Exploring 60 years of dissent at the pinnacle of judiciary

Four notable incidents of dissent in the Supreme Court last week have sparked a debate on why judges differ so often and whether it is a new trend emerging in the top court. These decisions – both majority and minority – came on a variety of subjects dealing with the validity of Aadhaar scheme, entry of all women into Sabarimala temple, right of Muslims to claim mosques as an integral part of their faith, and the debate on whether the arrest of activists in the Bhima Koregaon violence called for a special investigation team to probe the case.

Dissent adds flavour to any judgment. A separate view that is strikingly different from the majority is the hallmark of a vibrant democracy and an independent judiciary. Though dissenting opinion carries no force in law, yet, if one is to analyse the dissenting culture among top court judges, a recent book released in August this year makes for an interesting read. "Judicial Dissent and Indian Supreme Court" authored by Yogesh Pratap Singh, a professor of law, currently serving deputation as a Research Scholar in Supreme Court, is a first-of-its-kind book that chronicles the dissenting opinions given during the past 60 years (1950-2010).

He says that judges of 1950s and 1960s dissented vigorously. In the first decade (1950-60), 91 dissenting opinions came in 2,144 cases and in the next decade (1950-60), this trend peaked to 235 among 3,892 cases, almost 6 per cent. In the past two decades (1990-2010), dissenting opinions constituted only 0.8 per cent of the total decided cases. Yet, some dissenting views have paved the way for the development of future law. Such opinions have singularly provoked legislature to change or enact laws.

For instance, when the Supreme Court in 1975 ADM Jabalpur case, held that fundamental rights will cease to exist during Emergency, Justice HR Khanna with his golden dissent upheld civil liberties. This formed the bedrock for the enactment of the 44th Constitutional Amendment Act that expressly provided that during Emergency, Article 20 and 21 pertaining to life and liberty of citizens will not be suspended. In the recent Right to Privacy judgment of August 2017, the apex court effaced out the ADM Jabalpur's majority view from the annals of judicial history.

In some cases, dissenting opinion has become the majority view in later judgments of the apex court. In AK Gopalan v State of Madras (1950), the dissenting judge in the 6-judge bench was Justice Fazl Ali who held the view that personal liberty of a citizen is not to be found in Article 21 alone but should be widely found in all fundamental rights. This view was upheld in Maneka Gandhi v UoI (1978) by a seven-judge bench of which Justice Ali was also a part. In another decision in Radheyshyam Khare v State of Madhya Pradesh (1959), Justice K Subba Rao dissented from the remaining four judges on the aspect of the principle of natural justice to be scrupulously observed in deciding the validity of administrative actions. Ten years later, in 1969, this view received judicial sanction by a five-judge bench in AK Kraipauk v UoI case.

The book gives a third category of dissents, which have generated academic debate. For instance, the Court by a 4:1 verdict scrapped the National Judicial Appointments Commission (NJAC) Act and revived collegium system for appointing judges of High Courts and Supreme Court. The lone dissent was by Justice J Chelameswar whose critique on collegium system was bold and decisive. On why judges dissent, there is no conclusive reply.

But the book makes some clear points. The early period when more judges dissented was the "golden era" of the Supreme Court. The Emergency and its fallout led to a decline in incidents of dissent during 1970-80. The recent trend in the decline of dissent is mainly due to increased workload and the constitution of two-judge benches, which reduces the possibility of dissent and reduces opportunities for judges to think differently, the author argues.

CASE IN POINT

In a decision in Radheyshyam Khare v State of Madhya Pradesh (1959), Justice K Subba Rao dissented from the remaining four judges on the aspect of the principle of natural justice to be scrupulously observed in deciding the validity of administrative actions. Ten years later, in 1969, this view received judicial sanction by a five-judge bench in AK Kraipauk v UoI case

The Book’s Points

• Professor Yogesh Pratap Singh’s book ‘Judicial Dissent and Indian Supreme Court’ makes some clear points. The early period when more judges dissented was the “golden era” of the SC
• The Emergency and its fallout led to a decline in incidents of dissent during 1970-80