“If all mankind, minus one, were of one opinion, and only one person was of the contrary opinion, mankind would no more be justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
This statement of John Stuart Mill brings to light a remarkable phenomenon, though uncommon, called ‘dissent’, i.e., ‘to differ in opinion or feelings’ or ‘to disagree.’ The Constitution of India realizing the essence and significance of dissent made this right available not only to our citizens but to our judges [Article 145]. The ability of a judge to write an opinion which rejects the reasoning of his colleagues and explains how the majority has fallen into error is one of the key indicators of a robust and independent judicial system.
The possibility of dissenting opinions in a multi member bench in constitutional courts is one factor which provides reassurance that the courts are staffed by independent judges beholden only to their own individual appreciation of the Constitution and the law. The data collected by the author displays a declining trend in the frequency of dissent over the last seven decades. In the last two decades velocity of dissent was found at its lowest level; people thus would be inclined to think that democratic elements were lost in the last two decades.
The abysmal rate of dissent in CJI benches allows us to infer with some amount of conviction that either it may be the persona of the Chief Justice of India which restricts indirectly/directly brother judges to express his/her disagreement in the bench or the fact that Chief Justice has a lot of administrative powers vested in him, specifically the power to constitute benches where he is in position to influence his brother/sister judges not to raise a question mark on his judgment or he constitutes benches of like-minded judges where possibility of dissent becomes almost nil.
Justice DY Chandrachud’s tenure as apex court judge provides respite where he tried to revive the dissenting culture in the apex court. He believed that a society which does not encourage its citizens to critically think, question the powers that be, and engage in non-conformist democratic discourse will fail to progress because it will fail to create dissenters.
He emphatically observed while delivering a memorial lecture that “Dissents emerge not from thin air but from a democratic culture of fierce debates… Abolition of slavery, annihilation of caste, emancipation of gender minorities, and religious harmony were all once dissenting opinions.” He as a judge not only wrote strong and academic dissents but tried to create a culture where justices in the bench led by him could voice dissents. Justice Chandrachud wrote an academic dissent in Abhiram Singh v. C.D. Commachen (2017) and pointed out that there is no warrant for making an assumption that Parliament while enacting Section 123(3) of Representation of the Peoples Act 1951 intended to sanitize the electoral process from the real histories of our people grounded in injustice, discrimnation and suffering. … if the provision is construed to apply to the religion of the voter, this would result in a situation where persons contesting an election would run the risk of engaging in corrupt practices if the discourse during the course of a campaign dwells on injustices suffered by a segment of the population on the basis of caste, race, community or language.
In the Bhima Koregaon Arrests (2018), Justice Chandrachud reprimanded the majority and observed that the police investigation suffered from infirmities, one of which was the decision to approach the media while the investigation was underway. By selectively disclosing details to the media, the police had created public bias against the accused and cast “a cloud on the impartiality of the investigative process.” Justice Chandrachud while writing a strong dissenting opinion in the Aadhaar case (2019) observed that the Aadhaar Act was unconstitutional from the very beginning of the phase of its enactment because of the procedure involved in passing the said legislation.
Since the Aadhaar Act created a statutory framework for obtaining a unique identity number, which can be used for several purposes including availing benefits, subsidies and services for which expenses are incurred from the Consolidated Fund of India and this is just one purpose provided under Section 7 of the Act, it will not succeed to be a Money Bill. Further, other provisions of the Act dealing with several aspects relating to the Aadhaar numbers also do not fall within the ambit of sub-clauses (a) to (g) of Article 110(1). Therefore, even if, Section 7 may have a remote nexus to the expenditure incurred from the Consolidated Fund of India, the other provisions of the Act do not fall within the realm of Article 110(1).
Justice Chandrachud observed that: “The decision of the Speaker of the Lok Sabha in certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles.” A five-judge bench in Supriyo @ Supriya Chakraborty & Anr. v Union of India held that there is no fundamental right to marry for queer people and refused to recognise the right of LGBTQIA+ persons under the Special Marriage Act. While the decision was unanimous, CJI Chandrachud wrote a partly dissenting note and raised some crucial issues. Justice Chandrachud during his tenure as CJI tried to create a democratic ambience in the top court where dissent flourished especially in the benches led by the CJI.
In a recent constitutional bench led by him [Property Owners Association v. State of Maharashtra decided on 05-11-2024] which ruled that not all private property can be deemed “material resource of the community” under Article 39(b) of the Constitution for acquisition and redistribution by the government, Justice B.V. Nagarathna partially concurred with it while Justice Sudhanshu Dhulia dissented. While Justice Nagarathna said the CJI’s observations are unwarranted and unjustified, Justice Dhulia strongly disapproved of the remarks and said the criticism was harsh, and could have been avoided. We noticed another fractured mandate in the 7-judges bench led by CJI Chandrachud [AMU v Naresh Agarwal (2024)] which overruled the 1967 judgment in Azeez Basha vs. Union of India to the extent it held that an institution incorporated by a statute cannot claim to be a minority institution.
While Justice Surya Kant partially dissented on certain aspects, Justices Dipankar Datta and SC Sharma dissented from the majority. Far from being a recent phenomenon, an appeal to the future wisdom of the court is one of its older traditions, stretching from contemporary adherents such as Justices Kirby of the Australian High Court, Antonin Scalia from American Supreme Court, Justice K. Subba Rao from Indian Supreme Court all the way back to Justices Marshall and Justice Oliver Wendell Holmes ~ embraced at various times across history. The fate of a dissent lies in the hands of history.
When history demonstrates that one of the court’s decisions has been a truly horrendous mistake, it is comforting to look back and realise that at least some of the [J]justices saw the danger clearly and gave voice, often eloquent voice, to their concern. Justice Chandrachud’s dissenting voice and efforts to revive it shall also be tested on the hallmark of time, veracity and his political neutrality, because the eventual safeguard for democracy is the public conscience.
(The writer is Vice-Chancellor, National Law University Tripura)