Comment

The algebra of dissent

Over the past few days in the Supreme Court we have seen some remarkable dissents: Justices Indu Malhotra in Sabarimala, D.Y. Chandrachud in the Activists case and Aadhaar, S. Abdul Nazeer in the Babri reference. Applying the logic of arithmetic, the majority won, the dissenters lost. The media and populist trains soon left the platform. But applying algebra will provide many more insights into both the concurring and dissenting judgments.

Reading a judgment

Some concurring judgments (for example, those of Justice Ashok Bhushan in the AAP v. Delhi LG case and Live Broadcasting case (Swapnil Tripathi v. Supreme Court) tend to repeat the majority, but most judgments, on either side, redeem themselves in some way or the other. Of course, we have to read them, sometimes with difficulty. The Basic Structure judgments (Kesavananda, 1973) were huge. The Aadhaar judgments offer competition. Our judges should write shorter and more pointed judgments.

Of course, in my view, at least two Chief Justices did not write their own judgments. One Chief Justice of India simply repeated arguments of the counsel for most of the judgment and then gave his reasoning in cursory paragraphs. Judgments have to be written with application of mind and reasoning. This is what I call both processual (to listen with care) and value (appreciate and reason with rigour) accountability. It is on this basis that the judiciary has a hallowed place in our democratic Constitution as a custodian of the rule of law and justice.

A history of dissent

In A.K. Gopalan v. State of Madras (1950), Justice Fazl Ali dissented, denying that ‘procedure established by law’ in the life and liberty provisions meant just any ‘law’, not due process. He ruled that fundamental rights cannot be put in isolated compartments but must be seen as a whole. Years later, it is Justice Ali’s view that prevails today. In State of Bombay v. Atma Ram (1951), Justices M. Patanjali Sastri and Sudhi Ranjan Das dissented but abandoned their dissent. Justice K. Subba Rao’s dissents in various cases were exemplary in many areas of law. But he sustained his dissents to convert them into law. It was his majority view in Golaknath (1967) that eventually paved the way for the Basic Structure or Kesavananda case (1973) on the misuse of power. H.M. Seervai said that it was Justice J.L. Kapur’s dissent in the K.M. Nanavati case on the Governor’s pardoning power which caused him to write his magnum opus on the Constitution. Justice A.K. Sarkar was a great dissenter, indeed also Justice S.N. Sinha, but in most trajectories to no avail. Between 1950 and 1970, I have counted 243 two-judgment dissents in addition to 63 multi-judgment dissents, with percentages varying for each year. The very fact that they are dissents justifies the petition in the Activists (Romila Thapar v. Union of India) case.

Chief Justice Dipak Misra invariably wrote the lead judgment in most of the legally cataclysmic judgments in the past few days. He wanted to be the lead voice with his penchant for self-expression in English inspiring him. But in three matters he did not write a judgment. In the reservations case (M. Nagaraj) he had to carry Justices Kurian Joseph and Rohinton Nariman – the latter wrote the judgment. This was court management. But in two cases, he became the swing vote. In the Activists case, he subscribed to Justice A.M. Khanwilkar’s majority judgment. Media reports that Justice Khanwilkar was not slated to write a judgment are really irrelevant. A swing vote without judgment can be strong or evasive. We will never know and can only hazard an unintelligent, and much too speculative, guess, without insulting anyone.

Justice M. Hidayatullah could have hidden behind two judgments on acquisition and detention because he had genuinely made a mistake. It is a tribute to his candour that he added a short opinion to say that he had made a mistake to change his view. This was commendable.

What happens after dissent?

Judges who make significant dissents should not give up their stance unless they are convinced that they were wrong. The fact that arithmetic stands in their way in the future is not enough. Justice P.N. Bhagwati was of the view that High Court judges should not be transferred without consent. He sustained his dissent. We know that these transfers are often punitive or because of a spurious policy that arbitrary transfers are necessary for national integration. Arithmetic has prevented re-examination of this view.

In the Basic Structure (Kesavananda) case, four dissenters (A.N. Ray, M.H. Beg, S.N. Dwivedi, Y.V. Chandrachud) eventually agreed with the basic structure doctrine. Was this because they gave up or that they were converted to the new view? If it is a change of heart and mind, and blessed are those who are courageous enough, in such cases judges should frankly say so with a ‘Hidayatullah candour’ to help people understand.

Is politics involved?

There is judicial politics about majorities, concurring and dissenting views. It shows richness of discourse. But sometimes there is an allegation that some judges take partisan political views. The then Law Minister Mohan Kumaramangalam’s view of having committed judges is saddled with the suspicion that ‘commitment’ in Indira Gandhi’s context was not due to a constitutionally sustained ideology but commitment to the regime.

To adapt Justice K. Jagannatha Shetty’s words: “All judges are not expected to sing the same song.” (In America, we can identify political judges who support regime politics. For instance, Justice Brett Kavanaugh is regime-committed. Before retiring, Justice Sandra Day O’Connor became a perceptive swing vote. Fali Nariman’s phrase, “God help the Supreme Court,” certainly applies to the American Supreme Court now.)

During the hearing in some cases, it was “tolerably clear” (a loaded phrase I owe to Upendra Baxi) which way the two sides may divide. That judges may disclose themselves during hearing is not a bad thing as long as their mind is open till the end of the hearing. Some judges don’t do so. But while we cannot but accept these judgments, this should not mean respectful disagreements cannot be made.

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. What is disturbing is the reaction to some dissents, especially to Justice Indu Malhotra’s plausible dissent in Sabarimala. We must honour bona fide dissents which may rewrite the past for the future.

Rajeev Dhavan is a senior advocate of the Supreme Court

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Printable version | Feb 26, 2021 3:34:59 PM | https://www.thehindu.com/opinion/op-ed/the-algebra-of-dissent/article25099292.ece

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