Of Dissent and Dissenters

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.