New Delhi: On Tuesday a nine-judge bench of the Supreme Court overruled its post 1978 decisions that held that all privately owned resources can be acquired by the state for community purposes.
Writing the majority opinion, Chief Justice D.Y. Chandrachud said the state can only stake its claim over properties that are material and held by the community. This, it added, can be done only for public good.
Of the nine, Justice Sudhanshu Dhulia chose to go with the expansive definition of the phrase “material resources” that was underlined in 1978 by Justice Krishna Iyer. Known for his Marxist ideology, Justice Iyer penned the minority view which said “all resources that satisfy material needs, including privately owned resources, fall within the ambit of the phrase ‘material resources of the community’ used in Article 39(b).”
This socialist definition of the phrase would go on to become a pivot for subsequent SC decisions that accepted Justice Iyer’s interpretation.
Even as this decades-old view was set aside Tuesday, rendering Justice Iyer’s view in minority once again, Justice Dhulia as a lone dissenter made news for supporting the former judge’s idea to include all private property within the ambit of “material resources”.
He felt that narrowing down the phrase’s interpretation would limit the legislature to a non-exhaustive list of factors to determine which resources can be considered as “material resources”.
“There is today a political equality and there is also an equality in law, yet the social and economic inequalities continue as cautioned by Dr Ambedkar in his speech in the constituent Assembly on November 25, 1949,” he said.
“His views in the material resources judgment are not surprising at all. It is in line with his idea of a welfare state,” a lawyer practicing in the Uttarakhand High Court told ThePrint. Justice Dhulia was a judge of the hill state for 13 years before he got elevated as Chief Justice of Gauhati HC from where he then moved on to become a Supreme Court judge.
Uttarakhand HC remembers the judge for his deep admiration for Justice Syed Mahmood, the first Indian to get elevated as a judge during the British rule. Justice Mahmood’s “scholarly judgments” have informed Justice Dhulia’s decisions during his stint as an HC judge.
“He often quoted Justice Mahmood, not just in his writings, but even during hearings,” a lawyer who practices in the Uttarakhand HC told ThePrint.
Justice Dhulia not just adopted Justice Mahmood’s legal philosophy in his writings, but also in practice. As a judge he never let any litigant go unrepresented in the court, particularly in criminal cases that involve personal liberty of individuals, and believed that quality legal assistance should be provided to them. He, therefore, chose “young,” “dynamic” lawyers from the Bar to provide legal assistance to the marginalised who could not afford private counsel.
Followed his father into legal profession
A theatre buff and orator, Justice Dhulia hails from Madanpur, a remote village in the Pauri Garhwal district of Uttarakhand, earlier part of undivided Uttar Pradesh. His father, Justice Keshav Chandra Dhulia, was a judge of the Allahabad High Court, and his mother a professor of Sanskrit.
His grandfather, Pundit Bhairav Dutt Dhulia was a well-known freedom fighter of the region. Pundit Dhulia was imprisoned for 7 years for his involvement in the Quit India Movement and in the post-independent India he also served as an MLA from the Lansdowne constituency. A Sanskrit scholar and an Ayurvedacharya, Pundit Dhulia started a Hindi newspaper, Karmabhoomi, from Kotdwar.
Justice Dhulia, the second of three siblings, followed in his father’s footsteps into the legal profession. His elder brother, Himanshu Dhulia, is a retired Navy officer, and his younger brother, Tigmanshu Dhulia, is a well-known Bollywood filmmaker and actor. Tigmanshu directed the acclaimed film Paan Singh Tomar, a National Award-winning biopic about an Indian athlete and seven-time national steeplechase champion who later became one of Chambal Valley’s most feared dacoits.
Tigmanshu, seven years younger than Justice Dhulia, credits his elder brother for sparking his interest in acting and filmmaking. When Justice Dhulia joined theater during his higher studies, Tigmanshu was still in school but felt inspired to follow suit, leading him to pursue theater as well.
Justice Dhulia did his early schooling from Dehradun, Allahabad and Lucknow. This was because his father, in his early years of practice, shifted base frequently, before settling in Allahabad where he went on to serve as a judge till January 1985. Justice Dhulia’s father died of a sudden heart attack in 1985 and was still in office at the time of his demise.
Justice Dhulia’s elder brother and nephews established The Karmabhoomi Foundation, which annually celebrates ‘Constitution Day’ on 26 November, in memory of their father. The foundation also honors media professionals with the Pundit Bhairav Dutt Dhulia Award.
Justice Dhulia graduated from Allahabad University in 1981 and completed his Masters in Modern History from Jawaharlal Nehru University (JNU) in 1983. He went back to Allahabad to study law, which he completed in 1986.
‘Known as a scholarly judge’
He commenced his legal career from Allahabad High Court and worked for some time with Justice Markandey Katju when the latter was still practicing.
In 2000, Justice Dhulia moved his work to the newly established Uttarakhand High Court, following the carving out of the new hill state. “His connection to the region brought him back to Nainital and it proved to be good for his legal career as well,” said another lawyer from the HC.
Three years later, Justice Dhulia was appointed Chief Standing Counsel for the state and then became the Additional Advocate General. In 2004, he was designated a senior advocate, and in 2006, he was appointed as a judge.
“Here he is known as a scholarly judge and there is a sentiment that his services could have been better utilised in a bigger HC,” one of the two lawyers mentioned above said.
After serving as a judge for 15 years, Justice Dhulia took oath as the Chief Justice of Gauhati High Court. His appointment there came during the Covid pandemic. Lawyers from there who spoke to ThePrint said Justice Dhulia’s takeover of the HC came at a challenging time that consumed a lot of his tenure to manage the administrative functioning of the court.
Justice Dhulia’s appointment to the top court was made superseding many of his seniors. “Apart from merit, his appointment was also significant because the hill state remained unpresented for almost seven years. The last judge from there was Justice PC Pant who retired in 2017,” a former Supreme Court judge told ThePrint.
In fact, Justice Dhulia went on to be the second judge from Uttarakhand HC to be appointed to the apex court.
Though Justice Dhulia took oath as an SC judge in 2022, when Justice N.V. Ramana was at the helm of affairs, his appointment, sources say, was pushed strongly by present CJI Chandrachud, who was then in the five-member collegium that approves recommendations for the top court.
Another former judge of the top court said that Justice Dhulia’s appointment as Chief Justice of Gauhati got delayed due to lack of consensus among the collegium members and that former justice R.F. Nariman backed his name later for it.
A former judge said, the collegium under former CJI S.A. Bobde, who remained in office till November 2021, had proposed Justice Dhulia’s elevation as a Chief Justice. “The judge was also told about it, but it was not approved at the last minute,” he said.
During the next round, the collegium was keen to bypass him and appoint a judge from Maharashtra as a chief justice. “But this time justice Nariman who was then part of the three-member panel that selects chief justices stood for him,” the judge added.
An admirer of colonial-era judge Syed Mahmood
“In my opinion, the difference Justice Mahmood makes from the long line of earlier Judges is the departure from a purely legalistic and conservative approach to an approach which is humane, yet not lacking in substance. He will be easily familiar to a modern judge or lawyer today as he speaks their language.”
With these words Justice Dhulia reflected on the judgments of Justice Mahmood. They are part of his foreword he wrote for a biography on the colonial-era judge, authored by Aligarh Muslim University (AMU) professor, Mohammad Nasir.
Justice Mahmood was the first judge in British India to dissent against an English chief justice. Justice Dhulia took inspiration from one of Justice Mahmood’s famous dissent in Queen Empress Vs Phopi. Justice Mahmood spoke against the practice prevalent during those days in Allahabad where an HC judge, after going through the records of a criminal case, could adjudicate an appeal against conviction even in the absence of the convict or his lawyer.
“Justice Mahmood said this in 1891 when there was nothing like Section 303 or Section 304 of Criminal Procedure Code, as it is now, which makes it a right of a defendant to be represented by a lawyer and makes it a duty of the court to provide legal assistance to the one who is not represented by a lawyer. Nor was there anything like the State Legal Services Authorities, which are so familiar to us now,” Justice Dhulia said at the launch of the biography.
A lawyer in Uttarakhand HC, whom Justice Dhulia appointed as an amicus curiae to represent a rape accused, recalls how the judge had discussed Justice Mahmood’s opinion on what is meant by hearing and legal representation in the case. In the said case, the rape convict wrote an appeal from jail, saying he was not in a position to engage a lawyer to argue his appeal in the HC.
“He was never seen as a hostile judge, but as someone who gave a patient hearing to all lawyers,” the lawyer quoted above said.
His time as an SC judge
Due to retire in August next year Justice Dhulia has gathered much attention since his appointment as an SC judge a little over two years ago.
Within three months of his elevation, Justice Dhulia in August 2022 disagreed with his senior judge Justice Hemant Gupta on the issue of whether Ganesh Chaturthi celebrations could be permitted at Idgah Maidan in Bengaluru. Resultantly, the matter was referred to a three-judges bench that did not comprise either of the two judges.
In October same year the judge again differed from Justice Gupta over the hijab ban controversy. Justice Dhulia did not subscribe to the view that a pre-university college could restrict Muslim girls from wearing hijab inside the institution.
“A constitutional court must speak in ‘one voice’ as far as possible and split verdicts do not resolve a dispute,” he said, disagreeing with Justice Gupta who upheld the Karnataka High court view to keep the hijab ban.
Justice Dhulia observed the notification on hijab ban was an invasion of privacy, dignity and denied the girls from securing secular education. This matter, too, got referred to a larger bench and continues to be pending.
Despite being the junior most judge on a three-judges bench led by then CJI U.U. Lalit, Justice Dhulia authored the judgment that set aside Jharkhand High Court permitting two PILs filed against state Chief Minister Hemant Soren. This bench held the PILs as non-maintainable, after observing the petitioner had come to court with “unclean hands”. The petitioner had not disclosed that a PIL seeking similar relief had been dismissed earlier by the state HC.
In a matrimonial dispute where the couple was living separately for the past 25 years, Justice Dhulia made a crucial observation to hold that such a long separation would not amount to just irretrievable breakdown of marriage, but cruelty, which each is inflicting on the other. Since irretrievable breakdown of marriage is not a formal ground for divorce under the law, but cruelty is, the judge along with Justice JB Pardiwala ordered dissolution of the marriage.
(Edited by Zinna Ray Chaudhuri)
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Justice Dhulia is just another dynast. Nepotism in Indian judiciary is much worse than it is in Bollywood. Unfortunately, people target only Bollywood stars and starlets.
It’s high time we start naming and shaming all these dynasts in Indian judiciary. These beneficiaries of nepotism have brought disrepute and ignominy to Indian judiciary.
Indian judiciary must be freed from the clutches of nepotism.