OPINION | The enduring impact of judicial dissent

The history of the Indian judiciary is replete with notable dissents that have played a pivotal role in the process of constitutional course correction.

Charles Evans Hughes, the eleventh Chief Justice of the United States, offered a seminal reflection on the significance of dissenting opinions in his work, ‘The Supreme Court of the United States: Its Foundation, Methods, and Achievements – An Interpretation’.

Hughes advanced a compelling argument that dissent serves not merely as a disagreement with the majority, but as a vital mechanism for the evolution of law. He famously observed that “a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

The history of the Indian judiciary is replete with notable dissents that have played a pivotal role in the process of constitutional course correction. On several occasions, it was not the majority judgment but the dissenting opinion that conveyed a more profound message and ultimately set the tone for future reforms and transformative change.

Recently, when Supreme Court judge Justice B.V. Nagarathna’s dissent against the elevation of Justice V.M. Pancholi came to light, it sparked widespread discussion and ignited a larger debate on the need to reform the collegium system to make it more democratic and transparent. While this specific dissent pertained to a collegium decision, in many landmark cases it has often been the dissenting voice that has stood out.

Khanna’s standout dissent

Among the pantheon of judicial dissenters in India, the name of Justice H. R. Khanna stands out as the most illustrious. His dissent in the ADM Jabalpur vs Shivakant Shukla, also popularly known as the Habeas Corpus case (1976), was marked by Nani Palkhivala as a “shining example of judicial integrity and courage”.

In the judgment, the majority view, in essence, held that when the national emergency is in force and Article 21 stands suspended, the detention, no matter how arbitrary or illegal, could not be questioned on any ground whatsoever. Justice Khanna refused to accept this. He reasoned that every human being in a civilised society had an inalienable and natural right to life and personal liberty independent of Article 21 of the Constitution and, therefore, despite suspension of Article 21 in an Emergency, a person could approach the High Court under Article 226 of the Constitution to challenge the legality of his detention.

Justice Khanna observed: “I am unable to subscribe to the view that when the right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person’s life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of one’s life or liberty without the authority of law was not the creation of the Constitution. Such rights existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article to be the sole repository of that right.”

Redemption 41 years later

While Justice Khanna received accolades from across the world, he had to pay a heavy price for his dissent. He was superseded for the position of Chief Justice of India (CJI), and Justice M.H. Beg was appointed the CJI. However, Justice Khanna's dissent was unanimously echoed in K S Puttaswamy vs Union of India judgment 41 years later when the apex court overruled the 1976 judgment, terming it “seriously flawed.”

Other famous dissents waiting for a second chance

In Bachan Singh v. State of Punjab (1980), a four-judge majority upheld the constitutionality of the death penalty, with Justice P.N. Bhagwati as the lone dissenter. His reasons for dissent rested mainly on three arguments. He argued that the death penalty is irrevocable and in a fallible system, it can cause grave injustice that cannot be corrected. Secondly, it inflicts cruel mental and physical suffering, and thirdly, it serves neither as an instrument of reformation nor deterrence, reducing justice to mere retribution.

In 2015, the Supreme Court struck down the National Judicial Appointments Commission (NJAC), which was intended to introduce a new system for appointing judges to the higher judiciary. In that judgment, too, the dissenting opinion of Justice J. Chelameswar became a rallying point in the wider debate on the flaws of the collegium system.

Mincing no words, Justice Chelameswar had criticised the collegium system in his judgement. Justice Chelameswar, who was the lone dissenting judge in the NJAC case, had observed, “Transparency is an aspect of rationality.”
Former Chief Justice of India D.Y. Chandrachud, in several cases, had put forward his forceful dissent. In 2012, retired judge K.S. Puttaswamy challenged the Aadhaar scheme. Nearly six years later, a five-judge bench upheld Aadhaar in a 4:1 ruling. However, Justice Chandrachud dissented, and his dissent ran into 481 pages.

In a landmark 2018 ruling, a five-judge Constitution Bench led by Chief Justice Dipak Misra struck down the 1965 Kerala law barring women aged 10 to 50 from entering the Sabarimala Temple, declaring it unconstitutional. Surprisingly, Justice Indu Malhotra issued a notable dissent; as the sole woman on the bench, many had assumed she would support the petitioners seeking relief for women. While her dissent had many facets, on the issue of equality in general and gender equality in particular, she held that the right to equality under Article 14 does not override the fundamental right to religion under Article 25 and questioned the petitioners’ standing, as they were not devotees of the Sabarimala temple.