Decisions and Dissents in Democracy
http://odishapostepaper.com/edition/4359/orissa-post/page/6
The legal history of India is replete with instances which show that some judges of the honorable supreme court are more influenced than others by the famous patriotic song of Rabindranath Tagore “ekla chalo re” : Lay bare your soul and speak your mind, say what you have to say. They stand out, speak up, and share their opposing views openly. While some call them dissenters, many call them reformists.
Legal researchers and observers in India often give credit to three great dissenters, Justice Fazl Ali, Justice Subba Rao and Justice Khanna for creating and maintaining the tradition of judicial dissents in India. In the recent past too, we have witnessed dissents in two government decisions relating to Aadhaar and Demonetization. In both cases, one of the five judges delivered a dissenting note.
The latest one is the five-judge Constitution bench of the Supreme Court which delivered its verdict on 2nd January 2023. The honorable court upheld the decision of the Central government taken in 2016 to demonetize the currency notes of Rs 500 and Rs 1,000 denominations. There was one voice of dissent. The youngest of the five judges, Justice B V Nagarathna wrote a dissenting judgment. She said, “demonetization was an exercise of power, contrary to law, and therefore unlawful”, She said that though demonetization was in the best interest of the people, it had to be done through a legislation and not through a gazette notification as the Parliament cannot be left aloof in a matter of such critical importance. It seems for Justice Nagarathna, it is not enough just to have good intentions, even the process of achieving such good intentions should be legitimate.
A similar high-profile dissent was that of justice Chandrachud in the year 2018. Four judges of the panel had upheld the Aadhaar Act as constitutionally valid. However, Justice Chandrachud delivered a powerful and philosophical dissent. He said “Constitutional guarantees cannot be compromised by vicissitudes of technology”. Like Justice Nagarathna, Justice Chandrachud also held the purpose of the Aadhaar Act to be legitimate, but he differed from the majority opinion by saying “the passing Aadhaar Act as money bill is a fraud on the constitution”.
These two dissents convey a message that even today there are judges who raise their voice, give their own views and not just follow the majority. But unfortunately, such dissents are not very common in India. According to one of the well-researched books, “Supreme Whispers” by Abhinav Chandrachud, despite the rivalries among the judges, there is a lack of dissent in the day-to-day decision making of the court. According to the author, around 70% of the cases in the US Supreme Court recorded dissents and more than 25% of the cases in the UK, Australia, and Canada recorded dissents. Whereas such dissents were recorded in less than 10% of the cases in India. Should India go the US way: encouraging dissents? The answer, of course, is not an unconditional yes. Dissent has both merits and demerits.
Dissent is the manifestation of the right to freedom of speech and expression. The practice of dissent is an important part of democracy. Democracy dies with the death of dissent. Judges too use this right and write their own dissenting opinions, if they feel that the majority is failing to understand the spirit of the case. Often it has been found that dissent improve the quality of judgement too as both sides need to explain the rationale of their judgement more clearly and strongly. Dissent reveals flaws in the majority’s judgement and therefore works as a corrective for future judgements. As dissents are published along with the majority judgement, it sends a positive signal to the society at large about the process of judgement. It is an important pillar of democracy.
Though judicial dissent has no force of law, it has the power and potential to create new laws. Dissents also explain the case facts with opposite legal principles which may be useful in the long run. The followers of law see a ray of hope of change in every word of a dissent. Today’s dissent may be tomorrow’s law. No wonder that the famous statement of Justice Cardozo of the US Supreme Court (1925), the dissenters speak to the future, is still relevant.
Concerted efforts are needed to strengthen this pillar of democracy. We need to work in that direction. We must talk openly about the dissents and eulogize the dissenters. Let us create opportunities for young professionals to talk to the dissenters and understand the spirit of the dissents too. Dissent should not be confined to the courtrooms, classrooms, board rooms or office rooms. We should develop the ability to see dissent in the larger perspective of life as enunciated by justice Thurgood Marshall while accepting the prestigious Liberty Award (1992): “we cannot play ostrich. We must dissent from the indifference, the apathy, the fear, the hatred, and the mistrust”.
D V Ramana