Context:  Dissent is vital to democracy, including in constitutional courts. While powerful in both India’s Supreme Court and the U.S. Supreme Court, their underlying reasons differ.

Nature of Dissent in the Indian Judiciary

• Dissent in the judiciary is a vital aspect of a democratic society, reflecting the diversity of thought and the independence of the judicial system.

• In India, judicial dissent has played a crucial role in shaping the legal landscape, often highlighting the dynamic interplay between law, politics, and society.

• The right to dissent is a fundamental right and an essential part of democracy in India, protected by Article 19(1) of the Constitution of India.

• It can be traced back to landmark cases such as ADM Jabalpur v. Shivkant Shukla (1976), where Justice H.R. Khanna’s dissenting opinion emphasized the importance of fundamental rights even during a state of emergency.

Types of Dissent

• Political Dissent: Judges often express dissenting opinions on matters involving political implications.

• For instance, in the P.V. Narasimha Rao case (1998), Justices S.C. Agarwal and A.S. Anand dissented on the issue of parliamentary privilege and immunity from prosecution for accepting bribes.

• Social Dissent: Judicial dissent arises from differing views on social issues.

• Cases like Shayara Bano v. Union of India (2017), which dealt with the practice of triple talaq, saw dissenting opinions that reflected varying perspectives on social justice and gender equality.

• Intellectual Dissent: Purely intellectual disagreements among judges often lead to dissenting opinions. These dissents are based on different interpretations of legal principles and doctrines, contributing to the evolution of jurisprudence.

Recent Indian Examples of Dissent

• Sita Soren (2023): Overruled the immunity for bribes under parliamentary privilege dissenting against P.V. Narasimha Rao (1998).

• Hijab Case (2022): Justice Dhulia’s dissent emphasized diversity over secularism in State-run schools.

• Justice B.V. Nagarathna in Lalta Prasad Vaish (2024), the industrial alcohol case said that States could not tax industrial alcohol.

Comparative Perspective

• In the United States, judicial dissents are often influenced by the political inclinations of judges, who are appointed by the President and confirmed by the Senate.

• In contrast, the Indian judiciary, through its collegium system, maintains a degree of insulation from direct political influence, allowing for a broader range of dissenting opinions based on legal and intellectual grounds.

Importance of Dissent

• Safeguarding Democracy: Dissent allows judges to express differing opinions, which is essential for a healthy democracy.

• It ensures that multiple perspectives are considered in judicial decisions, preventing the dominance of a single viewpoint.

• Preventing Majoritarianism and Safeguarding Minority Views: Judiciary can check majoritarian tendencies and ensure that the rule of law prevails over the rule of the majority.

• Dissent ensures that minority views are recorded and considered, preventing the dominance of a single perspective in judicial decision-making.

• Enhancing  Judicial  Accountability: Dissenting opinions hold the majority accountable by providing alternative viewpoints and highlighting potential flaws in the majority’s reasoning.

• Protecting Civil Rights: Judicial dissent is vital in protecting the rights of citizens, especially the marginalized and underrepresented.

• It provides a platform for challenging majority opinions that may overlook or infringe upon individual rights.

• Encouraging Legal Discourse: Dissenting opinions contribute to the evolution of legal principles by fostering debate and discussion.

• They often highlight alternative interpretations of the law, which can influence future judgments and legal reforms.

Concerns and Challenges

• Impact on Legal Precedents: Dissenting opinions, while not legally binding, can influence future legal interpretations and reforms.

• They highlight alternative viewpoints and can lead to significant changes in the law over time.

• Social and Intellectual Disagreements: Judicial dissents in India often arise from differing social and intellectual perspectives.

• For example, in the Shayara Bano case (2017), Justices Khehar and Nazeer dissented from the majority opinion, arguing triple talaq was an integral part of Sunni personal law.

• Public Perception and Trust: Frequent dissenting opinions may affect public perception of the judiciary’s unity and impartiality.

• It can lead to questions about the consistency and reliability of judicial decisions.

Consequences of Political Dissents

• Democratic Strengthening: Upholds judicial independence, ensuring that courts act as a check on executive and legislative powers.

• Catalyst for Reform: Influences constitutional amendments and future legislation by exposing flaws in majority judgments.

• Public Perception: Shapes public understanding of judicial impartiality, but dissent in politically charged cases may raise concerns about bias.

• Judicial Integrity Risks: Political dissents might be perceived as partisan, undermining trust in judicial neutrality.

• Professional Repercussions: Judges expressing dissent in politically sensitive cases may face criticism or isolation within judicial and public domains.

Road Ahead

• Fostering Judicial Independence: Strengthen the judiciary’s autonomy by protecting it from political and executive pressures.

• Encourage Open Discourse: Promote constructive debates within judicial forums to enrich legal reasoning and jurisprudence.

• Training and Awareness: Provide judges with exposure to global judicial practices to balance individual rights with societal needs.

• Institutional Safeguards: Develop mechanisms to shield dissenting judges from external criticism or professional isolation.

• Leveraging Technology: Enhance accessibility of dissenting opinions to educate citizens about alternative legal interpretations.

Conclusion

• Judicial dissent is a cornerstone of a vibrant democracy, allowing alternative perspectives to refine jurisprudence and protect constitutional values. In India, dissents have significantly shaped constitutional interpretation, enhancing public trust in the judiciary.

• The nature of dissent in the Indian judiciary reflects the complexity and richness of India’s legal system. It underscores the importance of judicial independence and the role of dissent in fostering a vibrant and dynamic democracy. 

• As India continues to evolve, judicial dissent will remain a cornerstone of its legal and democratic framework, ensuring that diverse voices are heard and respected.