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.
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.
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