A cry in the wilderness, a prophecy, a foretelling of the doom a court's judgment could have on society.
This is how former Supreme Court Justice Rohintan Nariman has, on different occasions, described dissenting judgments or minority opinions rendered by judges over the years.
Justice Nariman has not only eulogised what he terms as the three great dissents in his judgments, he even wrote a two volume book, Discordant Notes: The Voice of Dissent in the Last Court of Resort, exploring all dissenting judgments in the history of the Supreme Court of India.
While the argument has been made that non-unanimous judgments affect the collegiality between judges and the perceived finality of the law laid down by courts, most in the legal community, especially judges, agree that the pros outweigh the cons.
The three most important dissents in Indian history, as highlighted by not just Justice Nariman, but by legal scholars in general, are Justice Fazl Ali in AK Gopalan v. State of Madras; Justice Subba Rao in Kharak Singh v. State of Uttar Pradesh; and Justice HR Khanna in ADM Jabalpur v. Shivkant Shukla.
The fact that all three dissents found prominent places in subsequent decisions of the court highlights the power of dissenting judgments.
It also highlights the fact that the judges who dissent, especially when the majority judgment favours the government, often face consequences. Much has been written about Justice HR Khanna's experience after ADM Jabalpur in particular when he was superseded to the post of CJI by his junior colleague, Justice MH Beg.
It is no surprise then that dissenting opinions are not a common occurrence in the Supreme Court of India. It is even more rare for the Chief Justice of India to be in the dissenting minority, especially in constitution bench cases.
In the paper "Interpreting the Constitution: Indian Supreme Court Constitution Benches Since Independence", Robinson et al. examined all Constitution bench decisions from independence through the end of 2009 and found that in any given vote on a constitution bench, there has been about a 5.2% chance a judge will dissent. However, if it is the Chief Justice who is voting, that chance decreases to 0.8%.
This figure is especially impressive since it was also found that the CJI disproportionately sits on Constitution bench cases.
This is supported by George Gadbois' study on “Indian Judicial Behaviour" which indicated that the Chief Justice's power to assign cases to benches can and does influence outcomes of cases.
Gadbois speaks of a time when he met former CJI, Justice Subba Rao, after his retirement. He recalls that the judge, who was notorious for dissenting when he was a judge, was never in dissent after he became CJI. When they met, Justice Rao supposedly admitted to Gadbois that that many Chief Justices strategically assigned benches in order to impact outcomes.
In the study by Robinson et al. mentioned above, they found that between independence and 2009, the CJI had been in dissent only 10 times in constitution bench cases.
Recently, in the book Court on Trial, the authors analysed constitution bench decisions from 2009 to 2016 and found that the CJI was never once in dissent.
We went through the constitution bench decisions from 2010 to the present day (filtered on the supreme court website) and found that the CJI was in the dissenting minority only thrice.
This means that the CJI has dissented in only 13 constitution bench cases in the 73-years history of the Supreme Court of India.
CJI Chandrachud said as much while at speaking at the 3rd Comparative Constitutional Law discussion co-hosted by Society for Democratic Rights (SDR), New Delhi and Georgetown University Law Center, Washington DC. He said this in the context of the recent judgment in the same-sex marriage case in which he found himself in the minority.
He said that he stands by his dissent and added, "sometimes it is a vote of the conscience and vote of the constitution".
Below are the thirteen instances in which the CJI was part of the dissenting judgments.
1. CJI Harilal J Kania - Delegated legislation (1951)
In this case, all 7 judges on the bench - CJI Kania and Justices Saiyid Fazal Ali, M Patanjali Sastri, MC Mahajan, BK Mukherjea, SR Das and Vivian Bose - gave seven separate opinions on the limits to which the Indian Legislature can delegate its legislative powers. All judges agreed that the parliament and state legislatures can delegate their powers but that since the legislature derives its powers from the Constitution, there has to be limits to its freedom to delegate.
CJI Kania, as opposed to most of the other judges, placed his emphasis more on conditional legislation.
2. CJI M Patanjali Sastri - West Bengal Special Courts Act (1952)
The Supreme Court with a 5:2 majority of Justices Fazl Ali, MC Mahajan, BK Mukherjea, N Chandrasekhara Aiyar, and Vivian Bose held that Section 5 (1) of the West Bengal Special Courts Act of 1950 contravenes the right to equality under Article 14 of the Constitution and is void inasmuch as the procedure laid down for trial Special Courts varied substantially from that laid down for trial by the Code of Criminal Procedure.
CJI Sastri, however, opined that Section 5 (1) of the Act is not void or unconstitutional, wholly or even in part. The CJI noted that the Act was intended to ensure speedier trial and said that the mere fact that the State government might exercise its discretion to refer cases arbitrarily, cannot make the law itself unconstitutional.
3. CJI M Patanjali Sastri - Constitutional validity of Bombay Public Security Measures Act(1952)
The majority of Justices MC Mahajan, BK Mukherjea, SR Das and N Chandrasekhara Aiyar held that Section 12 of the Bombay Public Securities Measures Act of 1947 to the extent it authorises the State government to direct specific "cases" to be tried by a Special Judge appointed under the Act, offends against the equal protection of law guaranteed by Article 14 of the Constitution of India.
But CJI Sastri dissented, opining that the continuation of the procedure prescribed under the 1947 act even after the Constitution came into force, cannot be held to be violative of Article 13. He reiterated that Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, and added that "in applying the dangerously wide and vague language of the equality clause to the concrete facts of life, a doctrinaire approach should be avoided".
4. CJI BP Sinha - Power of Commissioner of Police to grant licences to eating houses (1960)
The majority of Justices JL Kapur, KN Wanchoo and PB Gajendragadkar held that the provisions of the Calcutta Police Act, 1866 which empowers the Commissioner of Police the power to grant licences to eating houses, are constitutionally valid.
However, CJI Sinha and Justice K Subba Rao noted that Commissioner is neither legally bound to give any reasons for his refusal to give a licence nor is he required to give a reasonable opportunity to the applicant to be heard. They, therefore, opined that the provisions of the act violate Article 19(1)(g) of the Constitution.
5. CJI BP Sinha - State Tax laws and Article 301 of the Constitution (1960)
By a 4:1 majority of Justices JC Shah, KC Das Gupta, KN Wanchoo and PB Gajendragadkar, the Court held that the Assam Taxation (on Goods Carried by Roads or Inland Waterways) Act, 1954 infringes the guarantee of freedom of trade and commerce under Article 301 because that the Bill moved in the Assembly had not received the assent of the President as required.
CJI Sinha, on his reading of Part XIII of the Constitution, opined that it is not possible to conclude that taxation simplicier comes within the purview of Article 301.
"It is not for the courts to say that there were other ways of doing the thing or that all forms and varieties should have been brought under the scope of the taxation. It is open to the Legislature to impose a tax in a form and in a way which it deems most convenient for the purposes of collection and calculation of the tax," CJI Sinha said.
6. CJI MH Beg -Validity of Price Control Order (1978)
A 5:2 majority of Justices YV Chandrachud, PN Bhagwati, S Murtaza Fazal Ali, PN Shinghal, and Raja Jaswant Singh held that just because the parent Act, which is the Essential Commodities Act of 1955, enjoys protection under the Ninth Schedule of the Constitution doesn't mean that orders, regulations etc stemming from it will automatically have protection and will not enjoy what is known as 'derivative protection'.
"The upholding of laws, by the application of ’the theory of derivative immunity is foreign to, the scheme of our Constitution and accordingly Orders and Notifications issued under Acts and Regulations which are specified in the Ninth Schedule must meet the challenge that they offend against the provisions of Part III of the Constitution," the majority said.
However, CJI Beg and Justice DA Desai opined that the price control order has protection under the Ninth Schedule by virtue of Section 3 of the Essential Commodities Act. Since the parent Act is protected, its implementation should necessarily be protected, they said.
"If orders passed under Section 3 of the Act also get a protection it would be what may be described as a "derivative" protection so long as the Orders are covered by Section-3 of the Act," the minority judgment said.
7. CJI PN Bhagwati - Withdrawal of prosecution against Bihar CM (1986)
The question before the Court was whether a Magistrate Court was right in allowing the withdrawal of prosecution against Bihar Chief Minister Dr. Jagannath Mishra that was launched against him when he was not in power.
By a 3:2 majority of Justices ES Venkataramaiah, S Natarajan and V Khalid, the Supreme Court upheld the magistrate's order allowing the withdrawal of prosecution and also noted that the case was one of political rivalry.
However, CJI Bhagwati and Justice GL Oza opined that it would be desirable in the interest of public justice that high political personages accused of offences should face the judicial process and get discharged rather than appear to maneuver the judicial system, thus endangering the legitimacy of the judicial and political processes.
"It is possible that in a particular case personal harassment or inconvenience may be caused by non-withdrawal of the prosecution, if the accused is really innocent and is ultimately liable to be discharged, but such harassment or inconvenience must be considered as an inevitable cost of public life, which the repositories of public power should have no hesitation to pay, as justice must not only be done but must also appear to be done," the minority opinion stated.
8. CJI Sabyasachi Mukharji - Right of employer to terminate services of permanent employees(1990)
The majority of Justices K Ramaswami, BC Ray, and PB Sawant held that Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations of 1952 allowing the Delhi Transport Corporation to terminate permanent employees without holding any inquiry in certain circumstances by reasonable notice or pay in lieu of notice, is arbitrary and violative of Article 14. Justice LM Sharma also refused to uphold the regulation, but only for the reason that it lacked adequate and appropriate guidelines.
However, CJI Mukharji sustained the constitutionality of this conferment of power by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies. It should be done objectively, the reasons should be recorded and it need not be communicated but it must be done only for the purpose of running the institution.
9. CJI LM Sharma - Reservation of Seats in the Legislative Assembly of Sikkim (1993)
The case dealt with the terms of the tripartite agreement that was entered into when Sikkim aceded to the Union of India, especially the terms regarding reservation of seats in its State legislature.
The majority of Justices MN Venkatachaliah, JS Verma and K Jayachandra Reddy said that the reservation of seats of the kind and the extent under challenge, may not, if applied to the existing states of the Union, pass the constitutional muster. But when it is a new territory admitted to the Union, the terms and conditions would not fall outside permissible constitutional limits, especially since they were found to be necessary by the parliament, the majority held.
However, CJI Sharma and Justice SC Agrawal dissented and delivered separate opinions.
CJI Sharma said that the two main questions to be decided in the case were (i) whether a seat can be earmarked at all in the Legislature of a State after its complete merger in India for a representative of a group of religious institutions to be elected by them; and (ii) whether seats can be reserved in favour of a particular tribe in excess of its population. He answered both the questions in the negative.
10. CJI SP Bharucha - Sale and purchase of tobacco within market area (2002)
The Supreme Court by a 3:2 majority of Justices Sabharwal, Ruma Pal and Brijesh Kumar held that State Legislatures are competent to enact legislation providing for the levy and collection of market fee on sale of tobacco in the market area.
However, CJI Bharucha and Justice GB Pattanaik opined that the Tobacco Board Act enacted under Entry 52 of List I is constitutionally valid and all the provisions therein including the provisions relating to growing, sale and purchase of tobacco are within the legislative competence of the Parliament.
11. CJI JS Khehar - Triple Talaq (2017)
On August 22, 2017, the Supreme Court in a landmark judgment held that the practice of instant Triple Talaq (talaq-e-bidat) is unconstitutional and violative of Articles 14 and 15.
The decision was rendered by a Bench of Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer.
While Justices Nariman and Lalit held in their judgment that instant Triple Talaq is unconstitutional and violative of Article 14 (Right to Equality), Justice Joseph struck it down in his separate judgment on the ground that it goes against Shariat and the basic tenets of the Quran.
Chief Justice Khehar and Justice Nazeer dissented, holding that the practice cannot be struck down on the ground of being violative of Article 14, since there is no state action.
The minority opinion was the longest of the three decisions and took the view that the practice was “bad in theology but good in law”. They, therefore, directed the Central government to frame a law to govern the field.
Subsequently, in 2019, the Muslim Women (Protection of Rights on Marriage) Act was enacted which made triple talaq a crime. The act made instant triple talaq illegal and imposed a jail term of up to three years.
12. CJI UU Lalit - EWS Quota (2022)
Justice UU Lalit, in his unusually short tenure as Chief Justice of India in 2022, restarted hearing of Constitution bench cases which had come to standstill during COVID-19. He went about setting up 5-judge Constitution benches to hear cases that had remained pending for many years.
In his time as CJI, Justice Lalit also had the rare distinction of being in the minority in a Constitution bench decision.
The majority judgement upheld the 103rd Constitutional Amendment that grants 10 percent reservation to Economically Weaker Section (EWS) among the forward castes.
However, CJI Lalit (as he then was) and Justice S Ravindra Bhat held that the amendment is unconstitutional for excluding the Scheduled Caste, Scheduled Tribe (SC/ST) and Other Backward Classes (OBCs) from reservation. They opined that this exclusion heaps fresh injustice on these historically discriminated sections of society.
Not enough time has passed to see if this minority opinion will become tomorrow's majority view and so far, legal challenges to the majority judgment have failed.
13. CJI DY Chandrachud - Same-Sex Marriage (2023)
The most recent instance of a CJI dissenting, and what prompted this article was the judgment in which India's top court refused to recognize the right of same-sex couples to enter into marriages or have civil unions.
Three of the five judges on the bench, Justices Ravindra Bhat, Hima Kohli and PS Narasimha, delivered the majority opinion which held that the law as it stands today does not recognise the right to marry or the right of same-sex couples to enter into civil unions, or jointly adopt children, and that it is upto the Parliament to make laws enabling the same.
However, CJI DY Chandrachud and Justice SK Kaul in their separate minority opinions ruled that same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits. They also said that such couples have the right to adopt children and struck down adoption regulations to the extent it prevented the same.
CJI Chandrachud's opinion delved deepest into the issue and the history of discrimination against queer persons, and disagreed with the Central government's stance that courts cannot examine issues concerning the rights of LGBTQ+ couples as it would be anti-democratic. The CJI also termed the Central government's stance on this aspect a narrow view of democracy.
"If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then, is the purpose of the fundamental rights and the purpose of vesting this Court with the power of judicial review?," he asks.
The impact of this dissent, and whether it will go down in the annals of history as the court travels on the path of transformative constitutionalism, remains to be seen.
In the words of 11th Chief Justice of the United States Charles Evans Hughes quoted by none other than Justice Khanna in ADM Jabalpur,
"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 author would like to thank Nick Robinson, whose study is cited in this column, for sharing the list of CJI dissents from 1950-2009. He is an independent researcher on the Indian Supreme Court and an affiliated fellow at the Center for the Legal Profession at Harvard Law School.