The Celebrated Dissenting Voices
During the period 2017-2019, Constitutional Bench of the Supreme Court of India have rendered remarkable judgments. The circumstances which existed during the period when the ‘four great dissents’ were authored, however, changed significantly in years that followed. A notable transformation took place in the Supreme Court’s approach with independence being firmly established as the bedrock of the Judiciary. This also led to the gradual upsurge of dissenting opinions.
The famous dissenting opinions were rendered by Justice DY Chandrachud and Justice Indu Malhotra in the Aadhaar and Sabrimala case respectively. The other two have also been written in the crucial judgments in the Ayodhya case and the Bhima Koregaon case by Justice Abdul Nazeer and Justice Chandrachud respectively.
Justice Indu Malhotra’s dissenting opinion in the Sabrimala Case is noteworthy. It contains an intriguing discussion on the issue of whether courts ought to delve into the realm of the facets that constitute ‘essential religious practice’ and whether interfering with religious practices will militate with the rights guaranteed by Article 25 (1). The majority opinion has already interpreted the constitutional provisions in favor of women entering the temple, but Justice Indu had something else to say. In her opinion imposing the court’s morality on religion would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to justifying religion, faith, and beliefs, which is outside the ken of Courts. Justice Malhalhotra had, therefore, refused to interfere with the centuries-old practice of banning women in the shrine.
In the Ayodhya Ram Janmabhoomi Babri Masjid land dispute, The bench, led by Chief Justice Dipak Misra, said the “law isn’t always logical” and that “the facts of the Faruqui case”, which was a land acquisition matter, did not apply to the Babri Masjid-Ram Janmabhoomi case. The majority order was supported by CJI Misra and Justice Ashok Bhushan, the third member of the bench, Justice S. Abdul Nazeer, dissented with the refusal to refer the issue to a larger bench. He said, “The contentious observations in the Ismail Faruqui case have influenced the 2010 Allahabad High Court judgment.” He dissented and stated that a Constitution Bench must review the court’s earlier decision that a mosque is not an essential feature of Islam.
In the Aadhar case, 2018 Justice Chandrachud held the purpose of the Aadhaar Act to be legitimate, he diverged from the majority opinion in noting that there are not enough robust safeguards as to “informed consent and individual rights such as opt-out”.He also essentially disagreed with the majority opinion on whether Aadhaar minimized data collection and if it laid the ground for mass-profiling by considering that it had the “potential for surveillance” and that its architecture “posed risk on potential violation of leakage of database”. He further added saying that “The data must always vest with the individual.” He also held that denial of social welfare measures was a violation of the fundamental rights of citizens.
In the Bhima Koregaon case, a three-judge bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud were hearing the matter. Chandrachud presented a dissenting opinion. In the majority verdict, the judges said, “This is not a case of arrest merely because of dissent or difference in political views.” Justice Misra further added that The accused persons cannot assert in which investigating agency should probe the case. Justice Chandrachud, however, said he could not agree with the majority opinion, and launched a scathing criticism of the Maharashtra police for its actions. The state police could not be trusted to investigate the case in a fair manner, and he was in favor of an SIT probe. Chandrachud challenged the applicability of the case law relied upon to make this assertion, raising fundamental concerns over four of the cases mentioned by Khanwilkar.
The history of delivering dissent is an ancient practice in India. Our country has witnessed various famous dissenting opinions time and again. Dissent by Justice Fazl Ali in the case of A K Gopalan vs. the State of Madras, which very astonishingly came to be recognized as a law only about 27 years later, in the case of Maneka Gandhi vs. Union of India. Furthermore, the dissent delivered by Justice Khanna in the case of ADM Jabalpur vs. SK Shukla is also a significant one. The list of dissenting judgments through the course of the Supreme Court does not end there, but is nevertheless, just the beginning which has initiated a considerable amount of debate and discussion in the society. All these dissenting opinions will definitely provide food for thought and have also set the tone for further debate and deliberation in these types of cases. In the author’s view, the majority opinion lays down the law but only a dissent allows us to imagine an alternative future.
ABOUT THE AUTHOR
Ishita Yadav is a BA LLB 2nd -Year student at University of Petroleum and Energy Studies, Dehradun
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