Skip to main content

Dissent is a way forward

Just like a magnet has two poles, every judgement has many viewpoints. No one is perfect. We can never accept anyone’s opinion to be the omniscient one. Dissenting judgement ensures the democracy’s principles and the voice of the varied. Recently, the SC is on a flurry of comeuppance in judgements, some resulting in a dissent.
In the history of judgements by the SC, three dissenting judgements stand out. The HR Khanna’s dissent in ADM Jabalpur vs SP Shukla case of 1976, where he stood for the Right to life. Chief Justice Subba Rao’s dissent in Kharak Singh vs State of UP (1962), holding against five of his brother judges that the Constitution guaranteed a fundamental Right to privacy, and that police surveillance regulations were entirely unconstitutional. Justice Fazl Ali’s dissent in AK Gopalan vs State of Madras (1950), one of the earliest judgments of the Supreme Court. He supported that the phrase in article 21 of the constitution, “procedure established by law” required that deprivations of life or personal liberty must conform to standards that were themselves just, fair, and reasonable. Though all of them supported for fundamental rights but none of the three judges lived to see their dissents resurrected, accepted, and even celebrated. It becomes very difficult for a judge to go against his/her colleagues in a judgement, but it is because of dissent that there lives a different possibility of future. Still not all dissents get resurrected. Like Justice Lakshmanan’s dissent in Acharya Avadhuta (2004), allowing the Ananda Margi sect to perform the tandav dance, is a defence of the right of individuals and communities to determine for themselves what their religion means to them, and demands of them.
In recent events, dissenting cases like the ‘aadhar’ verdict, ‘Bhima Koregaon’ verdict, ‘Sabarimala’ verdict, etc. In the month of September, the SC gave the ‘aadhar’ judgement. It was passed by a 4:1 majority deeming it to be unconstitutional where private were given access to the aadhar details(by section 57). The dissent by Justice DY Chandrachud lies in the route adapted to get the judgement i.e. to consider the aadhar bill as a money bill, the violation of Right to privacy due to aadhar. In ‘Bhima Koregaon’ judgement the majority did not accept the plea of the petitioners that the arrest of the activists was unjustified. The dissent of Justice DY Chandrachud endorses judicial interference on core issues of liberty as the constitutional duty of the court so that justice is not compromised. He believed that the evidences brought up by the Maharastra police are not fair and impartial, as many evidences that were produced to the media was not brought to the notice of the court. He asked for a special investigation team and also, it would be unjust to ignore the points upheld by him but one can only hope that Justice Chandrachud’s dissent may become the majority opinion of our Supreme Court in the years to come. Last but not the least, Justice Indu Malhotra’s dissent in the ‘Sabarimala’ case is also noteworthy. The judgement by the SC sees the restriction of entry of women between the age of 10-50 years as a sign of gender inequality and hence, has banned it. But according to Justice Malhotra, the ban is in pursuance of an “essential religious practice” followed consistently at the Sabarimala temple. She further held that “the restriction on the entry of women during the notified age group in the Sabarimala temple is based on the unique characteristic of the deity, and not founded on any social exclusion”. According to Justice Malhotra, the analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable. Articles 25-28, guarantee freedom of religion and to ban the restriction on Sabarimala can lead to further complications regarding cases of religion in future. 
“A dissenter sounds discordant because the music of his ideas is not appreaciated” - Shiv Viswanathan. Dissent opens up whole new possibilities to think, being humans having error is natural but to neglect opinions and reluctant to rectify the error is very wrong. A dissenter becomes the voice of the democracy drawing the line of marginal truths and possibilities. Not all dissents are ought to be resurrected but the resurrection of the one’s needed are to be celebrated, after all the judges who went for dissent against their colleagues in a hope of a vague future which might not even be true. Dissent marks the voice of the ignored, holds the universal truth that “no one is perfect”. The dissenting tradition of the SC, is perhaps, the most important tradition that we have, indispensable to keeping the Constitution alive.

Comments

Popular posts from this blog

Indian Constitution: the unfulfilled dream

 As we celebrated the ‘Constitution day’ on 26th November, bragging about being the world’s largest democracy, the question we failed to ask ourselves is whether we have truly lived up to the essence of our constitution. The Constituent Assembly of India had adopted the Constitution on this day in 1949, and the current government decided in 2015 to observe this day annually as the Constitution Day. Our Constitution declares India to be a “sovereign, socialist, secular, democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation”. Even though our constitution offers so much, the printed media has repeatedly pointed out the inability to uphold them. To quote Granville Austin from his book, Working a Democratic Constitution, the constitu

Expectation

Expectations. The world drives around that single word. An investor expects the market to return profits, a student expects good grades, Hollywood expects every Indian to greet with namaste , etc. All of us expect something from someone or something. Expectations are what keeps us going. People during the agricultural revolution did not expect to leave Earth, but now we expect that someday we will step on Mars.  The question is: Is expectation worth it? The answer is 'depends' on what you are expecting, whether it is within the jurisdiction of possibility or not. 'Possibility', this again has a relative definition. Now the question comes, how do we know whether it is possible? Well, that can be answered only by the questioner. We expect a lot of things, we get hurt but again we keep on expecting. The worthiness of expectations can be connoted  only when we are successful in achieving it.  I am not making any sense, am I? Well, scroll up! Let's see if I can tur

The Japanaese Renaissance

Whenever we think of Japan, we think of Hiroshima and Nagasaki. The Second World War had left Japan completely devastated, depleted of its teeming potential and resources. After 74 years, Japan has metamorphosed into a world power, flaunting its suave in multilateral fields.With t he excitement of the Tokyo 2020 Olympics all around and shops ready with official merchandise, Japan is pushing the accelerator on full throttle to showcase their best.  My recent visit to Japan was worthwhile, a revelation in itself. The rapid development of Japan never fails to awestruck anyone. The main shifting point was during the Meiji dynasty - during which Japan faced a huge technological, political, and educational influx from the western nations and broke out of their isolated cocoon. Since then, Japan has no turning back. The disciplined traditional nature of the people along with their quality education have contributed a lot to this development. Recently, the Japan government has decided to