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  • Dissent and its history through the Indian Judicial sphere

    If concurrence is monochrome, dissent is technicolor. It is the heart and soul of democracy. When dissent is prohibited and the dissenter is penalised, totalitarianism, not genuine democracy, prevails in the country. India has seen dissent in its public sphere since time immemorial, and it has been overrun by the majority, only to rear its head each time, never to be silenced. Whether it was the Prevention of Seditious Meetings Act passed by the British to prevent talks of freedom in India, and the subsequent introduction of the festival of Ganesh Chaturthi by Tilak; or the salt tax imposed by the British and the Dandi March by Gandhi to counter it; Indian history is replete with instances of public bludgeonings by chance (or not), and heads being bloody but unbowed. One can kill a man, not an idea, and in that spirit, I through this paper try to trace the history of dissent in India’s public, primarily judicial sphere. Much like cryonic storage believers who have frozen themselves to a date where in the future, medicine has caught up to restore their bodies to its former state, or like artists who are underappreciated through their lifetimes only to be revered in posterity, so too are dissenting judgements ensconced in the truth that they too may become law in the future, indeed they form the basis for a lot of future judgements, and dissenting judges have been respected since time immemorial as upholders of the Constitution and their ability to interpret it, and stand by their beliefs. The Judiciary has a responsibility to the nation, indeed judges have stood up against the majority verdict in the hope that their lone voices may be heard in the future. Perhaps the most famous judge to pronounce a dissenting verdict in the history of the Indian Judiciary, a man who is now revered as one of the champions of the Constitution and everything it stood for, was Justice Hans Raj Khanna for whom the New York Times reportedly remarked, “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court. .” Justice Khanna served as a Judge in the Supreme Court of India between 1971 and 1977, and in those six years, pronounced verdicts that would define Indian democracy. In probably one of the most celebrated, analysed, and studied judgements in Indian judicial history, i.e. ADM Jabalpur v Shivakant Shukla , Justice Khanna delivered a judgement that would earn him huge plaudits and also cost him the post of the Chief Justice of the Supreme Court. It all started with the verdict of the Allahabad High Court in State of UP vs Raj Narain , where the Court held Indira Gandhi guilty of election malpractices, invalidated her election, and further barred her for 6 years from contesting elections. While the High court judgment was appealed to the Supreme Court of India, Indira Gandhi, in the face of an unprecedented protest from an opposition united under J.P. Narayan, invoked Article 352, declaring a National Emergency on the grounds of Threat from Internal Disturbance. Within two days of the declaration of emergency, on 27th June 1975, a Presidential order was issued that no writ of Habeas Corpus would be maintainable in any High Court against such arrest/detention. Mrs. Gandhi thus muzzled the Press and the Opposition. The Government made extensive use of Preventive Detention under the auspices of the Maintenance of Internal Security Act (MISA) , arresting people not because they had committed any offence, but on the “apprehension” that they may commit one. Many cases were filed in the courts against the wrongful and illegal detention, and nine High Courts passed Judgments in favour of people challenging their detention. The Government (read Indira Gandhi) decided to appeal against these decisions to the Supreme Court. The Supreme Court applied the procedure established by law, unfortunately in letter, but not in spirit, and overturned the judgement by high courts, declaring that Article 32 which is the right to approach the Supreme Court to defend Fundamental Rights remained suspended under emergency. In this, the darkest hour of Indian democracy shone a beacon of light in the form of Justice Khanna. In a scathing indictment of the Indira Gandhi way of democracy, he said “Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.” Eventually post the Emergency era, the Janata Party government did overturn the regressive law, and showed faith in Justice Khanna’s verdict. Justice Subba Rao pre-dated Justice Khanna, he was a Judge and subsequently Chief Justice of the Supreme Court between 1958 and 1967, indeed the more famous case that Justice Subba Rao is known for (IC Golaknath v State of Punjab ) on the power of the Legislature to amend the Constitution under Article 368 was famously clarified by the aforementioned Justice Khanna in Kesavananda Bharati v State of Kerala where the basic structure doctrine was propounded, and further solidified by Minerva Mills v Union of India . Interestingly, the first time the matter came up was in Sajjan Singh v State of Rajasthan , where the majority ruled in favour of amendment, however, Justices Hidayatullah and Mudholkar dissented, and the matter was taken up on the basis of the said dissent by a larger bench in I.C. Golaknath v State of Punjab. Justice Subba Rao is almost as well known for his dissenting voice in the case of Kharak Singh v State of UP . In his dissenting judgment, Justice Subba Rao widened the scope of personal liberty and remarked, writing as he was in 1963 – “It is true our constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” His lone voice stood out in a case where the police force in Uttar Pradesh had placed the Plaintiff under surveillance, thereby infringing upon the Plaintiff’s right to Privacy. In 2017, a Nine-Member Constitutional bench in KS Puttaswami v Union of India finally overturned, in a historic judgement, the judgements propounded in the ADM Jabalpur and the Kharak Singh cases (even though Constitutional amendments had effectively changed the decisions anyway). The stands of Justices Khanna and Subba Rao were vindicated where a unanimous decision of the Court held that the Right was a Privacy was a Fundamental right under Article 21. The case, brought by a retired High Court Judge, Justice Puttaswamy, challenged the Government’s proposed scheme for Aadhar which would be mandatory for access to government services and benefits. The Government pleader actually audaciously argued that the Constitution did not grant specific protection for the Right to Privacy. The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Interestingly, the bench was headed by Justice DY Chandrachud who overturned the majority decision of his own father (Justice YV Chandrachud) in the ADM Jabalpur case. Funnily enough Justice DY Chandrachud would be in the minority in a later judgement in the same case involving a different question of law, a dissenting verdict that has received widespread plaudits. The said judgement has been iterated later in this very paper. Certain judicial dissents have been recognised by the Legislature and hence written into the Statute books. In New Maneck Spinning v Textile Labour , the judgement of Justice Subba Rao in 1961 formed the basis of the passing of the Payment of Bonus Act, 1965. Justice Subba Rao's line of argument was a minimum bonus payable irrespective of the profit or the loss of the employer. So too the ADM Jabalpur case, the legislature subsequently wrote laws into further Acts on the basis of Justice Khanna's dissenting verdict. While the Legislature has been slower to accept dissenting verdicts, the Judiciary has been known to introspect and decipher dissenting minority verdicts and pass judgements to their effect in the future. In AK Gopalan v State of Madras , the question that came before the Court was whether preventive detention violated Articles 13,19,21 and 22 of the Indian Constitution. A Writ of Habeas Corpus was filed. The majority bench held that Articles 19, 21 and 22 were mutually exclusive, and that Article 19 was to not apply to a law affecting personal liberty to which Article 21 applied. In the above case, the restrictions under Article 19 applied only to free people. Therefore, unless the state arrested a person for making a speech, holding an assembly, forming an association or for entering a territory, the arrest had to be examined under article 21, and that a law affecting life and liberty could not be declared unconstitutional merely because it lacked the principle of Natural Justice or Due Process. In the minority was Justice Fazl Ali who broadly construed the provision “procedure established by law” in Article 21 to encompass higher principles of natural law and justice and not just statutory law. Eventually, Justice Fazl Ali’s dissent was recognised by a larger bench in in Maneka Gandhi v Union of India which overruled the majority opinion of Gopalan and held that any law which deprives a person of personal liberty under Article 21 should satisfy the requirement of Article 19. The Court also accepted the influence of the due process doctrine in Indian constitutional jurisprudence and said that any procedure must be “fair, just and reasonable.” Justice Subba Rao delivered another landmark dissent when in Radheyshyam Khare v The State of Madhya Pradesh , where he ruled against the majority that the principles of natural justice must apply to all, including administrative bodies. His contention was that the concept of a judicial act had been conceived and developed by the English judges with a view to keep administrative tribunals and authorities within bounds, and unless, the said concept was broadly and liberally interpreted, the object would be defeated, that is, the power of judicial review would become innocuous and ineffective. Interestingly, a judgement in concurrence with this dissent was passed a few years later in what would become a landmark judgement of the House of Lords in the UK in Ridge v Baldwin . Justice Subba Rao’s stance was vindicated when, in AK Kraipak v Union of India a decade down the line, the Court ruled that if an individual’s rights were being affected by an administrative authority, he must be heard. H.M. Seervai said that it was Justice J.L. Kapur’s dissent in the K.M. Nanavati v State of Bombay case on the Governor’s pardon which caused him to write his magnum opus on the Constitution. Justice P.N. Bhagwati was of the view that High Court judges should not be transferred without consent. He famously quoted in the Sankalchand Himatlal Sheth v Union of India case “If Article 222(1) is interpreted to mean non-consensual transfer too this power of the executive would become a dangerous power, because the executive would then have an unbridled charter to inflict injury on a High Court judge by transferring him from the High Court to which he originally agreed to be appointed to another High Court if he decides cases against the government or delivers judgments which do not meet with the approval of the executive. That would gravely undermine the independence of the judiciary”. He sustained his dissent in S.P. Gupta v Union of India . This later led to the birth of the collegium system. Judicial Dissent is not a mere relic of the past. In the last year itself, two major judicial dissents have received widespread plaudits, maybe the most momentous and celebrated of which was the one put forth by that lead author of the aforementioned Right to Privacy judgement, Justice DY Chandrachud . In India’s effort to build a national database of citizens and link all the services provided to them in the form of Aadhar arose a very interesting question on the Constitutionality of the Aadhar Act. The Petitioners in a six-year long case argued on various points like the fact that Aadhar should not have been passed as a money bill (which effectively nullified the effect of the Rajya Sabha). Their claim was that since Article 110 of the Constitution defined the scope of a Money Bill and laid down the criteria, (that relate to the Consolidated Fund of India, revenue and taxation), which every provision of the Bill must adhere to in order to be certified as a Money Bill. Article 110 uses the word “only” to limit the ambit of the Bill; the text of the Article states at the outset that “a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters”. Article 110 also lays down that on the question of whether a Bill is properly certifiable as a Money Bill, the Lok Sabha Speaker’s decision is final.Two previous decisions of the Supreme Court had held that the finality of a Bill’s certification as a Money Bill was not open to question in any court, including the Supreme Court. These decisions, however, ran contrary to the decisions of at least two Constitution Bench verdicts that had held that the finality of the Speaker’s decision meant only immunity from appeal and not immunity from judicial review for non-compliance with constitutional provisions.The petitioners in the Aadhaar case contended that the Speaker’s certification of the Aadhaar Act as a Money Bill was illegal and that the Act, having not been duly passed, was stillborn, a nullity, and therefore had no force of law. The government, on the other hand, argued that the Supreme Court could not review the Speaker’s decisions and that the Aadhaar Act, dealing with targeted delivery of subsidies and benefits flowing out of the Consolidated Fund of India, was correctly certified in any event. Justice Chandrachud in his dissent concluded that the certification of the Aadhaar Act as a Money Bill was completely illegal and unconstitutional and struck down the Act for violation of Article 110. He said: “The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution.”. Another issue on which Justice Chandrachud’s opinion was in sharp contrast to the majority opinion was on the correctness of the government’s action of making Aadhaar mandatory for several schemes while the interim orders of the Supreme Court were still in operation. The majority held that the government’s conduct was improper and unfair as it did not seek a variation order from the court but stopped short of striking down those notifications. Justice Chandrachud’s opinion went further: He struck down those notifications and held that the Union government’s conduct violated the rule of law and its own constitutional duty. His judgment stated: “Institutions of governance are bound by a sense of constitutional morality which requires them to abide by judicial orders. What seems to emerge from the course of action which has been followed in the present case by government is a perception that judicial directions can be ignored on a supposed construction of the statute. If we were not to enforce a punctilious compliance with our own directions by government, that would ring a death knell of the institutional position of the Supreme Court.” While Justice Chandrachud’s dissent here lies as a mere judicial dissent, its effect will doubtless be felt in future judgements. What is involved are two discourses: the discourse of the judges which helps us to understand the law including the Constitution, the discourse of the public on the judgment without which neither democracy nor the rule of law can survive. Justice Lord Atkins, in a judgment, rightly pointed out that justice is not a cloistered virtue but should withstand the respectful scrutiny of people. We must honour bona fide dissents which may rewrite the past for the future . Another Justice DY Chandrachud dissent that may make the history books is in the Bhima Koregaon Case where a three-judge Bench of the Supreme Court, with a 2:1 majority refused to constitute a Special Investigation Team to probe the case concerning the arrest of five lawyers/journalists/human rights activists relating to violence in Bhima Koregaon. Justice Chandrachud observed that “dissent is a symbol of vibrant democracy” and “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”, to hold that a Special Investigating Team must be appointed to probe the arrest of five activists in connection with the Bhima-Koregaon violence and that the probe must be monitored by the court. A short note to Justice Indu Malhotra’s dissent in that highly contentious Sabarimala verdict where she in a minority view held that “Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts” It is pertinent to note that while the bench with a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, paving way for entry of women between the ages 10 and 50 into the Sabarimala temple, the lone voice of dissent stood in the form of a woman. Her judgement has been widely lauded as a true protector of the Fundamental Right to Religion as guaranteed under Articles 25 to 28 of the Constitution. The importance of Judicial dissent has been put so succinctly by that Justice Khanna, who remarked in that ADM Jabalpur judgement “Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethren has not stood in the way of my expressing the same. I am aware of the desirability of unanimity, if possible. Unanimity obtained without sacrifice of conviction comments the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes Prophets’; with Honor by Alan Earth, (1974 Ed. p. 3-6) Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

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