'All Judges Not Expected To Sing The Same Song': Why Dissent is Legally Crucial

‘A dissenting verdict in a court of law embodies freedom of speech & expression,’ experts told The Quint.

(Photo: Vibhushita Singh/Altered by The Quint)

(This piece was first published in November 2022 and is being re-published from The Quint's archives in view of Justice BV Nagarathna's dissenting judgement in the demonetisation case.)

Nearly 92 years ago, Charles Evans Hughes, right before he went on to become the Chief Justice of the United States in 1930, had said:

“Dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day….”

And now, only a couple of days ago, on Monday, 7 November 2022, former Chief Justice of India UU Lalit and Justice Ravindra Bhat dissented from the majority view in the Economically Weaker Sections (EWS) reservations case.

Simply put: a ‘dissenting judgement’ in Court speak, is made by one or more judges who disagree with the ‘majority opinion’ of the bench hearing a case.

In the EWS quota case, a five-judge Constitutional bench including then Chief Justice UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, had heard the matter.

While three out of the five upheld the 103rd constitutional amendment (which introduced 10% EWS reservations in educational institutions and government jobs), two (Justices Lalit and Bhat) thought differently.

Focussing specifically on the exclusion of the poor from among the SC/ST/OBC categories from reservations for economically backward classes, Justice Bhat in his dissenting judgement pointed out:

“The amendment practices constitutionally prohibited forms of discrimination."

"Our constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure,” he added.

But, as in such cases, which are adjudicated by an odd number bench, the majority view prevailed.

However, Senior Supreme Court Advocate Sanjay Hegde told The Quint:

"This [10 percent EWS reservations] will only benefit the Hindu forward castes and so I am inclined to say that in this case the dissenting view is more persuasive."

So then, what is the purpose of a dissenting view in a court of law if the majority view is bound to prevail? Have there been instances of dissenting views holding legal value later on? And, does it tell us something about our democracy? We answer.

‘A Dissenting View Embodies Freedom of Speech & Expression’

‘A dissenting view is part of a very healthy discussion in a democracy. It tells us that even though the majority judges on a bench hearing a particular case thought a certain way, there is also room for those who disagreed. No viewpoint is visibly silenced,” Supreme Court Advocate Tanvi Dubey told The Quint.

She added that it embodies “freedom of speech and expression,” besides providing a holistic view of a case.

Senior Supreme Court Advocate Sanjay Hegde pointed out that dissenting judgements, while indicating, that in their view, the majority is in error, also show the way for the correction of that error.

"The dissenting view shows the way for correction of that (majority) error to a future generation," he said.

But Is That All? Or Does it Also Hold Legal Value?

Though dissent does not legally play a role in deciding a current case, apart from being 'polemical' as former Chief Justice of Rajasthan High Court, Pradeep Nandarajog says, it does assume significance in future cases.

According to Supreme Court Advocate Paras Nath Singh, here’s how:

1) In Terms of Review: If a judgement in a particular case, goes to a larger bench for review, and the judges then base their verdict on the dissenting judgement.

For instance, if the EWS case were to go to a seven-judge bench after this, the majority of judges could hold that Bhat’s and Lalit’s dissent was more persuasive.

2) In Terms of Precedent: The dissenting judgement in a particular case, could also go on to become majority opinion in another future case if the judges deciding that were so inclined

And Has That Ever Happened? Two Prominent Examples

AK Gopalan VS State of Madras (1950)

The Case: 

Communist leader A.K Gopalan had been under detention since December 1947.

Gopalan challenged certain provisions of the Preventive Detention Act of 1950, which allowed the Central or State Governments to detain anyone in order to prevent them from acting in any manner that went against national defence, foreign relations, national security, state security, public order, or the maintenance of essential supplies and services.

He claimed that the order detaining him violated Articles 14, 19, and 21 of the Constitution and that the provisions of the Act violated Article 22 of the Constitution.

The Majority Judgement:

Five in the six-judge bench had held that Article 21 of the Constitution, which said that “no person shall be deprived of his life or personal liberty except according to procedure established by law”, provided only a narrow protection against lawless infractions of bodily integrity and personal freedom by the State. 

The Dissenting Judgement: 

Justice Fazl Ali, the sole dissenter, had argued instead that the phrase “procedure established by law” required that deprivations of life or personal liberty must conform to standards that were themselves just, fair, and reasonable.”

So, where was this dissenting judgement later applied?

In Maneka Gandhi v. Union of India (1978), the court took inspiration from Justice Fazl Ali’s dissenting views and significantly expanded the interpretation of Article 21 of the Constitution of India. It overruled the Gopalan judgement which had implied the exclusiveness of fundamental rights.

ADM Jabalpur v Shivkant Shukla (1976)

The case: 

During the national emergency declared by the Indira Gandhi-led government in 1975, the right to approach the Supreme Court to enforce Article14 (Right of equality), Article 21 (Right to life and personal liberty), and Article 22 (Protection against detention in certain cases) was taken away.

As soon as this was implemented, many of those considered to be political opponents or critics of the government, were taken into custody.

These included A.B. Vajpayee, Jay Prakash Narayan, and Morarji Desai, were arrested under the Maintenance of Internal Security Act (MISA) which provided for custody without any trial.

Those arrested approached High courts to challenge their detention and a few even got favourable orders. 

The government, concerned about this went on to approach the Supreme court.

The Majority view:

Three in the four-judge bench deciding the case held that during the Emergency the right to life and personal liberty of a citizen under Article 21 of the Constitution would remain suspended.

The Dissenting Judgement:

Justice HR Khanna, the lone dissenter, said in his judgement that the Article 21 of the Constitution could not possibly be the sole repository of the fundamental rights to life and liberty as these predate the Constitution itself and the existence of these rights cannot be subjugated to any executive decree even during the period of national emergency for these are inalienable to one's life and dignified existence.

Where was the dissenting judgement later applied?

In Justice K.S. Puttaswamy vs. Union of India (2017) and other connected matters, where the top court affirmed that the Constitution of India guarantees to each individual a fundamental right to privacy.

“The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions," Justice DY Chandrachud, one of the judges on the bench said while overruling the ADM Jabalpur judgement.

Perhaps then, in light of these examples and in the spirit of democracy, the following words were indeed a blessing:

“All judges are not expected to sing the same song.” 

Former Supreme Court Judge K. Jagannatha Shetty