Dissenting Opinions: Road to Reform and Evolution of Law

Author – Naman Sinha, Pendekanti Law College

“A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.”

-Charles Evans Hughes

A dissenting opinions are opinions in the court of law digressed from the binding majority opinion and these dissenting opinions are penned by minority of judges and are found after the majority opinion(s). Dissenting opinions do not become a part of a case law but they can be cited as a persuasive authority to challenge the court’s reasoning. There have been instances where dissenting judgments from the past were declared as correct law in the future with dissents of Justice H.R. Khanna being more admired for his proclivity for supporting citizen’s liberty.

Dissenting Opinion in British Rule

Judicial Committee of the Privy Council (JCPC) was at the highest court of appeal for various British Colonies including India from 1726 until 1949 so it was the final resort after exhausting rights in the Federal Court of India, which was established in 1937. JCPC had a quorum of 4 and later in 1908, a provision was made for the appointment of 2 Indian High Court judges.^[1] JCPC directly advised the monarch on all cases and the decision of the JCPC shall always be unanimous as the king couldn’t be advised to choose between differing opinions of the judges so until the JCPC was at the highest rung of the Indian judicial system, the concept of a dissenting was alien to Indian judgments. For example, on a question of Hindu law, there was a difference of opinion between his Lordship M.R. Jayakar (an Indian Federal Court judge who was subsequently appointed a judge of the judicial committee of the JCPC) and three other English judges, in which his Lordship M.R. Jayakar had to pen down a reluctant unanimous judgement of his and three other English judges which he did not believe in.^[2]

Dissenting Opinion in Independent India

The Supreme Court (SC) of India came into being on 28th January 1950 replacing the Federal Court and the JCPC as the highest and final court in Indian Judicial system and Article 145 (5)^[3] of constitution of India read “no judgment and no such opinion shall be delivered by the SC save with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.” The provision provided the judges to pen down individual and dissenting opinions of a judgement.

India being a common law country follows “seriatim” system of deliveringjudgements where all the members of a bench puts forth their reasoning and application of law behind the arrival at his judgement clearly identifying themselves with such reasoning and opinion and this is believed to provides in-depth reasoning and different views on the issues by individual judges although the court is not bound to follow the seriatim system.^[4]

Great Dissents Which Redefined Law

A.K. Gopalan V. The State of Madras 1950.^[5]

A.K. Gopalan, a communist leader, was detained by the government under the Preventive Detention Act, 1950 for being a “threat to the sovereignty, security, unity and integrity of India”. A.K. Gopalan filed a writ of habeas corpus under Article 32 for his release from detention on the ground that the said act contravened Articles 13, 19, 21 and 22 of the Constitution and as a corollary ultra vires of the constitution and therefore his detention was illegal.^[6] The SC held that each of those Articles covered entirely different subject matters were to be read as separate silos rather than being read together and took a very narrow view reasoning that the petitioner was detained lawfully under Preventive Detention Act, 1950 which was a “procedure established by law” by the competent legislature as required under Article 21,^[7] which reads “no person shall be deprived of his life or personal liberty except according to procedure established by law.”

Visibly, the said act was contravening life and personal liberty guaranteed by Article 21 of the constitution and it was one of the first cases where the SC was called upon to interpret the fundamental rights and in this case, the SC adopted a textualist or literal approach focusing just on the plain meaning of the words refusing to check the reasonableness of the enacted law and rejecting the due process of law followed by the United States. ^[8]

Justice Fazl Ali in his dissenting judgement adopted the view that the fundamental rights must be viewed together as they protect a common thread of liberty and freedom, he held that the term “personal liberty” guaranteed under Article 21 must be interpreted in a wider sense and if we view it with this lens, the detention of Gopalan not only violated personal liberty but also violated Article 19(1)(d), which guarantees freedom of movement and also sweeps away or affects almost all the rights guaranteed under Article 19(1).^[9]

Article 19 (1)is divided into seven sub-clauses and runs as follows:-

All citizens shall have the right-

(a) to freedom of speech and expression;

(b)to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation, trade or business.

Justice Fazl Ali further reasoned that the Preventive Detention Act, 1950^[10] deprives the citizens of their fundamental rights and is subject to judicial review as the law imposes unreasonable restrictions and the legislature has trusted the SC to examine whether an act which infringes upon a right is within limits of reason i.e. are they unreasonable or arbitrary and that it should conform to the principles of due process law and right to life guaranteed under Article 21. But Justice Fazl Ali’s dissenting opinion was adopted in the case of Maneka Gandhi v. Union of India.

Maneka Gandhi V. Union Of India ^[11]

The petitioner in this case was Maneka Gandhi, a well-known journalist and she was not permitted to travel abroad by the government for the “interest of the general public” and when she requested the authorities for detailed reasons of her denial of permit, the government denied reasoning. So, the petitioner approached the SC under Article 32^[12] contending that the order denying her travel is void as it took away her right to be given a fair hearing to present her defence (one of the natural justice principle) and are violative of the cherished rights guaranteed under Articles 14, 21,19(1)(a) and 19(1)(g).^[13]

This case brought into question the judgemnet of A.K. Gopalan v. State Of Madras^[14] and the bone of contention was the phrase “procedure established by law” on the point that can such procedure be unreasonable or arbitrary or whether it should be just, fair and reasonable. The SC in this case expanded the scope of Article 21 and paved the way for the further widening of its scope in the future and the majority ruling in the A.K. Gopalan case was overruled the majority judgment in A.K. Gopalan and adopted the dissenting judgement of Justice Fazl Ali. The court further adopted his view of harmonious construction and that fundamental rights are not single thread but are mutually codependent and held that there was no difference between the words “procedure established by law” and “due process of law.”

The work of the judges in the said cases can be understood from the words of Professor Roger Perrot:

“A judge has the immense power to transform a readymade garment (legislated law) into a tailor-made suit at the price of alterations that may be considerable and sometimes rather unexpected. From this, it has often been deduced that the judicial authority is thus able to perform a work of rejuvenation”

Importance of Dissenting Judgement in India

Dissent is a symbol of a vibrant democracy, it strengthens the value of free speech and expression and provides the dissenter with an opportunity to express and believe in a view that does conform with the majority.

Dissent displays the autonomy of judges in the judiciary and shows that political winds might not affect the judges. In ADM Jabalpur V. SS Shukla,^[15] Justice H.R. Khanna gave a dissenting opinion which resulted in him getting snubbed for the post of Chief Justice of India because the judgment went against the government’s position on the issue^[16] and this is a testament to the fact that judges aren’t affected by the pressures of the political class.

Dissenting opinion brings quality in the judgement with its wide array of opinions. It strengthens our constitutional values and empowers the judicial system to show the autonomy and capability of the judiciary.

Although dissenting opinions have no role to play in the outcome of a judgement but they can get recognized by the legislature or adopted by subsequent benches.

Maneck Spinning V. Textile Labour^[17]

In this case, the dissenting opinion of Justice Subba Rao laid the foundation of the Payment of Bonus Act, 1965,^[18] which was based on the line of argument that minimum bonus irrespective of profit or loss of employer should be paid also gained acceptance.

ADM Jabalpur V. Shivkanth Shukla ^[19]

In this case popularly known as the habeas corpus case, Justice H R Khanna delivered his famous dissenting opinion which argued that Article 21^[20] is not the sole repository of the right to life and personal liberty and that such a right cannot be taken away under any circumstances without the authority of the law in a society governed by the rule of law. This minority opinion by Justice H.R. Khanna was upheld in 2017 by the SC in K.S. Puttaswamy V. UOI^[21], overruling the decision of ADM Jabalpur. Justice D.Y. Chandrachud (writing with 3 other judges- Justice J.S. Khehar, Justice R.K. Agarwal, and Justice S. Abdul Nazeer) held that the ADM Jabalpur case was flawed and Justice Nariman and Justice Kaul also categorically overruled the decision in ADM Jabalpur. The majority, in almost echoing J. Khanna, observed:

“No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right.”

Conclusion

We are living freely today without any fear of oppression, be it from the colonial rule of the British or ourselves because of our forefathers who dissented against them. This freedom came at a lot of sacrifices of life and limb and the judges who dissented also had to sacrifice a lot for their stand without even knowing if it would one day become law. In the case of ADM Jabalpur v. SS Shukla, Justice H.R. Khanna lost the position of Chief Justice of India. He had his apprehensions that his decision may cost him the office of the Chief Justice of India but he didn’t bend down to the political pressure and fought to the best of his abilities by writing a dissenting judgement. It was the darkest time of the judiciary when the lives or liberty of any citizen, especially the dissenters could be taken away by the authority of law. The minority judgement of Justice H.R. Khanna was upheld after 41 years and 9 months after his death.

Dissenting judgements paved the way for expansion of the rights of individuals against the state, enlargement of their scope and preservation of the fundamental and constitutional right to life.

^[1] Priya S. Dhanokar, Privy Council, http://www.legalservicesindia.com/article/949/Privy-Council.html.

^[2] P.B. Gajendragadkar, To The Best of My Memory, 132, (1st ed., 2014).

^{^[3]} India Const. art. 145, cl. 5.

^{^[4]} Thomas B. Bennett et al., Divide & Concur: Separate Opinions & Legal

Change, 103 Cornell L. Rev. 827 (2018), https://scholarship.law.cornell.edu/clr/vol103/iss4/1.

^[5] A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (India).

^[6] India Const. art. 32, cl. 2.

^[7]India Const. art. 21.

^[8] Namrata Singhal, Interrelation between ‘Procedure Established by Law’ and ‘Due Process of Law’,https://blog.ipleaders.in/interrelation-procedure-established-by-law-due-process-of-law/.

^[9] India Const. art. 19, cl. 1.

^[10] Preventive Detention Act, 1950 (Act No. 4 of 1950)

^[11] Maneka Gandhu v. Union of India, 1978 AIR 597, 1978 SCR (2) 621