Dissenting judgments are a sign of what is possible

We must celebrate the tradition of dissent that matured and continues to flourish in the Supreme Court

Adissent in the court of last resort,” wroteJusticeHRKhanna,quoting thegreatAmericanJudge,Charles Evan Hughes, “is an appeal to the broodingspiritofthelaw, totheintelligence of a future day when a later decision may possiblycorrecttheerrorintowhichthedissentingjudgebelievesthecourttohavebeen betrayed.” But this was no ordinary time, and Justice Khanna’s dissent no ordinary dissent. In 1976, at the peak of the Emergency, four Judges of the Supreme Court had just held that the right to life was stood suspendedduringastateofEmergency.The lone dissenting voice in the notorious HabeasCorpusCasewasJusticeKhanna’s. It cost him the Chief Justice-ship of India, and the rest of his judicial career.

Threemonthsago,anine-judgebenchof the Supreme Court held that privacy is a fundamentalright undertheConstitution, andindoingso,heldthatHabeasCorpushad beenwronglydecided,andJusticeKhanna hadbeencorrect.Forty-oneyearslater, the intelligence of a future day had prevailed.

In his concurring opinion in the Privacy Judgment, Justice Rohinton Nariman spokeofthe“threegreatdissents”inIndian constitutional history. Apart from Justice Khanna’s dissent in Habeas Corpus, there was Chief Justice Subba Rao’s dissent in KharakSinghvsStateofUP(1962), holding against five of his brother judges that the Constitution guaranteed a fundamental righttoprivacy,andthatpolicesurveillance regulationswereentirelyunconstitutional. The third was Justice Fazl Ali’s dissent in AKGopalanvsStateofMadras(1950),oneof the earliest judgments of the Supreme Court.TheGopalanmajorityhadheldArticle 21 of the Constitution, which stipulated that “no person shall be deprived of his life orpersonalliberty except accordingtoprocedureestablishedbylaw”,providedonlya narrow protection against lawless infractions of bodily integrity and personal freedom by the State. Not so, said Justice Fazl Ali,arguinginsteadthatthephrase“proce- infallible sign of the presence of God”.

According to German philosopher Immanuel Kant, happiness is the satisfaction of all our desires (extensively in regard to their manifoldness; intensively in regard to their degree; and also protensively in regard to their duration.)

Whatever way we define it, happiness is the true purpose of life, for which we struggle and never lose hope. That means we have to have positive thoughts and be in action that leads to the betterment of all.

It is only in a state of being happy that dureestablishedbylaw”requiredthatdeprivationsoflifeorpersonallibertymustconformtostandardsthatwerethemselvesjust, fair, and reasonable.

Justice Fazl Ali’s dissent in AK Gopalan became law two decades later in the bank nationalisation case, while Justice Subba Rao’sdissentinKharakSinghhadtowait55 years. Perhaps unsurprisingly, eachof the “three great dissents” were on vital questions of civil rights. The majority judges ruled to preserve, entrench, and even expandStatepoweragainsttheindividual, whilethedissentingopinionssoughttoconstrainwhattheStatecoulddototheindividual and to her freedom. None of the three judges lived to see their dissents accepted and even celebrated.

Butthatisexactlywhywemustcelebrate the tradition of dissent that matured and continuestoflourishintheSupremeCourt. While the majority opinion lays down the law, adissent allows usto imagineanalternatefuture.Adissentisnotonlyan“appeal toafutureintelligence”,butasignofwhatis possible: if one judge can be convinced today,thentomorrow,perhapsmoremight be.And,incasessuchasHabeasCorpus,AK Gopalan, and Kharak Singh, a dissent is a reaffirmation of fundamental rights and constitutional values at the moment when theSupremeCourt,theguardianoftheConstitution,appearstohaveabandonedthem.

Andthatiswhy,perhaps,eventhosedissentsthatarenotresurrectedremainetched in memory, often more strikingly than the majorityopinions.ChiefJusticeSinha’sdissentintheDawoodiBohraCase(1962),apassionate defence of the individual’s right not tobearbitrarilyexcommunicatedfromhis community, is still atourdeforce, drawing together the Constitutional prohibition of untouchability andideasofculturalpluralism. Justice Lakshmanan’s dissent in Acharya Avadhuta (2004), allowing the Ananda Margi sect to perform the tandav dance, is perhaps the best defence in our constitutionalhistoryoftherightofindividuals and communities to determine for themselves what their religion means to them, and demands of them.

In Jewishcultural history, there is atradition of prophets who appear in times of desperate need, and warn people that they are walking on a wrong path, one that will end in ruin and devastation. Our constitutionalhistoryhashaditsownprophets,who haveexpressedthemselveseloquentlyand powerfully through their dissenting opinions. The dissenting tradition, is one of the most important traditions that we have, indispensable to keeping the Constitution alive,andathingofflesh,blood,anddreams.

A DISSENT IS A REAFFIRMATION OF FUNDAMENTAL RIGHTS AND CONSTITUTIONAL VALUES AT A TIME WHEN COURTS APPEAR TO HAVE ABANDONED THEM

you can be positive, and the vice versa. That is why we are told to be positive even in the worst of crisis in our arduous journey of life. That would help not only overcome the roadblocks but would also help you maintain the balance of the scale of life that has a tendency to swing either way, too often.