‘Ink Against the Tide’: The Quiet Power of Judicial Dissent

Introduction

Every established law begins its life as a risky proposition, often going through severe scrutiny of parliamentary debates, citizens, the bar and the bench. In the highest courts of the country, the opinion handed down by the majority of judges becomes the binding precedent by operation of the doctrine of stare decisis. Yet, what is often written alongside it sparks much curiosity in the legal landscape — the ‘dissenting opinion’. This Article explores this very profound legal alchemy: analyzing how certain dissenting opinions refused to die and, by the passage of time, eventually became the law of the land. It goes a step further as the author tries to bring to light how certain dissenting opinions may become the foundation of other judgments and legislations.

Role of Dissent in Indian Constitutional Landscape

The trajectory of dissenting opinions within the Hon’ble Supreme Court of India demonstrates how minority opinions, once peripheral, have gradually become central to the development of constitutional doctrine.

Hon’ble Late Justice Fazl Ali’s dissent in A.K. Gopalan[1] stands out in history as one of the earliest breakthrough dissents. He opined that a narrow interpretation cannot be given to ‘procedure established by law’ by ignoring the principles of non-arbitrariness[2] and fairness, which form an integral component of ‘due process of law’. The majority opinion was, in essence, a literal interpretation, while the dissenting opinion reflected the golden/purposive rule of statutory interpretation. Later, the said dissent became authoritative vide the judgments in R.C. Cooper[3] and Maneka Gandhi[4], which embraced a holistic interpretation of fundamental rights.

Likewise, Late Hon’ble Justice Subba Rao’s dissent in Kharak Singh[5] was explicitly mentioned in the majority view in the Puttaswamy case[6], which held privacy as an integral part of the right to liberty under Article 21 of the Constitution of India.

Similarly, the dissenting opinion in the case of P.V. Narasimha Rao[7] held that members of parliament are immune from prosecution for bribery, which later became the basis of the opinion in Sita Soren[8], noting that criminal acts cannot be included within this exception.

Hon’ble Late Justice H.R. Khanna’s renowned dissent in the ADM Jabalpur[9] case still echoes in the corridors of courts. He vehemently opined that not all fundamental rights can be suspended during an Emergency, as certain fundamental rights are so integral that they cannot be suspended, even in the critical circumstances that an ‘emergency’ subsumes within it. The right to life is not a gift of the Constitution but an inherent human right and therefore cannot be extinguished by executive assertion. The opinion became one of the foundations of the majority opinion later in K.S. Puttaswamy[10].

Evolutionary Jurisprudence in Light of Dissents

The contemporary era has witnessed dissents that are both analytically rigorous and consequential for doctrinal development.

Hon’ble Retd. Justice Indu Malhotra’s dissent in the Sabarimala[11] case reflects a very unconventional intersection between ‘autonomy’/‘equality’ on one hand and religious principles on the other. While the majority foregrounded dignity and non-discrimination, she opined that constitutional morality cannot override every aspect of the right to freedom of religion under Articles 25 and 26 of the Constitution of India, thereby implying that the right to equality under Article 14 does not necessarily gain precedence over the others (Articles 25 and 26). Even though her dissent was criticized by many columnists and legal luminaries citing that it goes against the basic notions of progression and equality, it shed light on limited judicial intervention in matters of religion, which will continue to form the basis in many decisions involving such complex issues. The fact that the review petitions and reference were shaped largely around the concerns articulated in her minority opinion underscores the gravity that well-reasoned dissents can have even before they are judicially affirmed.

In the Aadhaar judgment (2018)[12], while the Aadhaar Act, 2016 was examined on the touchstone of Article 14 in light of Puttaswamy (2017), Hon’ble Retd. Justice D.Y. Chandrachud’s dissent critiqued the Aadhaar Act, 2016 not only with respect to violation of privacy but also for its passage as a Money Bill, a question that goes to the root of the constitutionality of parliamentary procedures. The Supreme Court upheld the constitutionality of the Aadhaar Act, 2016, but his observations brought about a ripple effect in the legal ecosystem. It was his reasoning which prompted a seven-judge bench reference in Roger Mathew v. South Indian Bank[13] on what constitutes a Money Bill, clearly emphasizing how a dissenting note in a judgment can trigger structural scrutiny.

Hon’ble Retd. Justice P.N. Bhagwati’s dissent in Bachan Singh[14] differed notably from the majority verdict in the case (the majority upheld the constitutionality of the death penalty). It has been a subject of debate and scrutiny, particularly regarding wrongful capital sentencing and severe mental health issues related to those on death row — the very flaws which formed the basis of his dissent earlier. The constant consideration of the subject of the death penalty by the Apex Court is not unknown, wherein even discussions with respect to procedural safeguards like Shatrughan Chauhan[15] are taking place, and the same issues have again become a subject of deliberation.

Conclusion

Dissenting opinions therefore do not merely become a subject of academic interest. Rather, these opinions serve as a practical aid to lawyers and legal professionals to gauge a holistic perspective of the subject matter. It is therefore notable that dissenting opinions in certain precedents throw light on the conundrums associated with complex legal situations.

This phenomenon is not about mere disagreement between Hon’ble Judges. It is about how law stands the litmus test of changing circumstances, societal considerations and public welfare, more so in a democracy like ours where the true danger lies in absolute certainty in law. Consequently, law can never be said to be truly ‘settled’. It is therefore only fair to conclude that the strength of Courts does not always necessarily lie in unanimity, but even in reasoned disagreement. Dissent is, therefore, not a disruption of judicial authority but its most honest safeguard.

References

[1] A.K. Gopalan v. State of Madras, AIR (1950) SC 27

[2] Id

[3] R.C. Cooper v. Union of India, (1970) 1 SCC 248

[4] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[5] Kharak Singh v. State of U.P., AIR (1963) SC 1295

[6] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

[7] P.V. Narasimha Rao v. State (CBI), (1998) 4 SCC 626

[8] Sita Soren v. Union of India, 2024 SCC OnLine 229

[9] ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521

[10] Supra note 6

[11] Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1

[12] Supra note 6

[13] Roger Mathew v. South Indian Bank, (2020) 6 SCC 1

[14] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[15] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

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