Needed in judiciary, cautious dissent

“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. — John Stuart Mil

THE above statement of John Stuart Mill is the hallmark of the inquisitive spirit of mankind. If an opinion is true, then by suppressing it humanity is deprived of the truth and will not progress. If the opinion is false, even then humanity loses — because if the opinion is false it will be shown to be so, but its expression is useful, for it forces us to restate the reasons for our beliefs. Mill brings to light a remarkable phenomenon, though uncommon, called ‘dissent’.

The history of science, or the history of spirituality, is undeniably a series of ruptures or dissents with the situation. However, the ruptures are hardly historicised as they are treated as if they were a continuity constituting a historical whole. The truth of the moment of Albert Einstein was the dissent with the then existing notions of time, space and energy. Copernicus dissented to challenge the long-held notion that the earth was the centre of the solar system. This reluctant radical dissenter set in motion a chain of events that eventually produced the greatest revolution in thinking, which could be comprehended only after 100 years when Kepler, Galileo, and Newton fabricated on the heliocentric Universe of Copernicus.

Similarly, moments of spiritual truth also later became consents, losing their rigour. However, they are still inbuilt with truth potential to dissent by the merit of their pure multiplicity. Buddhism, Jainism, Christianity and Islam emerged as dissent against the prevailing societal glitches of the time.

Dissent in multi-member Benches of appellate courts evolved not to win over one’s colleagues. The most the dissenter can hope to do, so far as the present is concerned, is to persuade contemporaries of the court that his associates were mistaken, to mobilise public opinion against them; as it were a dubious satisfaction since the court is not supposed, in any case, to be responsive to popular pressure. Dissent as it is claimed is a plea to posterity and enjoys a truly distinctive, even paradoxical, institutional status.

Justice Douglas of the Supreme Court of the United States observed that the “right to dissent is the only thing that makes life tolerable for a judge of an appellate court.” Although this was a light-hearted remark, there is substantive value in a judge’s dissent as elucidated by Justice William Brennan: “Dissents contribute to the integrity of the [judicial] process not only by directing attention to perceived difficulties with the majority’s opinion but... also by contributing to the marketplace of competing ideas.”

Justice Chelameswar’s glimmering dissent in the critical NJAC judgment and now his disagreement with collegiums, decision not to sit in the meetings, and his firmness on recording of the minutes, have once again raised the question that all is not well in the highest court of land.

Rosco Pound proposed four distinct types of dissent: First, the reargued action, which defends the old order in times of change. Justice P. S. Kailasam’s dissenting opinion in Maneka Gandhi v. Union of India [AIR 1978 SC 597] can be cited in this category where the learned judge was not able to comprehend the creative interpretation of Article 14, 19 and 21 offered by Justice P.N. Bhagwati. 

Second, the reconnaissance dissent, in which the author looks forward with the hope that the majority opinion will be changed to reflect new conditions. For instance, Justice Hidaytullah’s dissenting opinion in the Naresh Mirajkar Case, which argued that the judicial wing of the state is not completely immune from the violation of fundamental rights. Justice S. B. Sinha’s dissenting opinion in the Zee Telefilm Case [AIR 2005 SC 2267] vehemently argued for the expansive interpretation of Article 12 of the Constitution. 

Third, the exploratory dissent, in which existing law is interpreted as not reflective of altered circumstances. Justice Bhagwati’s dissenting opinion in Bachan Singh v. State of Punjab [AIR 1980 SC 898] reasoned that Section 302 of the IPC does not comprehend the test of Article 14, 19 and 21 of the Constitution.

Fourth, the cautious dissent, which cautions against excessive zeal in adapting the law to changing times. Justice Chelameswar’s dissent in the NJAC case was quite critical at a time when judiciary is trying to embezzle unqualified power to itself in the matters of appointment and transfer of judges. While the majority (4-1) struck down the proposed National Judicial Appointment Commission, Justice Chelameswar admonished the majority’s verdict as repugnant to the spirit of the Constitution. Criticising the functioning of present the collegiums system, he said it was absolutely impervious and inaccessible both to the public and history, barring occasional leaks.

“Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country,” he said, adding, “Absolute independence of any one of the three branches is inconsistent with core democratic values and the scheme of our Constitution. This court by an interpretative process of the Constitution... disturbed such balance. The amendment only seeks to restore such balance and therefore cannot be said to be destructive of the basic structure of the Constitution.”

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 Chelameswar’s disagreement 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 Constitution does help; judicial decisions do help, but basically and truly it is the vigorous public opinion that safeguards democracy and enables the country to adhere to the democratic way of life. If the public conscience is shrunken, then a stage is set for letting loose forces which may pose a danger to a democracy. It would now be unavoidable for the Chief Justice of India to unravel the crisis by safeguarding genuinely contested issues of transparency and accountability, otherwise the conscience of the people is bound to be dismayed.

The writer is Associate Professor at National Law University, Odisha, and Deputy Registrar, Supreme Court of India.