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Why dissent matters in a democracy

Retired SC judge Rohinton F. Nariman’s two-volume study looks at a crucial aspect of law at a time when dissent in the apex court is on the decline

Since the Supreme Court serves both as a constitutional court and a court of appeal, its decisions have possibly impacted every sphere of citizens’ lives.
Since the Supreme Court serves both as a constitutional court and a court of appeal, its decisions have possibly impacted every sphere of citizens’ lives. (Mint)

In his two-volume study, Discordant Notes: The Voice Of Dissent In The Last Court Of Resort, a retired Supreme Court judge, Justice Rohinton F. Nariman, explores dissent and dissenters between 1950-2020 in one of the country’s most important institutions—the Supreme Court of India.

It has often been called the world’s most powerful Supreme Court (SC). While the US court decides 70-80 matters each year, the apex court here has been disposing of more than 40,000 cases every year in the past decade. Since it serves both as a constitutional court (deciding cases based on the Constitution) and a court of appeal (hearing matters appealed from the lower courts), its role cannot be over-emphasised. Its decisions have possibly impacted all spheres of the lives of citizens.

Discordant Notes takes us on a ride of how the SC has shaped law and policy in independent India, from constitutional to commercial and administrative law. It tells the story through people and ideas that weren’t accepted at the time—namely, judges who delivered judgements that differed from the majority of the judicial bench. Even if a judge arrives at the same conclusion as the majority but uses a different logic, that too would be counted as a dissent, writes Justice Nariman. Though a dissenting judgement doesn’t have binding value, it is still “an appeal to the brooding spirit of the law, to the intelligence of a future day…”, and thus important.

Also Read: How Arundhati Roy chose the dangerous life of a dissenter

Justice Nariman has been a wunderkind of the legal world. His memory, intelligence, knowledge and impatience are so well-known they often feel like folklore. When he was 12, he had to memorise the equivalent of the Rig Veda to become a Parsi priest. At 36, he was designated “senior” by the SC. The rules, which prescribed a minimum age of 45, had to be amended for him. Made the solicitor general, he resigned a few months later owing to differences with the then law minister. He has never kept any juniors, in a departure from the usual practice of lawyers.

In her book Legal Eagles, legal reporter Indu Bhan describes Justice Nariman as an “idealist and a disciplinarian”. When he retired this August, paeans were written about him. Undoubtedly, Justice Nariman has left a vast legacy, be it in his judgement in the triple talaq case—holding the practice to be unconstitutional and developing the doctrine of “manifest arbitrariness” to strike down a law; or his judgement in the Shreya Singhal case, holding unconstitutional a section of the IT Act which gave the police discretionary powers to make arrests for online posts; or making the newly passed Insolvency and Bankruptcy Code functional through his judgements.

While Justice Nariman has given dissents in important matters, like rejecting the review of the Sabarimala case, it would be amiss to review this book and not talk about cases where his dissent would have been crucial.

The first volume talks about the great dissents, while the second focuses on the dissenters. Discussing the philosophy behind dissent, Justice Nariman argues that it has come about through cultivated practice. There have been attempts to stifle it so that the court speaks in one voice and the law has finality and stability.

Apprehensive about enemy attack during the world wars, the US and UK had laws that effectively allowed for arrest without any reason. While the majority judgements in these cases paid heed to the state owing to “emergency” and “war”, there were dissenting judges in almost every case who held that laws cannot be made differently for war-time and peace-time. These dissents were later accepted by the majority in these countries.

Drawing on these cases, Justice Nariman leads us to how they helped the crown jewel of Indian dissent—the case known as ADM Jabalpur (1976), where four judges held that fundamental rights could be suspended by the State during Emergency. But one judge, Justice H.R. Khanna, said Emergency did not give the legislature the power to take away the right to life enshrined in the Constitution. Delivered at the height of the Emergency (1975-77), this is one of the most celebrated dissents in the world, one which also cost Justice Khanna his chief justiceship and led to his resignation. While the legislature passed an amendment two years after the Emergency ended to negate the effect of the judgement, the SC finally overturned it only in 2017 in the right to privacy case.

The first volume then explores dissents that upheld previous judgements only because they did not want to create instability in the law; dissents that went on to become law; and those that have not yet, such as Justice P.N. Bhagwati’s dissent holding the death penalty to be unconstitutional. There are interesting snippets as well, such as the observation that six of the seven judges who upheld a cow slaughter ban were vegetarians.

The second volume deals with dissents by a select few judges, whom Justice Nariman calls the four horsemen of the apocalypse. These are Justices Fazl Ali, Vivian Bose, Subba Rao and Hidayatullah, judges in the 1950s-80s. If Fazl Ali’s dissents in the initial periods proved prophetic, and some were upheld later, Vivian Bose was a renaissance man whose judgements could be cited for the beauty of their language. Some recent dissents find mention too—such as Justice D.Y. Chandrachud holding Aadhaar to be unconstitutional or Justice Indu Malhotra upholding the ban on women of menstruating age entering the Sabarimala temple.

The books make you realise that the quest for rights and justice is an ongoing process and the Constitution a living, breathing document. Sometimes it takes decades for a thought to be accepted in the mainstream. The status of our fundamental rights, the basic structure doctrine (referring to aspects of the Constitution even Parliament can’t amend), the right to privacy, all have come through a constant re-reading of the Constitution.

There’s no doubt that the books are great works of scholarship; however, the form in which they are presented make it a difficult read. All the chapters come with a list of cases with relevant quotes, interspersed with commentary from Justice Nariman. These are meant mainly for lawyers, who will also have to do some background reading to fully grasp what is being talked about. Non-lawyers would not find the language and concepts too accessible but if they persist, it would definitely sharpen their understanding of the law and give them a better picture of the SC’s role in all spheres—be it constitutional, commercial, civil or criminal law.

Discordant Notes comes at an interesting time, when dissent in the SC is on the decline and dissent outside it can be considered “anti-national”. Justice Nariman attributes the fall in the number of SC dissents to the increased workload. The court’s disposal rate has also declined each year between 2014-18. Scholars have written about how the SC has recently given a free pass to the State and been unusually cordial. The judgements in the Ram Janmabhoomi case in 2019 and the Prashant Bhushan sedition case in 2020 did not name the authors; not only does this flout the norms of transparency, it had also not been the practice of the SC.

Also Read: Three cheers for high courts

While Justice Nariman has given dissents in important matters, like rejecting the review of the Sabarimala case, it would be amiss to review this book and not talk about cases where his dissent would have been crucial. For Justice Nariman was part of two cases that have arguably been the biggest blot on the SC in recent years. From 2014, he, along with Justice Ranjan Gogoi, oversaw the preparation of the National Register of Citizens in Assam over five long years, at tremendous human cost. We are seeing the effects of the judgement till today.

The second instance was the case involving a sexual harassment complaint against then Chief Justice Gogoi, which became a case about the independence of the judiciary. In this case, the complainant wasn’t given a lawyer, due process was not followed, all information was exchanged in sealed covers. No information has surfaced to date, except that the complainant has been reinstated at her job and was recently found to be on a list of people who were possibly spied on through military-grade surveillance software.

These two instances make one consider Justice Nariman’s legacy. For they can’t be brushed under the carpet as stray exceptions, given the magnitude of their impact.

Currently, many crucial cases are pending before the apex court—such as those related to electoral bonds, the status of Kashmir, the Citizenship (Amendment) Act, Pegasus, EWS (economically weaker section) quota. While it’s ideal to have judgements that favour the public, not the State, it will be nice to have at least some judges who aren’t afraid to strike a “discordant note”.

Umang Poddar is a lawyer by training and a writer. He is on Twitter @UmangPod

Also Read: Prashant Bhushan case, free speech, ‘hate speech' and the right to dissent

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