From the date of pronouncement of this judgment, all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant.
Justice Pardiwala though agreed with the majority that the Parliament has the jurisdiction to specify conditions for the conferment of citizenship and thus Section 6-A of the Citizenship Act is not rendered void for the lack of competence of the legislature, he disagreed that the fundamental premise of the majority’ reasoning that Section 6A is similar in form and identical in spirit with Articles 6 and 7 of the Constitution.
Regulation of Industrial Alcohol
What Justice Nagarathna held on States’ power to regulate ‘Industrial alcohol’ as lone dissenting voice in 8:1 verdict
In State of U.P. v. Lalta Prasad Vaish, 2024 SCC OnLine SC 3029, the 9-Judge Bench of the Court with a ratio of 8:1, held that States have the legislative power to regulate ‘intoxicating liquor’. The majority of Dr. DY Chandrachud, CJ., Hrishikesh Roy, Abhay S. Oka, JB Pardiwala, Manoj Misra, Ujjal Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ., had held that Entry 8 of List II of the Seventh Schedule to the Constitution is both an industry-based entry and a product-based entry. The words that follow the expression “that is to say” in the Entry are not exhaustive of its contents. It includes the regulation of everything from the raw materials to the consumption of ‘intoxicating liquor’. The majority also overruled 7-Judge Bench ruling in Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109.
B.V. Nagarathna, J., was the sole dissenting voice on several aspects of the majority decision. She held that:
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Entry 8 — List II deals with “intoxicating liquors”. The misuse, diversion or abuse of “industrial alcohol” as “intoxicating liquors” can also be controlled and prevented under Entry 8— List II by the State Legislatures having regard to Article 47 of the Constitution. She clarified that the IDRA which has been enacted by the Parliament by virtue of Entry 52 — List I has taken control of “Fermentation Industries” as a scheduled industry. Such “Fermentation Industries” would exclude “intoxicating liquors”.
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Parliament can occupy the field of the entire industry by merely issuing a declaration under Entry 52 — List I and the State Legislature’s competence under Entry 24 — List II is denuded to the field of the entire industry and specifically to the extent of the field covered by the law of Parliament under Entry 52 — List I.
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The judgment in Synthetics (supra) need not be overruled in relation to Section 18G of the IDRA and it continues to be good law in the context of what is comprised in the expression “industrial alcohol” and “intoxicating liquors” except what has been clarified in Entry 8 — List II.
Nagarathna, J., agreed with the majority conclusion that Parliament does not have the legislative competence to enact a law taking control of the industry of intoxicating liquor covered by Entry 8 of List II in exercise of the power under Article 246 read with Entry 52 of List I.
Scope of the words “material resources of the community” under Article 39(b) of Constitution
How private resources become resources ‘of community’ & distributed for common good? Deciphering Justice BV Nagarathna’s partial dissent in 9-J Bench verdict
In Property Owners Assn. v. State of Maharashtra, 2024 SCC OnLine SC 3122, the majority of 7:2 comprising of CJI Dr. DY Chandrachud, Hrishikesh Roy, J.B. Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih, JJ., held that all the ‘private properties’ cannot form part of the ‘material resources of the community‘ under Article 39(b) of the Constitution. Justice BV Nagarathna partially concurred with the majority, however, on the aspect of Article 39(b) she opined that a private owned resource can be transformed and can indeed acquire the status of ‘material resource of the community’. The view taken in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (1983) 1 SCC 147 was held to be correct by Justice Nagarathna.
She opined that on merits it cannot be held that Sanjeev Coke violated judicial discipline. One cannot lose sight of the fact that in Sanjeev Coke this Court did not decide the case only on the basis of the opinion of Krishna Iyer, J. in State of Karnataka v. Ranganatha Reddy (1977) 4 SCC 471 but on merits on the validity of the Nationalisation Act. Therefore, Sanjeev Coke is good law insofar as on the merits of the matter is concerned. She opined that Articles 37, 38 and 39 have to be interpreted by bearing in mind the changing economic policies of the State and not in a rigid watertight compartment. Articles 37 and 38 of the Constitution have to be borne in mind by the Courts while considering the validity of any policy or statute which intend to further any of the Directive Principles of State Policy. The expression “common good” would, inter alia, mean that the distribution of the “ownership and control of material resources of the community” would not lead to concentration of the wealth and means of production in the hands of few which is a Directive Principle in clause (c) of Article 39.
Justice Sudhanshu Dhulia agreed with the majority on the view taken on Article 31-C, however, he dissented from the majority view on aspect of Article 39(b) of the Constitution.
Criteria for the determination of a minority educational institution
We dissent! Here’s why 3 out of 7 Supreme Court Judges ruled against AMU’s minority status
In Aligarh Muslim University v. Naresh Agarwal, 2024 SCC OnLine SC 3213, the Seven-Judge Constitution Bench comprising of Dr. DY Chandrachud, CJ., Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, JJ. in 4: 3 overruled the Five-Judge Bench verdict in S. Azeez Basha v. Union of India, 1967 SCC OnLine SC 321, which held that an institution incorporated by a statute cannot claim to be a minority institution. The Chief Justice authored the majority opinion in the case, joined by Justices Sanjiv Khanna, JB Pardiwala, and Manoj Misra. In contrast, Justices Surya Kant, Dipankar Datta, and Satish Chandra Sharma each wrote separate dissenting opinions, outlining their differing perspectives on the matter.
Justice Surya Kant held that there is no conflict between the seven-judge bench opinion in Kerala Education Bill, In re, 1958 SCC OnLine SC 8 and the five-judge Constitution Bench in Azeez Basha (supra) on the other. He further held that the six-judge Constitution Bench in Rev. Sidhajbhai Sabhai v. State of Bombay1 laying down that the right under Article 30 is absolute and unconditional, is not the correct principle of law; the judgement is no more binding in nature and stands effectively overruled in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, to that extent. Consequently, Azeez Basha (supra) does not suffer from any legal infirmity on the premise that it did not cite or follow Sidhajbhai Sabhai (supra).
Justice Dipankar Datta said that the tests employed for identifying post-Constitution minority educational institutions cannot be the same as for identification of pre-Constitution institutions, more so when a college established by the minority is elevated to the status of a university upon establishment and incorporation through statute. He mentioned that there can be no dispute that an educational institution undoubtedly established prior to the Constitution coming into force by a minority community, either based on religion or language, and administered as well by such community would be entitled to the protection envisaged in Article 30(1). However, if there is a serious doubt as to who established the educational institution and how it was established, question of piercing of the minority veil does not arise in the absence of any concept of minority when the institution came to be established.
Justice Satish Chandra Sharma stated that the coming into force of the Constitution and fundamental right after 1950, cannot alter the events that occurred during the decade of 1910-1920 which led to the establishment of the AMU. He clarified that the purpose of Article 30 is not to create ‘minority only’ community rather provide positive rights to the minorities to establish educational institutions of their choice and kind. The crux of Article 30(1) lies in its mandate to ensure parity between non-minority institutions and minority institutions. Its fundamental aim is to prevent any form of discrimination or preferential treatment to non- minority communities, thereby advocating for equal treatment under the law for one and all.