Justice Deepak Gupta on Democracy and Dissent
Justice Deepak Gupta on Democracy and Dissent
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"Majoritarianism is the anti-thesis of Democracy", Justice Deepak Gupta lecture on Democracy and Dissent

Shruti Mahajan

Supreme Court Judge, Justice Deepak Gupta, while delivering a lecture on the subject of "Democracy and Dissent" today remarked on the disturbing trend of labelling dissenters as anti-national.

He highlighted that there exists a difference between a State and its government and criticizing the government does not make one anti-national.

Justice Gupta was delivering a lecture at an event organized by the Supreme Court Bar Association (SCBA) where he commented, not only on the importance of dissent for a healthy democracy but also on the role played by the Higher Judiciary in upholding the right to dissent.

Calling the right to dissent a human right, Justice Gupta said that there was a growing trend of labelling persons holding contrarian views than that of the government as "anti-nationals". Disapproving of this trend, he said that criticizing the government does not mean one is "anti-national" or is against the country and underlined that there exists a difference between the country and the government and that "the government may not always be right."

Just because you hold a contrarian view from the government, does not mean you are anti-national or you disrespect the country. You may disagree with the government, but that may not go against the country. There is a difference between the country and its government.
Justice Deepak Gupta
Justice Deepak Gupta
Justice Deepak Gupta

Highlighting the importance of a democracy, the Supreme Court Judge said that once a government is elected by a majority, it represents the 100 per cent of the population of the country. Those that did not vote for the government that comes to power cannot, thus, be expected to stay quiet or not raise their dissenting opinions. He went on to add that "majoritarianism is the anti-thesis of democracy."

Commenting on the rising practice of various Bar Associations resolving not to represent persons accused of being "anti-national", Justice Gupta said that this practice is incorrect and amounts to "obstruction of justice" and goes against the legal ethics that bind legal practitioners.

Before beginning his lecture, Justice Gupta said that he would also throw some light on dissent in judicial decisions while addressing the subject at hand. In doing so, he said that it is important for Judges to dissent when a matter calls for it.

Judicial discipline would require for a Judge to be bound by the decision rendered by the Bench he is sitting with. However, the same does not mean that a Judge may refrain from dissenting, Justice Gupta said. Sometimes, as an individual, a Judge may not completely agree with the judgment delivered by his Bench but not all cases need to be referred to larger Benches, he noted.

Having said this, Justice Gupta also said that he would not shy away from penning a dissent in cases that truly require it. To shine some light on the importance of judicial dissents, Justice Gupta cited the US case concerning slavery which was upheld as valid and legal by the Highest Court in the US but for one Judge. The dissent of that one Judge against slavery went on to became the law later, Justice Gupta pointed out.

Taking from Indian examples, Justice Gupta referred to the dissent in AK Gopalan case which was later accepted in Maneka Gandhi case and also cited the dissent of Justice Subba Rao on the issue of privacy being fundamental right in Kharak Singh case which very recently came to be made a law.

No discussion on dissening judgments is complete without the mention of Justice HR Khanna's minority opinion in the ADM Jabalpur case which justice Gupta says is the "most importantent" in Indian history. Justice Khanna knew he would lose out on the opportunity to be appointed as the Chief Justice of India after delivering this judgment and it is said he mentioned the same to his sister one day ahead of pronouncing his dissent.

He was later superceded with Justice AN Ray being appointed as the CJI. Justice Gupta recalled this anecdote to stress on the need for Judges to dissent in crucial cases.

Concluding his lecture, Justice Gupta said that no institution is a "holy cow when it comes to dissent" and is not above criticism. A person cannot be labelled anti-national merely because they choose to criticize an institution, whether it is the Armed Forces or the Judiciary. Justice Gupta ended his lecture by reciting a few lines from the poem "Let my country awake" by Rabindranath Tagore.

Delivering the vote of thanks, the Senior Counsel and SCBA President Dushyant Dave not only agreed with the thoughts put forth by Justice Gupta but also said that he hopes the Courts are blessed with "more (Justice) Deepak Guptas".

Attorney General KK Venugopal was also present at the lecture while Senior Counsel Chander Uday Singh delivered the welcome address.

[Read full speech]

SCBA SPEECH - Justice Deepak Gupta - 24.02.2020.pdf
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