Author: Atrijo Banerjee
Designation: Student, WB National University of Juridical Sciences
Email ID: email@example.com
Judicial Dissent is the opinion of one or more judges who disagree with the majority of a bench in a case before them. Dissenting opinions can be relied upon in subsequent cases as persuasive authority to appeal for a change in the position of the law.
In civil law jurisdictions dissent is an exercise in futility as the value of judicial precedents is low. But in common law countries, all judges are entitled to give their own opinion.
NOTABLE DISSENTS IN INDIA
India follows a common law tradition. In India, the right of the Supreme Court judges to give dissenting opinion is protected by the Indian Constitution. In early judgements of the court like the Delhi Laws Act case, all judges gave separate views. With time this system was abolished and the number of dissents decreased. In the first few decades of the court, several memorable dissenting judgements were given by eminent judges like Justice Faizal Ali, Justice Vivian Bose, Justice Subba Rao and Justice Hidayatullah. Many of these dissents have later been accepted in the future.
The judgement of Justice Faizal Ali in Ak Gopalan v State of Madras was one of the most farsighted and progressive dissents. Here Justice Ali concluded that the concept of procedure established by law referred to both substantive and procedural law. He also concluded that the fundamental rights are meant to be read together not separately. This position has been upheld in subsequent judgements.
Another notable dissent was that of Justice Hans Raj Khanna in the ADM Jabalpur case.In this case Justice Khanna went against the opinion of the majority and famously proclaimed that right to approach court under writ petition could not be suspended during national emergency. He also ruled even when Article 21 was suspended the state had no right to deprive the personal liberty of a person without due process of law. This position was reflected in the 44th Constitutional Amendment (1978) which amended Article 359. Also, this judgement has been appreciated by the court in K. Puttaswamy v Union of India.
An important dissent of recent times is the dissent of Justice Chandrachud in K Puttaswamy v Union of India. In this judgement he declared the Aadhar Act to be unconstitutional relying upon a decision of the Jamaican Supreme Court. He also highlighted the checks and balances provided in our constitution.
IMPORTANCE OF DISSENTING JUDGEMENTS
Judges take dissent as a last resort to appeal to the intelligence of the future generations. Dissents are alternative interpretations of the law and symbolise a position that could have been taken. According to critics a polyvocal court often gives rise to confusion in extracting the ratio of the case and that the law should be settled for once and all.
Dissents lay down the foundation based on which the law is later modified. It is important to have the law correctly decided as otherwise people may be deprived of their basic rights as has been shown through the examples given above. Thus, dissents are an essential part of the judicial system.