THE CONTEXT: Judicial dissent in India and the US, highlighting how SCOTUS dissents are primarily influenced by political appointments (exemplified by Justices Breyer and Alito’s dissents in 2015), while Indian SC dissents span three categories: political (ADM Jabalpur 1976, PV Narasimha Rao 1998), social (Shayara Bano 2017, Aishat Shifa 2022), and intellectual (Justice Nagarathna’s dissent in Lalta Prasad Vaish 2024).
THE BACKGROUND: The key distinction lies in the appointment process – US judges being presidential appointees confirmed by Senate, while Indian judges are selected through a collegium system – leading to different patterns of dissent, with Indian dissents showing broader diversity in reasoning and not necessarily aligning with the ruling party’s views.
JUDICIAL DISSENT IN THE UNITED STATES SUPREME COURT (SCOTUS):
Political Nature of Dissents: Judicial dissents in SCOTUS are often shaped by the political leanings of justices, reflecting the ideological divide between liberal and conservative blocs. This stems from the appointment process, where justices are nominated by the President and confirmed by the Senate, often aligning with the political ideology of the appointing administration.
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Justice Stephen Breyer’s Dissent in Glossip v. Gross (2015): Breyer, a Democratic appointee, argued against the death penalty, citing violations of the Eighth Amendment due to its “unreliability,” “arbitrariness,” and “delays” that undermine its penological purpose. |
Justice Samuel Alito’s Dissent in Obergefell v. Hodges (2015): Alito, a Republican appointee, opposed same-sex marriage rights, arguing that the Constitution does not explicitly grant such rights and that decisions on marriage should be left to state legislatures. |
JUDICIAL DISSENT IN THE INDIAN SUPREME COURT (SC):
Diverse Nature of Dissents: Indian judicial dissents are broader in scope, encompassing political, social, and intellectual disagreements. Unlike SCOTUS, these dissents are less influenced by political ideology due to an independent appointment process. Judges in India are appointed through a collegium comprising senior judges of the Supreme Court. This system ensures insulation from direct political influence but has been criticized for its lack of transparency.
POLITICAL DISSENT:
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- ADM Jabalpur v. Shivkant Shukla (1976): Justice H.R. Khanna dissented against the majority’s endorsement of emergency powers that suspended fundamental rights, emphasizing the sanctity of Article 21 (right to life and liberty).
- P.V. Narasimha Rao Case (1998): Justices S.C. Agarwal and A.S. Anand dissented on parliamentary privilege regarding bribery immunity—a view later upheld in Sita Soren v. Union of India (2023).
SOCIAL DISSENT:
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- Shayara Bano v. Union of India (2017): Justices Khehar and Nazeer dissented against striking down triple talaq, arguing it was integral to Sunni personal law and beyond judicial purview.
- Aishat Shifa Case (2022): Divergent opinions on whether hijab bans in schools violated secularism highlighted differing interpretations of constitutional values like diversity and tolerance.
INTELLECTUAL DISSENT:
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- Lalta Prasad Vaish Case (2024): Justice B.V. Nagarathna dissented on whether states could tax industrial alcohol, interpreting “intoxicating liquor” under Entry 8 of List II as excluding industrial alcohol used for manufacturing purposes.
CHALLENGES ASSOCIATED WITH JUDICIAL DISSENT:
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- Risk of Retaliation: Judges who dissent against the majority opinion may face career setbacks or professional isolation. Justice H.R. Khanna’s dissent in ADM Jabalpur v. Shivkant Shukla (1976), where he upheld the sanctity of Article 21 (right to life and liberty) during the Emergency, led to his supersession for the position of Chief Justice of India.
- Public Perception Issues: Dissenting opinions in politically or socially sensitive cases may be misinterpreted as reflecting personal biases or ideological leanings rather than legal reasoning. Frequent dissents may create a perception of disunity within the judiciary, potentially undermining its authority and credibility.
- Underutilization in India: The Indian judiciary has a cultural tendency to prioritize consensus over dissent, which limits the frequency of dissenting opinions. Between 1993 and 2016, only 16% of judgments by Constitution Benches in India contained dissenting opinions.
- Institutional Factors: The collegium system emphasizes seniority and conformity, discouraging junior judges from dissenting against senior colleagues. No Chief Justice of India has ever authored a dissenting opinion while serving on a bench.
- Administrative Influence by Chief Justice: The Chief Justice’s administrative powers over bench formation can influence the likelihood of dissent by constituting benches with like-minded judges. The judiciary’s backlog of cases discourages prolonged deliberations that may lead to dissenting opinions.
CONSTITUTIONAL PROVISIONS
Article 19(1)(a): Protects freedom of speech and expression, including judicial expressions through dissent.
Article 50: Ensures separation of powers between judiciary and executive to safeguard judicial independence.
IMPORTANCE OF JUDICIAL DISSENT:
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- Safeguarding Democracy: Dissent ensures that judicial decisions are not monolithic but reflect a plurality of views, which is essential in a diverse democracy like India. Judicial dissent acts as a safeguard against the tyranny of the majority by upholding the rule of law over populist tendencies. Dissent reinforces judicial independence by allowing judges to express their conscience without succumbing to artificial unanimity or political pressures.
- Shaping Future Jurisprudence: Dissenting opinions often serve as a precursor to future legal developments by challenging prevailing interpretations and advocating progressive changes. Dissent ensures that constitutional interpretation remains dynamic and reflective of changing societal values. By presenting alternative viewpoints, dissent enriches legal discourse and compels the majority to strengthen their reasoning.
- Encouraging Deliberative Democracy: Dissent promotes judicial transparency by revealing the reasoning behind differing opinions, enabling public scrutiny and trust in judicial processes. While promoting institutional coherence, dissent also provides judges with “mental independence” to articulate alternative perspectives without undermining collegiality.
- Protecting Civil Rights: Dissent often becomes a voice for protecting civil liberties and minority rights against potential misuse of state power. Justice Chandrachud’s dissent in K.S. Puttaswamy v. Union of India (2018) on Aadhaar raised concerns about privacy violations and exclusionary practices affecting vulnerable populations.
- Enhancing Judicial Accountability: Dissent ensures that judicial reasoning is subjected to internal checks, holding majority opinions accountable for potential flaws or biases. The presence of dissent pushes judges to draft more precise and well-reasoned judgments, improving overall judicial performance.
THE CONCLUSION:
As India progresses as a constitutional democracy, strengthening mechanisms to encourage meaningful judicial dissent will be critical for upholding rule of law and protecting fundamental rights.
UPSC PAST YEAR QUESTION:
Q. Constitutionally guaranteed judicial independence is a prerequisite of democracy. Comment. 2023
MAINS PRACTICE QUESTION:
Q. Critically evaluate the collegium system of judicial appointments in India with respect to its influence on fostering or discouraging judicial dissent.
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