Representational image of the Supreme Court.

Dissent, in any form, is a wonderful way to practise democracy. A differing view in popular context is often assumed to be fallacious, and this has been the case over centuries. However, dissent has perhaps never assumed a more important role than now; it is the backbone of any democratic revolution. Dissent in the legal structure over specific judgements are particularly noteworthy, for it is them that keeps open the scope for future review and undoing of any potential injustice that might have been served earlier. India is one such fantastic example, as the apex court here plays a crucial part determining the validity of a wide variety of questions and issues. The success of a pluralist nation lies in its ability to celebrate difference- and thus the top court being truly reflective of India’s gigantic diversity, would naturally foster difference of opinion in most cases of judicial importance.

In the last week of September, which incidentally coincided with the remnant days of former Chief Justice Dipak Misra’s tenure, the Supreme Court was noticeably pro-active, delivering a voluminous amount of judgement over matters of national momentousness. We will restrict ourselves to three such monumental verdicts, each of which has a strikingly common feature- that of a dissenting judge. What is heartwarming in such majority verdicts is that instead of railing on the practice of majoritarianism stifling minority viewpoints, the Supreme Court has shown that divergent views can, and should be, appreciated. Such dissent often helps better, and in the process enrich, public discourse.

Examining the Cases

The verdict on the constitutional validity of Aadhaar would be a fine specimen of legal difference of opinion in the top court. Aadhaar, which was the brainchild of the erstwhile UPA regime, and crafted under Nandan Nilekani, was pushed forward as an Unique Identification Scheme for the teeming population of India. In subsequent years, what was touted as an identification scheme to expedite the delivery of welfare services to the needy soon became an all-pervasive tool that effectively armed the government with the sensitive biometric data of all Indians. The present NDA government had made Aadhaar mandatory in every possible sector, from banking to subsidy collections, from entrance registrations to issuance of certificates, the list went beyond the obscure. The concern was not only about the security of the biometric data in the hands of the government- but manifested itself into a case of breach of personal privacy by the State, which by all means is a serious accusation. Thus, the Supreme Court had to determine the Constitutional validity of the scheme.

On September 26, the Supreme Court upheld the validity of Aadhaar, but it came with considerable riders- which included the court declaring the provision of mandatorily linking Aadhaar with organisations (whether public or private) as unconstitutional, and thus void. This view was held by CJI Misra, who presided over the case, and three other judges of the Bench. However, it was Justice DY Chandrachud who strongly differed from the view held by the rest. He was of the belief that the Aadhaar project suffered from “constitutional infirmities and violations of fundamental rights”, that “constitutional guarantees could not be subject to vicissitudes of technology”, and noted that the Aadhaar Act was unquestionably unconstitutional as it failed to meet the basic criteria to have been certified as a Money Bill. In what could be regarded as a brilliant reflection, he observed that the “dignity and rights of individuals cannot be made to depend on algorithms or probabilities”. Chandrachud, thus, has through his dissent and obiter dicta kept alive a scope for an increased focus on the issue of State Surveillance in India- which the majority verdict does not explicitly mention.

The following day, on the 27^th of September, the Supreme Court decided in a 2:1 judgement against referring to a larger bench a plea to review its 1994 ruling on the Ayodhya dispute, in which it had ruled that the mosque was not essential to the practice of Islam, and that namaz could be offered anywhere by the Muslims, even in the open. While Justice Misra and Justice Bhusan rejected the plea for a review by a larger Bench, the third judge, Justice S. Abdul Nazeer, gave a contrary judgement. He opined that it was not possible for the Court to rule on such a subject matter unless there was a “detailed examination of the beliefs, tenets and practices” of the faith in question. He raised the crucial question whether Article 25, which dealt with the right to free practise of religion, only protected the beliefs and practices of particular significance from a faith or all practices that were deemed essential by the concerned faith. To further acknowledge his stand, he cited that the Supreme Court had referred to a larger bench a range of similar issues- such as the permission to hold the Ram Leela and Puja in public parks, or the issue of polygamy which was inherent to Islam.

Furthermore, on September 28, the Apex Court declared what could possibly be one of the most controversial verdicts till date- permitting women in their menstrual phase to enter the Sabarimala temple. The petitioners claimed that Lord Ayappa was a celibate and hence menstruating women could not be granted access inside the temple premises. However, the judges believed that constitutional equality was of paramount importance and that the practice of barring women between the ages of ten to fifty was nothing but a form of untouchability, which is not Constitutionally permissible. In this case too, it was a 4:1 verdict. Ironically, the lone dissenting judge was a woman- Justice Indu Malhotra- but she had solid reasoning behind her dissent. While Justices Misra, Nariman, Chandrachud and Khanwilkar refused to buy into the argument that the ban on menstruating women was an essential part of the faith, Justice Malhotra argued that what constituted an essential religious belief must be left on the religious community to decide. She emphatically noted that ideas and notions of rationality should not be invoked into matters of religion by the courts, as religion cannot be substantiated by rational defence alone. As history records, more often than not, the Supreme Court has been reluctant to take decision as far as religious matters are concerned. She concluded that unless a religious practice was “pernicious, oppressive, or a social evil, like Sati”, there would be no need for the Court to intervene.

The Way Forward

In all the above cases, the dissenting ideas presented were also equally pivotal for further deliberation. The Aadhar case raised the question of validity of the law itself (which was unduly passed as a Money Bill), the Ayodhya verdict intitated a new debate on the meaning of Article 25 as provided for by the Constitution, and the Sabarimala verdict opened a scope for people to question whether the Supreme Court should exercise self-restrain in verdicts requiring rationalisation of religion. Unless such contradictory opinions are thrust forward in the Court of Law, the vibrancy of a democracy loses its charm. The trend of appreciating dissent in the Supreme Court is indeed commendable. If it were looked down upon, today India might not have transgressed into a nation with such kind of enviable constitutional melange. More importantly, dissent goes on to show that the judiciary is not a singular entity working as one- a jury has minds of unquestionable legal acumen each working independently on a case. Thus, it would reduce the chance for any kind of inadvertent bias or possible error to creep into the judgement. In fact, even the top court has regarded dissent as the “safety valve” of democracy- perhaps only a subtle recognition of the indispensable nature that dissent plays.

As long as we have differing ideas, we have dissent, and as long as we can constructively debate on ideas while also taking into consideration the dissenting propositions, we evolve as a nation.

The rights of the LGBTQ+ group is an issue of contention in most parts of the world today. India, being a socially sensitive and a culturally diverse land consisting of different creed of people, has not been that open as far as recognising the LGBT rights are concerned. An archaic law from the colonial times was scrapped only recently, when in Navjot Singh V/S Union of India the Apex Court decided that Section 377 held no constitutional validity and consequentially decriminalised consensual homosexuality, triggering almost immediate Pride Marches across the nation and setting off a mood that the judicial neglect in Suresh Kumar Koushal v/s NAZ Foundation had been corrected at last. In this regard, a detailed study on the facts and obiter dicta for both the cases Koushal v/s NAZ, 2013 and Navjot Singh Johar v/s Union of India 2018 would prove insightful without doubt.

Need for Justice: Why the re-decriminalisation?

The basis for the 2013 judgement by the Supreme Court, which drew much flak from all quarters, was the Delhi High Court’s order in 2009 pertaining to the decriminalisation of homosexuality. In Naz Foundation v/s Govt of NCT, Delhi, the Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. Discrimination, as per the High Court’s observations, were grounded in stereotypical judgements and generalisation about the conduct of either sex. The Delhi High Court judgement was challenged in the Suresh Koushal case, wherein the top court opined that acts which fell within the ambit of Section 377 IPC could only be determined with reference to the act itself and to circumstances in which it is executed. The Court believed that Section 377 IPC would apply irrespective of age and consent, for section 377 does not criminalize a particular set of people with a definite orientation, but only identifies certain acts which when committed naturally results in an offense under the law. The Court further observed that those who indulge in carnal intercourse in ordinary course and those who indulge in carnal intercourse against the order of nature constituted different classes of people, and that people in the latter category cannot claim that Section 377 suffered from the follies of arbitrariness. In what could be considered the final nail on the coffin moment for the LGBT movement in 2013, while reading down the 377 IPC, the Court mooted that it could not be overlooked that only a miniscule fraction of the country’s populace constituted the LGBT and the fact that in the last 150 years, less than 200 people had been prosecuted- hence rallying against the minority itself, the safeguard of whose rights formed the pillars of a democracy. While passing the order, it remarked that in its (Delhi High Court’s) anxiety to protect “so-called” rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity, the High Court had extensively relied upon judgements of other jurisdictions- which as expected did not cut much ice with legal luminaries and the champions of the LGBT rights.

The 2018 verdict pronounced by the Supreme Court in the Navjot Singh Johar v/s Union of India is a much welcome relief. There were quite a number of interesting observations made by the Bench during deliberation and debate over the case. The Court noted that in the Suresh Koushal case, it had earlier erroneously upheld the constitutional validity of Section 377, stating that the LGBT population constituted only a miniscule fraction of the total population and that the fact that the Section was prone to being misused was not a ground to scrap it. The Bench felt that this was constitutionally impermissible, as the rights of even one individual is sacred and it was the duty of the Court to protect it. It also clearly brought out the fact that the Constitution was a “living, organic document” that was capable of evolving with the newfangled demands of the society. The role of the Courts, according to the bench, grows more important when the rights of a special class or minority group has been violated since the dawn of time. Therefore, it felt that it was their duty to robe the judiciary with the “armoury of progressive and pragmatic interpretation” to combat the evils of the society. Furthermore, it emphasized that transformative constitutionalism not only included within its purview the rights and the dignity of the people, but also to develop a supportive atmosphere wherein every person is bestowed with the opportunity to grow socially, economically and politically. Persons belonging to the LGBT segment of the society were denied such opportunities and oppressed at all possible junctions, resulting in a scenario of distasteful discrimination that struck at the very heart of a democratic society. Subsequently, it remarked that constitutional morality overrules social morality; and that nothing but constitutional morality can be allowed to permeate in the Rule of Law. The KS Puttaswamy v/s Union of India case elevated privacy to the stand of a fundamental right. The reasoning in Koushal case, wherein homosexuality was criminalised again as because the LGBT population was a minority, was found out of tune with constitutional mandates. The Court opined that the said reasoning was fallacious, as the makers of the Constitution could have never implied that the fundamental rights would only be extended to the majority, and not the minority.

The Way Forward

The takeaway is clear: The Supreme Court has now once again reaffirmed the fact that a citizen’s rights are inalienable, whosoever it be. To term the decision historic would be in more ways than one, an understatement. By one single masterstroke, the verdict restores the equality before the law of all sexual orientations and identities, which cover a diverse set of traits and people. More importantly, the decision brings to the forefront the apex court’s willingness to make the Constitution truly transformative- adapting and evolving with the ever shifting dunes of time. While India does have one of the largest constitutions of the world, legal perfection would arise only when the Constitution becomes flexible enough to leave behind social prejudices and civic ills of the past. Gender equality in India has always attracted the attention of the nation as a whole- and there, at last, seems to be hope that the most humiliated, damned and condemned would rise again to the pedestals of social success and acceptance.

In retrospect, the decriminalisation of section 377 IPC is indeed an appreciable verdict and a positive step. Now that the impetus has been provided, it is time that the subtler details are looked on carefully: the need to promote inclusivity in society. Those who have been ostracized and deprived of their legal, personal and political rights for long must be welcomed back into the society. However, this seems to be a difficult challenge. It is very easy to be an armchair commentator and paint flowery pictures of the reality that seems apparent. Social stigma is a dreaded disease in India; to eradicate it would require awareness drives from the grassroot levels. The 2014 NALSA judgement declared the transgenders as the third gender, and ruled that all private and public sector organisations must ensure workplace equality. MNCs have led the charge, which is a wonderful thing to observe. Bringing in sectorial reservation for the transgenders would ensure their livelihood and bring in economic security for their families, hence implementing the policy directives of the Constitution along with promoting the ultimate target of gender equality. This judgement is probably a move towards the New India we all want to see- a India apolitically united in its stand to secure the rights of the unrecognised, a India that celebrates, as it always had in the past its diversity; and a India that cherishes and celebrates variants from the perceived order of nature and accepts them as our own.