DECLINING DISSENT IN JUDGEMENTS: A SIGN OF DEAFENING SILENCE?


HARINIE.S

Keywords:  Dissent, Landmark judgements, Constitutional Bench, Collegium System, people’s attitude, administrative barriers.

The Supreme Court of India being the apex court, has delivered a lot of landmark judgements that have changed the methods of interpretation of statutes and principles. Many of the judgements have restored faith in the minds of people by showing that the Supreme Court has efficiently been performing its function of delivering just

 Every judge sitting in the bench have different views based on their interpretation of statutes along with the social conditions. Sometimes, it could mean reaching at the same conclusion through different interpretations or it could also result in a different conclusion. A dissenting judgement is the one given by the minority in a bench. This opinion is called a dissenting opinion because it lies in contradiction the opinion given by the majority More often, the dissenting judgement becomes the topic of discussion. It is not only seen as one that is opposed to the majority opinion but also as an opinion that gives a different overview of the way in which a provision or statute can be interpreted. Kenji Yoshina quotes in his book, “Thus, when we write history, we often treat dissenters who were condemned in their own time as heroes who bravely confronted power and changed history”[i]

TRENDS IN DISSENTING JUDGEMENTS.

The number of cases in which dissenting judgements were given were high compared to any other period in the period following the establishment of the Supreme Court. It gradually fell between the 1970’s and 1980’s. One of the famous cases often quoted for its dissenting judgement is the ADM Jabalpur case[ii] in which Justice HJ Khanna lost his chance of being the Chief Justice because of his dissenting judgement against the Government in power. He quoted “The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.”[iii].  The logic behind his judgement was brought into effect through the 44th Amendment Act. Subsequently, in the right to privacy case, DY Chandrachud, whose father was a judge in the bench in ADM Jabalpur case, accepted that the decision was flawed

Dissenting judgement makes sure that there are two sides to a coin. They not only form a part of the debates and discussion, but in many cases eventually become a law.  In the “Justice KS Puttaswamy (Retd.) vs Union of India”[iv] case, Justice Rohinton discussed the “three great dissents” which included the habeas corpus case, Kharak Singh vs State of UP and AK Gopalan vs State of Madras[v], all of which were incorporated in subsequent constitutional amendments or laws.

In the past decade, the Supreme Court of India has passed various landmark judgement which include dissenting opinion. Justice Indu Malhotra gave the dissenting judgement in the Sabrimala case (4:1). This was a topic of debate across the country as the judgement put women’s right and religious practices on different footing. The judgement was supported with a very strong logic thereby giving a deeper understanding of the Fundamental Rights under the Constitution.

REASONS FOR THE DECLINE IN THE DISSENTING JUDGEMENTS

 But, the number of dissenting judgements has been on a constant fall after the 1970’s. An article published in the economic and political weekly in the year 2011 interpreted the constitutional benches of the Supreme Court in India. This article had studied the pattern of the number of dissenting judgements and had concluded that the Chief Justice in a constitutional bench had given a dissenting judgement only ten times since the establishment of the court.[vi] This study only focused only on the trend in a Constitutional Bench. Yet, another study which used the above data for analysis, concluded that the size of the bench is a major factor in the change in dissent rates. This study concluded that the there is a positive relation between the size of the bench and the dissenting rates.[vii].  It also stated that, a reason for a decline in dissenting judgment could be with respect to appointment of benches and seniority according to the collegium system. Both these factors not only influence the position in which a judge is going to be appointed in but also his decision accordingly.

Apart from this, though the judiciary is an independent body, it is true to suggest that the executive authority does have some mandate over a few decisions. This mandate need not be direct but could be in the form of pressure. People’s reaction to the dissent judgement is also a reason for a decline in dissenting opinion. Judges are sceptical to put forth their logic because of various theories and rumours formed around the reason for giving a dissenting judgement. Dissents given in constitutional cases play a very important role in the country. The attitude of the people toward the judgement influences the judge’s mindset and thereby the judicial behavior. The number of judgements which have political and strong social relations are on rise every day. The outcome of a judgement being that of a dissenting opinion, is highly influenced by a group of sensitive people who sometimes resort to violence as a criticism against the judgement. Lee Epstein in his paper, Why (and when) judges dissent, on similar lines, has stated that judges do not dissent unless they foresee a benefit coming out a dissent as it involves “cost”.[viii]  This paper also goes on with an empirical analysis to explain the economic model of reduction in dissent.

CONCLUSION

The press conference which was headed by the four senior most judges of the Supreme Court has clearly brought into limelight the fact that, the decline in dissenting judgements could be a result of them being silenced due to political or personal gains .But all of these reasons only create a disadvantage rather than creating a community for healthy discussion.  There are clear administrative and social barriers that have brought down the dissent rates. Simplifying the institutional framework can restore the falling these rates because changing people’s attitude is a challenging task. Dissenting judgements also have a future insight of political, social, and economic conditions in a country. Dissenting judgements are not only the opinion of the minority but also the laws of the future.

ENDNOTES


[i] Austin Sarat, Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens (2012).

[ii]  ADM JABALPUR VS SHIVKANT SHUKLA 1976 (2) SCC 521

[iii] Ibid

[iv] KS PUTTASWAMY (RETD.) VS UNION OF INDIA (2017) 10 SCC 1

[v] KHARAK SINGH VS STATE OF UP 1964 SCR (1) 334, AK GOPALAN VS STATE OF MADRAS AIR 1950 SC 27

[vi] NICK ROBINSON et al., Interpreting the Constitution: Supreme Court Constitution Benches since Independence, 46 Economic and Political Weekly 27–31 (2011).

  [vii] Krithika Ashok, Disinclined to dissent? A study of the Supreme Court of India, 1 Indian Law Review 7–35 (2017).

[viii] Lee Epstein, William M Landes & Richard A Posner, WHY (AND WHEN) JUDGES DISSENT: 37.

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