Did Vice Prez ‘err’ in citing a dissenting judge in his order?

Vice President M Venkaiah Naidu recently passed a 10-page order rejecting the notice of motion moved by 64 members of Rajya Sabha seeking removal of Justice Dipak Misra from the office of the Chief Justice.

In his ‘detailed’ order, Naidu claimed to have consulted several legal luminaries, constitutional experts and eminent jurists. However, if advocate KV Dhananjay of the Supreme Court is to be believed, it seems Naidu’s team did not do its ‘homework.’

This can be said so as Naidu has referred to a part of the judgement dated August 27, 1992, of the Supreme Court, in his order, which is a dissenting judgement – an unusual practice in the legal domain, where the majority view is generally cited.

The order of August 1992 was delivered by a Constitution bench of five judges. The part of the judgement referred to by Naidu in his order was penned by a single judge, who had disagreed with the majority view.

Pointing to the ‘error’ in Naidu’s order, advocate Dhananjay, in a social media post, said, “Our Vice President’s legal experts, obviously, didn’t do their homework. They have relied upon a dissenting judgement of the Supreme Court and they have, in turn, asked our Vice President to rely on and reproduce it as the basis for his rejection Order.”

“Nobody in the right mind would do that (cite a dissenting order) because what is there in the dissenting judgement is not the authority. Nobody would pick up anything from a dissenting judgement. It is so disappointing that our Vice President has cited such an order. The dissenting judgement is the life of his order and there is practically no merit in it,” advocate Dhananjay said.

He further pointed out that the Vice-President should himself reverse his orders in the interest of the public, instead of waiting for some court of law to quash it.

The fact that a dissenting order cannot be cited or referred to is accepted even by former judges of the Bombay High Court as well as the Supreme Court.

Justice (retired) RMS Khandeparkar of the Bombay High Court (Goa Bench) said, “Normally a dissenting order cannot be used or referred to while passing an order/judgement. But at times there are general observations in a dissenting order which have nothing to do with the basis of dissent. In such circumstances, I believe the general observations can be referred to while passing an order, provided that it must not be the basis for deciding the matter.”

Similar was the view of a former judge of the Supreme Court and also the first woman Chief Justice of Bombay High Court – Justice Sujata Manohar. “It is true that a minority or a dissenting view cannot be cited as law but in this case the context must be looked at,” Justice Manohar said, while adding, “However, since I have not read the order of the Vice-President Naidu and also the context in which he has cited the order, I cannot comment on it.”