The Voice of Dissent: Contribution of Dissenting Opinions in Constitutional Law Cases

The Voice of Dissent: Contribution of Dissenting Opinions in Constitutional Law Cases

Chinmoy Pradip Sharma

The importance and role of dissenting opinions in cases involving fundamental rights cannot be over-emphasised. Such cases always have two facets and two possible interpretation – one in favour of the citizen and the other in favour of the Executive. While lawyers on both sides present their respective versions, the Court debates the two and holds in favour of one as opposed to the other. In such a scenario, a dissenting opinion symbolises the point of view that could have been. It is akin to view of the opposition in a democracy.

The pronouncements of United States Supreme Court are replete with glowing examples of dissenting opinions in cases involving fundamental rights that have chartered the course of constitutional law in the United States.

One of the most enduring examples is Justice Benjamin Curtis’s ground-breaking dissent in the case of Dred Scott v. Sandfort where the majority view was that descendants of slaves from Africa did not have the right to citizenship. The other dissent came from Justice John McLean. Later, 13th, 14th and 15th Amendments overturned the majority view for good.

The other historic dissent was that of Justice John Marshall Harlan in the case of Plessy v. Ferguson involving the issue of racial segregation in facilities was marked by his emphatic words that the Constitution is ‘colour-blind’. The futurist views of Justice Harlan on civil rights were affirmed in the case of Brown v Board of Education.

Other notable dissents which became the mainstream view are those of Justice Louis Brandeis in Olmstead v. United States regarding the permissibility of wiretapping (which was subsequently declared unconstitutional seizure under the Fourth Amendment in Katz v. United States) and Justice Poter Stewart in the case of Abington District School v. Schempp  involving compulsory reading of the Bible in school every day before class which was termed to be against the realisation of state neutrality by Justice Stewart. 

Dissent Map of Judges in the United States Supreme Court (2018) (<a href="" rel="noopener noreferrer" target="_blank">Source</a>)
Dissent Map of Judges in the United States Supreme Court (2018) (Source)

Discussion on dissenting opinions in the context of United States cannot be complete without mentioning the bold dissents of Justice Antonin Scalia. Justice Scalia is considered to be the author of one of most significant dissenting opinions in the recent history of the US Supreme Court. In the case of Morrison v Olson involving the challenge to jurisdiction and powers of the Office of Independent Counsel, Justice Scalia weighed in with the lone dissent branding the Office of Independent Counsel as an institution that will do great harm to the country. Subsequently, the Congress let the Independent Counsel Act expire in 1999. His dissent in Lawrence v. Texas which eventually made a persuasive case in favour of legalization of gay marriages in the case of Obergefell v. Hodges.

In the United Kingdom, one of the most well-known dissenting opinion came about in the case of Liversidge v. Anderson involving the question of curtailment of civil liberty by the Executive on the ground of ‘reasonable cause’, Lord Atkins who rendered a dissenting opinion gave an interpretation which favoured the exercise of power of judicial review over such executive action. Later, Lord Atkins’ interpretation was preferred over the majority view such as the Supreme Court’s judgment in HM Treasury v. Ahmad.

In India, dissenting opinions in cases involving transgression or abrogation of rights guaranteed by the Constitution of India by the Executive have been a significant mainstay of the judicial system. Since the establishment of the Supreme Court in India in 1951, there have been several instances of dissenting opinions in such cases and the trend is fascinating one.

The number of dissenting opinions were the highest in the decades that followed the establishment of the Supreme Court. However, during the 80s and 90s, the number of dissents which disapproved Executive action or curtailment of constitutional rights decreased. The only plausible explanation is that by all accounts the Judiciary was not free from the influence of the Executive during that period. 

Not surprisingly, this period saw the most talked about dissent in the history of the Supreme Court in the form of Justice HR Khanna’s dissenting opinion in the case of ADM Jabalpur v. SK Shukla in which Justice Khanna came out strongly in favour of individual’s life and liberty and predominance of fundamental rights as against strong arm tactics of the Executive. 

A lot has been written and said about the circumstances that shaped the majority opinion and the backlash faced by Justice Khanna owing to the side he chose. Suffice it to say, Justice Khanna’s dissenting opinion was instrumental in the rise of the voice of dissent in future judgments of the Supreme Court. The life of the flawed majority opinion in the ADM Jabalpur Case was predictably numbered. It was symbolic when the son (Justice DY Chandrachud) authored the eulogy in the case of Justice K Puttuswamy v. Union of India (better known as the Right to Privacy Case) bringing the father’s (Justice YV Chandrachud) judgment to an end.

Judges in Right to Privacy Judgment
Judges in Right to Privacy Judgment

The Right to Privacy Case is a judgment which is extremely relevant in the context of dissenting opinions. The Supreme Court in the case of Kharak Singh v. State of UP and Others had ruled that the right to privacy was not a fundamental right. However, Justice K Subba Rao gave a dissenting opinion taking the view that that right to privacy was indeed a fundamental right. His view was finally endorsed unanimously by the Supreme Court in the Right to Privacy Case.

Notably, in his opinion in the Right to Privacy Case, Justice Rohinton Nariman termed this dissent as one of the ‘three great dissents’. The other two are deservedly Justice Khanna’s dissent in the ADM Jabalpur Case and Justice Fazl Ali’s dissenting opinion in the case of AK Gopalan v. State of Madras

Justice Fazl Ali interpreted the words ‘procedure established by law’ appearing in Article 21 of the Constitution to mean a fair and reasonable procedure as opposed to a semblance of procedure as per the majority view. His view stood vindicated when the Supreme Court accepted this interpretation in Rustom Cavasjee Cooper v. Union of India (also known as the Bank Nationalisation Case).

It will not be wrong to term the year 2018 as the year of dissenting opinions. It saw four ground-breaking dissenting opinions. Besides the two dissenting opinions rendered by Justice DY Chandrachud and Justice Indu Malhotra in the Aadhaar and Sabrimala case respectively, two dissenting opinions have also been written in the crucial judgments in the Ayodhya case and the Bhima Koregaon case by Justice Abdul Nazeer and Justice Chandrachud respectively albeit not being judgments of Constitution Benches.

Justice Chandrachud’s dissenting opinion in the Aadhaar Case has been the talking point of several debates both political and judicial. It recently became the flavour of the month when the Supreme Court of Jamaica in the case of Julian Robinson v. The Attorney General of Jamaican placed reliance upon Justice Chandrachud’s dissenting opinion over the majority opinion in the Aadhaar case to strike down the provisions of the National Identification and Registration Act enacted by the Parliament of Jamaica requiring citizens to provide their biometric and data as unconstitutional. As the debate regarding right to privacy pitted against the Aadhaar scheme continues, this is definitely not the last we shall hear about Justice Chandrachud’s dissenting opinion in the Aadhaar case.

Justice Indu Malhotra’s dissenting opinion in the Sabrimala Case is equally noteworthy. It contains thought-provoking discussion on the issue whether courts ought to delve into the realm of the facets that constitute ‘essential religious practice’ and whether interfering with religious practices will militate with the rights guaranteed by Article 25 (1). Several Review Petitions seeking review of the majority opinion have been filed and are to come up for hearing.

Interestingly, a writ petition was recently admitted by the Hon’ble Supreme Court on the issue of allowing women to pray in mosques. The Petitioners have relied upon the judgment of the Hon’ble Supreme Court in the Sabrimala Case to buttress their case. It remains to be seen how the Hon’ble Supreme Court deals with the issue of entry of women into a mosque given the fact that the majority opinion has already interpreted the Constitutional provisions in favour of entry of women into the Temple. Justice Malhotra’s dissenting opinion will definitely provide food for thought and will set the tone for further debate and deliberation in these cases.

“Have you tried to enter, has anybody prevented you”, Bobde J – “Yes”, said Dubey. “Are there other mosques where women are permitted to enter”, asked Bobde J. [<a href="" rel="noopener noreferrer" target="_blank">Read Full Story</a>]
“Have you tried to enter, has anybody prevented you”, Bobde J – “Yes”, said Dubey. “Are there other mosques where women are permitted to enter”, asked Bobde J. [Read Full Story]

Justice Nariman’s view that the three dissents can be considered as the greats is indisputably apt. The foremost reason is that these dissents were rendered in the face of adversity at a time when the Judiciary faced severe challenges from the Executive. The other reason is that the observations put forth in all the three judgments came to be decisively recognised as the correct view as opposed to the majority view. While the ‘three great dissents’ of the yesteryears will continue to stand tall, the dissenting opinions of the Justice Chandrachud and Justice Malhotra deserve to be reckoned as the ‘two great dissents’ of our times. A worthy mention is that Justice SB Sinha has authored several dissenting opinions on various issues including Constitutional Law cases.

The circumstances which existed during the period when the ‘three great dissents’ were authored, however, changed considerably in years that followed. A sea change took place in the Supreme Court’s approach with independence being firmly established as the bedrock of the Judiciary. This also led to the gradual re-emergence of dissenting opinions. But, the numbers were relatively low.  Between 1993 and 2016, out of 216 judgments which were rendered by Constitution Benches only 36 judgments carried dissenting opinions.

During the period 2017-2018, Constitution Benches of the Supreme Court of India have rendered 18 judgments. Out of these, only two judgments viz., the judgment in the Aadhaar Case and Sabarimala Case contain dissenting opinions. This reflects the pattern that the number of dissenting opinions rendered by the Supreme Court of India in Constitutional law cases is very low. As a point of reference, an analysis of judgments pronounced by Constitution Benches of the Supreme Court of India between the period1993 and 2016 will show that dissenting opinions were rendered in only 37 out of 221 judgments pronounced. Thus, the percentage of dissenting opinions stood at a mere 16 percent as opposed to US Supreme Court where the percentage of dissenting opinions stands at an almost 50 percent. These statistics seemingly manifest a disinclination of the Supreme Court of India to dissent.

The Judges of the US Supreme Court are predisposed towards political ideologies. This gives rise to serious debates and powerful dissenting opinions on issues which are divided across party lines. In India, this is not the case overtly and dissenting opinions owe their genesis primarily to the difference of opinion in judicial interpretation of the issues involved in a given case.

While majority opinions lay down the foundations of law, dissenting opinions lay down the foundation for its evolution. For the healthy functioning of a judiciary system, it is essential that talking points continue to emerge and the law continues to forge new ground. An important facet of a dissenting opinion is that it highlights the potential pitfalls in the conclusions of a majority opinion and seeks to establish a compelling argument of a devil’s advocate.

As detailed above, majority view in judgments have been overturned on the basis of flawed logic and inherent errors. The words of Justice Scalia are apt in this regard,

When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting . . . to look back and realize that at least some of the Justices saw the danger clearly and gave voice, often eloquent voice, to their concern.”

The author is a lawyer practising in the Supreme Court and is a keen observer of law, polity, and judicial process.

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